L028 - Tue 22 Oct 1985 / Mar 22 oct 1985
MUNICIPAL ELECTIONS AMENDMENT ACT
EQUALITY RIGHTS STATUTE LAW AMENDMENT ACT
MOBILITY RIGHTS STATUTE LAW AMENDMENT ACT
The House resumed at 8 p.m.
MUNICIPAL ELECTIONS AMENDMENT ACT
Hon. Mr. Grandmaître moved, seconded by Hon. Mr. Nixon, second reading of Bill 27, An Act to amend the Municipal Elections Act.
Mr. Sterling: I should indicate that our caucus is in support of Bill 27. However, because of events that have occurred in my riding over the past few days --
Interjections.
Mr. Sterling: Mr. Speaker, now you understand why we are going to try to do away with night sittings. Two members of the standing committee on procedural affairs and agencies, boards and commissions are causing the most fuss tonight. They are from the New Democratic Party.
As I was saying, our caucus supports Bill 27, but I feel obligated to speak briefly, and as succinctly as I possibly can, about a set of circumstances dealing with the Municipal Elections Act which has occurred in my riding in the past few days.
Before I begin that, I would like to congratulate the member for Ottawa East (Mr. Grandmaître), who of course is from eastern Ontario, on his appointment to the very important post of Minister of Municipal Affairs. From his past record, I know he will be fair to all members of the Legislature in trying to deal with problems across our province and will deal with them in a fair manner. I know he will be most concerned in particular with the problems of eastern Ontario.
The problem that has arisen in my riding relates to the current municipal election. In the town of Kemptville, the clerk of the municipality has rejected one of the two people who were nominated for the position of deputy reeve. I have nothing to choose between one candidate and the other, but I thought it would be important for me to draw attention to what is perhaps a defect in this legislation.
I will relay the facts of the situation which occurred in order for the minister to have some time in the next few days to attempt to resolve this problem.
On Friday, James Wrong was nominated by 10 people who are, by definition, entitled to vote for the position of deputy reeve. Unfortunately, two of the people -- and there were only 10 people on the nomination list -- were not on the preliminary list of electors. One of those persons made application to be included on the list after Friday noon, when the nomination papers were given to the clerk of the municipality, and therefore was qualified as being a qualified nominator; so there were nine out of the 10.
The 10th person called the clerk's office and said: "I am signing a nomination paper for James Wrong to run as deputy reeve of our municipality. My name is not on the list of electors. How do I get my name on the list of electors?" The answer from the clerk's assistant was, "You must apply to the municipality, but you have until Wednesday to apply to get your name on the electoral list."
Although the clerk had the nomination papers over the weekend, he made no contact with the candidate. I confirmed that with the clerk this evening before coming into the Legislature. At 5 p.m. or shortly thereafter, when nominations were closed, the clerk determined there was one name short on the nomination sheet for James Wrong.
Unfortunately, although the other fellow who was correctly nominated for the position, Howard Wilson, had nothing to do with this entire process, but perhaps blame, for whatever reasons, may be attributed to him. I should make it clear that there should be no blame on that individual.
Clause 36(1)(a) of the Municipal Elections Act says one must not only be an eligible voter in order to sign the nomination but also must be on this magic list. The individual who caused the rejection -- if we want to single it down to that one party, which is what happened -- actually owns a business on the main street of the town of Kemptville. The clerk in all probability knew this individual was going to be eligible to vote in the municipal elections.
The thrust of my story, and perhaps it was exhibited in the municipal clerk's conversation with me, is that he felt no obligation -- in fact, he felt reluctant -- to go to the candidate and say:
"Mr. Wrong, your form is wrong." He felt that would be interfering politically with the process and that he would be favouring one candidate over the other. He said to me: "The obligation is totally on the candidate to get enough names to make certain he is on the list."
What had happened in the story, as I have already indicated, was that the nominator who caused the rejection had made some positive steps to try to rectify it but was given some wrong information.
l believe clause 36(1)(a) should be amended so that all that would be required would be 10 eligible voters. Perhaps another section should be included to say it would be conclusive evidence if they were on the electoral list to prove that; that would take the clerk off the hook as to going through the list and doublechecking the names as they came in.
That would in some way put some onus on the clerk. I think it is important in Ontario, and particularly in small-town Ontario, to get as many qualified candidates as possible to run for elected office. By indicating to the clerk that he has to go one extra step, I do not think we are involving him in a political process.
8:10 p.m.
The minister informed me in the House earlier today that it used to be 50 electors. Dropping the number to 10 is an indication that when we were changing the act before, our government wanted as many people as possible and to make it simple to be nominated. Therefore, I suggest the minister consult his officials prior to bringing Bill 27 back so we can consider that amendment then.
Mr. Breaugh: I had a little difficulty following the previous speaker as I searched through the one clause of the bill which allows the clerk of a municipality to return the roll and has to do with establishing boundaries after April 1. I had to work to find the relevance of the principle of the argument, but I admit that somewhere in the muck and mire that has just been presented probably there was a principle of some kind.
We support the bill and will be happy to see it proceed.
Mr. Haggerty: Having listened to the contributions of both previous speakers, I want to share some concerns about this bill. I see it says the clerk is to divide the wards of a municipality into polling subdivisions and to inform the assessment commissioner of the boundaries of each subdivision not later than April 1 in an election year.
I hesitate to say the clerk should make that decision. If I interpret it correctly, it leaves it to the clerk to be the final deciding factor without having public input. The town of Fort Erie has had some difficulties over the past 10 years or so in trying to establish wards in the town that would be fair in terms of representation. Sometimes the older part of a municipality is well established with respect to streets and population and then you deal with parts of the rural municipality, and sometimes I feel the rural sector, particularly when there is a large municipality established through legislation here, may cause some difficulties with respect to fair representation.
I do not like to see the power left with the clerk. The power should come from the elected representatives, and that is the council.
Mr. Breaugh: There is a real opposition party.
Mr. Haggerty: Well, the copy of the bill I have says it was proposed by the Honourable D. R. Timbrell. We are talking about the same bill. I suppose if I were on that side of the House I would be saying the same thing. Regardless of which side of the House I sit on, as a member I have a right to speak on any of the issues here. My friend the member for Oshawa (Mr. Breaugh) and I, having a bit of Irish in our heritage, we will not let any moss grow under our shoes, one might say.
Getting back to the bill, there is too much authority given to the municipal clerk. The elected representatives or concerned citizens should have a right to say how these wards shall be established. Under the old section, when one wanted to expand or change wards in municipalities, one had to go through the process of an Ontario Municipal Board hearing. That may be the safety factor in this, although I do not see it here unless it goes back to making reference to other chapters of the Municipal Elections Act.
I am concerned that an appointed official of a municipality should have the power to divide a municipality. I do not think that is the intent of this legislation. The concern of the citizens should be put first, before any of this. This might have been a resolution from the Association of Municipalities of Ontario, I do not know; however, it may not be quite the right approach to take under our democratic system.
Hon. Mr. Grandmaître: I want to make sure everybody gets this legislation straight. It will amend the Municipal Elections Act to deal with the current ward system in the city of Oshawa and in several other municipalities. It will do so by removing the requirement in section 17 of the act whereby the clerk must inform the assessment commissioner of the municipality's polling subdivision boundaries by April 1 of an election year. This change will enable affected municipalities to make revisions to their polling subdivisions after April 1.
Motion agreed to.
Bill ordered for third reading.
FAMILY LAW ACT
Hon. Mr. Scott moved second reading of Bill 1, An Act to revise the Family Law Reform Act.
Mr. O'Connor: I welcome the opportunity to address the House on a bill of real interest and concern to myself and to our party. I can indicate at the outset that our party will be supporting what we see as a highly progressive piece of legislation.
We wish to commend the Attorney General (Mr. Scott) before he leaves the chamber, provided he is listening, for his foresight and wisdom in bringing forth this very progressive bill. I see him scurrying back to his seat to accept the plaudits of this side of the House for his wisdom.
This bill was originally introduced by the present Attorney General's predecessor, who happened to have been a Progressive Conservative and who was part of the government at the time. Thus, we do support it and heartily so.
In my previous incarnation, before being elected to the giddy heights of this House on May 2, I was a family law lawyer for a family law practitioner, and had been for the past 15 or so years. As such, I had the opportunity to work extensively with the current and existing Family Law Reform Act, which Bill 1 revises quite extensively.
When the Family Law Reform Act was first introduced in 1978, it was heralded as a significant advance to the rights of separated spouses, and particularly to the children of marriages and common-law relationships. Because the bill was new and totally changed the existing common law as it applied to marriages, separations and marriage breakdowns, it was required to go through a significant period of judicial interpretation. The courts developed approaches to the major new issues in that law, particularly as they related to property division, support for spouses upon separation and exclusive possession of the matrimonial home.
8:20 p.m.
The concept of custody, which was the other major issue dealt with under the Family Law Reform Act had, of itself and through the common law, developed quite significantly by 1978 and therefore required little further evolution under the act.
The bill now before the House is the culmination of the significant judicial and scholastic thought which over the past seven or eight years was applied to the Family Law Reform Act during its existence. There are several advances and updatings made to the previous law in Bill 1. I would like to run through those briefly and touch on them, and I urge all members of the House to consider them and consider supporting them.
First among those are the property division sections. This is the area which required the greatest amount of reform over the seven years of the development of the old law and as contained in this bill. Previously, assets of a married couple or common law couple were divided into two different categories: family assets and nonfamily assets. There were significantly different rules applying to each of those two categories upon separation or breakdown of the marriage.
Family assets were generally those items which were used and enjoyed together by the couple or the family as a unit. They generally included the house, the car, the cottage, joint bank accounts and so on. They were usually easily identified, easily characterized and the rules with respect to them were quite straightforward. Basically, upon a separation, the family assets were divided equally between the parties.
The difficulties arose with respect to nonfamily assets. They are items that were generally owned or held by one of the spouses to the exclusion of the other and to the exclusion of the family. They usually included things like the family business and perhaps an inheritance that one of the spouses might have acquired and had invested to his or her own use without any right or encroachment by the other members of the family.
Typically, the rules provided that on the breakdown of a marriage the nonfamily assets were to be held and kept by the owning spouse and the other spouse could acquire an interest in the nonfamily assets only if he or she were able to show that one had in some way contributed to the purchase, the maintenance, the buildup or the expansion of a nonfamily asset.
I can say, as a family law lawyer, the ends to which lawyers went to make their cases, to show their clients had made some contribution, were quite extensive. We would get into not only direct monetary contributions, which were quite easy to calculate and identify, but we would also get into assessing how many times the wife might have attended at the husband's place of business, how much of a contribution she might have made by way of looking at the books or by making suggestions as to how the business should be run.
We even got into -- I can recall several cases where this occurred -- attempting to calculate how many cocktail parties the wife would have thrown in the house for clients or customers, or potential clients or customers of the husband, to show she had made some kind of a contribution. It was really a difficult and tortuous procedure to determine entitlement.
The difficulty of all of this was that it missed the point entirely. It missed the point of the contribution that, in the usual or normal family relationship, both of the spouses made towards the success of that marriage, the success of that relationship.
The new act simplifies the approach to asset distribution. We now recognize that a marriage is a partnership involving joint responsibilities and contributions -- different responsibilities, different contributions, but generally equal contributions. That is, if one of the parties puts on his Sunday best clothes, goes out to work, actually earns a paycheque and brings it home, it is now recognized that he or she no longer makes a greater contribution to the family unit than does the partner who remains at home -- usually the wife, who may work part-time but who usually remains at home -- manages the children, keeps the house, makes a contribution to the general welfare of the family, to the comfort of the wage earner and in other respects that traditionally had not been recognized simply because he or she did not earn a paycheque.
An hon. member: The farm wife.
Mr. O'Connor: The farm wife, as I am reminded by the honourable member, is a classic example of that situation. I do not think there are many wives in traditional marriages who work harder than the farm wife, who is up with her husband and does similar types of jobs around the farm, from tending cattle to making all of the meals to raising the children.
Finally, although the courts have struggled with this concept for some years, we have seen the wisdom of codifying that involvement in the provisions of this bill, which now provides for an equal distribution of all assets, be they family or formerly classified as nonfamily, with the exception of a few matters, which usually include inheritances, gifts and some assets that were brought into the marriage by one party.
Generally, the concept is the equal distribution of all assets. This is progressive and it is as it should be.
A second area in which there is some significant change is that of mediation. There has been developing -- quite rapidly, I might say -- in the family law litigation area a somewhat informal system of mediation whereby matrimonial disputes are, often at the suggestion and agreement of the parties, referred to a mediator upon consent for purposes of the parties attempting in a more amicable setting to solve some of their problems, some of their outstanding differences, instead of having to submit to the litigation process, which very often exacerbates the feelings between them and creates more difficulties because of its confrontational nature than does the mediation process under an experienced mediator.
Section 3 of this bill establishes authority in the court to appoint a mediator and sets out rules for him or her to act when requested to do so by the parties. Again, the bill merely codifies what has been well-recognized practice in the family law bar for some time.
A third area of significant change is that of common law marriages. Formerly under the Family Law Reform Act a common law relationship had to have survived for a period of five years, if there were no children of that relationship, before one spouse could seek any support rights against the other spouse upon the breakup of the relationship. The new bill reduces that five-year waiting period, or that five-year period to establish the permanency of the relationship without children, to three years.
8:30 p.m.
Where children have been produced of the relationship, formerly the law was that there had to have been a two-year relationship. We have now reduced that period not to any particular time but to a period that is described as being of some permanence so that, presumably, if a couple in a common law relationship have had a child and the person making a claim for support is able to show that the relationship was of some permanence, be it one of six months, nine months, 12 months or whatever, then that person is, and should be, in my opinion, entitled to some support.
My only concern is that whereas the main thrust of the bill is to reduce or to do away with as much litigation as possible through the use of mediators, through the use of codifying or through changing the approaches to the division of assets, this section, which now requires somebody to show a situation of permanence, may promote litigation.
If there is not a set time period which is easy to identify, then one side will be leading evidence in a court case to show there was a permanent relationship and the other side will be trying to show the relationship was of a passing nature and not one of permanence. We will see what the courts do with that one. I am sure rules will develop whereby litigants will be guided as to what is meant by the permanence of their relationship.
The enforcement provisions of this act are significantly strengthened, and well they should be. The enforcement of support orders in particular, and other orders of the court, have been strengthened. Previously it was impossible, or very difficult, to seek garnishee or attachment proceedings against pension funds, which in the normal course of family relationships were often owned by a husband.
The act specifically makes a certain range of pension funds subject to attachment, subject to garnishee by a claiming spouse. Those include the Ontario municipal employees retirement system, the Pension Benefits Act, the Public Service Superannuation Act and the Teachers' Superannuation Act. All now are subject to claims, whereas before they were inviolate.
Another practice has been incorporated in the act which had been informally adopted by the litigating family law bar in the province. Again it is one I believe should have been codified, as it has been. That is the question of indexing support orders. In the situation as it existed, the courts felt they did not have the authority or jurisdiction to order that a support order be subject to the consumer price index, and simply would not do that.
The courts would make an order for a set amount of support that should be paid, for instance, by a husband to a wife. She might wish for an increase in that order as time went on. The husband might be making more money or she might have fallen on hard times. There was inflation, particularly during the years 1981 and 1982, when inflation was in double digits. A couple of years went by and by 1983 the dollars the wife was receiving in 1980 might be worth a third to even a half less than when the order was made.
What was necessary then was usually for the wife to reapply to the court to have the order made several years before adjusted. That meant a fresh application, with the costs, inconvenience and time involved; and it was usually resisted by the husband. There was a necessity to resort to the lawyers and it was generally an unsatisfactory situation to litigants; not to the lawyers, who welcome that kind of thing, but I am here representing the people of this province and not my profession necessarily.
The indexing provisions of this bill now permit judges to make orders that can go on to be subject to being increased regularly -- or decreased should the CPI decrease -- but increased regularly according to the CPI or some formula tied in with the CPI. This should prevent the multiplicity of applications that existed in the past.
Those are some of the rather broad and sweeping changes this bill brings about, changes we can heartily support. I might point out, however, one significant difficulty that has arisen with respect to the bill as drafted. The provisions of the bill, particularly section 72, provide that the property division sections are to be retroactive to June 4, 1985; June 4 being the day the bill was first introduced to this House by the former Attorney General, the member for Cochrane South (Mr. Pope).
The thought behind that approach, and presumably what he had in mind, was that during the course of this bill through the House, which we anticipated would be a brief course, we did not want thousands of people, particularly husbands, to anticipate the coming provisions about division of assets and then attempt to speed up the procedure and rush their settlements to conclusion.
The establishment of a retroactive clause as of June 4 would have prevented all that, but what has occurred in the profession and to all those people who have gone through separations, either shortly before that time or over the past summer, is that there has been a considerable degree of uncertainty.
On the one hand, people, particularly those with more assets than their spouse, have looked at the bill and said: "I am going to get caught by that section. Maybe the bill will not go through. Maybe it will be amended on its way through. I had better wait or I had better settle up with my spouse on some basis;" anticipating that it either will or will not go through.
In other words, people have been speculating. In some cases, people have attempted to rush their cases to conclusion. Others, anticipating that section will be included in the bill, have attempted to delay their cases hoping to do better under the new act once it is brought in.
From personal experience, I can tell members that a good proportion of family law cases which were pending in June have simply ground to a halt. Applications are being made to the judges for adjournments on the basis that the present law provides for a certain regime of property division. They can read as well as anybody that the new law is retroactive to June 4. If they make a decision based on the old law, as soon as the new law is passed the litigants before them will be coming back asking for a better deal -- in the case of the wives -- than they got under the old law.
As a result, quite a number of justices of the Supreme Court and judges of the district court are acceding to the requests to adjourn cases. There is a significant backlog of cases of this type building up while people are wondering what is going to happen.
I suppose we can lay blame. This government is supposed to govern and bring matters forward. We all agree this is a progressive piece of legislation and that it should be passed as quickly as possible. It well might have been passed before we rose last summer, thus preventing much of the difficulty that is arising in the family law bar at present.
I would ask the Attorney General, if he is to address us on this bill, to consider solutions to the problem that has arisen. It is not sufficient to simply say: "We are going to get the bill through right away. We are going to do it as quickly as possible." He has to put his mind to the fact that some four or five months have now passed, and perhaps more by the time this goes to committee, is reported back to the House and finally passed, and there is a significant number of litigants out there in a real quandary, wondering what to do with and about their cases.
8:40 p.m.
Generally, those are my remarks. I can confirm again that our party is fully in favour of this very progressive piece of legislation. We feel it should get on to its conclusion as quickly as possible, but that severe and significant difficulty I have addressed should be resolved by some solution on the part of the government before the bill reaches its conclusion.
Ms. Gigantes: I feel this is a historic moment. We are dealing with the reform of the Family Law Reform Act. It is seven years since we had the first round in this Legislature. It was seven years ago that we debated many of the issues that are being touched on, if not addressed, in the discussion and the bill before us tonight.
I would like to take a moment to reflect on the fact that some of the major items in this bill are items the New Democratic Party put forward as amendments to the legislation we dealt with back in 1978 and which we said and stressed were going to have to be addressed by the legal system in Ontario. I do not mind saying we were right and that it would have saved a lot of pain and agony if we had had Liberal support, for example, in the discussion of what should be included in family assets, now called net family property.
I would also like to reflect on what those seven years have meant. We knew when we passed the original legislation that for thousands of people in Ontario, principally women, the bill we were then dealing with, while it certainly did not go as far as time has proven it should have --
Mr. Haggerty: That is what the former member for St. George, Margaret Campbell, said. She said the same thing.
Ms. Gigantes: Yes, but her colleagues in the Liberal caucus did not agree. I remember her colleague from Ottawa East gave us a little lecture one day in committee. We were talking about an amendment and a better bill. He said: "We cannot change the world through legislation. We cannot change reality." I think we have proven what reality is by the fact that whether Liberals or Conservatives are ready to address it at any given time is one thing, while what we really have to deal with is another.
Back in 1978 we knew the bill was a step forward for thousands of women in Ontario. I think it has proven that, but we do not know for sure how much of a step forward it was because there has never been adequate monitoring of the effects of the legislation. It is an utter shame we do not have that monitoring as we address reform of the reform.
I seriously suggest to the Attorney General that he set up a monitoring mechanism at this stage. I think it is one of the most important pieces of legislation we have, one that reflects on the tone and civility we expect in human relationships in Ontario and on the concept of mutual responsibility within a relationship of marriage and within a relationship that has children.
I think it speaks to a change in the way we value children, provide for their support and recognize the people who do the main job, mainly women, obviously, of bearing, but also of raising, caring for and taking the major responsibility for children.
For those reasons, I think this legislation needs careful monitoring. I do not think it would be a terribly sophisticated, complex or costly job. It would be of tremendous importance to have that monitoring occur, particularly if the bill goes ahead in its current state, because this bill has flaws. I will come to those as I see them.
I would like to say one other word, which is that we knew back in 1978 that the bill we dealt with then would certainly not address the problems that were confronting thousands and thousands of other women for whom this piece of legislation was essentially irrelevant, who were members of families who did not have a matrimonial home, who did not really have any family assets and where, in many instances, the major income earner did not have enough money to support two families.
We are going to address part of that problem in our consideration of Bill 14, in which we will finally take some public responsibility in Ontario for the enforcement of support and custody orders. I am pleased about that. I think these two bills go hand in hand. They certainly do not address all the needs of all the families in all of Ontario, but they will go a long way.
The previous speaker, my colleague the member for Oakville (Mr. O'Connor), pointed out there are three major sections in the bill. Family assets are now being called net family property, and there is a proposal that there should be a 50-50 split of net family assets. This we support wholeheartedly, and we have done so, I should point out, for seven years.
The provisions in the bill that deal with the division of net family property may not be adequate, and I think this should be taken into serious consideration when we discuss the bill in committee. The speaker before me suggested that pensions are now included. They may be and they may not be. It is not spelled out in the net family property section and it ought to be spelled out.
I will tell members why. Back in the old bill, the bill under which we are operating now, there was a provision that allowed the court to share nonfamily assets, something that we might now call net family property; so it is not really a new concept that there could be a sharing. The bill we passed in 1978 gave the court power to share property -- nonfamily assets it was called -- where the 50-50 sharing of the matrimonial home did not provide the dependent spouse with adequate compensation for such things as household management or child care; but that did not mean that sharing of nonfamily assets took place.
In fact, in a case that went to the Supreme Court in 1982, Leatherdale versus Leatherdale, it just did not work out that way. The Supreme Court ruled that if there was no dispute about one section of the bill, namely, the division of family assets, then the court could make only a very limited division of other property, which was referred to as nonfamily assets. In that case, the assets that were being talked about were pensions. There was not an equal division and there was not a compensatory division of fairness. In fact, one of the justices wrote of his concerns about that interpretation in writing a dissent to the Supreme Court decision to Justice Estey.
I am concerned that this bill does not spell out in the relevant section, section 5, that pensions should be included. I think it should spell that out. We have enough knowledge now to know that what is not spelled out can be debated, and what can be debated can be denied to a spouse who has a right to an equal share in any equitable framework.
8:50 p.m.
The net family property section, which provides for a 50-50 sharing, does not take into account home management or child care as a reason for varying the 50-50 split of net family property. It allows discretion by the court which I think is too wide in one sense. It allows for a court to vary a 50-50 settlement of net family property that would be unconscionable because of "special economic circumstances," but it does not provide for a variance based on the kind of contribution that women have traditionally made and will continue to make to home management, child rearing and child care. Those are lacks. We have enough experience now to know we must spell out these things if we want to see judgements based on them.
We do not have any provision in the sharing of net family property for the payment of interest. That is something this bill should address, because a court judgement can occur quite a long time after a separation occurs. If there is to be a sharing of the property and if it is to be equitable, then a delay in that sharing is going to cost the dependent spouse. It should be spelled out in the bill that interest should be attached to that delay.
I would also like to see a change in the bill that would provide against the kinds of decisions that have occurred under our existing legislation related to the sharing of property or the matrimonial home, because of an interest acquired by a creditor or because of a bankruptcy declared by the spouse with the greater financial interest. The Attorney General has received submissions on that score. I would like him to consider an amendment on that point.
One other point that I think it is fair to raise in discussing the net family property section of the bill, part I, is that in many of the cases that have come to public attention since 1978, and here again I think it would be extremely useful to have a monitoring system for judgements, we have seen that the partner with the greater financial power, the man in all of the cases I am aware of, has been willing to ruin assets in order to punish the dependent spouse. There have been several outrageous examples of that. I think we had better take care in this bill that we make as great a provision as possible against that occurring.
When we get to the discussion of net family property, which includes business property and farm property -- and it should specifically include pension assets -- I would like to see that as soon as an application is made under part I the court should be called upon to review the potential for the stronger partner, the spouse with the greater financial power, to set out deliberately to ruin the assets that are available to the spouses. I would like to suggest to the Attorney General that section 12 should include that kind of provision.
On the matrimonial home section, one would think, given the bill in 1978, there could be very little doubt what would happen in terms of a sharing between partners on the matrimonial home. In fact, there have been some gross examples of how unfair the results of an action under this section can turn out to be. In effect, in some cases it was quite clear that one partner set out to rob another. The stronger of the two partners in financial terms was able effectively to rob the weaker financial partner.
I would draw to the members' attention Stoimenov versus Stoimenov, the case that went through the Ontario Court of Appeal in 1985, where a husband went through incredible lengths in a successful attempt effectively to deprive his wife of a share in the matrimonial home. He swore false affidavits and he got a lawyer who knew that the home was a matrimonial home to act as if it were not a matrimonial home.
I think there is clear indication, given that kind of experience, that we should write a provision into this bill that requires a party who is acquiring rights to a home to take some responsibility for determining that it is not a matrimonial home; otherwise, the right of the dependent partner can be absolutely undone.
There have been high legal judgements on this question. The previous bill did not satisfactorily protect the rights of the dependent spouse to a share in the matrimonial home. This bill contains the same language and, therefore, the same potential flaw for cases here in Ontario.
Given those judgements, and the Attorney General will be well aware of them, it is important that we take the necessary steps to do what we can to assure that it will not happen again. We are talking about the matrimonial home here. What is more defensible? What should be defended with greater care than the sharing of the matrimonial home? This bill does not provide for that.
If it causes a bit of inconvenience for people who are buying homes to go to the trouble of assuring themselves they are not acquiring a matrimonial home and abusing the rights of a dependent partner, that is too bad. One has to go through a fair number of legal mechanisms to acquire property, and this should be one of them.
On neither of these first two parts, parts I and II dealing with net family property or the matrimonial home, are the rights of common law relations and common law partners really provided for. I would suspect that most people in Ontario would not be aware of that. In fact, the only part of our family law that provides some kind of protection for common law spouses is the part that deals with support, part III.
Therefore, I think we have to pay very special attention to part III. That is all we are offering a partner in a common law relationship. We do not have enough monitoring to be able to know what kinds of judgements may have been made about the provision of support in common law relationships. We should have that information; I hope we will in the future.
9 p.m.
This section of the bill still has some gaps. This part calls upon the court to "recognize the spouse's contribution to the relationship...." What does that mean? When it gets to a court of law it means nothing. What is a spouse's contribution to a relationship? That and five cents will not get one anything.
It says the court should "recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse." That sounds better. It sounds as if there may be some recompense for the spouse who may have been at home looking after children or making a home that provides entertainment and a gracious lifestyle for another spouse, but who loses experience, advancement and pension benefits in the paid work force.
What it means is that we will try to address and make recompense for the negative impact of withdrawal from the work force or of a choice of a certain kind of job in order to be with the common law spouse. Nowhere does it say in this section that the courts should give recognition to a spouse's contributions to the relationship in a positive way, including the direct and indirect economic contribution and the provision of home management and child care. I think we can do better than that in 1985; I think we should, and I hope we will.
Our support section still contains that infamous morality clause. It says that in the provision of support, one of the things the court may take into account is "a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship." Guess who is meant by that. Is it the man, the person who is being called upon to provide the support? No, that has to do with the behaviour of the dependent spouse.
If the woman engages in some unconscionable act, a course of conduct that constitutes "an obvious and gross repudiation of the relationship" -- if she has an affair -- then forget the support; let them go to court and argue about her behaviour. That is what it means. That clause is not directed to the partner who has the financial wherewithal. It is there to allow that partner to argue that the dependent spouse should receive either no support or less support.
We do not know what that clause has meant. I do not know; I do not know whether the Attorney General knows; I do not know whether anybody in Ontario knows what the effect of that clause has been. I have been made aware of cases in which it seems to me to have had an effect on judgement.
Mr. Sargent: Which clause is the honourable member talking about?
Ms. Gigantes: We are talking about new subsection 33(10).
Mr. O'Connor: There have never been cases based on the morality clause.
Ms. Gigantes: It may never have been raised in a case, but whether it affected a judgement is perhaps another matter. I am aware of at least one case in which I believe it affected a judgement on support. I will bring that to the attention of the member for Oakville later, if he likes.
Mr. Philip: It can also be used as a threat.
Ms. Gigantes: It can be used as a threat, as my colleague the member for Etobicoke (Mr. Philip) points out. It is part of the negotiation that goes on. It is there to be negotiated; it is there for the purpose of negotiation. If we do not want it in a negotiation we should take it out; that is what I would advise.
Section 36 is going to need some review, and likely revision, in the light of the proposed amendment to the federal Divorce Act. What is going to happen at the federal level is that the Divorce Act will not permit time-limited support orders which can say, for example, that a dependent spouse will get support for three or four years. Further, the proposed amendment says the dependent spouse cannot appeal or ask for a variance of that order until the time limit has passed and then only if there has been "a material change in the conditions, means, needs and other circumstances of the party."
Under the Divorce Act, with this amendment in place, the problem that would face dependent spouses who are women, and most are, would be that nothing would have changed materially once the time-limited support order had been met. There would have been no material change. The woman might still be in the position of being dependent and needing support, and the Divorce Act amendment seems to box the situation.
When the bill is in committee I would like the Attorney General to address the question of how he expects this to fit together adequately with the proposed reforms we have in front of us and to seek a change, if possible, in section 36 that will mitigate what I think are the worst features of the amendment to the federal Divorce Act.
I would like to see section 40 strengthened. It says the court may, on application, order that a spouse not deplete property to avoid support payments. Here we come back to the same question I raised earlier. It seems to me we should call upon the court to review automatically the likelihood of the spouse with the greater financial power taking such steps. It is a little late once the assets are gone. There have been cases where it has happened, and there have been dependent spouses who have suffered. For us to have legislation so weak it does not even attempt to address that in an active way seems to me to be failing the tests we have been through with the old bill and seems to me to be a refusal to recognize the reality that these events can occur.
The member for Oakville talked about the question of retroactivity. I find his argument difficult to follow. His argument seems to be that if people have been waiting almost five months to have the bill become retroactive, what we should do is pull the rug out from under them immediately and let them know that all their wait has been for nothing and that the equitable distribution of net family property they had hoped for, and which we are saying they have a right to, should be whipped away. That does not make any sense to me.
9:10 p.m.
He says he knows there are a significant number of litigants who are in a quandary. If they have been in a quandary this long they can be in a quandary for the few more weeks it is going to take us, if it takes us a few more weeks. It seems to me to be absolutely ludicrous for people to argue at this stage that someone who has known since June 4 that the application of this legislation was going to be retroactive to June 4 should now be given a retroactive bonus to avoid sharing assets we are saying should be shared. As far as I am concerned, retroactivity stays.
In closing, I would like to say I am looking forward to the discussion in committee. It is an interesting bill on top of the fact that it is an important bill.
I would like to read into the record the words of Mr. Justice Estey as he commented on one of the more difficult cases that came out of the old law, Leatherdale v. Leatherdale, to which I referred earlier. I would like to suggest that we all try to bear in mind these very fine words as we approach our work on the bill. In 1982, he said:
"Family law, more than any other branch of the law, must provide where it is possible simple and clear rules which readily lend themselves to expeditious application in the trial courts. Litigation over family matters is never economic, always a heavy expense and a painful experience. The simpler the rules, the easier their application by the courts; and even more important, the more readily applied by the legal advisers to the members of the family, who must always strive to settle family differences without recourse to the delay, expense and pain of court proceedings."
I think that goal is one we can hope to achieve in this bill. I look forward to our work on it, and I hope we will reach that goal.
The Acting Speaker (Mr. Morin): The member for Scarborough-Ellesmere.
Mr. Warner: Thank you, Mr. Speaker.
Mr. Sargent: Mr. Speaker, on a point of protest: I want to say that this lady's presentation should be taken with the greatest interest by this House. I appreciate it very much.
Ms. Gigantes: The member is so gallant.
Mr. Warner: He always is.
Does the member for Carleton-Grenville (Mr. Sterling) want to participate? Since we normally go by rotation, I will yield the floor to my colleague the member for Carleton-Grenville.
Mr. McClellan: I have his speech from 1978. He had better be careful.
Mr. Sterling: I will be careful. In 1978, I had the privilege of carrying the Family Law Reform Act of 1978 through the committee stage. At that time the then Attorney General had a problem with his back and could not sit through the very lengthy debate at the committee stage. I hope our present Attorney General does not have the same problem when this gets to the committee stage, because I think it will require his full attention.
Before going into a few remarks, which I will keep brief, I would like to acknowledge that some of the people who were involved with drawing up this legislation were also involved with drawing up what I consider to be the historic legislation of 1978, the Family Law Reform Act.
It was historic because, as some of the previous speakers have said, it dealt with putting into statute form what had been accumulated over a number of years -- I guess 100 years -- of common law. In setting it down in statute form, at the committee stage we had to consider the decisions the courts had made. However, we also had to consider various social and moral values that we as legislators wanted to put down on paper. That was a very difficult task.
Craig Perkins of the Ministry of the Attorney General has been involved with this as much as anybody else, along with Allan Shipley. I understand Michael Cochrane has also been working on it recently. I want to congratulate each and every one of them, along with the legislative counsel, Cornelia Schuh, on the fine work in the draft of this bill. No doubt their work will be under the scrutiny of the committee when this bill -- I presume it is going to committee -- reaches that stage.
The Family Law Reform Act and this act to revise it will probably be the most litigated piece of legislation in Ontario. Therefore, when we sit down as legislators to go through the particular sections, it is important for the Attorney General to take a significant amount of time on each and every part of the bill. He can be certain, as was the case in the past, that there will be litigation surrounding each and every section of the bill; that probably will include all the definitions as well as the other parts of the bill.
I urge him to take what I considered at that time to be a nonpartisan approach. I was supported very strongly by people such as Margaret Campbell in the Liberal caucus and the member for Ottawa Centre (Ms. Gigantes) and Jim Renwick in the New Democratic Party caucus.
Mr. Sargent: Do not forget me.
Mr. Sterling: Okay. Unfortunately, the member for Grey-Bruce was not on that committee, as I recall. Was he on that committee?
Mr. Sargent: Yes.
Mr. Sterling: Oh, he was? I am sorry. I thank the member for Grey-Bruce as well for his contributions.
Generally speaking, it worked out better that we were sitting in a minority parliament dealing with the legislation, because it is not a political piece of legislation, nor should it be. Each and every member of this Legislature has had people come into his or her office, be they male or female, who have been totally distraught over having gone through the trauma of a separation or a custody fight -- which is probably the most disastrous of all -- perhaps eventually leading to a divorce. We are not discussing that today, but we are dealing with the nuts and bolts of a matrimonial breakdown.
As the minister goes through these issues, it is important that they be laid out. He can draw on the expertise of people such as the member for Oakville, who has had a lot of recent experience in this area. I am certain the minister will do that. We are most fortunate to have someone of his calibre dealing with this issue, because he has had this recent experience.
As the minister goes through the act, he should try to explain the practical effects as well as what appear to be the political effects of the section.
9:20 p.m.
One of the things I have always been concerned about is the enforcement of anything the court does in a particular situation. Going back to my days before being elected, I was always upset, and I have been upset since the coming forward of many constituents to my office, about the enforcement of orders. I do not know whether what the minister is proposing in the bill is satisfactory or unsatisfactory, but if he is going to monitor the bill as suggested by the member for Ottawa Centre, that would be the area that might be as easy as any other area to monitor.
I do not know whether it is possible to monitor decisions of the courts as to whether they are deciding on a 50-50 basis or a 40-60 basis or who gets what kind of support over a long period of time. If one is involved in these situations, one learns that each and every situation is different from the next. If a lawyer has 100 cases walking through the door, he soon realizes it is very rare for two to be alike.
Having looked back at the 1978 legislation and then looking at this bill, I think the 1978 legislation has not done too badly, considering that the drafters were basically starting from zero in Ontario when they put that piece of legislation down. Some problems and concerns were expressed back in 1978 which did not prove to be valid. I expressed some concerns during that debate in committee. However, I think a lot of those concerns have been addressed in the present Bill 1.
As long as the process is gone through fairly carefully and as long as the public and the people who are involved in the enforcement of the sections of the bill have an opportunity to express their opinions about it, then we can have a very decent piece of legislation. I do not think the Attorney General has exhibited to this date the kind of attitude whereby he would turn a deaf ear to amendments that are reasonable, practical and would make the bill even better than I think it is at this stage of the game.
I do not know whether I will have any opportunity to sit on the justice committee when this is going through it. Maybe I should not sit on the justice committee when this is being considered, if it in fact goes to the justice committee. After the eight years of legislative experience since that time, I might have to take some stands that are somewhat different from those I took then, but that usually does not bother me. Any way, I will be most interested in the progress of the committee and I will, of course, serve on the committee if asked.
Mr. Warner: I appreciate the opportunity to participate in the debate. Before beginning, I have a couple of observations. If I am not mistaken, this is the first bill the Attorney General has brought into the House. He must be particularly proud of this achievement and particularly pleased to have the opportunity to introduce some reform measures. The Attorney General has a reputation that goes before him of being not only a brilliant lawyer but also a person who listens and who is very sensitive to social issues. That reputation certainly is well known and has preceded him into this chamber. It is particularly fitting that this be the first bill introduced into the Legislature, Bill 1.
It is a bill that has to be viewed not as an individual piece of legislation but as part of a continuum. It is part of the development of family law. It grows out of a tremendous need to civilize our relationships. It grows of a tremendous need to provide equality for women in our society. It is part of that continuum and it is not the end product. I think the Attorney General will admit that. It is part of a change, but it is not the final answer. At the same time, the law is not a dead thing either. The law is a living thing and it changes, and this law and the Family Law Reform Act will change over time as well.
I also noted within the chamber over a number of years, that there has been a nice change. People who are not lawyers feel a little more willing to participate in debates on what some would view essentially as lawyers' matters. This bill is not a lawyer's matter per se. It is couched in legal terms, as it must be, and the end result is that it will be dealt with by the courts, but it is a bill which belongs to everyone in the province. All members should feel they are able to participate in the debate on it.
I listened very closely to the comments of my colleague the member for Ottawa Centre, our critic for the Ministry of the Attorney General. She made some extremely intelligent comments on the bill, and a number of suggestions which I assume the Attorney General will take seriously and will ponder, and will then come back with some response.
There are a couple of things which are extremely important with respect to the principle of this bill. I come to that by way of a very real case with which I am currently attempting to deal. I beg the indulgence of the Attorney General and the House for a few moments as I unfold this tragic story.
A lady appeared in my office and at the outset it seemed that what she required was some answer to a housing problem. As we started to unravel the story, it turns out that she is a woman who has four children, all of whom are of school age, the two oldest being in grade 13 and college. None the less, the four of them are dependent on a parent or parents.
Until the marriage broke down, she was at home minding the children, trying to raise the children, trying to help them with their homework and all of the normal things women in the home attempt to do so well and usually without any recompense.
The marriage broke down. She was able to obtain some part-time work, and then later full-time work. The full-time work was in one of these magnificent banks we know are so famous for paying well. She showed me her paycheque. Her full-time employment was grossing some $13,000 per year at a very responsible job. On $13,000 she was supposed to raise four children and pay for her housing, and the rent was very high. With four growing children they required several bedrooms. She could not make ends meet.
The obvious question is where is the husband in all of this? I inquired. The husband had decided that after 20-odd years of marriage he would prefer someone who was somewhat younger and so he found someone and away he went. He had a business and it was a very prosperous business. My instinct was we know the Family Law Reform Act and there should be a sharing of assets and this will help to solve her economic problems. It is not quite that simple.
The husband had taken his business and put it in the name of the woman with whom he was now staying and had declared bankruptcy. For all intents and purposes in the courts, he had no money. The woman with whom he was staying was managing the business, but there was no formal relationship between those two people. My constituent is left without any claim.
9:30 p.m.
She did manage to get support payments agreed to by the court and prescribed, but his response was, "I will pay them if I feel like it." One month she would get a payment and another month she did not, Sometimes it would come two or three months in a row and then nothing, because it was as he felt like it. I know there is a companion piece of legislation, Bill 14, which addresses this very real problem. I understand that, but I am dealing with her problem today. That is a backdrop to the principle of this bill and what we are attempting to do.
This woman, living in my riding, at this point is put into a very untenable position. She cannot count on the support payments, and apparently she has no way of obtaining what should rightfully be 50 per cent of their marital relationship. However, she is left with four children, all of whom she is attempting to obtain a first-class education for so that they will be on their own.
It is a magnificent family. The children have said to her: "Hang in there. Somehow we will scrape by and in another year one of us will be working. We will share the money that we get." All of them are attempting part-time jobs, trying to share the work and help their mother. It is a tremendous family effort. She has great children, and the five of them are struggling along nicely.
Meanwhile, this irresponsible clod is really enjoying himself. He is off on little vacations. He has the source of the money, but she cannot get her hands on any of it. That disturbs me greatly.
What has to happen, through this bill and through Bill 14, is that we have to answer that problem. I listened to my colleague the member for Ottawa Centre, and I am not sure this bill entirely addresses the situation my constituent faces. I may be wrong. If I am, I would greatly appreciate the Attorney General so indicating.
There is another aspect of this that I hope we can address as we go through. I have wrestled with it and part of it is language. We use the word "dependent," and that usually means the wife is dependent on the husband. "Dependent" is a word that bothers me, because if we believe in family law reform we believe in an equal sharing or equality. We have to find ways to deal with the language and ways of changing it.
Another word that bothers me is "support." We talk about support payments. I would prefer to use the term "responsibility" payments, because I think it is the responsibility of the partners to make payments. The notion of support means that woman is still dependent on the man. What happens if he decides that he is not going to support her? For whatever reasons, they have terminated their relationship as far as living together is concerned. They still have a financial relationship and that is built on mutual responsibility. I prefer to call it responsibility payments.
As we work our way through family law reform, not just in this bill but in subsequent bills which will follow over the years, we have to address the language we use. I hope we can eradicate the whole notion of dependency and one spouse having to support another.
I know other members wish to participate in this debate. In closing, I support the principle of the bill. I do not think the bill is fatally flawed. The Attorney General will be relieved to know that the spirit of co-operation, which seems to prevail in this chamber on occasion, will continue to prevail with respect to this bill and that between the three parties we can come up with the kinds of positive changes which are required in the bill, at least from my perspective. With the three parties working together we can create an excellent piece of legislation of which all of us will be proud, but which, more important, will serve the public of Ontario extremely well over the next while.
Mr. D. R. Cooke: We newly elected members of the government party are anxious to have as much legislation passed as quickly as possible and to get this bill into committee, so I am going to be very brief.
A number of points have come to my mind over the course of this debate. I believe Ann Landers once said -- and she took a poll before she did so -- perhaps the most difficult thing in life is a matrimonial separation, over and above even the death of a loved one. As a result, it is extremely difficult sometimes to work through the problems of family law that result from separations that may occur.
Like the member for Oakville, I have practised a great deal of family law over the course of a similar period. I suppose because of the law to some extent, I have preferred to practise criminal law, especially in recent years. That does not need to be the case if we have a fair and equitable family law. I compliment former Attorney General Roy McMurtry for first introducing this legislation and the present Attorney General for endorsing it, because by and large it is valuable.
However, the important thing we have to consider when we are looking at family law is equity. As legislators, we have to leave as much as we conceivably can to the judge to look at the circumstances of the specific situation. All is not wrong with the male spouse; all is not wrong with the female spouse. Circumstances vary in different situations.
I think it wise that we update these rules. I accept generally the widened meaning of family assets. That is a very important and wise decision to make. I believe it important to consider contracts, so that they can occur during the course of the marriage.
I would suggest the administration is also very wise to include mediation as part of the legislation. Mediation occurs to a large extent now and it may be that mediators can accomplish what cannot be accomplished by a judge in the formality of a courtroom; it should be incorporated into the legislation.
As well, the registry of orders is important. I believe this occurs now to some extent in some other provinces and it is working well.
I suggest we should not emphasize only the problems of support, as the member for Ottawa Centre has. Registry and enforcement can apply as well with regard to access. I suppose it is usually the case that it is the father who is seeking access and who feels he has been cheated of what is rightfully his. He should be aware that with the passage of this legislation he will have better means of receiving administrative assistance in obtaining access than perhaps he had in the past.
9:40 p.m.
In our area we have a very active and vocal organization called Fathers for Justice. I do not always agree with everything it does. It is of the view that the pendulum has swung too far, I suppose particularly towards the rights of the mother in custody and support matters. They are a little too aggressive for my liking, but we should be aware that they exist. They are concerned and they are anxious, perhaps because of some recent judgements that in their opinion have not taken the rights, as they feel they are, and the considerations of the father into consideration before they are made.
This is another reason that when we consider this legislation we should look as carefully as we can at leaving as much power as possible to the judge to look at the particular factual situation. The operating word, I would suggest as this matter goes to committee, has to be discretion.
I agree with the member for Ottawa Centre that monitoring, to the extent it is feasible economically, is a valuable activity. I agree with the member for Ottawa Centre and not with the member for Oakville that the matter should be retroactive. I would suggest that we leave in subsection 33(10), because whatever that means is up to the judge, it is up to the judge to apply it in individual circumstances.
The member for Carleton-Grenville said that no two cases are alike. Again, discretion is the most important thing. Let us take this, get it on into committee and catch up with the realities and the needs of family courts today.
Ms. Bryden: I welcome this bill and, along with my colleagues, I support it; but it is very long overdue. I sat on the 1978 committee in which Bill 59 was considered. As is the case with all new legislation, one does not see all its flaws at the beginning, but very soon after it was proclaimed many loopholes started to show up. However, we waited for seven and a half long years for a revision from the previous government, even though "promising" Roy McMurtry kept telling us from 1982 on that he was reviewing it and that he was going to bring in a new law. That government never got around to it until the deathbed session, when Bill I suddenly appeared just before the government changed.
It is regrettable that thousands of women were denied a just share of the assets accruing to a marriage during those seven and a half years, particularly after the loopholes had been discovered. The Leatherdale case, which was mentioned by my colleague the member for Ottawa Centre, indicated that the law did not recognize the contribution of a wife in the home. When she tried to collect her share of some Bell Canada shares and a registered retirement savings plan owned by her spouse, she was allowed to collect only an amount that had accrued during the period when she was working. She was not working for half of her marred life, so she got only about a quarter of the husband's assets in that field.
The Stoimenov case, which has also been mentioned, was another one in which a woman was deprived of her matrimonial home because the husband swore a false affidavit that he was not married and, therefore, there was no matrimonial home, and then put huge mortgages on that house.
In 1983, I brought in a private member's bill to rectify those two situations, but the government of the day, the Conservatives, rejected that bill. They could have brought in their own bill to rectify that situation back in 1983.
In 1984, the member for York South (Mr. Rae) put a motion in Orders and Notices calling for a revision of the Family Law Reform Act along the following lines:
"That in the opinion of this House the Family Law Reform Act should be amended to eliminate the present artificial and inequitable distribution between family and nonfamily assets and to replace it with a system of deferred community property which would recognize both spouses as equal in the partnership and give adequate recognition to the contribution of homemakers so that an equal sharing of all property and debts acquired during marriage, excluding therefrom gifts, inheritances and property acquired by either spouse prior to the marriage."
The member for York South was following the recommendation of the Ontario Law Reform Commission in 1974 in regard to community of property. This bill also accepts the recommendation of the commission, but it did not happen until there was a deathbed repentance.
I find it rather surprising to see Conservative members getting up to say this is very important and necessary legislation when presumably Mr. McMurtry could not get it through the cabinet for the seven and a half years during which the flaws were starting to show up. The election appears to have brought them kicking and screaming into the modern world where marriage is recognized, or should be recognized, as a partnership. They only gave lipservice to the principle beforehand.
The preamble does say that the objective of the bill is to "recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership." The actual working-out of the bill indicated this was not provided for in the bill; so we need these amendments to bring the bill into conformity with its preamble.
I would like to pay tribute to family law lawyer, Linda Silver Dranoff, who started in 1983-84 to circulate petitions calling for the concept of deferred community of property. She formed an organization called the Justice Committee for Family Law Reform and she educated a lot of people as to the kind of law that was needed for the fair sharing of all assets.
In 1978, the New Democratic Party members of the justice committee did actually try to bring in an amendment which would have required all assets to be covered by the law, but we were voted down by both the Liberals and the Conservatives at that time. It seems they have both suffered a change similar to being struck on the road to Damascus.
There are some very good amendments in this bill such as the indexation of support orders according to the consumer price index; the enforcement of support orders against pension assets; the right to obtain exclusive possession of the matrimonial home under certain criteria that are set out in section 25, and the provision for court appointment of mediators. That has been mooted as a possible answer to some family breakdown situations, but there was no specific provision for it in the previous act.
9:50 p.m.
Other forward steps are the improved requirements for the enforcement of domestic contracts which are provided for in the act as part of the possible arrangement between husbands and wives and the bringing-in of the rules for determining a child's domicile which conform to the Charter of Rights and Freedoms.
The main problem with the previous act, outside of its denial of the coverage of all assets, was that too much was left to judicial discretion. We must make sure the new act very carefully defines what are considered unconscionable circumstances in which judges may vary the distribution of assets provided for in the act. The distribution is supposed to be on a 50-50 basis. It should not be varied except under very extreme and unconscionable circumstances which are carefully spelled out. The definition of property should be expanded to include pension income as property. That is not spelled out.
The previous government used to tell us that we were so far ahead of other provinces in our family law bill that the delay was not really a problem; we were still very far ahead. That is the typical Tory reaction. When it does not have a good excuse for not doing something, it always resorts to bombast about Ontario's laws being so far ahead of the laws of other provinces. That was the former Attorney General's favourite device to stave off questions about when his new law was coming in.
In actual fact, for a number of years, at least four other provinces have had the family law apply to all assets acquired after the marriage. We simply have not been in the forefront. We have been dragging our feet. The only way to change that appeared to be to change the government. I hope the surviving members of the former government, who sit to my right, have also changed and will vote for this bill.
We might ask why the Attorney General of the previous government and the cabinet stalled so long.
Mr. Philip: He could not bring his colleagues around.
Ms. Bryden: Who was he protecting? Was he listening to the thousands of aggrieved women who were not getting a fair share of assets, who were not having their contributions in the home recognized as part of their contributions to the family assets? Was he listening to the voice of women's groups representing hundreds of thousands of women, who also said that it was only fair that all assets acquired during the marriage should be shared? Was he listening to his own government-appointed Status of Women Council, which was also telling the government that this was a long overdue reform and there was a great injustice being put upon women under the so-called equality sections of the family law?
It appears that he was not listening to those voices. I hope the new, more open government, which is to come under the NDP-Liberal accord, will mean that those voices will be listened to and that they will be responded to by legislation which meets the needs of the majority in this province.
The record of the length of time we have had to wait for this reform has been shameful. I am very glad to see that the bill has finally been brought forward. I hope it will be passed speedily.
Mr. McClellan: I do not want to take a lot of time. The hour is late, the attention is flagging and I know the Attorney General is anxious to have his first major piece of legislation concluded. However, it would be irresponsible of me not to make a few historical comments on the bill in front of us here tonight.
Some of us have been around this circle before. I simply want to remind the House, as I speak in support of the principle of Bill 1, of the long and protracted debates that were held in this House in 1978 on the question of equal division of assets.
I recall very clearly, as though it were yesterday, when my colleague Ted Bounsall moved his amendment to section 3 of the bill, setting out a definition of family assets and the mechanism for an equal division, which he succinctly expressed in the formula "add it up and divide by two." What howls of outrage came from the ranks of the then-governing party and, I must say, from the Liberal Party, which at that time was the official opposition. They howled and yelled as though this were an assault on the very fundamentals of our economic system, that it would bring the entire edifice of free enterprise crashing down around our heads.
Mr. Mancini: Is this the same speech you made last time?
Hon. Mr. Bradley: Is this the party of the past or the party of the future?
Mr. McClellan: I simply want to rise and applaud the conversion of my colleagues opposite, but I also want to stress what a fundamental conversion has taken place. The position has changed 180 degrees. I have spent the evening listening with one ear to the debate that has been taking place and with my eyes I have been reading the debates from 1978.
How wonderful it was to reread the attack on the notion of equal division of assets by Mr. Roy, Mrs. Campbell, the member for Niagara Falls (Mr. Kerrio), Mr. G. Taylor, Mr. Williams and Mr. McMurtry.
Mr. Foulds: Some of them are not with us any more.
Mr. McClellan: Some of them are not with us and some of them are still with us. All of them expressed the view that the notion of defining marriage as an equal partnership and of instituting the equal division of assets was an impossibility. How much better it would have been if all of that reactionary rhetoric had been stifled seven years ago. We had the opportunity seven years ago to bring in a piece of legislation that could have made genuine partnership possible and a rational division of assets a reality and spared many hundreds and probably thousands of women the kind of injustice and suffering they have experienced since 1978.
I simply say that en passant for the purposes of the historical record and not to be mean or to cavil at all. I want to applaud the Attorney General.
Interjection.
Mr. McClellan: I am not finished yet. Hold on a moment.
Mr. Sterling: Mr. Speaker, may I ask --
Mr. Speaker: A point of order or a point of privilege?
Mr. Sterling: May I ask the present speaker a question?
Mr. Speaker: That is up to the person speaking.
Mr. McClellan: No.
Mr. Sterling: Mr. Speaker, may I rise on a point of privilege? For a point of clarification, I think the present speaker should acknowledge that the members of his caucus agreed with the other committee members to the division of assets as contained in the bill of 1978.
Mr. Speaker: Order. The member for Bellwoods (Mr. McClellan) has the floor.
10 p.m.
Mr. McClellan: It is wise of you, Mr. Speaker, to rule this kind of unruly interjection out of order. Nip it in the bud, I say.
My colleague the member for Windsor-Riverside (Mr. D. S. Cooke) moved an amendment to clause 3(b) of the old statute which was supported by Mr. Renwick, Mr. Lawlor and all members of this caucus in the debates of March 7 through March 10, 1978. To those who have a morbid interest in the historical, I commend that debate.
I have said all I wanted to say. I applaud the initiative of the Attorney General in bringing forward a bill that does address the problem. I am sure we will have some interesting discussions and debates as we move into committee and try to make this the forest piece of legislation it is possible to craft, and I am sure my colleague the member for Ottawa Centre will have a great deal to contribute to that debate.
Mr. Philip: The other day I was reading something that perhaps members have not recently read --
Hon. Mr. Bradley: The comics.
Mr. Philip: Some members on that side of the House may be reading the comics if they have nothing better to do at their cabinet meetings. I was reading some of the sermons of a great historian and theologian by the name of Görres. Görres had an interesting sense of theology and evolution coming together and the fact that somehow progress was made through a dynamic intercourse of ideas and history progressed in a positive manner.
As I read the debates of March 1978, I had the sense that maybe Görres was right. It was only a few months ago that I rose in the House to talk about the Metropolitan Toronto Police bill. We saw that many of the things we had said on that bill suddenly came out as reforms by the Attorney General and history was made and progress was made.
I look at the debate of March 16, 1978. On third reading there was only one speaker and it was me, as chairman of the committee. I gave a speech that lasted exactly two paragraphs. I said at that time:
"There's no doubt that this bill has taken a major step forward. The sections concerning the matrimonial home, marriage, marriage contracts and support obligations are certainly desirable, enlightened and welcomed by all members of the House."
As chairman of the committee that struggled with the bill, I had some satisfaction that a lot of progress had been made at that time. However, I went on to say:
"I have listened closely to the arguments on all sections of this bill and I am disturbed by the conduct clause which is still being left in the bill. I am incensed by the injustice of the division-of-assets section of the bill. I feel so strongly about the need for a more equitable distribution of assets that for me to vote for the bill on third reading will be unconscionable."
With that short speech, all members of this party voted against the bill primarily and almost exclusively on those two items. To his credit, the Attorney General -- no doubt with some influence from the former Attorney General, who I think wanted to go in a progressive way but was delayed by his colleagues at that time -- has recognized that a major problem that we in conscience could not vote for in the bill at that time had to be removed, and this bill does it.
There are some changes and some clarification, and my colleague the member for Ottawa Centre has made what I am sure will be acceptable suggestions to the minister concerning pensions and expansion of the definition of assets. I think that will be cleared up in committee.
A major problem we had in supporting the bill at that time has now been rectified. I suggest the other major reason we voted against the bill should similarly be removed from this bill.
I compliment the minister on the bill, and I look forward to discussing this in greater detail with him during committee consideration.
Hon. Mr. Scott: I would like to thank the members of all parties who have participated in this debate for their useful and thoughtful contributions. In particular, I want to seize the opportunity that has been given to us by the member for Carleton-Grenville, who suggested our approach to a bill of this type in this House should be nonpartisan because the issue of family law and family law reform is so important to almost all the people in the province.
That has been the tradition of this House from the reform of 1978 up to the present. It is no accident that in 1985 this bill might have been introduced by any of the parties here. I am glad I have the honour of piloting it through the House, and I look forward to the very useful contributions I am sure members will make in committee in that same spirit. We have here an opportunity in a nonpartisan way to do a good, useful and progressive thing that will, perhaps more pointedly than any other legislation, affect thousands of our fellow citizens in a beneficial way.
The members opposite have pointed out that the major feature of the bill is the provisions that relate to the division of property. We have had some useful comments from the members, particularly the member for Ottawa Centre, about some of the implications of that which we propose to deal with in committee.
I draw the attention of the House to the observations made by the member for Oakville about the starting date, which was proposed as June 4. We intend to listen carefully to what is said in committee about the starting date, but at the moment I should tell members of the House we are committed to that date as a matter of policy. That was the date announced in the initial bill, and parties in litigation since June 4 have had in mind that the bill contains that provision. It seems to me only an emergency would justify a change in a provision upon which actual litigants have since relied. The policy of the government, therefore, while never absolutely inflexible in a minority situation, will be to support the June 4 starting date.
I have a number of modest amendments and a few significant amendments to be made to the bill in committee, some 40 in all, which shows it is still possible to improve substantially on the work of the late government, which we hope to do. I will be providing copies of some 40 amendments to members through a reprinting of the bill with the amendments underlined, and they will be introduced in committee in due course.
The most substantial of the amendments relates to what happens in the case of a death of one of the spouses. As the bill is now drafted, in some circumstances the surviving spouse would be entitled to the benefits of the matrimonial property division under the bill in addition to any financial provision made by the will of the deceased. It is my intention to introduce an amendment that will permit the surviving spouse to make an election between those two alternatives, rather than have the cumulative effect of both the division under the act and the testamentary benefit. It seems to me that is more consistent with the general spirit of the legislation and, therefore, that amendment will be made.
10:10 p.m.
The member for Ottawa Centre made references to subsection 33(10) and indicated she was aware of cases in which a court had used conduct in a support case to obtain an inappropriate result. I am not aware of any such cases, and I rather share the opinion of the member for Oakville on that subject, which I think was expressed during the course of her remarks. I would be delighted to see any such cases and I would be grateful and would expect her to produce them if there are any.
I would like to make a number of other comments about some of the precise observations the member for Ottawa Centre made. Most of them can be left for committee, and that is what I propose to do. I note, however, a couple that are important.
My friend suggests the bill is defective because it does not refer expressly to the sharing of pensions. As she will see, the bill provides for the sharing of all property of any nature. Those broad words clearly include all property of any nature, and included in all property of any nature are, of course, pensions. I believe the amendment that concerns her is unnecessary, though I will be delighted to consider it afresh.
The honourable member also expresses her concern that homemaking and child care are not a factor in property-sharing. Technically speaking that is correct, but the whole thrust of the bill is to provide for an automatic division in which such considerations will not come into play to ensure a 50-50 division.
She makes a number of other comments that I think on reflection she will be able to be satisfied about, such as interest. Interest is, of course, provided under the Courts of Justice Act, and with respect to the ruination of assets, I think an examination of the sections there will show that her concerns are met.
She also makes reference to the matrimonial home. In this connection we take the view that third-party creditors for value should not suffer in the fight between husband and wife. Obviously, if they did suffer, it would be virtually impossible to get any mortgage of any type on a matrimonial home, because the mortgage lender would always run the risk that the husband and wife dividing their asset would be able to take precedence over his share.
I want to thank all members for the thoughtful comments they have made on the bill. As I say, we have an opportunity here, which we do not always have, to do something useful, productive and worth while for thousands of our fellow citizens all across the province, and I will be delighted to consider the suggestions the honourable members have made as fairly and as openly as I can in committee in the hope and expectation that the combined efforts of all of us can make this the best possible bill.
In closing, I want to acknowledge on behalf of the staff of my ministry the very kind comments that were made by the member for Carleton-Grenville, particularly in relation to Mr. Perkins and Mr. Shipley. Though I have not been in the ministry long, I have come to value their judgement and their opinion profoundly, and on their behalf I want to thank the member for his kind comments.
Motion agreed to.
Bill ordered for the standing committee on administration of justice.
EQUALITY RIGHTS STATUTE LAW AMENDMENT ACT
Hon. Mr. Scott moved second reading of Bill 7, An Act to amend certain Ontario Statutes to conform to section 15 of the Canadian Charter of Rights and Freedoms.
Hon. Mr. Scott: I am pleased to have the honour to move second reading of this bill which was introduced by the previous government and which we have adopted. The function of this bill is to bring Ontario statutes -- there are a number of them -- into some measure of conformity with the equality rights contained in section 15 of the Canadian Charter of Rights and Freedoms and into conformity with provisions of the Human Rights Code of Ontario.
Most of the amendments in the bill deal with statutes which discriminate on the basis of age, sex, religion and marital status. This government has committed itself to eliminating all forms of discrimination and to working towards a more just and equal society. We are proceeding with the statutory amendments in Bill 7 as a necessary part of the commitment, but we realize the bill is only one step, the first step, in the process of ensuring that our laws and practices conform.
We know that to get real effect for the rights guaranteed by section 15, we cannot interpret equality in a narrow or technical way. Discrimination which is not overt and not intentional must also be addressed. We must look beyond the letter of the law to the actual effects on individuals of government action. Although this is always a difficult and complex undertaking, it is one this government and this ministry are fully committed to carrying forward.
This government has already announced its intention to promote equality through other measures, We are preparing legislation to ensure equal pay for work of equal value, and we will be introducing pension reforms which will eliminate sex-based mortality tables. We have also announced our plan to give financial assistance to women who wish to bring court cases to enforce their rights to equality under section 15. We hope that where litigation cannot be avoided, this fund will contribute to the realization of those rights.
Our commitment to these principles will be evidenced by the addition of a number of items to Bill 7 which I intend to make in committee. Among these will be the repeal of subsection 19(2) of the Human Rights Code, a provision which now isolates from challenge, acts of sex discrimination in sporting activities, This kind of absolute barrier, which does not take into account the abilities of women, has no role in the Ontario of the 1980s. I would ask the members to consider the provisions of this bill and enact it as quickly as possible. The equality rights guaranteed by section 15 of the Charter of Rights have been in force since April 17 this year and the amendments incorporated in the bill, in my respectful opinion, are long overdue.
Mr. O'Connor: Again, on behalf of our party, I indicate our full endorsement for the package of Bill 7. To a great extent, as the Attorney General (Mr. Scott) has indicated, it is a housekeeping provision to bring into conformity many of Ontario statutes with the provisions of section 15 of the Canadian Charter of Rights and Freedoms.
A quick perusal of the bill indicates there are 110 or 112 statutes which are being amended by this single bill to do away with what has existed in most cases as minor discriminatory sections.
10:20 p.m.
In addition to commending the Attorney General for bringing this forward, I would be remiss if I did not commend the staff members in the Ministry of the Attorney General who have devoted hundreds of hours of work towards putting together this bill. It must have been a considerable undertaking for whoever did it, to have to scour the entire realm of statutes in the Revised Statutes of Ontario and to read literally each section of every statute to determine whether it would require some amendment to bring it into conformity with the charter.
It is easy for the Attorney General, myself and others to stand and commend this bill with our stamp of approval. The work has really been done by the civil service in this case and it is to be commended. We support the bill and will be doing so in all its phases.
Ms. Gigantes: On behalf of our caucus, I would like to indicate our support for Bill 7. Did I understand the minister to say he wished to send this bill to committee?
Hon. Mr. Scott: Committee of the whole House.
Ms. Gigantes: In that case, perhaps we should have a little discussion of the bill so that our discussion in committee of the whole, when it comes, can be complete. If it is to move to committee of the whole, I would like to indicate some sections that I am sure would interest the members as to exactly what measures are being proposed and the significance they will have for society in Ontario over the next few years, the next decade, as we live in line with the charter.
Ms. Bryden: I was very pleased to hear the Attorney General say he was going to piggyback on this bill his repeal of subsection 19(2) of the Human Rights Code, which might be called the Justine Blainey section after the girl hockey player who wishes to play hockey but is barred under subsection 19(2). I hope it will get passed in time for her to play this season in the hockey league of her choice.
I would also like to ask the Attorney General whether he has considered dealing with discrimination against part-time workers in community colleges who have discovered they are not covered by any of the collective bargaining legislation -- the Labour Relations Act, the Crown Employees Collective Bargaining Act or the Colleges Collective Bargaining Act. Therefore, they are out in limbo as far as their human rights go. I am sure the Charter of Rights would not consider that acceptable treatment of one class of employees. It appears an amendment to the schedules to those three acts is necessary to bring that group into a position to exercise its right to collective bargaining.
I would also like to comment that this omnibus bill to remove all the discriminatory clauses came in extremely late in the process. Governments have had three years since the charter was adopted to search out those discriminatory factors. The previous government dragged its feet on that as well. As a result, the bill is coming in long after section 15 of the charter was proclaimed.
People who have been discriminated against in some cases have had to go to court prior to this bill being passed. A lot of the court cases could have been eliminated if the bill had gone through before the section was ready for proclamation. I think the government was not doing its job of looking at the charter and the discrimination in its own statutes to be ready for the proclamation of that section of the charter.
Mr. Sterling: I want to indicate my support generally for this bill. I have one question of the Attorney General. When he goes to committee of the whole House, will he be introducing any amendments to look at the discrimination contained in Bill 30, which is currently being considered?
Motion agreed to.
Bill ordered for committee of the whole House.
MOBILITY RIGHTS STATUTE LAW AMENDMENT ACT
Hon. Mr. Scott moved second reading of Bill 8, An Act to amend certain Ontario Statutes to conform to section 6 of the Canadian Charter of Rights and Freedoms.
Hon. Mr. Scott: I draw to the attention of the House that Bill 8, the Mobility Rights Statute Law Amendment Act, is designed to give effect to the charter provision respecting mobility rights that essentially will ensure that all Canadians, wherever they may come from, are free to work in Ontario. The bill illustrates the province's commitment to enforcing charter rights in this jurisdiction.
On motion by Ms. Gigantes, the debate was adjourned.
The House adjourned at 10:26 p.m.