CANADIAN BAR ASSOCIATION FAMILY LAW SECTION
ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
CANADIAN FEDERATION OF INDEPENDENT BUSINESS
CANADIAN SECOND PARTNERS FOR ACTION
CONTENTS
Tuesday 12 February 1991
Child and Family Support Statute Law Amendment Act, 1990, Bill 17 / Loi de 1990 modifiant les lois relatives aux obligations alimentaires, projet de loi 17
Ontario Chamber of Commerce
Canadian Bar Association, family law section
Ontario SARC Network
Ontario Association of Professional Social Workers
Afternoon sitting
Canadian Federation of Independent Business
In Search of Justice
Canadian Payroll Association
Canadian Second Partners for Action
Family Ties
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: White, Drummond (Durham Centre NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Wilson, Fred (Frontenac-Addington NDP)
Winninger, David (London South NDP)
Substitutions:
Cunningham, Dianne E. (London North PC) for Mr Harnick
Elston, Murray J. (Bruce L) for Mr Chiarelli
Kwinter, Monte (Wilson Heights L) for Mr Poirier
Murdock, Sharon (Sudbury NDP) for Mr F. Wilson
Wessenger, Paul (Simcoe Centre NDP) for Mr Winninger
Clerk: Freedman, Lisa
Staff: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1006 in committee room 1.
CHILD AND FAMILY SUPPORT STATUTE LAW AMENDMENT ACT, 1990 / LOI DE 1990 MODIFIANT LES LOIS RELATIVES AUX OBLIGATIONS ALIMENTAIRES
Resuming consideration of Bill 17, An Act to amend the Law related to the Enforcement of Support and Custody Orders.
Reprise de l'étude du projet de loi 17, Loi portant modification des lois relatives à l'exécution d'ordonnances alimentaires et de garde d'enfants.
ONTARIO CHAMBER OF COMMERCE
The Chair: Please identify yourselves for Hansard, and welcome to the committee proceedings. We have half an hour for each presentation, which would be divided up into usually a 15-minute presentation and then the same amount of time for questions from the committee members. However, the time is yours to use as you wish.
Mr Simington: My name is Paul Simington. I am the manager of employee assistance at Dofasco in Hamilton.
Ms Vickers: My name is Janine Vickers. I am the personnel assistant of counselling services at Dofasco in Hamilton.
Mr Carnegie: My name is Jim Carnegie. I am the executive director of the Ontario Chamber of Commerce.
Thank you for this opportunity to share with your committee our members' views concerning Bill 17. To put our comments in context, for those of you not familiar with it the Ontario Chamber of Commerce represents 165 chambers of commerce and boards of trade in Ontario, with a combined membership of 65,000 as well as having an individual corporate membership in excess of 500.
As a business association, our unique character is derived from our active grass-roots members and the diversity of the businesses and industries we represent, from owner-operated businesses to large multinationals, from Elliot Lake to Toronto, from the local dry-cleaners to the major banks.
I had the pleasure of representing the Ontario chamber on an advisory committee convened by the former government to address enforcement problems relative to support and custody orders. We were extremely concerned by the extent of the enforcement problem presented to us. According to the figures presented by the support and custody orders enforcement office, since July 1987, 81,000 support orders had been filed with the office. Approximately 75% of these support orders are in default, with approximately $334,000,000 recorded as arrears owed.
A recent study conducted by the Canadian Institute of Research on spousal and child support in Alberta found that 80% of separated or divorced husbands did have sufficient disposable income to meet their court-ordered support obligations. It appears that while the money is available, it is not getting to the children who need it. An inability to pay does not appear to be a major factor in the default rate. It is clear to us that action must be taken to ensure that the beneficiaries of support and custody orders receive the income due to them.
A choice of what should be done, however, is a difficult one. In broad terms, the options are to greatly increase the staff of the SCOE office or to turn to the employer community. On balance, we believe the employer community is best positioned to enforce support and custody orders. A direct payment scheme as outlined in Bill 17 will increase collections and decrease the incidents of default. It will also likely result in an increase in recoveries of social assistance payments which will shift the obligation to support children from the government to the family.
Having said that, however, it is important to point out that the cost burden assumed by employers under Bill 17 is substantial in absolute terms, and further adds to the cost of doing business in Ontario at a time when our competitive position is already seriously eroded.
One of our member firms, Dofasco Inc, has identified the following concerns based on its experience with payroll systems and garnishments. I will ask Paul and Janine to comment from this point.
Ms Vickers: In subsection 3c(15), regarding duty to inform, it indicates that within 10 days we must inform the director's office in writing of interruption of payments. The payroll systems at Dofasco, for example, are set up in a manner that it could take up to 21 days before we are able to identify any interruption of wages.
In clause 1(3)(c), regarding the definition of "income source," it states that a benefit under an accident, disability or sickness plan would be considered income. We have two concerns that we feel should be addressed. Dofasco's sickness and accident insurer, London Life, is also the health and dental insurer. One situation that often arises is that once London Life has been served with a support order against sick benefit, it makes deductions on all claims submitted by that employee including those for prescriptions or dental care. Our suggestion is that these support orders be directed to wage loss replacement only, not against reimbursements for prescriptions, dental or other medical care benefits.
Another problem is encountered when the support orders served on London Life involve arrears. The amounts owing on arrears are constantly changing. In order to deduct the correct amounts owing, our carrier needs current information on balances on arrears. Would the director's office be in a position to provide updated orders within seven days, the time frame we feel is required, upon request?
We have been led to believe that under the proposed bill the disbursement of these moneys would be through separate cheques for each individual. Currently at Dofasco, one cheque is prepared each pay period, payable to the director's office, with an attached letter indicating the employees' names, case numbers and applicable dollar amounts. As it costs Dofasco about $13 to prepare each cheque, it would be costly for us, and presumably for other employers, to issue cheques for each employee concerned. In our case, as 120 employees are involved in an average pay period, our annual cost would be about $40,000. It is costly, especially when workable solutions are already in place.
Our single biggest concern is in subsection 3c(18) with respect to priority. A number of years ago, Dofasco's legal team researched the priority of judgements and orders. They concluded that only support orders were entitled to 50% of an employee's wages; all other judgements were entitled to the first 20% of an employee's wages. What this meant to our employees was that if the first 30% of their wages, for example, were spoken for with support payments, no other judgements could be processed. Our concern now is that under the proposed direct payment system, the support deductions would not be considered garnishments, thereby leaving an employee liable for an additional 20% of his wages to pay other judgement orders. While we have sympathy for families, the employee still has to survive.
Mr Carnegie: We believe a direct payment scheme is the right option to take. We are concerned, however, that employers will incur substantial additional costs. We believe the concerns identified in the implementation section should be addressed prior to adopting Bill 17.
We additionally recommend that a mandatory review of the implementation of Bill 17 after an appropriate period of time, say one to two years, be included in the legislation. This review would address the effectiveness of the bill in enforcing support and custody orders and the impact of enforcement on employers. That concludes our formal submission.
Mr Carr: I have a question. There are some sections in there about including everyone in this. I know we talked about some people who could opt out if they could supply four months' upfront money, and I was just wondering what your thoughts were. Would you like to see it broadly based to include everyone, or would you like exclude those where they can get an agreement between the spouse and the payer? In other words, do you see it as all-encompassing for everyone, or would you like to see those we think will pay not included in this system? I wondered what your thoughts were on that.
Ms Vickers: Right now, what we see with our employees is a positive reaction when we advise them that they can have these support payments deducted voluntarily. One of the things that seems to happen, and where I think the defaults come from in the first place, is that they have been left with an enormous responsibility to start with, in a lot of cases, credit card bills, for example, mortgage payments, whatever. They literally rob from Peter to pay Paul, they get themselves into a jackpot, so to speak, where they cannot keep up. A lot of them find that if the money is taken from source, they cannot see it, they cannot spend it. It is gone, and they know they are fully accounted for.
Mr Carr: But what I was getting at is whether you think all the support payments should be included, or what your feeling is if there is agreement between the parties that they do not want to go through this system and want to do it on their own. Just getting back to what our fear is, we want to see the money go to the children of those people who will not pay, but we do not want to see the system clogged as with rent review and the court backlogs and the Workers' Compensation Board. When government gets involved, unfortunately, the ones we really want to help do not get it. If we can exclude them, it is my feeling that we might be able to help those generally in need, those children who are not getting it. I just wondered what your thoughts were, whether you liked that idea. Or do you see it being simpler to include everyone with the deductions?
Mr Simington: Sometimes it is far better if we can get a consistent rule so that everybody is working under the same set of rules, that there is not an exception from one person to another person. For consistency's sake, I think it would be far better for the payments to all go through one system.
Mr Carr: From your experience, having had a chance to look at the payroll system, and you say they rob Peter to pay Paul and so on, I know your company has very good relations with employees and trying genuinely to help them. Do you do anything to help in that regard, or is it just, "If we get this order, that's what is going to come off"? Do you work with the employees when you have a situation where --
Ms Vickers: We do everything we can. We work with the employees. We have contacts developed at the SCOE office in Hamilton; we will work with them. We have a very good working relationship with the support and custody office, in that they will listen to us. If the employee has brought us something -- "Hey, there's something wrong with this. I've paid. Here's my receipts" -- we can intercede. We will do everything we can for the employee in budget counselling, financial counselling, referral to outside agencies, if necessary, to help get him out of that dark period.
Mr Carr: You mentioned a little about the cost. This came up yesterday, and we were assured by some of the people that it is going to be fairly simple. Having been somebody on the front line, do you see the system being set up for employers as fairly simple? If I am a small businessman who maybe only has three or four people, is the system very simple?
Ms Vickers: It is simple the way it is currently set up. Some of the reading we had done, though, indicated that separate cheques would have to be made. If you have two or three employees affected, maybe it is not so costly. For us, that would be an administrative nightmare. Right now, we make one cheque payable to the director's office and then we supply all the information, and then they disburse accordingly from there. If the payment system could work that way, that would be simple.
Mr Carr: In your discussions with the government -- you suggested that you sat on the committee -- did you get down to the detail of the forms that will be used? Did you get into that much detail, to keep things simple?
Mr Carnegie: Not in the early stages. That was a very large part of the consultative process, how to simplify this in the easiest possible way. Again, I certainly agree with the previous comment. If it is possible to limit that to one cheque, it is obviously going to be an awful lot less mechanical handling for major employers. One of the discussions in the early consultation was that, frankly, for the small employer it is not going to be a massive chore: You have one employee to handle, something along those lines. If you get into something of the scope we are talking about, individual cheques could be a serious problem. But every effort was made in the very early stages to make it as simple as we can.
Mr Carr: One last question. From your experience, because you actually see the cheques, you could probably tell us better than anybody whether there is the ability to pay. In your mind, is it a case of the money not being there or is it a case of them not wanting to give to the families? What is your best guess?
Ms Vickers: Generally, what we see is that the money is not there. The Wages Act currently exempts 50% of an employee's wages from being attached, yet a court will order in excess of 50% of his pay for support payments. It almost leads them to default, because by defaulting and having a garnishment put on, they pay less.
One employee who comes to mind is currently paying $1,700 a month in support. He has a higher income than your average employee; however, that is still in excess of 50% of his pay. He is paying voluntarily through payroll deductions, so they are getting all the money. He could have defaulted, and we would deduct substantially less because of the 50% limit. But the difference between the 50% and the original amount ordered is falling into arrears at an interest rate of anywhere from 10% to 15% against him. That, first, is something I find to be a little ridiculous. Second, traditionally he is generally left with a lot of bills from the marriage. He is probably responsible for the credit cards, as I said, maybe the car payment, possibly the mortgage, and the support payments.
1020
Mr Carr: That is where the difficulty came. When I heard the 75% figure, I was, like most people, shocked. I could not believe it was 75%. Then yesterday in our discussions, we found out that sometimes they are trying to pay but there is not the ability to pay. So you are saying that is the case, that it is not --
Ms Vickers: From what we have seen.
The Chair: Excuse me, Mr Carr. Did you not just say you had your last question?
Mr Carr: Sorry. Just a last point. You are saying it is not a case of not wanting to pay but that it is financial, in your judgement? What percentage would that be, a real high percentage?
Ms Vickers: That are in default?
Mr Carr: Because they just do not have the money. I know it will be ballpark, but is it very high?
Ms Vickers: Seventy per cent.
Mr Carr: So 70% do not have the money to pay. Sorry, Mr Chair.
The Chair: Thank you, Mr Carr. First thing in the morning is a good time for you, eh?
Ms S. Murdock: I want to thank you very much. This has been most interesting.
I just want a clarification from Dofasco. In the second point, for the support orders to be directed to wage loss replacement for the purposes of your carrier: I do not understand the ramifications, but I can imagine that the carrier would penalize the employee for that. But in 4, hypothetically, if we do say it goes to wage loss replacement, is there going to be any kind of problem when it is not considered a garnishment? Do you get what I mean?
Ms Vickers: I know exactly what you mean. Right now the only types of orders we would ever apply against an employee's sick benefit or a wage loss replacement are support orders. So with the points we bring up in number 4, there would be no conflict at all.
Ms S. Murdock: With the carrier?
Ms Vickers: No. The points brought up in number 4 are strictly related to wages, what happens right now against his wages. With his sick benefit, what happens is that our carrier, London Life, puts the garnishee against the employee. For example, you are taking 50% of an already reduced income, and if the employee, for example, has a heart condition and is submitting excessive prescriptions every month, $100, $200, $300 every single month, they in turn are holding all of it, because one of the orders they had indicates this person is $10,000 in arrears. So we have to hold every dime that comes in and remit it to Unified Family Court or SCOE or provincial courts or wherever it is going.
Ms S. Murdock: I see. So if it was entitled wage loss replacement, then it would not --
Ms Vickers: No problem.
Ms S. Murdock: Just another clarification on what you were discussing with Mr Carr. You say you have 120 employees. You send out one cheque for all of them who have support orders?
Ms Vickers: Depending on where they are going. For example, currently there are orders coming in from UFC in Hamilton and from the various provincial court family divisions, family division Milton, St Catharines, Cayuga, wherever.
Ms S. Murdock: So in effect, of your 120 employees a certain percentage would have support orders against them.
Ms Vickers: The 120 are the ones with support orders.
Interjection: Dofasco has a lot more employees than that.
Ms S. Murdock: I know it has more than that, but it could be office staff. I do not know. If five of them are with Unified Family Court, then you would send out a cheque for all five, is what you are saying.
Ms Vickers: Yes, one cheque to UFC for those five people.
Ms S. Murdock: Okay, I did not know.
Ms Vickers: Anybody who goes voluntary right now, automatically the money goes into support and custody. I think we have around 20 employees who are voluntarily sending to SCOE right now, so they would be all encompassed on one cheque.
Ms S. Murdock: Okay. One last question. If it takes up to 21 days before you are able to identify the interruption, would that also apply if -- well, no -- to get it into your computer system, is that what you mean?
Ms Vickers: Once the payroll is run and it is finalized, the diskette comes back to me with the deductions that were made and then it is downloaded and then we look there. The information is processed in main office and then it has to come back to me, because I have control of all the orders, and then I would be the one to have to communicate with these people, that with this person there was no deduction made. We would have to ascertain where he is -- leave of absence, compensation, sick benefit -- and then from there get things in place.
Mr Wessenger: I would just like to thank you for your presentation and also assure you that there will be no change required with respect to implementing cheques. You will not have to do a cheque for each individual.
Mr Kwinter: In your conclusions you say, "We are concerned, however, that employers will incur substantial additional costs," but you do not make any recommendation. Are you just waving that as a red flag, saying, "Try to keep our costs down," or are you looking for some compensation, like the people who collect sales tax?
Mr Carnegie: We have not looked at the compensation factor at this point. It really is the red flag warning. There was a lot of discussion on that point during the consultation process. Again, it is always a great concern, particularly on the effect it is going to have on our overall competitiveness.
Mr Elston: I basically want to ask, I guess, of the people who are here from the Attorney General's ministry -- actually we have the parliamentary assistant, Mr Wessenger, and we have the policy advisers. I know the policy advisers will not tell us what they will tell the Attorney General, but perhaps the parliamentary assistant could respond to what appear to be fairly reasonable suggestions. Are you people open to considering changes along the lines that are suggested? Because if you are, then I think we could probably note these as items that would appear in amendments. If not, we may want to go on in detail so that we can prepare our own amendments. It is just a matter of timing more than anything else.
The Chair: Is this a question for the witness?
Mr Elston: No, it is a question for the parliamentary assistant as to how long I should proceed to --
The Chair: Mr Sorbara also had a question for the witnesses. I am wondering if that should be dealt with now.
Mr Elston: Just a minute. Listen, Mr Chair, I am only asking guidance. If the parliamentary assistant, who really is here representing the Attorney General -- if the department is going to be open for considering these changes, I will sort of defer going into them in any detail. If there is no opening for these changes, which appear quite reasonable, to be made, perhaps we should take some time so that we can construct amendments. It is just a question of that. It would take less time if I knew if the parliamentary assistant had instructions to at least consider these or if the Attorney General's department thought that these were reasonable things.
The Chair: But surely yesterday when the minister was here or on Friday going through clause-by-clause is an appropriate time to deal with those, rather than the time when the witnesses are here.
Mr Elston: No. The witnesses have made these suggestions here to us as evidence. I am merely asking if the parliamentary assistant is open to some of their suggestions. If they are open to them, then I will not proceed to do a whole series of questions. If they are going to be closed-minded with respect to some of these suggestions, then I should ferret out a few more details so that we can prepare amendments which would assist the presenters, we think, in doing a better bill. I am looking for guidance from the parliamentary assistant because he knows what is happening. He got instructions just prior to this group of witnesses appearing here as to how open or closed, I presume, they can be.
The Chair: Mr Wessenger, you are certainly free to respond.
Mr Wessenger: My response would be that we are going to consider seriously all the suggestions made, and of course they will be reviewed with ministry staff.
Mr Sorbara: In other words, you are not going to consider it.
Mr Elston: Then can I ask the ministry staff if --
Mr Wessenger: No. I mean, obviously all the suggestions are going to be taken seriously and they are all going to be looked at seriously.
Mr Elston: That is quite helpful.
The Chair: I thought that was the point of these committee hearings.
Mr Wessenger: Yes, that is the whole point. We are here to get input.
1030
Mr Elston: But we know exactly where you guys head. The Attorney General has some flexibility in some areas and, you know, he does not in others. For instance, the suggestion that we lift our heavy hand from payments from a health insurer, for instance, for medications, is a good one, from my point of view. I am not going to pursue it, because Ms Murdock pursued that, and if it was something that the Attorney General's department --
The Chair: Mr Elston, you have asked Mr Wessenger the question. He has answered it. Are there other questions for the witnesses?
Mr Elston: Okay. Listen, I am going to proceed then to go item by item through each of these then, if that is what you want me to do. Ms Murdock asked a good question and I thought that it sounded like there was some reasonable chance that would succeed. If there is not some indication that it is rational, then I will proceed through it as well.
So I will ask the following questions of the witnesses. How many people would you have of the roughly 120 who would also be included in a health benefit-type reduction scheme now? You mentioned about the problem of somebody having heart medications costing a lot of money, for instance. How many would fall in that category?
Ms Vickers: Feasibly all of them could fall into it at some point. Any time they go off ill due to a non-compensable injury or illness, they could fall into that system.
Mr Elston: And could you tell me about the manner in which those payments would be submitted? If there is a separation, the spouse would still remain on the plan, I presume. Is that correct?
Ms Vickers: Absolutely.
Mr Elston: So that she in fact could be submitting claims for medications that she has paid for out of her own pocket.
Ms Vickers: There are two ways to go about that one. The non-employee spouse can give the receipts to the employee. He will submit them, get the cheque back in his name and give it to her. Or we suggest actually that the spouse go on assignment and she then can put her own prescriptions in and the cheques come back payable to her and then there is no contact between the two.
Mr Elston: But if there is a contact with the former spouse, then the payments being made directly to him would be held up by a garnishment under the current circumstances.
Ms Vickers: Yes.
Mr Elston: And in fact the two of them then are out of pocket.
Ms Vickers: Yes.
Mr Elston: Okay. In relation to the 120 with whom you deal now, how many would you see being affected by perhaps having to pay more than 50% if they had garnishments?
Ms Vickers: Probably half of them.
Mr Elston: So about 60 out of the 120 could possibly lose up to, as I understood it, maybe 70% of their income, with 20% garnishments plus 50% of this.
Ms Vickers: No, currently the only one entitled to 50% of an employee's wages is a support order. Everybody else is only entitled to the first 20%. If the first 20% is spoken for for something else, it cannot go through. If this changes, though, he could feasibly be looking at 70%.
Mr Elston: That was my question. The first 20% goes to garnishment and then on top of that, up to 50% of an amount could then go off to support orders. That could be worked out to be 70% of his net wages or it could, I suppose, be worked out to be 50% of the amount remaining after the 20% was taken.
Ms Vickers: If an order comes in from the government, it is actually 80% that he could lose.
Mr Elston: He could lose 80%?
Ms Vickers: The government is entitled to 30%; everybody else is 20%.
Mr Elston: So in fact what could happen is this person could pretty quickly be propelled into bankruptcy.
Ms Vickers: It is not even bankruptcy, because what happens, in all honesty, is they quit. They throw their hands up. We spend hours with many, many employees trying to convince them otherwise.
Mr Elston: So you end up trying to counsel these people to find a solution.
Ms Vickers: To try to see the light at the end of the tunnel.
Mr Elston: And in many cases, at this point they cannot. Do you see this legislation helping or hindering that?
Ms Vickers: I would see it as helping in that, the way I understand it, the orders would come directly from court to Dofasco, come off their pay, so they are not in an arrears situation.
Mr Elston: But how does that help them if they are subject to a loss of 80% of their net pay? I presume that is net after they get rid of group insurance payments, UIC and income tax.
Ms Vickers: Actually after income tax, CPP, UIC. Hopefully what will happen is it would still be recognized as a garnishment as far as priority of judgements and orders are concerned in that the other orders would not be able to go through.
Mr Elston: Okay. Perhaps what we could do then is get some advice from the Attorney General's department on the order of precedence at a later date. I am just noting that for the record, but I appreciate that.
The Chair: So that is a request for later information.
Mr Elston: Yes, for information as to the ranking of these claims, because if somebody is going to end up losing 80% of his income, we will get the same sort of retirement from position, if I could call it that.
How many people now would you say are facing pressures like that in your group?
Ms Vickers: Of the 120 who are on orders?
Mr Elston: Yes.
Ms Vickers: Once again, probably back to the same 50% of them. Some of them have been on for so long now that the arrears are long since gone and they are down to the tolerable amounts of money, but there is still a good 50% of them who are struggling, 50% to 60% who are struggling.
Mr Elston: So that is a large group and I note for the record that Dofasco has a fairly active employer counselling employee-type network, probably unusual in most of the other large firms. So if we are finding that you have that large a problem, it probably is going to be a bigger one for others, and in fact the point of the bill will probably, or could possibly, be lost if we do not make some changes there then.
I want to check as well, as I guess Mr Kwinter mentioned, about the reimbursement or possibility of reimbursement. How far is Dofasco prepared to go, I guess, in terms of assuming the cost for this before -- and this is a tough one -- but if for every employer there is a cost of 120 people that they are managing for somebody else, basically, what do you figure you spend now on some of the cost of employee relations, if I could describe it as that?
Ms Vickers: Employee relations or the cost of honouring support orders?
Mr Elston: The employee relations, because the honouring of support orders will be part of employee relations, I assume, in terms of a corporate report.
Mr Simington: I really would not have any guess on that and I would hate to just guess at a figure.
Ms Vickers: I think anything we would guess would be very conservative.
Mr Elston: Okay. But you are prepared to spend a fair bit more on employee relations in terms of the operation of the plant to develop the direct pay scheme, I take it.
Mr Simington: Yes. We definitely would absorb the cost on it. But as I say, with the economy as it is today, it could get very difficult for Dofasco or smaller companies as time goes on.
Ms Vickers: Obviously, if it is mandated, we have to. It was not something we wanted to jump into voluntarily because of the cost. We could currently be looking at $40,000 annually in the cost preparation of cheques if they were all individual payments, for example.
Mr Elston: Will you save money by making all payments to the SCOE office?
Ms Vickers: Yes, from a bookkeeping standpoint, it would probably be better. Everything is going to one place.
Mr Elston: So you will be going to one office, presumably a regional office in Hamilton.
Ms Vickers: Hopefully, we will be going to the SCOE office in Hamilton.
The Chair: Mr Elston, we have run out of time. You have other questions?
Mr Elston: Why have we run out of time?
The Chair: Because it is past half an hour.
Mr Elston: You guys are so tied up with your time restrictions that we are not going to be --
The Chair: I would like to thank the witnesses for their presentation; obviously, from the questions, a lot of very thought-provoking comments. Thank you.
Mr Sorbara: Just on a point of order, Mr Chairman: I did have a question for these witnesses, and I want the record to note that apparently you do not want me to ask that question.
The Chair: You have every right to ask any question you wish to. Mr Elston took up some of the time that your caucus could have used in asking a question of the --
Interjections.
The Chair: I am not sure that is a point of order. We have run out of time.
Mr Sorbara: Okay, well, on the same point of order --
The Chair: We are past half an hour. Thank you very much.
Mr Sorbara: My understanding was, on the point of order, that after submissions by the witnesses there would be questions from the official opposition, then the third party and then the government. I would just like you to reflect on that, because we would like to know what the procedure is going to be.
Interjections.
The Chair: Excuse me. Order, please.
CANADIAN BAR ASSOCIATION FAMILY LAW SECTION
The Chair: I would like to recognize Mr Slan from the Canadian Bar Association, family law section. On behalf of the committee, I welcome you. As you may know, we have half an hour, which can be divided up in any way you wish. Usually the three caucuses would like to ask questions, so would you allow some time at the end of your submission for those questions.
1040
Mr Slan: Thank you. My name is Paul Slan. I am the chair of the family law section of the Canadian Bar Association, Ontario branch. First, I would like to indicate to the committee that the bar association does support the idea of payroll deduction for the enforcement of support orders. We have some concerns, though, and I would like to outline those.
Just by way of background, when the act came in in 1987, I think it is agreed, it was basically an enforcement act with very little, if any, discretion allowed to the director of support and custody enforcement. Basically the benefit from the point of view of the bar was that the onus for enforcement was being shifted from the debtor, the private individual, to a government agency which would do the enforcement, free of charge.
It was not seen as a piece of legislation that really affected the rights of the parties. It was more enforcement of an order that had been previously made. I think the only aspect that allowed for judicial discretion in the existing legislation would be on the default hearing, which was the last resort in terms of enforcement, and even in the default hearing there was a presumption that the debtor had the ability to comply with the support order. That was really the only aspect of judicial discretion.
The bill that is now being proposed, although as I say, it is a good idea in the view of the bar, the difficulty is that we are going to have much more litigation arising from these amendments, and the concern that I am pointing out is not dissimilar to the concern that I raised when the access enforcement bill was under discussion in this committee: that the amendments are creating a superstructure on top of the existing mechanisms for the determination of support and the result will be a great deal of litigation between the director, the debtor, the income source and possibly the parties to the initial dispute.
Some of the problem areas which lead me to these conclusions are the definition of income source in section 1. I think it is not a bad definition, but I think there will be some litigation over whether an employer is an income source or not. I also have a little bit of difficulty understanding why it is restricted to periodic payments if the idea is to enforce the existing support order.
Another problem is section 3a of the bill, which provides for the mandatory support deduction order at the time the original support order is made. Now, I am missing it in the bill; I do not see any guideline to the court as to the amount of the support deduction order. Is the support deduction order to be 100% of the actual support order? Is it to be 50%, is it to be 75%, or what? I recognize that in subsection 3c(6) dealing with arrears, the support deduction amount can only be 50% of the actual support order. I am not sure why we have this provision restricting the amount of the deduction to 50% of the actual support order, and again, that amount must be by way of a periodic payment. The point in this is, I guess, that there is already a remedy. If someone has arrears and he feels that he cannot pay them, then he has a remedy to apply to the court that made the original support order to vary that order and in fact to retroactively deal with the arrears.
So it seems to me that by way of these amendments we are putting in certain safeguards, I suppose, in terms of the amounts that can be deducted, but to my mind it is a duplication because there already is a remedy in terms of making an original application to vary the support order.
The same criticism applies to subsection 3c(8), which is the section that provides that only 50 per cent of the net amount of pay can be deducted. Again, if a debtor has a problem with the amount of pay that is being deducted, why does that debtor not go back to the court that made the original support order and vary that order? Why is there a restriction here as to 50 per cent?
In subsection 3c(9), that does allow the director to apply on motion to ask for more than 50 per cent by way of deduction. The difficulty there is that there are no criteria set out in the legislation to know when that should be allowed and when it should not be allowed.
Subsection 3c(12) allows an income source to dispute whether or not that entity is an income source, but it appears to only allow the director to make the application. It does not seem to make provision for the income source to apply and that may be of concern to employers because their liability, according to subsection 3c(13), is accruing at all times.
Subsections 3c(15) and (16) deal with the duty to inform of the employer and the employee of changes in their status and it seems to be that without some notice going out and some type of publicity going out to both employers and employees, that is going to be honoured in the breach rather than as the norm, and there are some concerns about that subsection.
The most criticized section has been 3d, which provides for the immediate suspension of the support deduction order by the court making the original support order, or at the time of the original support order or later if there has been a material change in circumstances. The criteria set out in the legislation is unconscionability. God knows, family law lawyers have enough difficulty determining unconscionability under the Family Law Act and there are even less criteria here as to what unconscionability is than exists in the Family Law Act. We know that unconscionability is a very high standard, but other than that we cannot define it. So there should be some guidelines, in our view, as to what constitutes unconscionability if that is to remain in there.
The other, I suppose, rhetorical question is if the test is so high, why have it at all? Why do we need it? If the idea is to have mandatory support deduction in all cases, why provide for the suspension of it in any circumstances?
Subsection 3e(2) provides for an interim variation of a support deduction order and that is only allowed if an application to vary the original support order has been made. Our suggestion on that is that it seems to me you would only want to vary the support deduction order on an interim basis if the actual support order was varied on an interim basis. I cannot imagine circumstances where you would vary the support deduction order without actually varying the support order.
Section 3g of the bill deals with termination, and if I read it correctly, the support deduction order continues even if the actual support order is withdrawn from the director's office. I have some question about how you actually get out of the support deduction order once the support obligation terminates. The section seems to say that if the director is satisfied that the support order is terminated, then the support deduction order itself terminates and if there is no agreement on that point, there is provision for a motion to decide that issue by the parties, and the director, it appears to me, is not a party to that motion.
1050
The last area that again will create more litigation arising from the amendments is section 3i which allows for the debtor's motion to the court to dispute how much is being deducted whether there has been a default after a suspension order is made or to dispute the amount being deducted on account of arrears.
In summary it seems that there are going to be all kinds of litigation arising out of the operation of the amendments as to whether the support deduction order should be made or not, whether the director can deduct more than 50% or whether the director can deduct more than 50% of the actual support order for arrears, whether someone is an income source or not, whether an order, once made, can subsequently be suspended on the basis of a material change in circumstances, and whether a support obligation has terminated. We wonder whether there is any simpler way to do it all.
The existing order now provides for the debtor's name and address on the order and for the creditor's name and address on the order, and that was done by way of amendments to the rules of civil procedure. I am not sure why the order could not also specify the name and address of the employer right on the order. The judge will have that information at trial if the judge has heard evidence about the ability to pay. If it is a consent matter, the lawyers are certainly in a position to provide that information because in point of fact that is what they do now, supply the creditor's and debtor's names and addresses.
We are not sure why the order simply could not go to the director and the director pass the order on to the employer and the employer be bound to make a deduction in the amount of the actual support order that was made. I think the presumption is that once the support order is made, that is the correct amount, I do not see the difficulty with automatic support deduction without the superstructure that is being imposed by the amendments. As far as changes that may happen subsequently are concerned, again there is a remedy in that there is already a remedy for the debtor, or the creditor for that matter, to apply back to the court if there is a material change in circumstances. Presumably, if the support order itself is changed, then the support deduction order would be changed.
I think that is all I have to say about it.
The Acting Chair (Mr Fletcher): Thank you for your presentation. We have questions of approximately 15 minutes and equal time to each party will be given, starting with the Liberals.
Mr Sorbara: I want to begin by thanking counsel for his presentation. I hope that the committee could have at some point, Mr Chairman, some time to discuss how we are going to proceed in these hearings, because I think under new direction of this committee, under the new government, there has been a change of rules. I am newly sitting on a committee and I would like to have a discussion of those rules before we get too much further into this hearing or the committee gets too much further into its work.
I want to ask Mr Slan, first of all, whether as a family law practitioner, and I take it you are a family law practitioner, you have any sense now of how many support orders are actually processed through the support and custody order enforcement branch?
I know that you do not do research on this and I do not suspect the family law bar does research on it. Apparently the Ministry of the Attorney General does not do research on it either. What I am trying to come to grips with is how many additional cases the support and custody order enforcement branch will have as a result of this legislation. I understand generally that the law currently is that an order for support is automatically filed with SCOE, but that there are a great number of circumstances, including consent of the parties, where they are not filed with SCOE.
Do you have any sense of that? You mentioned that the only exceptions here were one dealing with security and one dealing with unconscionability. I tend to agree with your views on unconscionability; if it is such a high standard, why have it there? Can you help me with this problem?
Mr Slan: In terms of the numbers that are withdrawn, we do not see very many being withdrawn at all. I think the only circumstances in which they can be withdrawn is the consent of one or the other party, as it stands now, but we see very --
Mr Sorbara: Both parties, I would take it. You would have to have consent of both parties, would you not?
Mr Slan: I am not sure that is the way it reads now, but we see very few being withdrawn.
Mr Sorbara: That is very few that do not go to the support and custody orders enforcement branch out of --
Mr Slan: They all go and then we do not see them. The party can then make arrangements with SCOE to withdraw, but we do not see those. We hear of very few that are withdrawn.
Mr Sorbara: So it is your view, at least within the texture of your own practice, that virtually every order that calls for periodic payment does get registered with the branch?
Mr Slan: Oh, yes. I do not think it is restricted to periodic payments; any support order. It has to go there. Then it can be withdrawn subsequently, but we do not hear about very many of them being withdrawn.
Mr Sorbara: Now you suggested in your remarks that there was a complexity in this legislation that need not be there. Could I just hear you on that in a somewhat expanded version?
Mr Slan: It creates several areas of potential litigation over whether the order should be withdrawn immediately after it is made, whether it should be withdrawn subsequently, whether an entity is an income source or not, whether more than 50% of the net pay of the employee should be deducted, whether more than 50% of the actual support order should be deducted for arrears, whether the support order has terminated or not, whether there has been a change in circumstances. It creates a lot of different openings for litigation over the deduction. We feel that if there was simply automatic deduction, many of those same problems could still be dealt with under the existing legislation, which provides for variation of the actual support order. In other words, why can the deduction not follow the event of the support order?
Mr Sorbara: I am going to do what generally lawyers are counselled not to do, and that is to ask you a question without any idea of what answer you are going to provide me with. We are trying to get information here, not just argue positions.
The previous government was moving forward with a bill very much like Bill 17, but it included a so-called policy of kickout; that is to say, once there was a clear period of regular payments for a specific period of time, the system of collection and forwarding of moneys would go out of SCOE and the parties would do that directly.
As a family law practitioner, what would you think of that sort of system? You obviously cannot answer for what the implications would be for SCOE. Our view was that would reduce or eliminate an unnecessary workload for SCOE; that is, SCOE would only be enforcing orders where there was the likelihood or evidence that they would not be otherwise honoured. You have a clientele, though, you are in this business. You see the parties. What would your view of that be?
Mr Slan: What we like to say in family law, and it is an easy out, is no two cases are ever the same. I would not be terribly impressed by that type of scenario. Things change all the time. I do not know that a record of consistent payments would be, in my view, sufficient to lift someone out of SCOE. We think that the enforcement agency is a good thing.
Mr Sorbara: I think everyone agrees about that.
Mr Slan: We want to see it continue. My remarks are simply restricted to the proper approach to the payroll deduction.
1100
Mr Sorbara: The question for us, I guess, was this: Although we all agree that the agency is a good thing, most or many support orders have 5- or 10- or 15- or 20-year periods of duration and sometimes an indefinite period of duration. If the obligations under those orders could be self-enforced, there was no need for the state, after the state is satisfied that they would be complied with, continuing to enforce.
Mr Slan: I think, by and large, clientele have been happy with the fact that they know where to pay, that they know when to pay, that there is a record kept, that they do not argue about whether a payment has been made or not been made.
Mr Elston: There are some shaking heads behind you which says there is no unanimity.
Mr Slan: There have definitely been some problems with the record-keeping, which have to be improved.
Mr Sorbara: There is no doubt about that, and I think you are right about that. I guess the question was the administrative burden. If I am receiving a payment and paying out a payment that I do not have to receive and pay out, then I am taking up administrative time, where I could be applying those scarce resources to cases where a more effective method of enforcement would be appropriate. I am just looking for your views anecdotally because of not only your practice but your position within the family law bar.
Mr Slan: Anecdotally, I think that if I had to choose between those two options, I would choose to have the enforcement scheme maintained but utilize the resources to improve its operation in terms of the administration.
Mrs Cunningham: Mr Slan, I remember the family law section coming before the hearings on Bill 124, raising a lot of questions. I sat on the committee at the time. I am not a lawyer so when I ask questions, I often do not know the answers, so if you will just bear with me.
That piece of legislation, in my view I was glad it never came back again, because from my work with families on custody and access and in fact in support payments, our hope is that we are probably going to have more compliance with this legislation, as a collective "our." In your view, do you think that this would be helpful, this legislation, just from what you have --
Mr Slan: We are talking about the support deduction now?
Mrs Cunningham: The other one, I would have guessed, would not have been helpful at all in access. It would have made more people unhappy. More kids would have been angry with fathers and mothers. It was a useless piece of legislation as far as I was concerned. I have those views and that is the way I felt. I still feel that there should be improved access and supervised access and there ought to be a lot of programs out there, but I do not think legislation would have helped at all, in my view.
On this one, I feel the same way, I am sorry to say. From a practical point of view, I would like to see the agency have more resources to get the job done and front-line people working to support people in businesses, not unlike the Dofasco people who were in here, who I feel probably get a lot of compliance out of their personnel given the current system. I am wondering when you view this as a family law practitioner, do you see this as being helpful and having more people comply? To me, that is why we have the legislation.
Mr Slan: We support the idea of payroll deduction. I have indicated what the concerns are with respect to these particular amendments, but we support the idea of payroll deduction.
Mrs Cunningham: Given the list of concerns, there would not be much left to this piece of legislation if you were to have your point of view, I would think. Are there parts of it that you do like?
Mr Slan: We like the principle.
Mrs Cunningham: I know, but I like the principle too. But I have to deal with this piece of legislation. If you are telling me that more parents are going to be in the courts because of it, I do not find that helpful.
Mr Slan: I am not sure it is the parents who are going to be in court. I think it is the director who is going to be in court, and perhaps the employer. I am not sure that the parents or the parties to the order are going to be.
Mrs Cunningham: As a parent I can tell you that when my employer is in the court on my behalf, that involves me, so I am looking at something that will improve. As a politician I get these families in my office a lot and I want to know, from your point of view, if you think it is helpful. You like the idea of payroll deduction. You came here and said that happens now.
Mr Slan: I did not say payroll deduction happens now.
Mrs Cunningham: All right. Perhaps you could tell me what part of this legislation is most helpful? You talked about the superstructure we need in order to enforce this. Are there parts of it that --
Mr Slan: The principle of mandatory payroll deduction will be most helpful in terms of enforcement of support orders. In my view, the other safeguards in the act are already in place. One can already go back and vary that support order if it turns out that there has been a change in circumstances.
Mrs Cunningham: Okay. In 3g I will be specific, because that one interested me. How do you see us improving that section with regard to getting out of the support order?
Mr Slan: That is the termination of the order?
Mrs Cunningham: That is right.
Mr Slan: It seems to me that the enforcement should cease when the order is terminated. There is often a dispute as to whether an order is terminated, because many orders will say that they continue for as long as the child is a child of the marriage, as defined by the Divorce Act, and that is subject to interpretation. Generally, it is interpreted as to the completion of one undergraduate degree, but there are permutations and combinations.
Historically, the problem has been that the judge hearing the enforcement application is met by the objection, "This order is finished; it is terminated," and the judge then has to interpret whether it is or is not. In fact, the provision for an application to the court by the parties to determine whether the order has been terminated is, I think, a good provision.
What I do not quite comprehend is why the support deduction order continues. I do not understand the exact timing of this section and when it terminates. Also, if the parties withdraw from SCOE, withdraw the original support order, it appears that the deduction order continues. I do not understand the rationale for that.
Mrs Cunningham: I would like to hear from the administration but that was ruled out earlier on that issue because perhaps the witness could be satisfied that that has been thought about or that there is some response to your question from the ministry. But that is not appropriate at this time.
During the discussions and the consultations around this legislation, did you in fact have adequate input from the Canadian Bar Association, family law section?
Mr Slan: Yes.
Mrs Cunningham: So you are here today, you won a few, lost a few kind of thing, and perhaps we can, in our deliberations as a committee, take a look at your questions today and improve upon them.
Mr Slan: Yes.
Ms S. Murdock: Just a couple of clarifications. I like the idea actually that you have suggested that the employer be named on the court order. It would seem to me that it would take out one of the steps of administration, which I think is good. But I am just wondering if, in doing that, the recommendation then that you are making is that the employer upon receipt of the order would have notification and then the employer would make the determination as to what the deduction would be on the cheques.
Mr Slan: I would think it would be right there on the support order. If someone is ordered to pay $500 a month, then the employer would be served with a notice that that is the amount of the deduction.
Ms S. Murdock: Okay. I am just wondering whether that puts more onus on the employer rather than having the department or the director indicate the amount.
Mr Slan: My suggestion was that the order go to the director first, as it does now, and then the director notify the employer. Now the director notifies the debtor. The suggestion is that the director notify not only the debtor but also the employer.
1110
Ms S. Murdock: Okay. Yesterday I made a comment about the personal aspects. Under present legislation and prior to SCOE, the personalities of the spouses got involved in terms of oftentimes not paying because they were angry with their spouse. As a result, the children suffered, or whatever the reason, but a lot of the problems that ensued were because of personalities. Would you agree that this proposed legislation takes out the personal aspect of that and that it becomes an administrative thing with no choices being able to be made by the parties?
Mr Slan: I suppose if there were no avenues of possible litigation available under the act, then it would take out personalities. But as long as someone has the option of doing something before the court, then personality will be a factor.
Ms S. Murdock: Okay, but I noted your points of concern in the proposed legislation, and in almost all instances they are procedural kinds of things, like the director objecting. With the exception of varying the order, they are all procedural kinds of litigation.
Mr Slan: The unconscionability section is not procedural, nor is the material change in circumstances provision. Someone could come back conceivably every six months to vary the support deduction order.
Ms S. Murdock: Yes, that is what I said, with the exception of varying the order or suspending.
Mr Slan: That is a pretty big one.
Ms S. Murdock: It is a big one, I know, and if the circumstances change they have that option. Do you, in truth, overall not see that this is better than what we have got?
Mr Slan: I have tried to make it clear, I think support deduction is better than what we have got. I have some concerns about the mechanisms that are being proposed.
The Chair: Thank you very much, Mr Slan.
Mr Elston: Mr Chair, I would like the record to indicate again that I would have had some questions of this witness, except that you have decided that you will restrict our access. This gentleman represents the pre-eminent group of people who practise in this area in Ontario, and you are restricting us from seeking out the type of advice we need to perform our duties here. I find that totally unhelpful and I do not know how we can impress upon you, as the person who keeps the clock, that we have to be given some latitude to find out what it is like practising, the effect this is going to have on the people.
The Chair: Mr Elston, with all due respect, Mr Sorbara took more than your caucus's allotted amount of time.
Mr Elston: Listen, five minutes for the people who do all the work in this province in family law --
The Chair: Excuse me, sir.
Mr Elston: -- is absolutely insane. If you think this caucus is only going to have five minutes --
The Chair: Excuse me, sir.
Mr Elston: -- to investigate from these people what is going on in the --
The Chair: Excuse me, sir. We have had an agreement about the timing for witnesses. If your caucus is not in agreement, then you should have expressed that through your representative on the subcommittee.
Mr Elston: I raised that yesterday. In fairness to me, I raised that yesterday, and you said you would think about it and that you would be fair and flexible. It is not flexible and it is not fair to have five minutes for caucus to talk to the people who do all the work in family law in the province. These people can tell us. This particular presenter gave us some views on some sections, but there are other questions that we could take a look at.
Mr Fletcher: On a point of order, Mr Chair: Is this a challenge of the decision of the Chair?
Mr Elston: I am not challenging anything. I cannot win a challenge.
Mr Fletcher: Then stop arguing.
Mr Elston: You guys have got six people and you are going to shut us down.
Mr Fletcher: On this point of order, Mr Chair: We set the agenda and we voted on the agenda. Am I correct?
Mr Elston: We did not vote on the agenda.
Mr Fletcher: From the subcommittee?
Mr Elston: I raised this as a point of order yesterday, and you said you would take a look at it and be fair and flexible in the time that we were given to look at the presenters.
The Chair: And so far, sir, we are over time due to your caucus on two occasions. Listen, if you and Mr Sorbara wish to use the time -- you are complaining about not having enough time to ask questions, but your colleague asked them. The previous time Mr Sorbara was --
Mr Elston: Listen, you, Mr Chair, are enforcing a gag on this committee. That is what this is.
The Chair: Excuse me. Mr Slan, thank you very much.
Mr Elston: Mrs Cunningham raised the same question yesterday about the adequacy of time. I think it is outrageous that the practitioners in here do not have the time --
The Chair: With all due respect, if you are wishing to challenge the amount of time that we have available to us, that is something that could have been taken to the subcommittee.
Mr Elston: The process here is that the committee is supposed to have ample time to take a look at the material presented by presenters. There is nowhere close to ample time to take a look at the material which was just presented. How can we understand the effect if we cannot look into the material that this presenter has presented to us and also expand on his experience and knowledge and bring that in here so that we can find out whether the provisions that are being presented are going to be effective and worth while? That is my only point. I just think you guys are being really naïve if you think you can get enough information from presenters by saying five minutes per caucus. That is absolutely astounding. I am sorry, but it is astounding.
The Chair: It will also be less than five minutes if we try to keep to our schedule, sir.
Mr Elston: Do not threaten me.
The Chair It is a matter of reality. We have a timetable to hold to. We have a good number of witnesses.
Mr Elston: I wish to raise a point of order with you, Mr Chair. The point of order is this: In the committees, sitting beside you should be either the Attorney General or his designate; in fact a representative of his office should be in his or her chair beside you to take the political questions, because it is quite clear that the political questions cannot be handled by the representatives of the ministry. I usually see that the --
Interjection.
Mr Elston: No, the parliamentary assistant is not sitting in the chair beside the Chairman. He is a member of the committee and has actually refrained from answering a previous question, although he said, "We will consider something." He should be in his position or the Attorney General should be in his position beside the Chair of the committee to field the political questions and act as a help to the committee.
The point of order is that we are underrepresented in this committee and that there is no representative actually holding the fort for the government, for the cabinet, for the executive council as the parliamentary assistant should be. I would ask that you take that under advisement and that in fact you will instruct that the minister or his parliamentary assistant take a chair beside you.
The Chair: Thank you, Mr Elston. I will certainly confer with the clerk on that. Mr Wessenger is free to assume either chair he wishes to, the one he is presently in or this one. I will leave that to him and will consult with the clerk further on this matter. I have viewed a number of videotapes from the last session of your government, sir, and noted in many of those videotapes that in fact the parliamentary assistant was sitting in the exact same spot Mr Wessenger is now.
ONTARIO SARC NETWORK
The Chair: I would like to welcome the Ontario SARC Network. If you could introduce yourselves into the microphones, first off, we have approximately half an hour and usually that time is divided up -- It is entirely your own, but usually it is divided up into half of that time perhaps for presentation and half for questions from the various caucuses, and those questions are rotated among the three caucuses. Thank you very much.
Ms Harris: Thank you. My name is Jennifer Harris and I am the co-ordinator of the Ontario SARC Network. I am here, more or less, as a resource person to this presentation because Cheryl Milne, a graduate student who is placed with the network and is our expert on this issue area, has prepared this brief and will read it into the record. I will field any general questions about the network that might be applicable, but this is her issue.
Ms Milne: I assume the brief has been distributed. I am just going to walk people through it. It begins with a description of what the Ontario SARC Network is, for those of you who are unaware of this group. It operates within the organizational structure of the Ontario Prevention Clearing House and has continued the work of the 1989 SARC public awareness campaign. It has been involved in a number of activities which support social assistance reform in Ontario within the academic, voluntary, faith, consumer and advocate sectors of the community.
Underlying much of the network's advocacy work is the support of the recommendations contained in the Social Assistance Review Committee report, Transitions. Transitions contained a number of recommendations in respect of the integration of family law and social assistance legislation as well as the co-operation between the Ministry of Community and Social Services and the Ministry of the Attorney General.
Most pertinent to the discussions surrounding the issue of the enforcement of support orders are the recommendations for guidelines for the calculation of child support and the exploration of the feasibility of adopting a public maintenance advanced system similar to a pilot project which is being conducted in the state of Wisconsin. There are also similar programs in countries such as Finland, Denmark, Sweden and there is a version in Switzerland, so it is something that is not new in the area of social policy.
1120
I have reproduced here in my brief a number of the recommendations that are contained in Transitions, the first one dealing with the co-ordination between the Ministry of Community and Social Services and the Ministry of the Attorney General in dealing with private support obligations and their relationship to social assistance law.
The second one is that support should be given to research that assesses the impact on family members of recent family law legislation dealing with property division and support, and the guidelines that I spoke of earlier.
The third one is that measures should be taken to help lawyers and judges become more aware of the interrelationship between the private and public support systems and of the importance of support awards to women and children who receive social assistance; and the last point that I have included in here is the monitoring of the Wisconsin child support assurance system.
The Ontario SARC Network supports these recommendations. Changes to our family law system in Ontario must take into consideration the plight of single parents currently making up the majority of family benefits case loads. There is in effect in Ontario a dual system of family support, one private and one public. The primary system for the support of single-parent families consists of the public enforcement of the private arrangements between former partners under the Support and Custody Orders Enforcement Act, SCOEA.
The backup to this system has been the completely public response of social assistance. It has been pointed out many times that the two systems lack integration, that family law principles of independence and self-sufficiency are often negated by the principles inherent in our social assistance system, which emphasizes dependency. Furthermore, both systems have been shown to be lacking in their ability to meet the financial needs of children in single-parent families.
It is hoped that the proposed legislation change under Bill 17 is intended as a first step only in the fulfilment of the government's need to respond to the plight of single-parent families in the province. Strengthening the enforcement procedures for support obligations, although in itself a pressing need, is not a complete remedy to the levels of poverty being experienced by single-parent families. Child support awards in Canada generally have been called a national scandal. A more comprehensive approach must be taken which integrates support with social assistance. The premise of this brief is that the changes announced are insufficient in their response to the level of poverty experienced by families.
Statistics show that it is the women and their dependent children who suffer most financially on family breakdown. Over 45% of family benefits recipients in Ontario in August of 1990 were sole-support parents; 85% of these parents are women. In 1987, 57% of Canada's single-parent families headed by women were living in poverty, compared with 8% of two-parent families. Hardest hit are young mothers who are most likely to have young children and therefore child care responsibilities which hinder their chances at employment, and 69% of single mothers aged 25 to 34 live below the poverty line.
Recent statistics from the Ministry of Community and Social Services indicate that over 13% of Ontario's children are living on social assistance. The largest single group of social assistance recipients in Ontario on a case basis are single-parent families.
Under SCOEA approximately 28% of orders filed with the enforcement office are collected on behalf of the Ministry of Community and Social Services, for a total of $30 million. The current social system in Ontario provides that any support payments are deducted dollar for dollar from the benefits payable to the recipient of social assistance. Although this is currently under review, it becomes quite clear that the proposed changes to SCOEA will not have a direct effect on the financial situation of these women.
What these statistics suggest is that the enforcement of support orders and agreements should not be seen as a panacea. Any discussion of changes to family support legislation must address the issue of quantum. Furthermore, increasing support orders, although absolutely necessary, will not significantly improve the economic situation for many sole-support mothers because of the increased costs of paying for two households upon the breakdown of the family. In other words, the father just cannot afford to pay the support amounts necessary. So social assistance legislation must also enter the discussion where the issue is family poverty.
Child support under both provincial and federal legislation is to be provided in accordance with need to the extent that the parent is capable. The implementation of this guiding principle has tended to place more emphasis on the ability of the parent to pay than the actual needs of the child. A study in Calgary showed that child support orders were inadequate and bore little relationship to the actual costs of raising children. Similar statistics from Ontario were found under the Divorce Act with the recent research project done by the Department of Justice. The average child support award in the study noted here was considerably less than half the actual expense, with or without day care. The result is that the custodial parent must absorb the difference.
Adequacy in the amount of support payments is not addressed in an alternative which strengthens the enforcement legislation only. Without an objective method of calculating support within the governing legislation, heavy reliance is placed on the individual agreements made between the spouses. The immediate and often long-term needs of dependants are not necessarily addressed. A support debtor without means or who has cleverly hidden assets may be absolved of support obligations to the detriment of his dependants.
In the United States, under the Family Support Act each state is required to implement a standard calculation for child support within legislation. In the state of Wisconsin, the judge who deviates from this calculation must give written reasons. Thus, judicial discretion is not eliminated but clear direction is given which has its basis in an objective standard of the financial needs of a child.
In conclusion, we support the recommended changes contained in Bill 17, because the basic program under SCOEA as a system of enforcement is felt to be sound. By increasing the effectiveness of enforcement, the government establishes the infrastructure for a more comprehensive policy, such as a public maintenance advance system. If the ineffectiveness of the current system is not addressed immediately, public confidence in an otherwise conceptually satisfactory enforcement policy will be eroded as creditors resort to other means.
Estimates from a study of the Wisconsin pilot project suggest that automatic deductions increase child support payments by somewhere between 11% and 30%. However, the researchers warned that there was no logical or empirical basis for believing that routine income withholding was the single most important reform of the American system. It must be kept in mind that this reform was part of a package which included the advance payment system.
The care for children must be seen as a joint responsibility between spouses as reflected in support obligations, and as a joint obligation between parents and the state as reflected in sufficient public support for the economic needs of children. In summary, we make the following recommendations:
1. That the recommendations made by the Social Assistance Review Committee with respect to the integration of family law and social assistance legislation be implemented as soon as possible.
2. That a clear plan be developed for the implementation of an advance payment system within Ontario to provide financial security to children upon marriage and family breakdown.
3. That the legislative changes contained in Bill 17 be expanded to include such an advance payment mechanism.
4. That the Family Law Act, 1986, incorporate, either through regulations pursuant to section 69 or by way of amendment to the act, a procedure for the calculation of child support based on an objective assessment of the financial needs of the child. Thank you.
Ms S. Murdock: I have a quick question. This legislation being proposed is an enforcement and a continuation of what it was hoped SCOEA would do. What you are asking for, in particular the fourth recommendation, is that it would not come under this legislation; it would be different legislation. You realize that?
Ms Milne: Yes.
Ms S. Murdock: Okay. That is all. I have read Transitions, so I am familiar with it.
Ms Milne: The point I was making is that it should be seen as part of an overall policy and that it should not be taken in isolation.
Ms S. Murdock: In an ideal society that is the way it would be. It is just going to take time.
Mrs Mathyssen: On page 5, you indicated some concern about the father's ability to pay, that sometimes fathers are impoverished. That seems to contradict what we have heard. So far we have heard that 85% of all these errant fathers have the disposable income. I was just wondering if you can reconcile that. It seems a contradiction.
Ms Milne: I do not think it is. The vast majority do have the ability to pay something. What I am saying here does not contradict that statistic. But what about those who cannot? What about the children who have fathers who cannot pay? There are increased costs in marriage breakdown, and they may be able to pay something, but it may not reflect the actual financial needs of that child, given the fact that you are now splitting the income between two households.
1130
Mrs Mathyssen: In other words, this is sort of a crack in the legislation. We have forgotten about these children and need to take a look.
Ms Milne: These are the people on social assistance to a great extent. What happens with the Family Law Act, with SCOEA, is that you end up forgetting about people who are on social assistance; it is legislation geared towards middle-income people, people who have assets, people who have a steady income, and those people on social assistance are forgotten about to a great extent.
Mr Fletcher: Just a question on recommendation 4 again, "a procedure for the calculation of child support based on an objective assessment of the financial needs of the child," not so much on the spouse's financial ability to pay. It would be more or less based on the needs of the child.
Ms Milne: The current situation provides, as I said in the paper, that parents are supposed to support their children on the basis of need to the extent they are capable of doing so. What has happened to a great extent, in terms of financial statements submitted to court and the decisions overall, is that a lot of emphasis has been placed on the ability only. Things like debt payments, for example, are taken into consideration when the question is: Is that really relevant when you have a primary responsibility to pay support for your children?
What jurisdictions such as Wisconsin -- or throughout the United States, because it is federal legislation -- have done is set up guidelines based on the average costs of raising children. We certainly have those guidelines in Ontario. We find the social planning council has guidelines. There are guidelines out there. Why can we not put some of those in legislation as at least a minimum amount? If you are going to have to deviate from that, there should be clear reasons for that.
Mr Carr: I appreciate that one of the big concerns you have is making it all-encompassing to get the children out of poverty. Of course, we are all aware of some of the other recommendations. I was wondering, if you put this program in isolation, do you have any figures on how many children that will help push out of poverty? I know it is a difficult question, but --
Ms Milne: I am not sure I understand. With Bill 17 only?
Mr Carr: Yes. I appreciate that you are talking about long-term and all-encompassing. I notice the words you use are "first step." Do you have any figures of how much this first step will help?
Ms Milne: No, I do not. I could say one thing, though, that even with the enforcement legislation these people on social assistance right now do not benefit from that, because it is deducted dollar for dollar. Those women who do have an outstanding support order being enforced through SCOEA are not receiving any of that, so that is not lifting them out of social assistance in any way.
Mr Carr: Another quick question: We have asked some of the people the reason for some of the non-payment. There seems to be a big degree of variation. You hear some reports from Alberta that say 80% can pay. The people ahead of you from Dofasco say that 70% of the people cannot pay because they do not have any money themselves. Having worked and seen front lines, what is your perception of some of the reasons that the children are not getting the payment now? If you could make your best estimate of that.
Ms Milne: I do not know. People have probably said it before me. I do not really have that information in terms of statistics or hard facts. It has been my impression that people are able to pay something. Whether they could meet the actual needs, the 50% or greater of the financial needs of the child, I do not know. But the advance payment systems found in Wisconsin as well as in the Scandinavian countries involve an actual payment by the government. You may not receive all of it from the support debtor, for example. It in fact is a child's benefit, to a certain extent, payable only to single-parent families. It takes into consideration the fact that some parents cannot afford to make the payments, but it does not penalize children for that fact.
Mr Carr: In conclusion, you are saying you want to have a system where the parents will pay their share, but I think the line you used is that the state will be part of that to get them up to an acceptable level.
The Chair: Thank you very much.
Ms Milne: Thank you.
The Chair: Before the next presentation, I would like to make mention of the fact that there is a change in schedule. We are going overtime only slightly at this point. The presentation at 1:45 is not to occur at that time but rather at 5:15 on Thursday, so we will not be resuming hearings until 2 o'clock this afternoon.
ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
The Chair: I would like to welcome the presentation from the Ontario Association of Professional Social Workers. We have approximately half an hour, which is usually divided between your presentation and time for questions from the various caucuses, but it is your time to use as you wish. If you could, introduce yourselves into the microphone for the purposes of Hansard.
Ms Dabraio: I am Rachele Dabraio.
Ms Chisholm: I am Barbara Chisholm.
Ms Mann: I am Marion Mann.
Ms Dabraio: As Mr White said, we are here on behalf of the Ontario Association of Professional Social Workers. My colleagues have assisted in the preparation of this brief. As well, Beatrice Traub-Werner and Carisse Gafni helped to prepare this brief.
The Ontario Association of Professional Social Workers welcomes the opportunity to respond to Bill 17. By way of introduction and for your information, I will tell you a little about our association. We are a bilingual membership association incorporated in 1964. We are one of the 11 provincial-territorial associations of social workers belonging to the Canadian Association of Social Workers, which in turn is a member of the 49-nation International Federation of Social Workers. The Ontario Association of Professional Social Workers has 19 local branches in Ontario. Its mission is to assert the role of professional social workers, advance their interests and enhance their contribution to social justice. We have approximately 4,000 members. Our practising members have university degrees in social work at different university levels.
Our comments today will reflect the views of professional social workers who frequently work with children and separated or divorced parents subject to support and custody orders. In my presentation I will initially make general comments. Subsequently, I will delineate potential problems we have identified with this proposed legislation and then make recommendations.
We believe that Bill 17 addresses a very important and serious problem, and we support its objectives. The bill rightfully recognizes that the financial support of children by both parents is an obligation that does not end at the time of parental separation. As social workers, we believe that any legislation that directly impinges upon the lives of children should have as its primary consideration the best interests of those children. It is our view that the proposed legislation endeavours to meet this goal.
We are aware that in some cases access visits and support payments become entwined in the ongoing parental quarrel. We unequivocally endorse the position that the issue of support payments be in no way related to the issue of access visits between non-custodial parents and children. Access is the right of the child, whereas support is the obligation of the parents.
The proposed legislation suggests mechanisms to ensure that parents who are financially capable and are under obligation to support their children do so.
1140
I would like to highlight part I, subsection 3c(19). It reads: "If an income source is required to make payments to the director's office under a support deduction order and the income source receives a garnishment notice related to the same support obligation, the income source shall make full payment under the support deduction order before making any other payment in respect of the garnishment."
We are in full support of this clause, as it makes the support of the children a priority over any other debt owed by the non-custodial parent.
Also, part I, section 3f reads, "An agreement by the parties to a support order to vary a support deduction order and any agreement or arrangement to avoid or prevent enforcement of a support deduction order are of no effect."
Again, we believe this clause is in the best interests of children. In some situations there may be an imbalance of power between the separated spouses. This may lead to a custodial parent agreeing to a variance in the support deduction order that might not be in the children's best interests.
Legislation related to the enforcement of support which is overly rigid may serve to exacerbate family quarrels, thus further polarizing the parties and placing them once again into the adversarial arena. With respect to this issue, we support the fact that the bill allows for flexibility, balance and fairness in the process of ensuring the payment of support. We believe part I, subsections 3d(1) (2) and (3), which deal with the issue of suspension of support deduction orders, incorporate this element of fairness into the process, while acknowledging that circumstances may certainly change in people's lives.
I will now go on to problems we have identified and recommendations we have formulated. We understand that the Support and Custody Orders Enforcement Act, which came into effect in 1985, resulted in an extensive backlog and millions of dollars being owed in support payments. Although Bill 17 would improve the situation, it will require careful administration. The proposed legislation places considerable onus on the debtor, presuming that he or she will act responsibly in informing the director's office of any change in circumstances, for example, a change in place of employment.
Difficulties may arise, however, in situations where debtors change jobs frequently. By the time the director's office is made aware of the change of employment, the debtor may have moved once again. We urge that the regulations address this problem in some detail.
The proposed legislation places a great deal of emphasis on the debtor's ability to read and write in English or French. For instance, part I, subsection 3c(15), addresses the debtor's duty to inform the director's office of any changes in circumstances. In addition, part I, subsection 3j(5) deals with changes in information of financial statements. As we live in a multicultural society, there are many individuals who are not proficient in English or French. There may also be individuals who do not have the capability in either reading or writing to co-operate with the required procedures.
We recommend that there should be an obligation on the part of counsel to fully inform the client in his or her first language of his or her obligations under the proposed legislation. Perhaps counsel should even be required to sign an affidavit to the effect that the client has been informed of his obligations in his first language. In cases where individuals do not have lawyers, we recommend that culturally sensitive and language-specific services be made available on an ongoing basis in order to explain the legislation and its obligations.
With respect to the issue of suspensions, Bill 17 addresses this issue. However, it does not fully delineate the way in which decisions will be made with regard to the granting of suspensions. We believe it is important to ascertain that the debtor is truly in a position of not being able to pay as opposed to simply choosing not to make support payments.
We recommend that an independent review mechanism be instituted in order to assess claims of inability to pay. This could be similar to the mechanism employed by the legal aid program. More specifically, the claim would be presented to an independent voluntary board. Following examination of the particular case, it would be the responsibility of the board to decide whether the reason for suspension of payments was acceptable and in keeping with the best interests of the child or children involved. We would see these procedures preceding any new court involvement, and in appropriate cases mediation of the issue may be indicated.
We recognize that Bill 17 cannot address all possible situations. However, the following examples of potential debtor problems should be clearly addressed in the regulations: situations where the debtor is on strike or laid off, situations where the debtor is a student receiving a student loan, situations where the debtor declares personal bankruptcy, or situations where the debtor is self-employed.
In addition the proposed legislation addresses court-ordered support deductions, but does not address situations in which non-court-ordered agreements have broken down. In those instances we recommend that copies of all formally signed separation agreements be filed by the parties' counsel with the director of the child and family support office, within 15 days of such signing. This would ensure that those individuals also have benefit of the proposed legislation.
Finally, the meaning of certain terms in the proposed legislation requires clarification. For example, in part I, subsection 3g(1), the difference in meaning between a support order being "terminated" as opposed to being "withdrawn" is unclear. Also in part I, section 13a, the term "other means" requires definition.
In summary, the Ontario Association of Professional Social Workers applauds the government for undertaking this important proposed legislation. In particular we commend the government's efforts to give parents' financial obligations to their children a place of primacy before all other financial obligations. We also support the bill's attempt to ensure that access and financial support are not contingent on one another.
In closing, we recommend that the government give careful thought to the drafting of regulations, so that the implementation of Bill 17 reflects its original intent and objectives. We would be happy to answer any questions you may have, and Barbara Chisholm would be pleased to illustrate our points with any case examples if you wish.
Mr Kwinter: I would like to just explore a little bit one of the premises that is made on page 1 in their introduction. It seems to me that in the testimony we have heard, there are really three categories of defaulters, if you want to call them that: those who for whatever reason have denied any responsibility or do not want to take on the responsibility and say, "I'm not going to pay," those who cannot pay, and those who are in some dispute with their spouse, primarily as to access.
I find it interesting that you feel that access is the right of the child. It would seem to me that there are other parties that have a right to access, grandparents, parents, one of the other, and to suggest that they have no rights but that it is the child only who has the right to sort of accept access is a problem to me. I would just like to hear your rationale, if you really believe that this is so and why you believe this is so.
Ms Chisholm: I can answer that, if I may.
The point that is being made here is an attempt to reflect the spirit of legislation as it reflects the whole current family law issue around separation, divorce, custody and access. One of the major philosophical underpinnings is around the issue of access. This is not in any way -- you are absolutely right, Mr Kwinter -- to raise any query about the concern and the wish for contact with, for example, grandparents which is a really very concerned group around the current difficulties in custody orders.
The point, if we are trying to clarify, is that if we insist that access is a right only of adults, we provide no protection for the children where that access is not in their interests, because the argument can always be made, "This is an absolute entitlement of mine." You hear this argument a lot: "This is my child. I've a right to do this." The protection aspects of child welfare law have moved into this concern in family law because we are now, as you undoubtedly very aware, for example, in really serious, bitter custody quarrels.
1150
Now one of the new weapons that is being used is the allegation of sexual abuse of the child or children by the absent parent, so that the dilemma now is, how do we reconcile and balance the entitlements of all the people concerned? In recognizing that a child is entitled to know and love and have contact with both parents regardless of the nature of the parents' quarrel with each other, that is not an absolute. That must be always placed within the context of the child's right, a primary right, to protection from harm.
In order to clarify the difference between entitlement and obligation, it is very important to understand those differences. Of course grandparents have rights and entitlements. Of course parents have rights and entitlements. But so do children and the issue we are trying to clarify here is that so much of our experience -- I am a social worker in private practice. My particular specialty deals with the issue of separation and divorce as it affects children. What one sees frequently, frequently, frequently is the fighting that goes on and you can never tell, always, absolutely which starts first, but what happens is that if you cannot see those kids: "Okay, I am not going to give you any money for those children. I won't support those kids. You want money for those kids? You let me see those children." Or, "I can't possibly continue to support these children if I am never allowed to see them."
The two issues become very much embroiled with one another, and what we are suggesting here is that the separation of that issue, as reflected in this legislation, is very important in order to keep the thing clear in everyone's mind. We do not want to continue that kind of negative quid pro quo, "I'll pay if I see," or, "You will see only if you pay," which goes on in a great number of separation quarrels and divorce quarrels around the children and around support.
The obligation to support children should exist regardless of what the nature of the quarrel between the parents is and regardless of what, if any, orders may be in place. For example, you may have a situation where a non-custodial parent is under an order only to see their children under supervised conditions, or indeed to not see the children at all until certain other conditions have been met. That very drastic step may need to be taken in order to protect the children from harm, but it should not in any way obviate the ongoing responsibility to continue to meet a support obligation, and that is the point we are trying to make.
Mr Kwinter: I have no problem with that. Where I do have the problem is that this document is in circulation and someone takes a look at it and says, "The Ontario Association of Professional Social Workers says that access is a right of the child."
Ms Chisholm: Yes, you will find that this is reflected in legislation around the world, sir.
Mr Kwinter: I just do not think it should be exclusive on one side. I do think there are rights of other people to have access to their children. I am not in any way --
Ms Chisholm: Of course they do.
Mr Kwinter: -- advocating that someone who is a child abuser should have unlimited and unfettered right.
Ms Chisholm: Of course not.
Mr Kwinter: The other thing I would like to ask is on page 4 where you talk about additional issues and you sort of lump four things together. I do not know whether they are all negative and positive, like, "The debtor is on strike or laid off." What is your recommendation on that? "The debtor is a student receiving a student loan." "The debtor declares personal bankruptcy." "The debtor is self-employed." It would seem to me that you would want provisions to in some way alleviate the responsibility under the first three, and on the other one you would want to make sure some additional legislation is provided to be able to attach the income of someone who is self-employed. I would just like you to expand on that.
Ms Chisholm: I will just make a comment and then defer to my colleagues.
What we are trying to identify here are those parents whose work situation or life situation does not lend itself automatically to the structures proposed in this legislation, so that they do not get missed. There are very real issues involved, for example, with the self-employed person who is elusive, does not have a person at a payment office or human resource office or something who can make those reports to the director of such a program. There is nobody this person is accountable to. He is self-employed. He is on his own.
The issues of strike and laid off may very well mean for those not protected by large unions that the absolute available income for such an order shrinks. We want to make sure that there is recognition of these kinds of situations. A young parent who has gone back to school and is on a student loan basis: What kind of procedures could we think of for that young parent? Those people will not have, again, a reporting mechanism at their place of employment but there is an income. Maybe they are living back in their own family home again so that their living costs are very low. What mechanisms might we suggest to you to have access to those parents as well?
Mr Kwinter: If I can just interrupt, what I am trying to determine is, are you saying that if someone is on strike, it does not matter that if he is on strike, and that even if he does not have a union, there has to be some provision to get money out of him while he is on strike.
Ms Chisholm: No, it is the reverse.
Mr Kwinter: That is what I want to find out.
Ms Chisholm: It is the reverse.
Mr Kwinter: But it seems to me I sort of gathered that when you were talking about the strikers, but when you are talking about the students, are you saying that if a student goes back to school you want to be able to attach his OSAP loan, for example?
Ms Chisholm: We want to be able to explore one mechanism, are suggesting a mechanism for what procedures ought to be employed to make sure that if that person is capable of making a contribution to the support of his child, he does so or she does so -- not just always a he; she does so; the parent does so. If it is not feasible, fine, it is not feasible. This is not punitive. What we are trying to do is be comprehensive and to simply point out that there are some life situations which do not appear to be readily touched by the present proposals. We are just suggesting that the regulations consider procedures that would address these kinds of situations as well.
Mr Kwinter: We had someone from the family bar association and it seemed to me that he addressed it properly, that when the order is made all of these situations are taken into consideration, and if the situation should change then it would seem that the payer would go and get a variation of the order.
Ms Chisholm: Move to get a variance.
Mr Kwinter: Yes, to get a variance and really it would seem to me to be redundant to sort of spell that out. The practical situation would make that happen.
Ms Chisholm: I do not want to be the only one answering here, but there is experience that indicates that does not happen. This touches on another part of the point we are trying to raise here. The assumption that you will get that kind of co-operation and that the program will get that kind of co-operation is something that needs to be carefully thought through. In our experience, my colleagues' experience, my own experience, that is not always so. You may have a parent who wishes to be a responsible paying parent. You may have a parent who does not wish to be a responsible paying parent. You may have a parent who is still very, very angry and still wishing to intimidate the previous spouse.
All of these situations exist and we are simply saying this is an excellent proposal and we want to make sure it is broad enough that it will incorporate those we think it would miss otherwise, so that the spirit and the intent of the legislation has an opportunity to touch at its broadest possible base.
The Chair: Mr Sorbara, the caucus has run out of time but this is the end of the morning, so please one or two if you could.
Mr Sorbara: Oh, how kind of you, Mr Chairman. I want to begin by congratulating the association on its brief and apologizing for the fact that I was not here for the first few minutes of it. I would like to follow up on Mr Kwinter's questions, and to begin with, his question of how you deal with the debtor who is on strike or on layoff. What would your suggestions be? Should there be no obligation during that time or what?
1200
Ms Mann: I think this is why we presented it in this way. We really do not have enough information to know how these issues should be addressed. I agree that number four, "The debtor who is self-employed," is in a different category to the other three who would appear to be -- possibly not with the bankruptcy one, but the other two appear to be more short-term. We were particularly concerned about the self-employed --
Mr Sorbara: I can understand that.
Ms Mann: -- because there are no checks and balances available.
Mr Sorbara: The reason I asked that is of course because in a family situation, when everyone is living together, when there are layoffs in the family everyone suffers. The kids do not get the new shoes, the husband does not get perhaps to go to the baseball game, or maybe the mortgage does not get paid and the house is lost and you have to move into an apartment and everyone suffers. But under the circumstances of a court order for support the obligation continues and arrears occur and then SCOE has to put those people in the category of defaulters, some of whom are very happy to default and some of whom really feel badly about it.
I want to go on to the question of access as well, because I think you described in your comments the realities of the situation out there. I think what some of the people of this province are a little bit concerned about is that this government, the new government, has continued to proceed with this initiative which was started under the previous government, and yet has abandoned those minimal access enforcement issues that were contained in Bill 124, so I think some people feel rather abandoned and at the same time rather hard-pressed through this legislation.
You seem to be very supportive of it and I am glad to hear that. There is some suggestion that what we are really doing here is simply improving the enforcement mechanisms of an agency that needs to do that, to recover social assistance funds which it feels the government should not be paying out and to streamline its enforcement procedure. Do you think that this legislation will dramatically change the dynamic out there that you experience as a social worker in private practice, and if so, how?
Ms Chisholm: No. I do not think it will, because what causes people to quarrel and marriages to break down has nothing to do with legislation. It has everything to do with the meaning of their relationship to each other and the way they have behaved with each other, the maturity or lack of, and the impact of responsibility, all of those issues.
What we are endorsing is a position that recognizes that there are structures needed in order to establish some kind of resolution when there continues to be bitterness and anger or misunderstanding. Certainly in my own practice experience -- I do a great deal of work with assessments but I also undertake mediation and I also do counselling, either separation counselling, marital counselling or post-divorce counselling -- one of the issues we begin to recognize is that some families, some couples, can in fact be helped to negotiate an agreement that they will live with, but not all couples can. Mediation is not an absolute panacea. It is an enormously important tool, but it is not a universally applicable one.
There are -- I believe I speak for my colleagues in the association -- and there will always be situations in which a more formal, authority-based structure is going to be necessary in order to ensure that people meet their obligations to their children. One of the major collision points in that situation arises when a former spouse, following divorce, remarries and has a new family. You will then find considerable tension building in many cases between his now -- and it is usually a he, and I am just using that to define the problem -- when he now says, "I have an obligation to my now family."
Mr Sorbara: " -- and I would like to see the obligation to my before family shrink or disappear."
Ms Chisholm: That is right, and there is often a wish that the obligation to the before family could shrink. Exactly.
One of the mechanisms that works sometimes is to mediate that new situation, depending upon what the mother's new situation is. However, if that does not work, you need to be able to turn to a structure in which, on the basis of adequate and full disclosure and information as Mr Kwinter refers to, orders are imposed on the debtor.
Mr Sorbara: I understand that. I just have one final question, if I might. I think we agree that there will be some circumstances where a husband, and generally it is the husband, faced with an automatic order for deduction, will go so far, because of his anger, as to quit his job.
Ms Chisholm: Yes. It has been done.
Mr Sorbara: I think there will be other circumstances, and I think you would agree -- tell me if I am wrong, based on your experience -- that there are some husbands who are delighted to have an automatic deduction order, because they want to pay and it is easy and it is simple and they never have to see it.
Ms Chisholm: That is right.
Mr Sorbara: And then there are the people in between. This legislation says that everyone who receives a periodic payment will be subject to an automatic deduction order.
Ms Chisholm: Everyone who is under a court order.
Mr Sorbara: Oh, it has to be a court order.
Ms Chisholm: That is the point that we are trying to make.
Mr Sorbara: Or everyone who has a domestic contract that is enforceable under the law can use the procedure, as well.
My own feeling personally is that there ought to be leeway so that those who can deal with this outside of SCOE and an automatic deduction, those who seek either the privacy or the honour or something else of not using the system could be freed from that, not based simply on wealth but based simply on something else. What is your view on that?
Ms Chisholm: I agree. We agree that there should be flexibility and the place for private arrangement, but one of the parties to that original private arrangement contract needs the potential of protection if, on experience, the other agreer defaults, and that is what we are trying to address there.
Mr Sorbara: I could not agree with you more.
The Chair: Mrs Cunningham.
Mrs Cunningham: Mr Chairman, you may be surprised, but those were my exact same questions.
Interjection.
Mrs Cunningham: Well, you are learning. This is so refreshing some days. It is encouraging to see us have the same concerns. I just want to thank you for your responses and for the work you have done.
The reason I was going to ask a question is because you opened your brief by saying that "legislation related to the enforcement of support which is overly rigid may serve to exacerbate these family quarrels," which is my great concern. When things are going smoothly now out there in the real world and people are getting along, you and I in our work -- I am a former social worker as well -- do not meet those people, and there are neighbours down the street. At certain times in their relationship when someone all of a sudden gets angry because somebody will not pay the tuition of the college kid who may be able to pay his own, then goes down and says "This is what we are going to do," I can see us having a real problem. So we have been looking at some amendments. I may get back to you with regard to our amendments, if that would be fair for us to do.
Ms Chisholm: That would be fine, Dianne.
Mrs Cunningham: Thank you very much.
Ms Chisholm: May I just make one other comment too that we did not add. When this legislation is finally through third reading in whatever form, it will be important to consider modification of the Wages Act to be consistent with it so that the Wages Act is not inconsistent with the priority of the debt for the child, because the Wages Act at this point now sets us a ceiling of 50% in relation to other obligations. We just want to make sure that you are aware that there may be a conflict between those two pieces of legislation and we think this should take priority.
Mrs Cunningham: That is correct. The other one that I would expect that you would like to comment on is the need for the more supervised access programs across the province.
Ms Chisholm: Absolutely. That is a whole other subject which the government is addressing and which we will certainly be here to stroke and say, "Absolutely; very, very urgently needed." My colleague Ms Dabraio is very actively involved in that at the moment; has been for some years, as you know.
1210
Mr Carr: I just wanted to personally thank you, because I know working on the front lines must be very, very difficult in handling all these situations, and we really appreciate your comments.
I was just wondering, and we talked a little bit about access, hearing from somebody who is on the front line, let's use the case of a father this time who says that he does not want to pay because he does not get access. How do you handle that? And how are you going to handle that with this legislation? It is very, very difficult, and I was just wondering if you could relate to the committee how that is done.
Ms Chisholm: First of all, those situations would come to the attention of someone like myself 99% of the time through the office of their lawyers. So the lawyers have attempted to negotiate some resolution to this and have been unsuccessful.
There would be a request perhaps for mediation, which is why we have included this, in which someone like myself or my colleagues would sit down with both parties at the same time and attempt to work out a compromise arrangement that each can live with which is fair to the needs of the children.
The problem is, as I indicated in discussion with Mr Kwinter, not everyone can use mediation. Mediation, to be effective, requires the willingness to compromise and some people are absolutely not willing to compromise. In those situations, I think the lawyer might ask if I would or my colleagues would counsel his client or her client.
Mr Carr: Is that a large percentage that are in that category, would you say?
Ms Chisholm: No, I would say not. The degree is in the problems they cause and the problems they create. Really intransigent, really bitterly angry people can be equal to 10 other cases in terms of how difficult they are to negotiate with, how difficult they are to troll into any kind of relationship so that you can begin to get at what in fact is behind the rage. And the issue indeed may not be money at all. The issue may be quite something else, related to the circumstances surrounding the end of the marriage for example, and the money has become the avenue for the anger. So counselling, if it is feasible with the very, very intransigent parent or client, might be again -- failing that, litigation is resorted to by counsel on both sides.
Mr Mills: Thank you very much for your presentation. I found it most interesting. I suppose when I have read this proposed legislation, one of the potential administrative nightmares that I have come to grips with is when the debtors change their jobs and you can never catch up with them. You know, it has mulled around in my mind, what are we going to do? What sort of regulation are we going to put in here to come to grips with that? I was quite interested when I read your presentation that, lo and behold, you have the same ideas in your head.
Have you folks thought of what regulations you would like to see that we should look at to address this problem? I do not mean to put you on the spot, but I am trying to get some input, how it would help me.
Ms Chisholm: If we knew how to walk on the water, we would be busy doing it in another part of the world right now. I think the mechanisms at best will be limited and faulty. There are always going to be deadbeats. There will always be people who will spend their energy defeating the system rather than just riding with it. No legislation is ever going to solve all of the possible As, Bs and Cs that come in under it.
One of the things that I was concerned about, and I guess we cannot really do anything about it, is that the personnel officers or the payment officers in businesses and industries are now going to have yet another piece of paper to make out on behalf of all of their employees, and they are going to greet this legislation with great joy.
But we attempted to try to get at some of it through the suggestion that if the couple have lawyers and it is a non-court-ordered agreement -- they have agreed to get along with each other and they have a private agreement; everyone should always be entitled to arrive at that -- that private agreement, a copy of it, be simply filed with the program, not for action, but simply to be there in case.
As it is now, the court clerks must file all orders of support that are made in courts, in family or county or courts of general practice now in Ontario. They automatically now have to be filed with SCOE and they are there. So we are saying there is already a pattern for that in place. Why do we not broaden it? Why do we not ask counsel secretary to type up another copy of the signed agreement or run it off on the fax machine or run it off on their Xerox, and automatically have to report that to the new program? Where it sits in a file, it may never, never be touched again. These two people may in fact honour their agreement, and the children grow up and are fine. The point that Mr Carr makes is an important one, that we do not see a lot of those in social work. We do not see the people who do not need help; we see the people who do.
Mr Mills: Who do, exactly, yes.
Ms Chisholm: But this would be at least a mechanism and it would be incumbent upon counsel to inform their client that this must be done, just as it is now incumbent upon counsel to inform their client who wants a divorce of the counselling services available to try to save the marriage before proceeding with an action for divorce. So this would become automatic. It at least would get some part of that.
The person who skips town or who skips from job to job or who deliberately gives up work is harder to discipline. We have found some ways of managing the person who wanted to get rid of a lot of property holdings when he saw the separation agreement looming, and we have now been able to give orders refraining from the disposition of assets. I do not know whether we know how to, and whether we could, figure out a system to give an order so that you cannot dispose of your current income, because I think the civil libertarians would have a lot to say about that, and quite rightly.
So I do not know. I think what we are suggesting is, we have identified some groups. I had a situation I was trying to mediate. This man is in construction, which is notoriously flexible and related to weather. He was working for a non-union employer. He and his little group were unemployed or down to a day and a half a week because there were strikes in other parts of the industry which supplied parts and since they could not get the parts, they could not do the work.
He was cut back to a day and a half a week. He is married and has another child. He is a very responsible parent. He wanted to mediate with his former wife a reduction in the immediate monthly payments since he did not have that money coming in and there was no pay coming to him at all except this very drastically reduced amount, but said: "If there are big expenses like her first communion dress, let me know. I want to help with that. I will be able to do that kind of thing, but I need time for the monthly kind of arrangement." She was totally unwilling to give him that flexibility, and that is very unfair. The mediation was unsuccessful because we could not bring her to a point of agreement. Unfair, but there it was.
Mr Mills: Thank you very much. I guess there is no magic solution to this problem.
Ms Chisholm: No, I do not think so.
Mr Mills: May I say one thing -- I realize it is getting on to lunch time -- about the access visits. I have a constituent who came to me the other week, and it is a very sad case in that there is access to her previous husband and the daughter hates going there. But she said, "If I stick in my toes and say we do not want this traumatic upheaval every weekend, the ex-husband will then say, `Well, I am not going to pay you.'"
I firmly believe that the access is the right of the child and, you know, she comes to me. What am I going to do? It is a real quandary and it is heart-wrenching when people come to a politician to sort of rule on who is right and who is wrong.
The Chair: I think you have posed your question. I realize this is a case, a related question.
Mr Mills: Okay, yes. I just wanted to discuss that.
The Chair: Nevertheless, we have gone way beyond time. I am wondering if you could answer it fairly briefly. I appreciate the difficulty.
Ms Chisholm: One of the issues that we do not want to appear to be doing is ambulance-chasing in any way, but I would urge all of you who have constituents who come to you with these questions to be in touch with the association that can give you the names of social workers in either agencies or private practice who are experienced and skilled in assisting in the resolution of these dilemmas.
As I indicated before, sometimes the money/access issue is not the real issue; it is a smokescreen for what is really going on. If you address only the money issue and the access issue, as critical as they are, you may miss what is continuing to keep the fight going, so you need professional assistance in exploring that and trying to resolve the real quarrel.
The Chair: Perhaps, for a specific suggestion, Mr Mills, you could approach Ms Chisholm in the hallway.
Mr Mills: I am just trying to get an insight -- free advice.
The Chair: Thank you very much for your presentation.
We are adjourned until approximately 2 o'clock this afternoon.
The committee recessed at 1222.
AFTERNOON SITTING
The committee resumed at 1403.
The Chair: I would like to call the committee to order. There are a number of announcements to make at the outset. First, in terms of scheduling, the Assaulted Women's Helpline this afternoon is cancelled. That time, I would suggest, should be used by the subcommittee members, one of whom unfortunately is absent, to discuss the scheduling for next week subsequent to our discussion last evening. If you could mention that to Mr Sorbara when he arrives, the subcommittee could meet immediately after the committee's proceedings have finished.
There are several other points. The clerk has produced and I believe has circulated some of the reports that were requested, the report from Alberta, the estimates, and she also has a copy of the video from the state of Florida and posters which are being prepared by the SCOE administration. We only have one copy of the video, so if committee members wish to use it, please ask the clerk; take it with you and return it whenever possible. Again, there is only one copy of the posters, so you could take a look at them here as opposed to taking them away with you.
One other brief announcement is the presence of Mr Wessenger. I apologize to the committee for not having mentioned that he is the parliamentary assistant to the minister responsible for this legislation. Mr Wessenger has full freedom to sit wherever he wishes to in this committee. He has chosen to sit here. I understand from the clerk that he could, however, sit in any chair he wishes.
Mr Wessenger: I would like to raise a point of clarification on one of the earlier submissions, the chamber of commerce submission. The impression was left that under the support deduction provisions more than 50% could be deducted. In fact, the maximum under the Wages Act and the new legislation would be 50% unless there is an order made under the act increasing that amount. There will be a clarification submitted to all committee members specifically setting out the provisions.
CANADIAN FEDERATION OF INDEPENDENT BUSINESS
The Chair: I am privileged to welcome Linda Ganong from the Canadian Federation of Independent Business. Ms Ganong, I believe you have made presentations in the past. You have half an hour. You can divide that time as you wish. After your presentation, many of the committee members may wish to ask questions of you. Please go ahead.
Ms Ganong: I will try to keep my remarks as short as possible to leave ample time for questions.
I want to say first that about three quarters of our Ontario members do support the concept of this legislation. They are in favour of a direct deduction system for child support. They understand the need for it and they see the realities of the situation out there. What I mostly want to talk to you about is the implementation of that concept, the places where the act could be a little more smooth, make things a little easier for the small business community out there to comply.
Members of the committee probably know that Ontario is a small-business universe: 97% of firms in Ontario have fewer than 50 employees and 75% of them have fewer than five. The big majority is really tiny little firms with four employees or fewer, and compliance can be a real problem for those kinds of firms. This act needs to be as simple as possible so there is no burden on those firms so they can comply with their obligations under the law.
The other point I want to stress is that small businesses are not big businesses. It seems simplistic, but it is something that is often overlooked. When we think about business in the province, we often have a picture of General Motors or IBM or Bell or any of the big businesses; that is what we think of when we think of businesses. Small firms are just not like that. They are not structured that way, they do not operate that way. They are a completely different kind of entity. So when we are legislating, it is really important to keep in mind that the vast majority of firms are not our typical picture of business.
And the things we think business can cope with without any problem are actually going to cause problems for the vast majority of firms. The little tiny ones especially, the three quarters that have fewer than five, do not have sophisticated systems. They do not have streamlined systems, they do not have specialized personnel, they do not have a lot of high technology. Their owners tend to work hard and for less pay than most salaried employees. Actually, we have just brought out a study -- I do not know if you have received it yet -- that shows that the average small-business owner works harder than salaried employees and earns less than $30,000 on average, which is much less than you do and I do probably. These people are not wealthy people.
And in the smallest firms, particularly the ones with fewer than five, the owner is the one who is carrying all the functions of the business, so he or she is doing payroll, accounting, as well as marketing, sales, managing the production and just basically making the business run. That again highlights why it is so important to try and keep the implementation and the mechanism of this act as simple as possible, so that owners of that size can cope with it.
Members of committees who have heard us here before will not be surprised to hear that the number one and number two problems for small business in this province are, first, the total tax burden and, second, the burden of government regulation and paper burden. At the back of our brief I have appended a chart which graphs the major small-business concerns from our survey starting in July 1988 until September 1990, and it has not really changed since then. Total tax burden is just getting worse and government regulation and paper burden is right up there as number two.
1410
One of the problems with tax burden is that our tax system right now is fairly discriminatory against the smallest firms. We just brought out a study last fall that showed that, compared to four other jurisdictions in Canada and five US jurisdictions, Ontario's tax system is the least competitive. That is across all levels of business but it is particularly hard on the small businesses because of the prevalence of payroll taxes and fixed property taxes. So these people are being squeezed on their bottom lines anyway, and then when you take a heavy compliance or administrative burden, it makes it that much more difficult.
In terms of compliance and administrative burden, it really breaks down into two components. One is the pure, out-of-pocket administrative costs, what it actually costs the business to comply with a new obligation under the law. The second is a more general cost of compliance, which is opportunity cost, where the owner is busy complying with the new law and therefore cannot use his time in the interests of other parts of the business. Those opportunity costs are impossible to calculate. I wish I could tell you what they would amount to, but I do not really know even where to begin. When you have a small firm, even a firm with fewer than 50, where the owner is really doing the bulk of the work, when the owner is pulled away from the other tasks of the business to do administrative tasks I do not know how you can possibly calculate what the loss is to the business. But it is there and it needs to be recognized and minimized if possible by simplifying the system, by making the system itself easy, quick, smooth, streamlined, so that the amount of time the owner has to spend understanding it and actually complying with it is as little as possible.
With regard to the actual out-of-pocket expenses, what it actually costs a business owner to comply with a new obligation such as this in terms of cutting the cheques and doing the extra payroll work and sending the money in and that sort of thing, what we would recommend to cover those kinds of costs is some kind of modest compensation. It does not have to be a lot. The retail sales tax in this province is one of the best examples of that kind of compensation. Ontario is actually a leader in that field right now. Ontario leads the way for all the other provinces in compensation to vendors under the Retail Sales Tax Act. Vendors who collect sales tax for the province and are doing a service for the province get some small amount of compensation every year just to make up for the fact that they are running into costs.
We are recommending that some kind of compensation be implemented in this act as well. In some ways it is almost more important to recognize the work that small-business owners are doing than actually to try to cover the costs, because you probably will not be able to cover all the costs and they do not really expect you to. But in order to avoid engendering a lot of resentment about being the unpaid slaves of government, doing an obligation that really is not their obligation -- it is a recognition of the fact that they are out-of-pocket and are doing some work. Some kind of modest compensation would go a long way to spread a lot of goodwill.
It is possible that it could be arranged that it would actually come off the payer's pay, which would be the fairest way of doing it because the payer would otherwise be the one who would have the obligation. It would be the payer that would have to pay for the cheques and the envelopes and the postage and all that, because that is where the responsibility really lies. If the employer is taking over that responsibility, I do not even know what it would work out to, perhaps $50 a year or something like that. That would cover those costs and make the small-business owners feel their concerns were being listened to and that they were not being asked to bear the whole burden.
In terms of some changes to the actual mechanism of the act, we have mentioned a few of them in the section of our brief called "details of implementation," which starts on page 6. A lot of these are not major changes, but they are the kinds of things that can really make a difference when you are a small-business owner. The fact that the act allows for a support deduction order to be binding on someone who is not named in the order makes sense, because it means you do not have to reissue the order every time the employee who owes the obligation changes jobs.
It could be confusing for small firms. They get so much mail from the government and a lot of it they consider to be junk mail. A lot of it seems to be a mistake or does not make a lot of sense to them. So getting a support order that does not name them in the order as an income source might tempt them to think, "Government screwed up again, sent it to the wrong address," and chuck it in the garbage.
So we are suggesting that it is somehow brought to their attention that they are still bound, that they need to check to see if the person named in the order is in their employ, and in that case they would be bound. Simple language right up front, maybe big letters or bright colours, something that is going to alert them to the fact that this is not necessarily an error but something they need to pay attention to, would really help a lot. Otherwise, you may find they are inadvertently in breach of the law without really intending to be just because they -- again, lack of personnel. The owner coping with the volume of mail needs to go through it as quickly as possible. So some kind of notice would really be helpful.
Also, the section about the amount of time after which an order is deemed to be served does not really take into account the realities of our postal system. I heard from a member the other day that he had not received something we had mailed to him six weeks before. We cannot really trust the postal system these days. It is just an unfortunate reality, and five days probably is not long enough for the bulk of what is going to be delivered in this country. Especially with anything that is going to be delivered before a long weekend, say on a Thursday, that would count as Tuesday and probably it will not be there by Tuesday.
You might want to take a look at, first, changing it to working days so that you are actually giving the post office those number of days to deliver it; it is not going to do anything on the weekends. Second, seven working days might be a more realistic assumption of how long the mail will actually take to get there. Again, you do not want to handicap these people without need.
One of the major inconveniences this legislation contains is the requirement for the employer to give written notice if the employee ceases to work there or if he never worked there. That may seem small, and it probably is small for General Motors or IBM or someone who has a clerk who can easily do it, but for a small firm that has enough to cope with, the actual requirement to do written notice is really an awful pain. If they could just pick up the phone and call either a hotline number or a particular number at the director's office and say: "This is a mistake. So-and-so never worked here," or "So-and-so just quit," or "He's just leaving in two weeks," or whatever, and have the director's office have clerks write it down if it needs to be in written form, if it cannot go right into the computer, it would be an immense help for the small firms.
Also, prescribed forms will get lost, they will get misfiled, and if they are in breach of the law because they are sending in their information in writing and not on a prescribed form, again, it is not making it easy for them to cope. If they could call it in, it would make it a lot simpler. Again, print the number really big up front where it is easy to find and you make the compliance with the law that much simpler.
It is interesting, Mr Wessenger, that you just brought out a clarification about exactly how much is supposed to be paid. This could be a real difficulty for small firms, too. If there is some way the order can spell out as clearly as possible exactly what the obligation is, exactly how much the small firm needs to pay, with a minimum of actual calculation that needs to be made, that would be really helpful; not in legal language, in really plain language. "Pay this amount" and then calculate it: "First, deduct the following deductions," and then list them. "Then calculate the 50 per cent. Then go ahead and deduct the other." Just make it as clean and clear and simple as possible. Otherwise you are going to be getting into problems because they are not going to know what to do.
Finally, on the issue of the director having the power to bring disputes to court if there are disputes about the amount of support being deducted, again, we would want to see that any disputes that really have to do with the payer's problems be settled with the payer first and that the small business owner does not get hauled into court unnecessarily. If he or she has wilfully flouted the law, obviously the law needs to be enforced, but if it is some kind of miscommunication or misunderstanding or problem, try to solve it at that level without necessarily pulling them into court, because there are lost opportunity costs. Nobody is running the business if the small business owner is hanging around in court waiting to be heard. These days especially, with the economy in the state it is, the more energy small business owners can give to the actual running of the business, keeping their employees employed, making payroll, the better.
Those are the major points I wanted to touch on. I will not go through all the brief. I hope you get a chance to read it. I put as many comments as I could from our members in there just so you get a real flavour of what the small business community is feeling.
1420
We did a survey in the summer asking them about this particular issue and the way that they wanted to remit money, and a lot of what they had to say about going through government channels is highly interesting. I really hope that you read it and take it to heart. There is a great deal of mistrust of the government's efficiency and cost-effectiveness out there, and again it really highlights the need to streamline this act and make it as simple as possible. I am happy to entertain your questions.
Mr Carr: I was just wondering if there were various groups who were consulted. Were you consulted prior to this?
Ms Ganong: Yes, we were.
Mr Carr: So you had a chance to have some input on it?
Ms Ganong: Yes, we did.
Mr Carr: One other question. On page 12, on the liabilities, there is some concern on the part of business an income source is personally liable for paying. Have any of your business groups been concerned about that aspect of it at all?
Ms Ganong: I am sorry.
Mr Carr: On page 12, about an income source being personally liable under the liability there, for "paying to the director's office any amount." Have there been any concerns voiced by any of your members on that portion of it?
Ms Ganong: None was mentioned by our members. Again, I think it would really depend on the fact that that would only be enforced in the case of a really wilful, disobedient flouting of the act. You would not want to see that coming to force if the small business was inadvertently caught up in an administrative problem because the system was not properly streamlined. If somebody just goofed, made a mistake, was not clear, did not understand, you would not want to see that person be personally liable; only if it was a really wilful, "I'm not paying, come and get me," sort of attitude, which I suspect you are not going to see very much of in the small business community.
Mr Carr: I assume that is the intent. You mentioned earlier that you were looking at some of the cost being borne by the people responsible but you did not seem too clear on a number. I was wondering if you have done any research into how much it actually would cost a small, five-person business to do this. I think if you are asking somebody to look at that, you should be a little more specific, and I was just wondering if you could clarify it. You mentioned the $50, whether that came off the top or whether there is any scientific method of determining --
Ms Ganong: We do not have any hard evidence right now. The way our organization operates, we do not have a committee structure the way other associations do. That gives them a sort of a tap-in very quickly to get information from their members that we do not have. Our members are out there running their businesses; they are not sitting on committees.
We do survey them, but we did not have enough lead time to survey them on these particular points. But I could call around very informally to some of them and just see if I could get a ballpark figure from them about how much they estimate it would cost and bring that back to the committee. We do not have survey results based on 7,000 members.
Mr Carr: But you do not see it as an overwhelming burden even for a small business in terms of cost, other than the fact that you said, particularly with small businesses, that time is money. They would not be out of pocket other than in time, and I think your suggestion there was to keep it as simple as possible.
Ms Ganong: They would be out of pocket but they would not expect to be totally compensated for that, just as they are not totally compensated for what it costs them to collect the retail sales tax. It does not. It goes partway -- it is a gesture, it is a help -- but it does not totally compensate them and they understand that. They are taxpayers and they understand the realities, especially the situation we have right now with the deficit that we are facing. So surely they are going to bear a part of it. They are not happy about that, but they are used to it to some degree. Even the kind of compensation I am talking about is not going to compensate them totally for what they are out of pocket. They are going to be bearing some of it.
Mr Carr: I see. One of the large business groups that was here this morning was saying the turnaround time that was listed in there is very difficult, even for a big company like Dofasco. Do you see that as being a bit of a problem for a small business, knowing that a small business person has to answer every piece of mail that comes through right from the receivables to the government literature? Do you see that as being a problem in terms of the turnaround times that are outlined here?
Ms Ganong: Absolutely. The 14 days, I think, is too short; 30 days would be much more reasonable. It would make it easier for small businesses to cope. Again, they do not have sophisticated payroll systems, and as you say, it is difficult enough for large businesses. It is more difficult for small ones.
I think the payroll association people are probably going to be speaking to that as well, because that is their business.
Mr Mills: I have some difficulty in understanding the need to charge a fee for collecting this money. The reason is that I can understand sales tax. I used to work for the government in that department and I know all the problems. I have a hands-on feeling of all what goes on with sales tax.
I also understand that small business is very angry about all forms of government, which is why I retired last year. Collecting sales tax and getting paid for that is not a problem; but to get paid for collecting money to support a spouse or whatever, to me seems a little bit thick. Small business needs some sort of recompense for that. I might use as an example, you collect UIC, Canada pension, income tax and you do not get paid for that.
Ms Ganong: That is not right either.
Mr Mills: No, but I wonder why you expect to get paid for this? You probably know the statistics show that small business is two or three people. I wonder what chances the small business would have of even having perhaps one here and there scattered around.
Ms Ganong: If the small business person was not put to any extra expense obviously -- I mean we are not saying every small business should get this no matter what. Small businesses should only get it in proportion to the fact that they are incurring cots in the administration of it. So it is not that every small business in the province is going to get an extra $50 a year just in case one of its employees happens to be paying support obligations.
One of the principles and philosophies that small business people live by is the notion of responsibility, and they have a very keen sense of it. They do not particularly want grants or subsidies for themselves. In fact one of the areas that they advocate government expenditure cuts in the most is subsidies and grants to business. That is always number one on the hit list.
If you are going to cut anywhere, cut grants to business. We do not really want that. We want a level playing field. We want to be able to do what we do but we do not want handouts or things like that. They have a very strong sense of responsibility, so one of the reasons that they support this initiative is because they feel that people who are responsible for child support should be indeed responsible for child support, and part of the responsibility is being shifted to the small business employer. The responsibility of actually getting the money to the recipient is now being shifted to the small business employer.
They understand the need for it. They understand the sense of it. They understand how it would make enforcement and make that obligation covered and help the spouses and children. But they still see that as a shift of responsibility, so they want to let the person whose responsibility it truly is know that they are taking on that responsibility on behalf of that person and that that person should bear part of the cost that the small business owner is now incurring to get that money where it belongs. So there is a responsibility, sort of a philosophical issue underpinning it as well.
Mr Mills: Maybe I think a little different. I think that perhaps if I have an employee working for me under those circumstances, that would become a cost of employing that person. I do not see it as a different identity about paying. Anyway, thank you very much.
Ms Ganong: You are welcome.
Ms S. Murdock: A really quick question. In terms of the employees of small business, people that are within your group, would it be fair to say the majority of them are women?
Ms Ganong: I really could not tell you. I do not know if we have any statistics on that. I know that the number of our members who are women, the number of women business owners is increasing every year. But I do not have any statistics at all on the gender breakdown of employees.
Ms S. Murdock: Correct me if I am wrong, because I do not know the composition of your membership totally, but I know small business retail is in there.
Ms Ganong: About 25% of our members are in the retail industry. We have members across all sectors in the province. We have actually a bigger proportion of manufacturing members than the Ontario breakdown. We have manufacturing, construction, retail, services, financial. Every sector is represented in our membership.
1430
Mr Sorbara: Let me just begin by telling the witness that I think her brief is very informative and one would hope that, with the presence of the parliamentary assistant here, he will take note of some of the specific concerns that the Canadian Federation of Independent Business has on specific sections and can respond to them. I do not think that would cut to the heart of the bill.
I think the overall point that you make about small business feeling the ever-increasing burden of having to do things for the government, whether it is filling in worker compensation forms or -- we have had a long discussion on that.
Ms Ganong: That is right.
Mr Sorbara: Your president vowed that he would destroy me after I presented my workers' compensation bill and he was partly right. Congratulate him for me, would you? But filling in those sorts of forms and other forms and reporting on a wide variety of things is, I think, something that all governments should be aware of.
The legislation that we are looking at now has its roots in American legislation primarily, which was seen as legislation to reduce the costs of social assistance by making welfare recipients cough up money that they should be coughing up and reduce the financial cost to government and transfer some of that cost to employers. I am surprised, frankly, that the CFIB is so enthusiastic about it, but that is a decision that you made.
I would like one little point of clarification, I guess, with the help of the parliamentary assistant and the policy advisers who are here, and it relates to the question that Mr Carr asked. Do I understand correctly, I ask the parliamentary assistant, that the primary liability of employers arises only where there is a case of wilful withholding of payment? In other words, if a notice has been received but inadvertently ignored and funds go into the hands of the supporting spouse and the employer has not forwarded the money to SCOE, is he or is he not primarily liable at that point?
Mr Wessenger: The legislation reads that it is a failure to remit "without proper reason," so that is the actual language in the legislation.
Mr Sorbara: I think this must be very important to the Canadian Federation of Independent Business. It is, "Oh, my God, I forgot," "Oh, my God, my wife was supposed to fill out that form," or "My husband was supposed to fill out that form and he did not."
This is very important, because primary liability for such payments can mean for a small business thousands and thousands of dollars, if it were an employee who was having, say, $1,000 a month deducted from a paycheque and he or she was the only employee and suddenly the business realized that it had a $10,000 obligation. I appreciate that the payer is also liable, but what about this primary liability of employers?
Mr Wessenger: It would be the same as we now presently have under the garnishment test. There would be no change in the --
Mr Sorbara: I can see that you are being advised to that effect, but let's get down to that. What is that? A garnishment test involves an employer very directly. He knows what is happening. But here we are expanding the number of people who are going to be paying support. Everyone is going to be included. Whether or not they want to be included, they are going to be, so that is going to increase the volume. We should be very clear, I think, about liability here, should we not, I ask my colleagues over on the other side of the floor.
Mr Wessenger: I really fail to see the difference between a garnishment being served and the question of a support deduction order being served as far as a small business is concerned. It seems to me that the test should be the same and obviously it would be -- as I said, I have not read the jurisprudence on the matter.
Ms Ganong: Again, it is the issue that I alluded to earlier, that if the order is served and it does not mention the small business particularly in the order -- and I can understand the reason for doing that, so you are not constantly reissuing orders every time an employee changes jobs -- a small business person could easily think that it had no application to him or her and just chuck it. In which case, you would not want that person to be personally liable. That is --
Mr Wessenger: No, of course. I think I have taken in your comments very much about the need to have a proper notice and something that would bring it to the attention of the small business. Certainly when the notices are sent out -- and the mechanism, the form of the notices will be, I assume, under the regulations -- the staff will be directed to ensure that there is no opportunity for people to just toss something out.
Ms Ganong: Because it is different from garnishment, which is particularly addressed to that person and cannot be avoided. You just might want to take a look at the drafting and change the wording from whatever you have got now to make it a little more clear that it is cases of really wilful disregard.
Mr Wessenger: Except that right now, if people are completely negligent in dealing with something, I believe the law is clear that they are still liable for the obligation.
Ms Ganong: There is negligence and negligence. There is inadvertence or ignorance, which is one thing, and then there is just, "I can't be bothered and I'll get to it whenever," that sort of thing, which is completely different.
Mr Sorbara: I think probably for the small business, this is a crucial point. An undertaking from the parliamentary assistant that there would be consultation with the CFIB in the drafting of the regulations under this section, that there would be regulations made under this section probably would solve the point. I know that the parliamentary assistant said we should have the same test as when there is garnishment, but garnishment has historically been an unusual event particularly in the life of a small business, not something that arrives on a regular basis.
We are now moving into a system, we are actually advocating here this law system which would become much more regular, and I think before we summarily say, "Oh, well, let's just use the same test as before," we had better be careful, because it could involve thousands and thousands of dollars. The employee could end up with the money and the employer could end up in very serious financial straits because he made a mistake.
Mr Wessenger: I think the point is well made. There has to be, as well as a good notice provision to the small business, this public awareness program for small business. I think it is an obligation of the ministry to ensure that the public awareness program is such that it brings to the attention of the employers their obligations. That certainly has to be done by the ministry.
Mr Sorbara: Is that an undertaking then from the parliamentary assistant, Mr Chairman, that there will be consultation before the regulations are actually put into effect? I did not hear --
The Chair: The minister said that, I believe, on Monday.
Mr Sorbara: I did not hear that on Monday nor did I hear it today, but I am recommending it once again. I do not have any more questions.
Ms Ganong: I have just one more point to make. I did not mention this in my brief, but there is a great deal of attention placed on the notices that the employers have to send in. I did not see anywhere, and I may have missed it in the legislation, any indication that once the support obligation was terminated or somehow interrupted, the income source, the employer would be notified to stop making the deductions. I did not see that anywhere. It may be there and I may have missed it. But if it is not there, it should be there.
Mr Wessenger: That is a very good suggestion.
The Chair: Thank you, Ms Ganong, for a very interesting presentation.
IN SEARCH OF JUSTICE
The Chair: We now have a presentation from In Search of Justice. Come to the table and announce your names. I know you gentlemen have been here this morning, so you are probably familiar with how the process works. I need not go over that with you. Start whenever you feel comfortable.
Mr Virgin: Thank you very much, Mr Chairman. There will only be one speaker for our submission, although you are quite right, there are a number of very interested people with us today.
My name is Ross Virgin. I am the president of In Search of Justice. The real thrust of what we want to present to you in whatever can be accomplished in half an hour -- we all have those time constraints -- is we would like to just address one aspect of Bill 17, which is probably the most important concern that we have. Our group is made up primarily of fathers and, while Bill 17 or any other legislation addresses gender, I think it has been referred to a great deal this morning that we recognize that it is primarily fathers who are the access parents, the payers, and it is the mothers who are the custody parents, the recipients of support payments.
1440
I also fully understand that what I am asking of you today is beyond your mandate as part of the justice committee. You do not have the right to amend any legislation which would change the intent of that bill; I appreciate that. Having recognized what your mandate and your power is, I want to suggest to you that you do have the ability, though, to go back to your respective caucuses and bring to each of the parties -- the NDP, the Liberal and the Conservatives -- our major request of you today even though it cannot be included in Bill 17.
Our primary concern with Bill 17 is that you are, through the passage of this bill, enforcing only 50% of the law. That was referred to this morning when it was recognized by several presenters that family court orders include and define the support payments, the obligation of a non-custodial parent to accept responsibility for their children. We do not dismiss that or deny that. But the same court order also defines the access and visitation provisions for that non-custodial parent. It is with great distress that our members note that the new NDP government has destroyed Bill 124, which addressed the matter of access rights for non-custodial parents.
Access rights are not just for non-custodial parents; they are also the right of children to see both of their parents. I did not, although I have been considering it, go around to find out some of your biographies, just to find out how many of you have children and how many of you do not. Every one of our members has children and they care very much about those children. I want to suggest to you that the children of our members care very much about both their parents; not the mother or not the father but both their parents.
So we are here today to talk to you not only about the right of those fathers to see their children but also the rights of the children of this province. I really hope I can prod your conscience, because I do believe the politicians who run this province have an obligation to the children of this province, and it goes far beyond the dollars and cents to put clothes on their backs. It touches on the emotional importance of those children during their upbringing having regular contact with both father and mother. Regardless of the differences that may have arisen between father and mother, the children do not divorce their parents.
The access violations we encounter in our organization disturb us immensely. It is the reason we brought along some of our members today. I would like to tell you, without going through the details of their cases, some of the horrendous experiences they experience. Those of you who were at the public hearings on Bill 124 heard some pretty outrageous and disturbing case scenarios, and I could probably keep you here for three weeks giving you those case scenarios. I do not think that is really what you need. I think you have heard enough in past hearings to know some of the difficulties.
I am not here to go on at length, giving you case after case after case, but I am here to implore you, to beg you to go back to your individual caucuses and bring back Bill 124 in whatever way you can. I am not suggesting at all that Bill 124 was perfect. It was not. It went through many revisions and it probably could have gone through several more. I appreciate Mrs Cunningham's comment that she was concerned about Bill 124; so am 1. But now that it has been destroyed, we have absolutely nothing, and that disturbs me even more than an inadequate bill.
I also want to beg of you and plead of you to reconsider Dr Jim Henderson's Bill 95 on joint custody. It is not a dead issue by any means, and that is what we are referring to when we say Bill 17 today is enforcing only 50% of the law. It is enforcing the dollars and cents but it is not enforcing the most vital part of a family court order, the relationship between children and both their parents.
Can you imagine what would happen if the Ontario Provincial Police went on our highways and enforced the speed limits only against black drivers but not against white drivers? You people would have race riots on your doorsteps, and so you should. Can you imagine what would happen if the members of this Ontario Legislature implemented a job creation program only for men and excluded women? You would have every feminist group in Ontario on your backs, and so you should.
But it seems okay that we can sit here today and consider Bill 17, which only enforces 50% of the court order. With due respect, I suggest to you that is the least important part of the court order, and we are ignoring totally the right of those children to interaction with both parents.
I refer to Eugene Radomil behind me. He has a seven-and-a-half-year-old daughter. He has not seen that daughter since she was approximately two years old; very disturbing, obviously, for Eugene and also disturbing for his daughter Lenka. Numerous occasions have presented themselves when Eugene went to the door -- you have heard the standard stories -- and had the door slammed in his face and the daughter is "not home" during his access periods. Did Bill 124 solve that problem? Not totally, but at least it made us aware that this is a serious reality and serious problem. Just this past Christmas, Eugene went to his daughter's door to deliver her Christmas present and the house was empty. It had been sold and the daughter and mother have moved who knows where. Eugene does not know where his seven-and-a-half-year-old daughter is, and Bill 17 does absolutely nothing to address that. I have to suggest to you that that is more serious than the dollars and cents.
Butch Windsor, next to him, has a three-year-old son, Dustin. Dustin has now been taken to Sarnia, so Butch has to drive from Toronto to Sarnia just to exercise his access. After he has driven all the way to Sarnia, in a period of 100 days he experienced 40 access violations. Bill 17 does not address that problem. Again, I realize that you cannot amend Bill 17 to provide for that, but you can go back, each one of you, to your individual caucuses and say, "We still have to do something about this." Bill 124 has been destroyed, unfortunately, by the NDP, and I hope I can get some response back from the NDP members about why they might have done that. I hope it was not politically motivated, but Butch Windsor and Dustin do not know why. All they know is that there is a three-year-old who would like to see his father. As a matter of fact, when that three-year-old is with dad, even when dad goes to the washroom, the three-year-old goes in and says, "Daddy, don't leave me," because it has been so long since that son has seen his dad. l hope that is important to you, ladies and gentlemen, because it is important to me and it is important to every one of our members.
Paul Kelly is right beside me. At the time of their separation, his daughter Erin was six years old. He came into the category you have heard about before at the Bill 124 hearings, where he came home and the house was empty. His daughter was gone. For six weeks or some extended period, he never even got a phone call. He had no idea where his daughter was. And that is despicable. It is disgraceful. We have not discussed that here today. l hope you will consider that, because it is the right of a six-year-old daughter to know who her father is.
If any of you have been through divorce yourself and you came home to a house where you thought your daughter was going to be and she was not there and you did not know where to even phone her, I do not think I have to tell you what it feels like. I wish we could discuss that today as part of Bill 17, but we cannot. But you people can make it a priority in each of your three parties.
I would like to ask Marianne Karklins to come forward. She is also a non-custodial parent. It is not just fathers against mothers at all. She is a non-custodial mother, one son in the custody of the father. Fortunately for Mrs Karklins she is not having serious access problems, but she is here today because when I discussed this bill with her she said she understands how unjust it is to take support payments right off the top of her paycheque and yet have this Legislature do absolutely nothing about protecting her rights with her son should her ex-husband interfere with those rights.
1450
I want to thank these people for coming here today. A lot of our members cannot be here today. l am going to ask Ray Davidson beside me to turn around our silhouette of a young girl and a young boy, because what we have put on here are the names of the children of our members whose fathers could not be here today but would love to be here because they are having problems seeing these children.
What we are asking is that you care about these children as much as we do. We are not suggesting for one second that you disregard the dollars and cents; we understand that Bill 17 deals with that. But surely if you have children yourselves you can care about these kids too and go back to your caucuses and change their attitude so that we can do something about Bill 124 on the issue of access. I would really hope you people can bring about Dr Henderson's bill on joint custody. These children have a right to two parents, not just one.
I want to make reference to some of the submissions this morning. It disturbs me immensely, the suggestion that the enormous majority of non-custodial parents are totally capable of paying support but just do not care, do not want to, are irresponsible. I have a lot of problems with the term "deadbeat fathers." I do not deny that there are some, but there is an awful lot of fathers out there who would love to see their kids and need your help to do that, so I hope you will give some serious consideration to those bills I referred to.
Dofasco this morning made reference to the fact that it believes 70% of the defaulters in its employ do not have the ability to pay. My own experience would vary anywhere from 60% to possibly 85%; it fluctuates quite a bit depending on the location and type of employment and also the economic situation during a recession. The group called the SARC Network also made reference to the fact that there are non-custodial parents who are unable to make their support payments. I just wanted to make that passing comment, that it has not been my experience that the overwhelming bulk of defaulting parents are irresponsible deadbeats. There are a lot who are in circumstances you heard about this morning which make it extremely difficult for them to pay.
I do understand that payment and the access issue are viewed as being separate, but I think it is a gross injustice to sit here today and leave these committee hearings and only deal with the almighty dollar and forget about the importance of children having a chance to see both their parents.
I would like to ask the clerk to distribute two of our handouts. In those handouts we have just reiterated so that you have it in writing. I trust you will take those handouts back to your caucus. It simply defines the fact that while we came here recognizing that it is beyond your mandate today or tomorrow or the next day to grant our request, it is not beyond your ability at all for Mr Carr and Mrs Cunningham to go back to the PC caucus and tell it how important our children are in this province. It is not beyond the ability of Mr Kwinter and Mr Elston and Mr Sorbara -- I really appreciate some of the talks I have had with Mr Sorbara, because he has six children of his own and I know he understands what I am talking about -- to go back to the Liberal caucus. I know you tried your best with Bill 124, but keep on trying, please, and try to promote Dr Henderson's bill on joint custody.
Ms Murdock, Mr Mills, Ms Mathyssen, Mr Fletcher, Mr White and Mr Wessenger, you have the opportunity to go back to the NDP and talk about the importance of children having a continuing, ongoing relationship with both of their parents after separation or divorce.
I want to thank you very much for your time. I know you have listened intently and that you do care about the children of this province, and I am looking very much forward to seeing your concrete steps to solve this very serious problem. Thank you very much.
The Chair: Thank you very much. We have a very limited amount of time. Are there questions from the New Democratic caucus?
Mr Mills: Just a comment.
The Chair: We should keep it fairly brief. Mrs Cunningham and Mr Sorbara have questions as well.
Mr Mills: In the beginning you asked, "You folks, have you got children?" Just for the record, I have children and I also have grandchildren. I have listened intently to what you have said and I am very pleased that you put forward that point of view, and I thank you for it.
Mr Sorbara: I want to say to the presenter that I understand where he is coming from on both points. He is right, of course, that we are taking up a separate matter here. I think there are two requests here: implementation of Dr Jim Henderson's Bill 95 -- that bill has not passed the Legislature, and just so the committee does not get the wrong impression, we have had discussions. I am not at this point a supporter of the themes or the particulars in my colleague Dr Henderson's Bill 95, but I certainly am strongly in support of the principles and the particulars of Bill 124.
Bill 124 was a bill that was agonizingly worked on over a period of a year and a half or two years. During some of that time, I was the minister responsible for women's issues. I can tell my fellow committee members, in particular the NDP members, that there was as much input from the advocates on behalf of women on that bill as on any bill I saw go through the Legislature in five and a half years. In fact, I can recall in detail battles between myself on behalf of those groups and the Attorney General at that time, the member for St George-St David, on the particulars of that bill.
But the grand thing about it was that we did reach a consensus which I could stand up and say was at that point accepted and agreed upon by very articulate advocates for women: women who were custodial parents and women who were custodial parents who had husbands who ought not to see the children, husbands who were violent to both children and spouse. The bill really was an example of where a Legislature, a government along with opposition and interest groups, did a pretty good job of working out a compromise. I want to tell the committee that I was absolutely shocked shortly after the new government came into power, on a day when one lobby group was making a presentation for more money for its organizations, that the Attorney General would take the political advantage at that time to stand up and say the government did not intend to proclaim Bill 124.
I want to tell the presenter that there is no need to reinstate Bill 124. It stands as a law of this land. All that needs to happen is that the provincial cabinet needs to proclaim the bill, just to say: "Yes, this bill is now in force. We proclaim it." It may well be that the government wants to make amendments to it before it does that. I think the government should consider that. This committee will look at those amendments. But the law is the law of the province of Ontario, passed by an elected Legislature. I just want to put on the record that I think the government was trying to score a few early political points when it decided not to proclaim that bill.
I would like Mr Virgin to confirm whether the government consulted his organization before it announced it was not going to proclaim that bill.
Mr Virgin: No, they did not.
Mr Sorbara: Certainly our government discussed with you and a wide variety of groups and held hearings on the terms of that bill. I think it is absolutely shameful that a new government, without consultation, would do such an about-face. Those are my comments.
1500
Mrs Cunningham: It is good to see you again. At that time we listened with interest. You know, of course, that have I spent 10 years of my life in the whole business of supervised access in programs in London which I wish could be duplicated across the province. People simply were not denied access when they had that opportunity and the courts could refer them to that opportunity. It was a very positive thing, and something I personally have taken up with this particular government. Certainly some of my colleagues were in from London on Friday speaking to the Attorney General about it.
I did not mean to say that Bill 124 in principle was not necessary. It was. We had many amendments which we placed before the committee and ultimately one of our members, Mr Cousens, presented his own bill. So you know, of course, what we are talking about when we are saying that we have a real problem in our society today.
One of my great concerns about this legislation is something that you did not speak to and I will ask you to just comment. I do not really want to take up a lot of time, but I am quite surprised. Certainly in the literature that has been sent to us and certainly by individual members of society, they have told us about their great concern about people who in fact do comply. They do not want to see their wages garnisheed and they do not want to give up their right of privacy, and all of us are struggling with that as perhaps a possible amendment down the road. I just wondered if you had any comment on that today.
Mr Virgin: Yes, we do. Unfortunately, we could not in six weeks cover all the comments and issues we wanted to address, as you know, so the right of children to see their parents is our top priority. But in terms of absolutely the whole idea of making Bill 17 a blanket proposal, we are opposed. There should be the option. If the two parties can come to an agreement that Bill 17 not apply to those support payment orders, then those two parties should have that right. Does that answer your question?
Mrs Cunningham: Yes, it does, and something that we will consider. Mr Chairman, I would hope that you would pass on the word to whoever is doing the consultation that all groups, and especially groups that have been very much a part of the work of our Legislative Assembly, no matter what party, should be consulted. I think that you too would be concerned that this particular group that has had, I think, rather positive input in the past should have been consulted around this legislation, because in fact it does affect them as a group. I think we tried to do that in most instances.
The Chair: I am sorry, are you speaking in regard to Bill 124 or Bill 17?
Mrs Cunningham: I am talking about this bill.
The Chair: This bill, thank you.
Mrs Cunningham: Mr Sorbara asked a question and --
The Chair: He was referring to Bill 124 and its not being proclaimed, not Bill 17.
Mrs Cunningham: I am sorry. I thought that he was asking if there was any input around this bill. Have you had input into this particular piece of legislation?
Mr Virgin: No, we have not been contacted by the government on Bill 17 or Mr Sorbara referring to the refusal of the NDP to proclaim Bill 124. We have had no contact on either one.
Mrs Cunningham: Okay. Well, I am not talking 124; I am talking this piece of legislation.
Mr Virgin: Neither on Bill 17.
The Chair: Mr Sorbara was talking about 124.
Mrs Cunningham: Okay. Thank you for clarifying, Mr Chairman.
The Chair: Mrs Cunningham, you bring up a point which I think is very significant and that this group does, as well. And I think Mr Virgin was very clear that we were not talking about access within this bill, but certainly that is a major issue. You brought that up yesterday as being at the moment an issue in limbo, which I hope at some point our committee will address in some form or another.
Mrs Cunningham: In fairness, I think the minister was here as we all raised our points and he knows it is very high on the agenda of those of us who had an opportunity to speak.
Mr Sorbara: In light of what Mrs Cunningham was saying, I just want to make it perfectly clear that what I was talking about in terms of consultation was in the government's deep-sixing of Bill 124.
In Search of Justice was one of the organizations among many that was consulted during the development of that bill. They were heard by a committee like this during its consideration by the Legislature. The bill was passed by the Legislature. Then there was an election and then the new government came into power and, without consulting this group or any other group that I have heard of, made a decision on the day that the Ontario Association of Interval and Transition Houses was making a non-partisan presentation to this Legislature, this government announced that it would not proceed with Bill 124.
I think that was a crassly political move to make, particularly without consulting the very group that had advocated so strongly for it. I just wanted to have it confirmed today before this committee that neither In Search of Justice nor any other organization that it knows of was consulted before that decision was made and to tell the government that it can simply reverse itself on that and consult and see what it is going to do about reinstating 124, either in its original or amended form.
Mr Virgin: Mr Chairman, is it possible to get Mr Wessenger to make any comments, shed any light at all on whether the government is going to proceed on the access issue, or is he not free to --
The Chair: I am not sure that there has been any decision on that. Mr Wessenger, would you like to comment?
Mr Sorbara: That is what you were elected to do.
Mrs Cunningham: He is looking for direction from our committee.
Mr Wessenger: I think the Attorney General yesterday made some comments with respect to looking into the whole question of access and certainly I know it is on --
Mr Sorbara: With respect, that was the most equivocal statement --
Mr Wessenger: No, I think it is quite clear that he made that statement that the ministry is looking into the whole question of access and wants to come up with a solution.
The Chair: Obviously at this point there is a limbo in that regard. Thank you very much, Mr Virgin.
Mr Virgin: Thank you, sir, and members.
CANADIAN PAYROLL ASSOCIATION
The Chair: We have now a delegation from the Canadian Payroll Association. Certainly, as Mr Sorbara indicates, your group is always welcome. You have half an hour for the presentation. At the end of your submission, the various caucuses probably would have questions for you. You are free to divide up that time in whichever way you wish. Whether you choose to use the majority of that time for your presentation or a minority is entirely your own. Usually it is 50%. Please identify yourselves for the purposes of Hansard.
Mr Scarfone: Ken Scarfone. I am director of provincial government relations for the Canadian Payroll Association. I am also supervisor, rail payroll, for Algoma Central Railway in Sault Ste Marie.
Ms Coogan: My name is Pauline Coogan. I am the director of communications for the Canadian Payroll Association. I own and operate my own payroll consulting firm.
Ms Lander: And I am Karen Lander. I am the executive director of the Canadian Payroll Association.
Mr Scarfone: I trust you all have a copy of our brief that we have brought here this afternoon. We would like to review some of our input where we have found problems with the presentation of Bill 17, and I will read excerpts from our brief.
The Canadian Payroll Association is a national trade association founded in 1977 which serves as a voice of payroll throughout Canada. Our membership comprises more than 1,700 companies which employ over two million people across Canada. The CPA represents its members' interest from virtually all sectors of the business community, including governments and major public sector employers.
Half our membership is based in Ontario. Members include the chartered banks and the majority of other service bureaus involved in all facets of payroll preparation for more than 50,000 employers. Of the 25,000 companies serviced in Ontario, the average client has well under 100 employees on its payroll.
The CPA embraces the principle of Bill 17. We recognize that considerable hardship is caused to spouses and children when support payments are not made. As taxpayers, we acknowledge that relieving such hardships has required the government to assume administrative costs and increased social assistance expenditures. Clearly, Bill 17 is intended to end this hardship and ensure that this burden is carried by those who have the legal obligation to make support payments.
Our members are familiar with the administration of the existing support and custody order enforcement system operated by the Ministry of the Attorney General. From our discussions with the ministry officials about Bill 17, we understand that approximately three quarters of the support and custody orders are currently in default. Automatic deduction of support payments clearly offers to alleviate this unacceptable situation.
Major administrative implications: The CPA wishes to address two important implications of automatic deduction of support payments which will have adverse impact upon our members. These are the financial burden upon employees entailed by the introduction and the operation of the new system and the adverse consequences of requiring employers to divulge confidential information under the "duty to inform."
1510
Under "Financial Burden," the government of Ontario has said that it stands to save millions of tax dollars through automatic deduction of support payments. Unfortunately, a considerable part of this saving will be effected by shifting the financial burden to employers. Employers will do so because they are legally obligated by Bill 17 to assume increased payroll administration costs. Those who have been evading their legal support obligations will finally be held responsible for them. However, employers, who are innocent parties in any such transaction, will incur a financial burden when the responsibility for collection of support payments is shifted from the government to the employers.
Another concern of the CPA is the confidentiality of personal information and duty to inform. Employers have an obligation to guard the confidentiality of personal information divulged to them by their employees. Members of the CPA give the highest priority to protection of this information. We are therefore concerned that the Bill 17 system not place complex requirements upon employers that could result in breaches of employee confidentiality. The CPA strongly opposes the bill's requirement that employers convey information on sources of employee income beyond that paid directly by the employer. We believe that a system is in place through the courts which secures this information directly from the individuals involved. Imposing this obligation upon the employers may jeopardize employee confidentiality and do so in regard to matters which touch upon their most private affairs.
Under "Specific Comments," there are a number listed in our brief. We are only going to highlight some of them. As we mentioned before, one was the confidentiality, and we have a lot of concern on that. Another is the duty to inform. We feel as an association that this information could be made available from the employee or the debtor, as stated by the law, and as an employer we should not have to pass that information on to the director's office.
On the technical aspects of this bill, the CPA has considerable expertise in payroll management and administration. We have already indicated to ministry staff that our association is very willing to continue to work with government to ease the implementation of Bill 17.
We believe the CPA can play an important role in helping you, as legislators, to make Bill 17 more workable and in facilitating its most effective implementation. We are encouraged that the government plans an extensive program of public education and intends to develop detailed information to aid employers. One of our problems was, when we heard about this Bill 17, we figured the CPA could have made a major impact on some of the legislation that was put in this bill in the first reading.
We had not been consulted for any of that input with our expertise of people in managing payroll. That information, I think, is vital in the implementation and the administration of this bill in an orderly manner. Some of the issues we have brought up here are a concern to the association and would be to our members for the administration and the costs involved under the current changes that are before the Legislature on this bill.
Ms Lander, would you have any comments?
Ms Lander: I think only to emphasize that the association has a good track record in working with other governments in order to help communicate with employers and to provide you with information that you may not be aware of in terms of how our systems work. We have developed good, effective working relationships and would like to do so with you on this particular bill.
The financial burden is going to be placed, to a large extent, on the shoulders of employers. We do not believe that employers are unwilling to bear that burden, but we would like to be able to work with you to ensure that the systems that are set in place do not impose any greater financial burden on employers than they already have.
Mr Sorbara: I want to begin by saying that I, for one, and I think all the members of the committee, are glad that you are here. I am a little bit distressed that you suggest in your brief that you have not been consulted by the ministry on the specifics of the bill as it was presented in first reading. I have some good news for you. We perhaps will not be considering this bill clause-by-clause until some time next month. We are going to deal with that question a little bit later, so there may still be time for you to get your two cents' worth in.
I want to tell the members of the committee and the members of the ministry who are here that I think it is probably extremely important that consultations be undertaken with your organization. The reason I say that is that this bill and this act, when it becomes an act, will work if it is done in a way that it is administratively easy for the people who have to do the work.
Now, I guess we have come a long way from the days in which pay meant there is a little brown envelope for you with a bunch of dollar bills and some nickels and quarters and dimes in it that you pick up at the wicket as you leave, and I would like to ask the woman -- I am sorry, I have forgotten your name.
Ms Coogan: Pauline Coogan.
Mr Sorbara: You said you were a payroll consultant. I take it there is a wide variety of systems of paying people, from the most rudimentary -- that is: "Here is an envelope. You worked 10 hours and you get $10 an hour, so there is $100 in it. I did not make the deductions but we will not say anything about that" -- to very sophisticated computer systems that can do just about anything that you want them to do. Could you tell us a little bit about that and how a system of automatic deduction is going to impact on that?
Ms Coogan: Unfortunately, even when you pay one employee, you are faced with all sorts of regulations. Of course, none of our members just does the brown envelope with no deductions. They are all very aware of what is required. Of course, we have had to get involved in all the ones that grab names, like the GST. That affects a payroll operation as to what taxable benefit would be computed; also the pension adjustment, which is very complicated legislation. That is something that payroll people have also had to get involved in.
We have been very active as an association getting the government, Revenue Canada, to come around to start bouncing ideas off us before it gets passed. They realize, in order for things to work for them, they have to have it work for the person who is making the deductions, and the same happens for this bill as well. We can tell you what the problems are. As far as garnishments are concerned, payroll companies will get a garnishment from more than one jurisdiction.
Mr Sorbara: You said a payroll company will get a garnishment?
Ms Coogan: Sorry, a payroll department will get a garnishment from more than one jurisdiction and perhaps from the federal government and perhaps from the provincial government and also maybe a district court, which is also provincial. But which one do they take first if it is for the same employee? Some garnishments require that you deduct 100% of the person's net. For example, the federal government and the provincial say 20%, and most of the support is up to 50%. Do you then take a portion of that or do you cut off at a certain amount?
There is never a lot of information for the payroll person, who very often is just a payroll clerk and does not know where to go to to get the answers, because if they phone one court, the one court will say, "We want our payment," and the other court will say, "Well, we want our payment." So who do they go to then to rule across jurisdiction? That is the same problem that comes up again and again when you are dealing with two sets of government.
You have the federal government and the provincial government and you are dealing with people who are having to make decisions on a wide variety of issues and then on very tight deadlines have their payrolls go out automatically every pay and be perfect in their pay.
That is what employees expect, because as soon as someone gets something wrong on his paycheque, he immediately blames the employer and that causes a lot of employee-employer bad relationships, so it is a very sensitive issue when it comes down to pay.
1520
Mr Sorbara: Now I want to give you a hypothetical situation of a company that has 2,000 employees and a sophisticated payroll system that you designed for them, including appropriate computer technologies. When the government passes this legislation, that company comes to you and says, "Would you please modify our system so that we can comply with the government's requirements here?" What do you do for them and how much do you charge them?
Ms Coogan: Unfortunately that is not the business I am in. I am more in consulting and helping people understand the legislation as opposed to the systems end. Our association of course does; our members consist of all the major chartered banks. Unfortunately we do not have a member of this committee at this point who would speak directly to that issue, but in dealing with other issues I have worked for a payroll system before, a company that provides service to many clients --
Mr Sorbara: Well, then, speculate.
Ms Coogan: -- and it is quite a long development process, to change a system, especially a system that has maybe been around for 10 years or longer. You just do not go in and press a button and make the change. It is quite costly because you are having people, first of all, to understand the legislation correctly.
Mr Sorbara: There are training costs.
Ms Coogan: There are training costs, writing the specifications. There are development costs and then analysts' costs on top of that to make sure that what the programmers have come up with actually matches what the person wants, according to the legislation, and then there is testing. If you want to turn that around in a very short period of time, it is virtually impossible. You do a lot of hit and miss for a while and then maybe within a year's time it is working properly, hopefully, but it is very expensive and it takes a lot of time.
Mr Sorbara: You consult, you said, on the implication of legislation. What difference would it make if this bill were administratively good for implementation purposes or an administrative nightmare or administratively bad? In other words, what difference would it make if the government listened to you about some of the administrative problems in implementing this kind of system?
Ms Coogan: From a practitioner's point of view, administratively you are going to get the money that the bill is seeking more consistently and certainly on time. If a payroll person gets a piece of paper he does not know what to do with, what are the chances of your getting the money in in the correct manner? From a system point of view, again, it is understanding what it is you need to do in the first place. You would need to have a good understanding before you can even build the system.
Mr Sorbara: So it would be your advice that the government speak to you before it puts the bill in final form and writes the regulations?
Ms Coogan: Because we know what it is for someone to get something like this and not know where to turn to when he has questions.
Mr Sorbara: I want to second that recommendation through the committee to the ministry. I have no other questions.
Mrs Cunningham: Thank you very much for being here today. I think you have given us a number of suggestions that will improve the technical aspects of the legislation and I am sure we will be taking them under advisement. There is a fair bit of work to be done in seeing how these apply to the legislation, and whether or not we come back with amendments or further regulations, I do not know. But we will be asking, I hope, the staff to take a look at this particular paper because you have raised four or five good suggestions that have not been brought to our attention before. You obviously have the expertise. You also urged the government to make certain that you are asked when it comes to the implementation of this, for further changes.
From a point of view of being in a position of working in payroll offices -- you represent people who work in payroll offices -- one of the great outcries, at least from individuals as they respond to each of us by way of correspondence or phone calls, has been the idea of garnishing people's wages anyway. People who now have their own relationships which are working with regard to the exchange of money, whether it is court ordered or otherwise, are not happy with this legislation, obviously. We are receiving a lot of input from those individuals.
What has your experience been or do you have any advice to give us with regard to that aspect of the legislation? Should there be a trial period? Is this a fair piece of legislation? You yourself talked about the confidentiality in the first two pages, so if you would just like to enlighten us, we would like to hear from you on that point.
Ms Lander: That certainly is an issue which came into the course of our discussion over this bill, and obviously people who look at this legislation are going to look at it both from a personal point of view as well as from the point of view of employers. We do attempt to confine ourselves in our comments to things that impact the employers, not to attack the basis of the legislation. So while we have discussed it, it is not a position we wanted to put forth.
On the other hand, it was raised that by virtue of the government implementing this kind of system, certainly employees are going to have strongly held feelings about their private lives being opened up even further and that, as often happens with payroll departments, that is going to have an impact. In setting in the administrative systems that we have looked at, we want to ensure that there is very little interaction between the employer and the employee with respect to how these court orders are carried out.
Mrs Cunningham: In the very first letter that happens to be in this file that we received yesterday, the individual who is writing talks about chances of promotion and the fact that probably these kinds of attitudinal problems that exist in today's society may affect this person's chance of promotion. They also talk about being a small-business person and the cost to their payroll administration, a new bureaucracy with regard to increasing our small-business taxes. It would not matter which letter I picked up. Those would be the points that would be raised. Would you want to respond to any of those?
Ms Lander: I think part of the problem when people get a garnishment -- we have been dealing with garnishments for years now -- is not knowing what to do with them and not knowing where to turn, and when you try to find out the answer, not getting anywhere. It is the same with many government agencies. It has been the same with Revenue Canada all this time. We have come a long way since a few years ago even, but now we are bringing in more legislation where you are having to face the same thing, and people just are put off. If the instructions were laid out very clearly, the attitude facing garnishments and such things like support orders would not be as negative to begin with.
As far as the confidentiality goes, no one wants to get a garnishment. The payroll personnel will know that the person is having money problems and now the employer is having to get involved with the individual's financial problems and feels, "Why do I have to get involved?" The law is, you do.
When it comes to support payments, these are not just people who have defaulted. These are people who perhaps have been paying fine up until now. All of a sudden the payroll person knows that they are having a problem.
Payroll people deal with confidentiality all the time, so I think it is okay -- if it is held in that department, there are not going to be problems of this getting out, hopefully, if the payroll person is good. But then someone else has to get involved, for instance, the payroll department reports to accounting and the controller maybe has to sign off on the journal entries, and what is this figure? So of course the controller now is going to know what is happening.
The personnel department is certainly going to know what is happening and all these people -- it has mushroomed -- know not just what this person makes which is a standard anyway, but also know that they are having difficulties. First of all, they might have a child somewhere and they are not making their support payments. That is when you get into the confidentiality issue. It is going to be traced back, unfortunately, to the payroll person if the information gets out and chances are it is not the payroll person who has let the information out.
Mrs Cunningham: In fact you are reassuring me that there are some real problems in the confidentiality aspect of it, just by the nature of our workforce and the fact that we change and the fact that, as you said, if the payroll person is good -- we all face those kinds of challenges in our everyday work. Of course a number of us have some concerns about the legislation. We will try to amend it as best we can, but that would be my greatest concern, the punishment of people that are already complying and working things out with their families.
1530
Mr Scarfone: I might mention on the confidentiality part of it, just highlighting a little bit more what Pauline was saying, that a number of payrolls will make the deductions for the support order. That goes to an accounting department to cut the cheque for that total of the support orders with probably a listing of who they are for. It is not hard for people to see things, and sometimes outside the payroll department that information is let out and that is a great concern of our membership.
Mrs Cunningham: One of my greatest concerns in representing the public is that we are often stuck with making legislation that aims at -- in this instance we are saying 80% of the population, but we are not really, because of that 80%, a number of them do make efforts to pay. They just cannot pay the total amount of the court order. We are told by the witnesses before the committee the number one reason is that they do not have the money. We are now faced with some legislation around, first of all, a very small proportion of people who are not accepting their responsibilities, others who just cannot keep their responsibilities, and then that other group says, "If we can't see the child, then we won't pay" kind of thing.
That is what we are trying to deal with today and it has not been easy. But we do appreciate -- I appreciate -- your being here and helping us out with some of the technical parts. We can make some improvements, I am sure.
The Chair: With the indulgence of the committee, Mr Wessenger would like a couple of questions or statements, and then Mr Mills. Mr Wessenger's time will be part of the government caucus.
Mr Wessenger: I would like to thank you for coming here and providing us with such a comprehensive report. We will be addressing your concern on page 8 with respect to the window of seven days. We in fact are going to bring in an amendment which will provide a window of 14 days, which is I think more than you have requested.
With respect to the question of priorities, I think it is a very interesting aspect you have raised. It does involve different levels of government, but I think what it brings to our attention is that we should try to provide some direction to employers and payroll departments with respect to the question of priorities. I agree it is a very frustrating situation for employers when they are faced with competing claims and it is very difficult for them to try to sort out who has priority in such a short period. So I appreciate that being brought to our attention.
We will look at the balance of your concerns and we will try to accommodate them in the legislation. I know our ministry has met with you and had several conversations and it certainly wants to continue with that dialogue.
Ms Coogan: For that window, that would be for date of receipt of the notice? I know you have 14 days in the legislation in which to comply or the first payday. We are looking for a seven-day window in which the form is actually received.
Mr Wessenger: Yes.
Ms Coogan: So the amendment is 14 days to --
Mr Wessenger: It is after receipt of the notice, yes.
Mr Mills: I think, according to the clock, I have seven minutes left. I have a question and a comment. Do you see the time for that?
The Chair: That would be reasonably accurate. If you do not wish to use all of that time --
Mr Mills: No. I just do not want to rush things. Thank you for coming here and putting this point of view across.
Yesterday we had the Attorney General here and he spoke of making the collection of these support orders somewhat socially acceptable; for instance, someone takes so much money out of my pay every month for the United Way, so I suppose that is not confidential because they might look and say "Well, there's a cheap blighter" or they might say I am generous.
In the same process, do you see through your membership that everybody is sort of really uptight about this now? Have you talked to your membership? Do you perceive that down the road, after the initial shock, this will be socially acceptable and all the great concern about it now will die out and it would be just like taking off for the United Way, political party donations, income tax, and no one will think anything any more? Do you have any feedback from that?
Ms Coogan: I know there is still a lot of distress over the garnishments, and they have been around a long time. I would only assume the same for this, even more so.
Mr Mills: I can see a garnishment is a different process than this. Obviously your members have not addressed the difference, then, if they still think it is the same thing.
Ms Coogan: As far as the confidentiality of someone who has got a garnishment is concerned, it is because they are unable or unwilling to pay something they owe. That does not sound as bad to me as not paying your support payments, and I would imagine that is the way our members are looking at it. As far as protecting the confidentiality of their employees is concerned, why should we know about that?
Mr Mills: My comment I suppose is that when you folks come here and make this sort of presentation, you have no idea before you go away how we members of the committee feel about certain things that you said. I think the onus falls on me that if you say something I agree with, before you go I should tell you about it
When I read the bill through the first thing that hit me about the notices of pre-paid ordinary mail was that there was no proof of service here, and I can see that is a concern of your association. I would just like you to know before you leave that it is a concern of mine and I hope, through this process we have here, to draw that to the attention of my colleagues and perhaps get some support, because when you issue a summons to someone you have got to have proof of service and I would think you have to have that.
You cannot rely on the mail, because where I live there is a letter there sitting on the radiator that is a bill, obviously, and it has been sitting there for weeks and no one has done anything about it. I tremble to think some poor unfortunate soul is going to get nabbed for that eventually and he does not really know the bill is there. I view this with some concern. Thank you for coming.
Mr Scarfone: We would like to thank the committee for letting us make this presentation to you and we look forward to working with you on any matters of any nature in the implementation of this bill. We will only be too glad to help you.
Mr Sorbara: Can we get an undertaking from the parliamentary assistant that this will happen, that there will be consultation with the Canadian Payroll Association?
The Chair: I understood that was already occurring.
Mr Wessenger: Yes, it is already occurring and it will continue to occur.
Mr Sorbara: Good.
CANADIAN SECOND PARTNERS FOR ACTION
The Chair: We have now a presentation from the Canadian Second Partners for Action, also known as Canspact. You have witnessed a couple of the presentations. Feel free to commence when you wish to. You have half an hour to divide as you wish, and perhaps you could introduce yourselves for the purposes of Hansard.
Ms Kelch: My name is Dorothy Kelch and I come from London.
Mr McIntyre: My name is Don Mclntyre. I am also from the London area.
Mr Verkley: My name is Frank Verkley and I am also from London.
Ms Kelch: I am going to read off a sheet of paper, because I am a little bit nervous and I am not used to this. I am a middle-class, normal, poor person.
Canspact is a volunteer non-profit organization of concerned citizens who have come together to form a support and lobby group dedicated to representing the interests and rights of second partners.
We strongly object to certain inequalities and injustices in legislation such as Bill 17, as well as the total disregard by some of the legislators of the very existence of the second family. We will attempt to convince the legislators and the judicial system that second families, which constitute an increasingly large portion of the Canadian population, are deserving of recognition, consideration and equality under the law. We are those conscientious people who have not run from an obligation, but have remained and are attempting to pick up the pieces of a broken life, a broken marriage, and with support and love of another partner, another spouse, to get on with our life.
Because we have been in each and every position involved in separation and divorce, we feel well qualified to present our formula for equality in family law. We have been first wives and first husbands, ex-wives and ex-husbands, second wives and second husbands, moms and dads, grandmas and grandpas, step-parents and step-grandparents. We have the knowledge and the valuable experience to know what changes must be made to promote fairness to both the first and the second family, and by the same token what will destroy their attempts to survive.
Canspact endorses the fact that a child who is the innocent victim of a divorce has the right to share equally in the life of both parents. The law ought to encourage and enforce the rights of this child and severely reprimand the parent who is in contempt, whether it be in regard to nonpayment of support or in the denial of access to the non-custodial parent.
1540
Mr Verkley: I would like to make my short presentation, which is on the last page of our submission. I will read it.
Bill 17: The intent of this legislation is to collect support orders. We already have such legislation. The consequences of Bill 17 are many. We have legislation that allows garnishment of wages if arrears are tabulated and seizure of assets to cover court-ordered support orders. Bill 17 has a basic flaw, with a backdrop that many fail to perceive.
The basic flaw is that all responsible people are regarded as irresponsible when it comes to support arrangements, taking the responsibility from a parent and forcing an agency with absolute power and no responsibility to any aspect except collection. As if division in the family units were not enough, now every employer and income source is involved.
With the only source of decision related to support allowed to emerge from the judicial courtrooms, we have set ourselves up to the mercy of overbooked schedules, of courts and lawyers, with any motion court action realistically costing a family law lawyer to charge fees of $500 to $800 per appearance.
With interim rulings based on scant examination of all aspects of both parties' life and finances, the reality is that they remain for much too long, mostly for ever, before things can be worked out. If one party is intent on being unco-operative, it might be years before things get in order, and then the time of honouring illogical support orders will effectively hinder a judge from changing interim support orders.
We have set up two options. One is to pay all support orders, illogical, fair or financially devastating, or pay the consequences of absolute enforcement with no effective compassion, and two is to give up, do not pay, do not work, go on government assistance.
Instead of laws that allow for individuals to be responsible, Bill 17 support deduction orders insult all Ontario residents. I voted NDP for a government that would act in a compassionate and fair manner. With our social fabric under stress, mandatory support deduction orders only serve to promote grief, causing responsible members of our society to weigh the option of just packing it in at a time of the highest amount of stress the individual can experience.
A great deal of review of existing family law is required to alleviate problems regarding support and custody order laws. Other avenues beg investigation and attention.
Mr McIntyre: You all should have two parts to this presentation. The second part is primarily backup documentation to some of what I am going to refer to in the presentation. Because of the thickness and the detail that is in here, it is impossible for me to read through the whole thing in the time allotted, and you will not have any questions.
I would like to just read a little bit of the introduction and then hopefully, when you review all this, you will have time to read the rest. I will deal then exclusively with the conclusions and specific problems with Bill 17.
We would like to start off our presentation with a quote from the Honourable A. C. Hamilton, associate chief justice, family division of the Court of Queen's Bench in Manitoba. In his closing statement of his address to the Organization for the Protection of Children's Rights he said:
"If there have to be separations and divorces after real efforts to save the family, let us develop the most effective means of serving the needs of the affected children. Before we rush off to search out new mountains to climb, let us complete the work we have started. Let us devote more energy to preserving the family. Let us improve our concentration on the rights of children. Let us improve and expand our systems for resolving disputes with the main emphasis upon protecting the needs of children and let us work together to achieve these ends."
We have included a copy of his speech in its entirety with our written presentation. It is at the beginning of your second section. Although it does not deal extensively with support enforcement, it describes a very humane method of dealing with family law disputes that has had success in the province of Manitoba. We feel before you continue any further with this proposed legislation, the children of Ontario would benefit greatly if you would read Judge Hamilton's presentation and perhaps considered some alternatives to this problem.
Before I go on -- and I am going to continue on page 8 -- I think it is very important that you understand -- and the pages that I am skipping over probably go into this in detail -- how court-ordered support orders are arrived at. Unfortunately, the whole thing happens very fast, in a matter of 10 to 15 minutes, usually on an initial interim order before a judge. Although there are financial statements from both parties presented at the time, they are seldom referred to.
The judges make the decision based on the fact that it is an interim order and, theoretically, as all the information hits the mill, a final decision will come that will be more logical. This does not happen, because at this initial interim order there is a winner and there is a loser. Generally the custodial parent is the winner. If it is a substantially good interim order, the sole job description of that person's lawyer then is to adjourn, delay, use whatever tactics necessary to establish the status quo, so that whatever the support order is, ultimately it usually becomes the final court order two years down the road.
Also, it is very important that you understand that there are no standards for determining what the amount of support is going to be. Given the same two lawyers' presentations, the same two financial statements put before three different judges, you are going to get three different support orders. They will not be the same, guaranteed. There is a lot of meat in these pages I have skipped. I really hope you do concentrate on it.
On page 8, Specific Problems with Bill 17: Several comments, just in the overview of Bill 17, give cause for concern. The fact that this new support deduction order is going to be automatic is frightfully unjust. Before the support payer is even in arrears he is labelled a debtor. We were of the impression that in Canada you are innocent until proven guilty.
How do you think other people view you as a person when you have your wages garnisheed? How do you think you feel about yourself when your wages are garnisheed? How does your employer feel about your ability to manage money for him when you have been found incapable of managing your own affairs? Why would any government even consider this type of legislation? It is punitive and little will be accomplished if it is passed. Please remember that some of us support payers are making our required financial obligations consistently and completely without fault.
The next area of concern is the fact that now there are going to be two court orders. I hope I have demonstrated so far that it is virtually impossible to vary the existing support order, and now where it is unjust, the government is suggesting that I have to go to the legal expense of trying to vary two court orders. The courts do not have the time to deal with drunk driving offences, drug offences, common assault cases. Where do we find the time to hear family law cases? Where do we find the money to argue the family law cases?
In the proposed amendments to the Employment Standards Act, the suggested changes will have no effect at all on protecting the employee. It may well be somewhat effective in the large corporation with union support, but in the average business you can get laid off for wearing the colour green two days in a row, regardless of the real reason. Where is your protection when you are out of work and looking for employment with a garnishment for a companion? Employers do not need any excuse for dismissal during the probationary period of your new employment.
1550
In the actual bill, subsection 1(1), here lies the real problem, "enforceable in Ontario for custody of a child, but not access to a child." The custody order does specify access to a child and it should be enforceable. Access is not just a non-custodial parent's right, it is also the child's right. We need to enforce the right of a child to have his/her physical needs taken care of but we must, at the same time, enforce the right of the child to have his/her emotional needs taken care of.
Subsection 3(3) states that only the person entitled to receive support may file a support order. The director in this respect should be working for both parties. How many support payers have given cash directly to the person who is to receive it for support over the years? There are no receipts, or if there are, they may be lost. Paying the director guarantees documented proof of payment of support. Please remember that we are dealing with the general public, many of whom may not understand law, speak the language or have enough sense to get a receipt for any sum paid direct to their ex-spouse.
Subsection 3c(19) needs clarification. The way we interpret it, it would indicate that the support payer's income could be reduced by both the support deduction order and the garnishment for the same support obligation. How many times do we have to pay for the same pay period?
Clause 3d(3)(a) is a major concern. "Unconscionable" will need defining legally. In layman's terms it means if you want relief you have to put yourself on welfare and deplete all your assets before anyone will recognize your plight.
Section 3f makes no sense. If neither the support payer nor the support receiver wants to participate in this program for whatever reason, then they should be allowed to opt out rather than waste their money fruitlessly trying to vary the orders through the legal system.
Section 3i is typical of the injustice of the system. The recipient of the support does not have to pay any moneys for those legal actions, yet for every error, dispute, etc, that the debtor has to correct, legal fees are incurred.
Section 3j suggests that the debtor may be required to file financial statements as frequently as every six months. Let us have some fairness in this area. If the debtor has to provide financial statements to prove his/her ability to pay, then at the same time let the recipient provide financial statements to prove his/her need for continued support. Just maybe this could lead to a scenario where a variance would be more readily obtained where there had been a material change in circumstances.
Bill 17, in our opinion, is a step back to the old penal law. A test of a good law should be to ask if it ultimately encourages a new arrangement which logically would happen anyway. Bill 17 does not. Bill 17 will decrease incentive for a second wife to go out and work. Bill 17 will increase incentive to fight for custody of the children. One may not be able to afford to enter into a long, bitter custody fight.
Bill 17 will increase the friction between the two ex-spouses. Bill 17 will cause a non-custodial parent to enjoy his or her children less. Bill 17 will put many in a position where they cannot arrange financing through normal financial institutions. Bill 17 will cause a major slowdown of the judicial process because, where before an order could be made in the absence of legal counsel, judges are going to be much less likely to make even an interim order until they are satisfied that both parties are represented properly.
Bill 17 will drive up legal fees. For example, normal delays in drafting an order can be handled by fax of the endorsement to SCOE currently. This will not be possible after Bill 17 is passed. With the losing lawyer deliberately delaying the process to benefit his client, the automatic deductions continue with no course of action to get the moneys returned. Bill 17 will cause more payers to consider moving out of province.
Bill 17 will create an unfair situation in that it will not treat those paid from Ontario-based companies the same as those paid from out-of-province companies who are not affected by this legislation. Bill 17 is a perfect example of where there is a law for the rich and a law for the poor. The rich will have no trouble at all getting around this bill. They will establish companies outside the province for their payroll.
Bill 17 will increase the number on welfare. Combined with the current recession, increased taxes, both income tax and the GST, many more who are just getting along now will give up trying. The poor will get poorer. Bill 17 will undoubtedly help develop the hidden economy.
Bill 17 will hinder the parents of children from making decisions in the best interests of those children. For instance, how many of the current arrears are acceptable to both parties because the children are actually living with a non-custodial parent, or subsequently, after the court order they have decided to try a shared parenting arrangement? Should they incur more legal fees to the benefit of only their respective lawyers and no one else, least of all their children?
How many custodial parents are not receiving support, and content with that arrangement because their ex-spouse is not exercising access, knowing full well that the moment the support is enforced, access is going to be demanded? You can be guaranteed that this is going to happen and be a major concern to many custodial parents.
Bill 17 will make family law cases that much more complicated. Bill 17 most certainly will be found to be in violation of the Charter of Rights and Freedoms, in particular sections 7 and 11, dealing with the freedom from arbitrary measures and right to earn an income. A case can probably be made to show that Bill 17 is an example of discrimination by effect. Passing Bill 17 and making it law before there is any wrongdoing is using civil action to rectify a problem that does not even exist yet.
Of primary concern to the members of Canspact is the lack of clarification as to which support deduction order takes preference when more than one exists. Most of our members are in their second marriage, which statistically lasts only seven years. There are children from the second families in most cases. When this second family splits up, there will be spouse and child support orders for both the first and second family. What percentage is the 16-year-old from the first marriage entitled to? What percentage is the 4-year-old from the second marriage entitled to? The same question applies to both ex-spouses.
Bill 17 is going to cause a snowball effect. The courts are going to be swamped with applications for variance and complaints of access denial. Court time already booked beyond capacity will be taxed even further. More judges will be needed and they are already in short supply.
Alternatives to the Problem: This is my conclusion, so I hope you have a few minutes to ask questions. Family law in Ontario and probably the rest of Canada is a mess. As part of our presentation, we have included an article from the London Free Press printed 10 days ago. It is the second last page of your second section. Interviewed are Judge Vogelsang, who has dealt with family law cases for the past 11 years, and Alfred Mamo, one of London's leading family law lawyers. To get a good look at how our present system works, please read this article and then decide whether or not we are headed in the right direction with this legislation.
First of all, we would suggest that the method of determining the amount of appropriate support be consistent and fair. There should be some definite guidelines and a quick, inexpensive method for variation. The courts, judges and lawyers should be removed from this process and replaced with accountants or financial advisers who understand financing, budgets and proper planning.
Who knows how many marital problems are caused by poor financing? Maybe some can be reconciled with just this third-party help. This would be the biggest improvement to the present system. Whether this proves possible or not, we must have some standardization in the methods used to determine the dollar amount of support. This is necessary no matter who makes the final decision, whether it is the legal system or financial experts.
Next, we need to copy a page from Judge Hamilton's speech and emphasize to the parties involved that the family unit lives on after separation and divorce and that both of them are still going to be the children's parents and both of them are responsible for their needs, both physical and emotional.
Mediation is probably the best chance to resolve this. Perhaps we should be looking at places like the state of Illinois, where mandatory mediation has experienced tremendous success. In any case, with the exception of abusive relationships, the courts can demand mediation, and they can, as Judge Hamilton explains, be legally put in a position by not specifying sole custody to one parent over the other where they can be involved with their children during specific times: no mention of custody in the order, just different, well-laid-out times of care and control of the children. Only when we achieve this type of involvement by both parents with their children will your problem of collecting support payments disappear or at least improve drastically.
I see my children every day. I feed them, I clothe them, I house them. I take them to Brownies, Cubs and Scouts. I take them to hockey practices and games. I take them to figure skating and whatever other activities they choose, and I pay all my support obligations and much more. I pay because I am involved with their lives.
It took $35,000 in legal fees for my children and myself to get this arrangement. I am sure my wife spent almost as much trying to stop it. That is money that belonged to our children, and I can assure you that the lawyers involved are not going to offer to give it back when they need to go to university. They had a right to this arrangement from the day we separated, and only you can change the laws in Ontario so that they have this right. Thirty-three states in the US already have legislation to this effect. What are we waiting for?
According to Statistics Canada, in 1987, the last year for which figures are available, 74,000 children joined the ranks of the single-parent home. These types of numbers are staggering. We need to take a look at how family law is handling these children's needs before we go any further with this type of legislation. Remember, almost half of your own children are going to separate and divorce, and of their children, your grandchildren, 80% to 90% of them are going to separate and divorce. So think of them while you are considering this bill.
1600
In conclusion, if we do nothing else, we must do our very best to help people separating, both parties, recover from this devastating experience as soon as possible. They must be made to feel good about themselves, improve their self-image, if you will, so they can get on with their lives. They must know what their financial obligations are going to be and for how long. They must know when they are going to be free from their ex-spouse, and they must be involved with their children on a regular basis if they are expected to make a long-term financial commitment to them. Two weekends a month is not regular. You will not achieve your objectives until these changes are made. Hopefully, you can find a better solution than Bill 17. Good luck.
Mrs Cunningham: Don, it is good to see you again, and Frank and Dorothy, whom I have not met.
Irene will learn in her position that she will be well informed, living in London and Middlesex county, and bringing a perspective from rural Ontario sometimes to this Legislative Assembly within an urban environment. I have always been blessed with getting some very practical information as I do my work at this Legislative Assembly.
This is a really heartwarming brief as usual, and it is very practical. In 1976, we did a study in London on single-parent families. The recommendations you are making today are exactly the same as the recommendations it took us three years to formulate with 10% of the single parents responding in 1976. That shows you how far we have come when it comes to dealing with our family court system in legislation, and not dealing at all with the practical everyday needs of single parents.
The statistics, especially around second marriages -- when we threw those out in 1976 based on good information no one believed that what we are facing today would be a reality, and no one wants to believe what you said but the projections are there. I speak to young women and young men in high schools across this province, and when I lay those statistics none of them believes this could ever happen to them.
I am not going to say very much here today, except I did notice -- one of the practical frustrations and inadequacies of our system happens to be attached to one of these briefs, where in fact you wanted to give your wife and the mother of your children more money and our system does not allow that to happen unless you go and hire yourself another lawyer. In my office, I am the other lawyer and I go down and beat people up, and tell people to just give them the cash and break the rules. That is how frustrating the system is.
I share your concerns. This really incensed me today to take a look at these examples; we have them in hundreds of letters that have come to us. And that is why I was so incensed by Bill 124, because although it was trying to do something it did more wrong than good, and that is my great fear with this legislation today. Why are we not putting our money into programs and into the court system itself?
The paper you told us to read? I read it at the same time I tried to listen to you. It is absolutely right on when it talks about mediation processes and lawyers and judges talking to people. We could be doing it in Ontario, but instead we write all this crap and I spend my time here talking about it and it is just a waste of my time. I very seldom do anything useful in this building.
On that happy note, I will pass the floor to you. By the way, I do not know if your member is here, but you have a good new member and I was glad to see him help you -- Kimble Sutherland. He is another guy who knows what it is like, after having been a university student at Western, putting up with the crap there as well.
Thank you, Mr Chairman. I am sorry I am not very professional, but this got to me: 1976 to 1991 and we are still talking about what we should be doing, given the recommendations by parents.
Ms Kelch: Excuse me, but you are real professional.
Mr McIntyre: I probably have not explained that situation as well as I should have. I brought it up for a specific purpose. There are many non-custodial parents who do not know where their children are -- I may have mentioned that in here; I am not sure -- and their only method of communication is through SCOE. SCOE does have a heart periodically. They will pass on cards and letters and the occasional birthday present. I brought it up because I wanted my children to have some extra money for music lessons.
My wife had asked for it. It never occurred to me for a second that it would not be passed on, so I just bumped my support payments by the amount she wanted. It was spring and I did not find out until just a few weeks before I talked to Kimble Sutherland that she had never received the money and could not understand it. She is always bitter anyhow, excuse me.
I did not realize she had never received the money until the fall; I never got any response to the letter I wrote to SCOE, a copy of which you have there. Kimble Sutherland talked to them. He gave me the response that my only course of action was to go back and incur more legal fees to get my court order changed so I could pay extra money for my children. He arranged for them to send me my money back, so I got a refund cheque from SCOE.
Mrs Cunningham: And you could not give her the money without getting a lawyer and getting the enforcement -- give me the terminology.
Mr McIntyre: I had to get a variance through the courts to pay more money.
Mrs Cunningham: You are not the first one. This brief is filled with examples, but so are the letters we have received. Mr Chairman, I did not mean to take that much time, but it is how I felt.
The Chair: Certainly your passion is merited. However, it has filled the time we have for questions.
Mrs Cunningham: But I have not used up very much time today.
Mr Carr: Mr Chairman, is there time for a quick question for myself?
The Chair: Yes.
Mr Carr: Were you consulted on the killing of Bill 124 and this bill?
Mr McIntyre: We were consulted on neither. We read about Bill 124 in the paper. On anything that affected family law, we have made a presentation.
Mr Carr: But you were not consulted.
Mr McIntyre: We have never been consulted.
Mr Sorbara: I have just a couple of questions and a couple of comments. I do not want to take up too much of your time. We had a great speech from the member for London North; I cannot outdo that.
You say in the last part of your brief, "In conclusion, if we do nothing else, we must do our very best to help people separating, both parties, to recover from this devastating experience as soon as possible. They must be made to feel good about themselves, improve their self-image, if you will, so they can get on with their lives."
We heard from the minister yesterday that he believes that if it becomes the norm that everyone who is subject to a support order and who receives a periodic payment in one form or another, that people will generally in this society start feeling good about themselves; just exactly what you have suggested here, feel good about themselves and get on with their lives. They will feel kind of proud of the fact that they now have that automatic deduction order. Do you think that is going to be the case? Obviously, your organization has experienced --
Mr McIntyre: Personally, I do feel good about paying support. It does not bother me for a minute, but I --
Mr Sorbara: But the fact that it is automatically deducted is going to give us a new social sense.
Mr Mclntyre: I cannot agree with that. I lost a business myself through initial order, interim order, at the same time a support deduction order would have come in effect. I did the best I could, but I still lost a business and lost a job over it and it took me two and a half years to straighten out, and I have already told you how much in legal fees.
No, I do not think it can be automatic. I think there are going to be some very bad feelings here, because I am not going to be the only one forced out of business. The middle class, the upper class, everybody is divorcing and separating. It is not confined to just people working on an assembly line some place.
Mr Sorbara: Just one other comment, because it is the first time it has arisen in the presentations we have had thus far on this bill. You will recall, Mr Chairman, that the presenter talked about what some employers might do in the case of being confronted with an automatic deduction order.
1610
I notice that the New Democratic Party members are filtering out of the committee, but I just want to bring this to their attention, because the point was made by the presenters that notwithstanding the provisions in this bill, you will find employers who will dismiss employees when they find out by way of mail, a registered letter or whatever, that they have to put into place this support order. I want to direct the committee members' attention to the provisions of the bill which appear on pages 32 and 34:
"No employer or person acting on behalf of an employer shall, (a) dismiss or threaten to dismiss an employee; (b) discipline or suspend an employee; (c) impose any penalty on an employee; or (d) intimidate or coerce an employee, because the employer" and then it goes on to say has been required to comply with this order.
Section 39m says that if the employer does that, if he breaks the law, maybe the employee can be reinstated. In any event, nothing worse than a $4,000 fine can happen to the employer.
The interesting thing, for the benefit of the members of the NDP, is that these are the very provisions, changed to fit the circumstances, that were in Bill 114. Bill 114 was the bill dealing with employee rights with respect to Sunday shopping. The provision said in effect that if an employer did any of those things -- threatened, disciplined, imposed or intimidated -- with respect to an assignment of Sunday work, the employer could be required to reinstate or the employer would be subject to a fine of $4,000 -- the very words. I was Minister of Labour at the time. But the words here deal not with Sunday shopping or the firing of someone for refusing to work on Sunday. This deals with automatic deduction orders.
The current Minister of Labour said in the Legislature about a gazillion times that those provisions are not worth the powder to blow them to hell. He said it over and over again. He said that employers will routinely not give a damn about the Minister of Labour's weak-kneed provisions in the bill. They will just fire people if they do not agree to work on Sunday.
The incumbent Minister of Labour has used the very words, the very same prohibition in this bill. I bring it to your attention only because I think ultimately it is going to prove a great embarrassment to him. If he wants to make a real prohibition against employers firing someone, he had better choose words different from and prohibitions different from the ones he condemned summarily and routinely over the course of about three months.
The Chair: Thank you very much for your presentation.
Ms Kelch: I just wanted to say one thing to Gord Mills, MPP. I was here when you were talking about whether people, once this garnishment was on them, would get over it. I heard you compare it to your giving to the United Way. What I want to point out is that you have a choice and that person does not. You choose to give to the United Way and you are proud of it and you want to do that, and that is good. But the other person has no choice. They might lose their job because of it, and they have no choice.
Mr Mills: Maybe that was a poor analogy.
Ms Kelch: Very.
Mr Wessenger: Could I just add a point of clarification to Mr Sorbara's statement concerning the right to reinstate? This is something that has been added to this act; it was not in the previous act. If someone had been dismissed for garnishment there was not an order to reinstate, so it is improving the position of the employee.
Mr Sorbara: I just want to comment on that. I have no doubt about that at all. It is an improvement. I actually think it is a pretty good provision. I like the provision. It was the one I chose to require employers to reinstate employees that had been fired or threatened with firing because they refused to work on Sunday. Under our law, workers in retail have a right to refuse.
All I am telling you is that this very provision you have chosen for your bill employs not one of your acts but an act that is the responsibility of the incumbent Minister of Labour, and is a provision that he himself said is not worth the powder to blow it to hell. It does not become the incumbent-Minister of Labour to use and for you to defend a provision that the Minister of Labour said is worth nothing, that it will not keep employers from firing people. You need a stronger provision, not in my mind but in his, unless going from opposition to government changes the way you read the laws of the Ontario. Maybe in this case it has.
Mr Wessenger: I do not really want to get into the whole question of the employment standards office, but I think --
The Chair: I think maybe we will have opportunity to do that at a later time, Mr Wessenger and Mr Sorbara.
Mrs Cunningham: You will hear me on that one later.
The Chair: I am sure we will.
Mrs Cunningham: Once a person has gone from the subtle realities of the workplace, whether it is on Sunday shopping or somebody they do not want to hire because they have this additional process and costs, there is no law that can protect it. I did not like it in Bill 114 and I do not like it here, because I do not think it means anything. It is just another piece of crap that makes us look like we are trying to do something. You cannot judge or legislate attitudes and that is what we are trying to do.
Mr Sorbara: Ask Shelley Martel what she thought about it. Ask Bob Rae.
The Chair: Thank you, Mrs Cunningham. I think you are quite right, we should discuss --
Mrs Cunningham: I know what the NDP thought of it in Bill 114. With due respect, we did not like anything about that bill, either the Conservatives or the NDP. That is the way it goes.
Mr Sorbara: You were just negative, Dianne.
Mrs Cunningham: No, I was not.
The Chair: Can we allow the witnesses to retire? Thank you.
Mr Sorbara: They could stay if they wanted.
The Chair: I do not think this is a discussion that they need to hear.
Mr Elston: Mr Chair, while the next witnesses are coming up, can I ask the parliamentary assistant or the Attorney General's staff if a question can be asked of an employee or prospective employee about their status of payment in terms of a job; if they ask me, for instance, if I had a support order outstanding against me? Are you making any amendments or changes to prevent that discrimination?
Mr Wessenger: There is nothing specifically in the legislation with respect to that.
Mr Elston: Should there be? We are not supposed to discriminate on the basis of marital status, but what about support orders? Because this is a way of people --
Mr Wessenger: I think that is something we would have to think about. It is certainly a point that I am going to look into.
The Chair: That is an excellent point.
FAMILY TIES
The Chair: I would like to welcome a presentation from Mr Johnston on behalf of Family Ties. Mr Johnston, as you are aware, you have half an hour, give or take, for discussion. You can use that time as you wish. Typically it is divided in half; half for your presentation and half for questions. Please feel free to start when you are comfortable.
Mr Johnston: I am glad I was here for the presentation before mine. It expressed a lot of similar views. I hope I can express it as well.
The bill before us is going to affect a lot of people adversely, l think. This is a personal issue for me in a lot of ways. I am an employer and I am a separated father who has not seen his kids for about 18 months now. I have been in court more than 36 times in the last three years to try and get any of this mess solved. l have been garnisheed by SCOE, which got straightened out, regarnisheed later, which we are in the process of straightening out, and garnisheed once more since even though we are already discussing that once in court.
I applied for access this Christmas and it was granted: one day. It was ignored and I went back for a clarification order and it was put over to the next trial date, which I understand -- I am really overjoyed -- is coming up in June. We got a pre-trial before that just in case they decide they want to give us anything.
The whole situation of family law, as far as I am concerned, in this province is in a mess. This bill, while it has some merits to help some people sometimes, I feel is punishing the majority of innocent parties. Besides, is SCOE set up to handle the increased load of this, let alone the load it is carrying now? The ineptness of that is illustrated in the last page of my submission, which is an actual copy I received from the SCOE representative, the third one I have spoken to, on trial dates; yesterday, where I spent all day in Brampton court.
There are a few question marks on that last sheet. One is for the initial $12,000. They thought an order had been ongoing for a couple years where in fact it had been squashed after the first or second payment had been made. They had not been notified, so it had been on the books. So that one we straightened out originally. We are back discussing it one more time and we are still working on that. But if they can do this now, what kind of mess are we going to be in when every case of support has to go through that office? You know, if they could prove to me that they had a new computer that was not going to be doing these things --
1620
The second thing I might draw to your attention is, the $150-a-week payments that I am supposed to be making are very clear there. Immediately following those are $50 question mark payments that they have not been able to sort out yet. We have agreed between the lawyers in the case that it looks to them like my figures are correct, but this has been ongoing for about a year and a half now, since I put in my initial dispute to reduce my garnishee from 50% of my pay. It was reduced and hopefully it will stay reduced. By the time we get this settled in June, if it stays reduced, then I will only have one more court case to look forward to, which is after this bill goes into effect and my new automatic order for up to 50% comes through again. Okay? Then I will only have to go back to court once more, I hope. So that is just on the personal side of how this bill is going to affect me.
I am also an employer and I can see their point that we do not need any more jobs to do for government. Collecting on the GST right now is one awesome example.
I wish I had time to go right through this whole issue here. If we just go through the summary, which is the third page in, the most important one I think is "Why Delinquency?" I apologize for not getting these pages numbered, but it is about halfway through the first section. The most important thing I think we need to go along with this bill's implementation -- you know, if it gets implemented as fast as it has been put through so far, I am expecting it any day now. People are delinquent for reasons. If you have time to go through this whole thing later -- I hope you will take the time -- my most important thing that we need would be guidelines for access. You know, the costs of raising a child are out there. The welfare agencies use them, minimums and maximums. The minimums, as far as I am concerned, would save the taxpayer from the burden where they make an agreement between themselves knowing full well that we are going to support the kids anyway, where fathers can be let off the hook or if she does not want to see him, she can make agreement for no support, just using the kids as extortion to support payments, to either get rid of him or to have her own freedom, whatever.
I have tried to lay out a few cases in here that show a lot of the concerns that I have, that I hear from people in my dealings with the different groups that I am involved with. I suggest that these are women's groups, men's groups, I hear from both sides of the story. The most common women's issue I hear is the fact that they want dads to see the kids more. But there again, you have to deal with the emotional issue and dad being in a condition to deal with her or deal with the kids at the same time.
The delinquency is justified, as far as I am concerned, if there is an unfair support order. We have the normal frustrations of the economy, second-family status, additional family burdens, health problems -- real things. A man does not have to be a criminal to fall behind in his support payments. It does not take long if you are paying 80% of your take-home every week, or not paying it.
The court costs that you are going to have to lay out in times of need when you are having problems are just horrendous. You cannot really do it on your own. You are upsetting the relationship with the kids and with your ex every time you try and get a reduction in a time like that. I suggest that while the family is together the parents and the children both absorb any fluctuations, rises in pay, losses in pay, and with these standardized support obligations, say, a percentage of net income. Then any raises that come in for dad would reflect that, going to the kids later, as well as if dad is off work and he is in a high tax bracket and already has paid twice what it actually costs to raise kids in this province. There is no need for anybody to go after his pay because he has already paid a lot more than he would have needed to give those kids an adequate upbringing.
I have too much in here to get into in the time set out, but again, I hope you will read through it when time is available. Let me just read my response to Bill 17's principal purpose.
It fails to address the real issues of family and child law reform in a reasonable and just manner for all members concerned. It is a feeble and weak attempt to place a Band-Aid on a wound, when major surgery is required. The government seems to be lifting a big stick to become a delinquent bill collector rather than facing up to its prime responsibility, which is to provide processes and mechanisms of benefit to the families of Ontario, especially the children of broken homes, their parents and members of their extended families.
The government of Ontario, by passing Bill 17 into law alone, will by its actions display to the people its inability to provide family and child law reforms that are desperately needed. Sidestepping the real issues instead of solving the real problems is going to get us nowhere. Bill 17 will negatively impact and hurt a great number of people, and it is about time we had recognition of all facets of the family situation by the legal profession and the government as well.
I urge you to take the next responsible step forward and work towards solving these other outstanding issues which Bill 17 fails to address so that your bill-collecting procedures will not be a universal system but an exception.
The shared parenting is at the basis of our whole program. Things like mediation, family counselling, getting rid of the adversarial systems in our courts, stressing to people involved in these situations alternatives to divorce and helping them work through it would sure save the taxpayer a lot of aggravation and money. People can be educated to the fact of why their kids need to see them afterwards and how their behaviour is hurting them, and that should be, again, a part of the court system.
In the different groups that we have, we get a lot of calls in a month. With the small ad in the Toronto Sun personals column, I used to get probably 1,800 calls a year, if I had done it for a whole year, from people who did not know where to go, did not know where to turn, could not afford to turn where they had to go.
By just ignoring the whole system it is just causing a lot of emotional drain and inflicting needless hardship on a lot of people. Getting funding for the kids and mom -- unfortunately it is mom most of the time instead of both -- is an important issue, but my main concern I guess lies in whether this can be implemented, whether we are not creating a monster by throwing everybody into the same basket, and you know, whether they should have the insult of all being lumped together.
Support payments where somebody is just trying to get even, I can see taking steps to recover, but as far as I am concerned, the steps are already there with garnishment. We have the processes now. It does not need to have a new law to address it, the same as access enforcement does not need a new law. If we just would look at contempt charges realistically and enforce the laws that we have equally, we would not need all these new laws. We have to address the biases in the systems to straighten this whole thing out.
1630
Now, I have a few facts on the families here. These come from the California Joint Custody Association, which is largely responsible for a lot of the US states that have adopted similar -- as far as I am concerned, reasonable -- measures. The whole status quo and win-lose battle scenarios -- it would be nice to be a thing of the past. With mediation availability we do not have to look as far as the United States for any of this; we just have to look to the Hamilton courts and see what kind of results you are getting down there in the Unified Family Court, where people like Judge Wallace are refusing to grant interim custody orders because they recognize the problems that lie therein with the status quo and things.
What the family is going to end up as is a really fragile thing, and with all the expense and the uphill battles that everybody looks at, there are too many guys walking away and saying it is not worth it, even if they do get access every second weekend. Every-second-weekend access sounds like a good thing until you look at it like it is four days a month. You get to see your kids four days a month. I could not believe it when I first got going that I asked the judge if I could phone the kids every day. No, that was an inconvenience for my wife, she said, and he did not push it. I wanted to drive them to school every day; that was an inconvenience. We need an education system put into the system that straightens her out, or the custodial parent, that she has a responsibility too to act responsibly, in the best interests of those kids.
A lot of these other groups that I have on the back of my presentation now are all across Canada and I wish there were a lot more so that we could make this happen for sure. They are all volunteer organizations. One I might draw to your attention is Big Brothers. The Big Brothers organization is always crying for help. My position is, I would like to see the real dads being the big brothers to these kids.
There is a long way to go here, and I would like to maybe ask this government where it is going, I guess, is the main thing. Are we all wasting our breath talking about these things, or will they look at the reactions? What is going on in states where these things are implemented in the United States?
A friend of mine is fighting for custody in California. He wants sole custody and she wants sole custody. The worst he is going to get is joint custody. That is the way it should be everywhere. You have joint custody when you are married, and that is the way it should stay unless it is proven otherwise, because we have to keep people involved with their kids afterwards. We are ending up with a generation of parentless kids out here who are ending up on the streets downtown.
So anything that this government can do to help some of these groups that are pushing for some good things I will be happy to see. I have some incredible stories in here for you of actual cases that I know of and I am involved in right now that are pretty heartbreaking. Please read this as you can, and let's get the rest of the thing looked after too, not just money.
The Chair: Thank you, Mr Johnston. We have only a limited number of questions for the three caucuses, perhaps only one question per caucus.
Mr Mills: I have not really got a question to ask. What I am hearing here kind of makes me shudder to think of the future of people getting married, what is going on in the world today.
Mr Johnston: A lot of people are thinking that today.
Mr Mills: It is scary. I suppose, sir, I would like to thank you for this, because you have gone to a great deal of trouble to prepare this and you must have a really great interest in it, and I will read it. Is that your picture on the front?
Mr Johnston: Yes. It is me and my kids.
Mr Mills: You and your kids.
Mr Johnston: And my wife.
Mr Mills: When I see such a happy family, whirling in my mind it says to me, "What on earth went wrong here and why are you here?"
Mr Johnston: That picture was taken a week before she walked.
Mr Mills: I have grandchildren that age. It just boggles my mind. Thank you for coming.
Mr Sorbara: It is late and I just want to thank the presenter for his views. I expect and hope that the ministry and the minister and the government will at least look at whatever recommendations you have to fine-tune Bill 17. You should know that I recall the vote in the House. All parties voted in favour of the bill in principle, but we have some significant differences on what the details should be and perhaps reviewing your suggestions on both officials and those on the committee can be heeded in that fine-tuning.
Mr Carr: I want to also thank you for your very fine presentation, and I think, more important, for sharing your own personal experiences which must be very tough. I think that is probably the toughest part, and we thank you for that.
I just have a quick question about the access as well. We have heard about access being a big problem, and obviously it is in your personal case. By your best guesstimate in talking to the various groups, what are the numbers involved where access becomes a real problem? Is it a very high percentage?
Mr Johnston: In my personal experience, I would say access is a problem in about 99% of separations. It may not happen on an ongoing basis, but once in a while somebody is going to say to somebody, "I'm mad at you. You're not getting the kids," and if we do not have somebody who is going to say, "Sorry, you're in trouble," it will continue.
Mr Carr: What we are looking at is a bigger problem because I think you might be aware, as I mentioned before, that I was shocked when I heard that 70% of the people were in default, but then when you get into it they are not really in default, a lot of them are paying something. Then when you get into the access questions -- as they say in marriages, I guess, it is six of one and half a dozen of the other -- both parties have problems. Do you see this problem with Bill 17 only addressing the one side of the issue then as opposed to the overall solution including the access?
Mr Johnston: I would like to see the government address the whole situation and end up with people walking away happy, contented, paying what they are supposed to pay, living up to the responsibilities of exercising their access in the kids' best interests and also having the joys of growing up with those kids and learning how to deal with the other parent effectively, or have institutions that can stand up between them like access centres for dropoff and pickup. There are a lot of good ideas on how to solve this situation which are just getting ignored.
Mr Carr: I know that my predecessor in Oakville South, Terry O'Connor, who practises family law, has some ideas about banking of access and so on because I know some of the stories about having to wait till June now are very traumatic. Again, I just want to thank you for sharing them and bringing them to light and taking the effort to come out and make this committee aware of it.
The Chair: With the committee's indulgence, before we adjourn, I note that we have a very active committee with a lot of questions of the presenters. As the timing is such that tomorrow we have a great number of presenters whose presentations will only be for 15 minutes in total, I would like to suggest that we continue a rotation of questions, that obviously all caucuses cannot be represented with each presenter. However, if people have a particular desire, with the indulgence of the other committee members, they could use the majority of that time. If members have difficulty with that suggestion, perhaps we could discuss it in subcommittee.
1640
Mrs Cunningham: Mr Chairman, on the point of how we are working and what not, I think we became more amenable this afternoon, but I suppose it can change from time to time. The recommendations that the staff are keeping for us, it must be very difficult to go through these documents, but can we keep them updated as far as possible, recommendations for change?
The Chair: Do you mean specific recommendations or requests for information?
Mrs Cunningham: Some are requests for information but others are the recommendations.
Mr Carr: Like they did in the written presentation. They made a one-line summary.
Ms Swift: Yes. Those are current to last Wednesday, I believe.
Mrs Cunningham: That is right.
Ms Swift: Are you asking that they be available on a day-to-day basis?
Mrs Cunningham: I do not know what is reasonable, except that my very reason for not wanting to deal with the amendments was that I knew it would be heavy, and it is. I have got some 17 recommendations just today where I have put different ones.
Ms Swift: Yes.
Mrs Cunningham: Some of them may be worth while and others may not; I do not know. But are you keeping track of them and how can we really get them?
Ms Swift: Oh, yes, I have been keeping track of them. Tomorrow looks very heavy. I do not know if we will be able to keep them up to date for Thursday. I think we will be able to have probably today's recommendations for you by tomorrow afternoon, by the afternoon session, I would think, maybe before that.
Mrs Cunningham: That is fine.
Ms Swift: Sort of a day or a day and a half would be about, I think, what we could handle.
The Chair: An incredible task in front of Susan for tomorrow morning.
Mrs Cunningham: I know it is.
Mr Carr: I have a question on that. I know the written summaries are there and recommendations. I was just wondering, there might be the odd case where somebody gives an additional recommendation during his presentation and so that, as well, is being recorded.
Ms Swift: Yes, the recommendations are both from the oral evidence that you receive and from the briefs, and I take notes as to recommendations that are being made.
Mr Mills: Mr Chairman, I am sorry, I was talking to my colleague when you earlier mentioned something, but the process for tomorrow when we have got that heavy list, is that going to be the same sort of time?
The Chair: What I suggested, Mr Mills, was that we would rotate as we have been, Conservative, New Democratic and Liberal, in this order, but that obviously it may be not possible during a 15-minute presentation for members of all caucuses to ask questions. The caucus that would be left over would be the one to start with the next presenter. Where there is a particular desire to ask a number of questions, that caucus can do so with the consent of the rest of the committee and then the rotation would -- let us say that Mrs Cunningham, for example, had a number of questions of a particular presenter and that time was used up. For the next presenter, the government caucus would initiate, or the same way within that same rotation. Okay, sir?
Mr Mills: So what would happen, in theory, if someone took up the whole 15 minutes with the presentation?
The Chair: They would do that with the indulgence of the committee.
Mr Mills: Then we would have to get the indulgence of the committee to ask questions. Is that what you are saying or not?
The Chair: No, what I am saying is that at the end of that time there would be no time left for questions. However, let us say that Mr Elston or Mr Kwinter had last questions with a particular presenter, then at the end of the next presentation the Conservative caucus would have the opportunity of initiating questions, and so on, and on to the New Democrats and back to the Liberals. Simply because we have 15-minute presentations, it will be impossible for all caucuses to ask questions.
Mr Mills: I would just like to conclude my question-statement. I have a lot of difficulty with this time frame and I think we are here, like my colleagues across the road there, to listen, and it is rather tough to sort of get a grip on things with this time constraint. I would think -- I was not party to setting this schedule and I realize it is difficult -- perhaps we should consider in the future this jamming in -- I think tomorrow is just going to be horrendous to try and get any sort of scope to it.
The Chair: That is precisely why I made that suggestion, sir, in anticipation of tomorrow's presentations. We have a great number of presenters and we wish to hear as many as possible.
Mr Mills: Yes, I realize it is difficult. Thank you.
The Chair: Thank you, sir. Can we adjourn and immediately following this meeting the subcommittee will be meeting after stretching.
Mr Sorbara: Before we adjourn, on your process -- look, you are the Chair, right, so you have the right to set the process. But actually, the things works best if there is more flexibility and fluidity. For example, there may be some presenter who I, or Mr Elston or Mr Kwinter has no interest in questioning, so the fact that we go first on the rotation means zip. There are others we might want to question even though we have just asked a question beforehand.
Now tomorrow, friends, we set this schedule. There are not going to be any questions, and if you are an effective Chairman, you will say, "Look, I would love to have you ask some questions but we are already running 20 minutes late. I am going to have to exercise my prerogative as a Chairman and go on to the next presenter." But then when you see some time becoming available, you might judge Gordon Mills because he has always got a speech or two to make and just let him have it, give him the opportunity.
So look, you are the Chair. If you want to do that, that is fine, but I think you will find that as you grow in the Chair, you will feel more comfortable letting the thing evolve as it needs to evolve. Where we have a group that we particularly want to speak to, let us do that. We are not going go win the next campaign because we got more questions than they did. After all, they can always see the minister and we can rarely do that; he does not come to our caucuses. Let's adjourn.
The committee adjourned at 1647.