CONTENTS
Monday 25 March 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.
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:
Elston, Murray J. (Bruce L) for Mr Chiarelli
Murdock, Sharon (Sudbury NDP) for Mr F. Wilson
Wessenger, Paul (Simcoe Centre NDP) for Mr Winninger
Clerk: Freedman, Lisa
Staff:
Revell, Donald, Legislative Counsel
Roux, Denis, Legal Advisor, Legislative Counsel
The committee met at 1543 in room 228.
CHILD AND FAMILY SUPPORT STATUTE LAW AMENDMENT ACT, 1990 / LOI DE 1990 MODIFIANT LES LOIS RELATIVES AUX OBLIGATIONS ALIMENTAIRES
Resuming consideration of Bill 17, An Act to amend the Law related to the Enforcement of Support and Custody Orders.
Reprise de l'étude du projet de loi 17, Loi portant modification des lois relatives à l'exécution d'ordonnances alimentaires et de garde d'enfants.
Section/article 3:
The Chair: Okay, I call the meeting to order. We will be dealing with page 15(a) of amendments to Bill 17. I would suggest that we look at this one, and if there are other non-contentious issues, we can deal with those and then adjourn for a very brief time until we have representatives from the official opposition.
Mr Wessenger: I would like to accept a friendly amendment with respect to page 15(a).
The Chair: Mr Wessenger moves that subsection 3c(10d) of the act, as set out in section 3 of the bill, as amended by Mr Wessenger's motion of 27 February 1991, be struck out and the following substituted:
"(10d) Despite any other provision of this act, no deduction shall be made under a support deduction order in respect of amounts owing to a payor as reimbursement for expenses covered by a medical, health, dental or hospital insurance contract or plan."
Mr Harnick: Should we not state "expenses incurred and covered by," to adopt the wording of the prior --
Mr Wessenger: I think we will ask legislative counsel to advise on that.
Mr Harnick: Just "expenses incurred and covered by," because I think the expense has to be an incurred expense before we can obtain reimbursement.
Mr Revell: Technically I would question whether or not you can receive reimbursement for something if you have not made a disbursement in the first place. I mean, let's face it. What happens on many of these plans is people in fact go out and incur an expense and then there is a direct payment between the insurer and the --
Mr Harnick: You submit your bills.
Mr Revell: Yes. I reviewed this at length as a result of the discussion last week and I was of the opinion that this in fact covers the whole issue, but if you would feel more comfortable with it the other way, I think that works as well. I just have to think about it for just a second.
Mr Harnick: "Expenses incurred and/or covered by"? Does that do it?
Mr Revell: And/or is not right. No.
Ms S. Murdock: You can incur an expense that is not necessarily covered by. For instance, you may go to your dentist and have certain work done, some of which is covered by an insurance plan. You have incurred the expense, but not all of it can be reimbursed. Therefore, I do not see the necessity of having "incurred" in there.
Mr Revell: I have to agree. In looking at it, it has to be, first of all, a reimbursement for an expense, and that expense has to be covered by. I cannot imagine that insurance companies are going to be paying out too much unless there is fairly valid proof of claim. There is always going to have to be supporting documentation, whether it is on a pay-direct basis or whether it is on a pay-the-client basis, who in turn pays back the doctor or whatever.
Motion agreed to.
The Chair: Lisa directs me to page 14 --
Mr Wessenger: I think it was stood down.
The Chair: -- which was stood down at the same time, was it?
Mr Harnick: Page 14 white or yellow?
The Chair: White. Pages 14 and 15, as amended, discussion?
Interjections.
The Chair: Lisa, could you amplify on this?
Clerk of the Committee: The reason we are going back to 14 is we had to reopen 14 and 15 in order to pass 15(a). So technically now we have to go back and pass -- even though we carried it once, we reopened it so that we could pass 15(a). So now we are carrying 14 and 15, as amended by 15(a).
Motion agreed to.
The Chair: Anything further that is non-contentious?
Mr Wessenger: Are there any further stood down?
Clerk of the Committee: No.
The Chair: Okay. I suggest that we recess until the -- Mr Morrow?
Mr Morrow: Mr Chair, I would move a motion that we keep moving on non-contentious amendments.
Mr Harnick: What are non-contentious amendments? I voice the words of Ms Murdock, your own member. What is contentious to one is non-contentious to another or vice versa.
Mr Morrow: What I am basically saying, obviously, is 24 through 29 are very contentious issues for this committee. I would ask that we move to the amendments that all three parties here feel are non-contentious.
Mr Harnick: I cannot say what is contentious for Mr Sorbara.
Mr Fletcher: Mr Sorbara should be here.
Mr Harnick: Well, of course he should be here, but he is standing on the television now making a speech in response to the Attorney General.
Mr Fletcher: Then there should be another Liberal who is standing in here too.
Mr Harnick: But he is carrying the ball on it.
Mr Fletcher: Then there should be someone taking his place.
Mr Harnick: I would certainly hate to be in a position where I ever had to be hoping that you would grant me an indulgence.
The Chair: Excuse me. I think we have an agreement that we would recess if there were not other non-contentious issues that we have agreement about that we could pass.
Ms S. Murdock: I would just like to point out that tomorrow, on the Constitution debates, when they are up, there are going to be a couple of us on the government side who are going to want to speak as well and it would certainly be in keeping with helping out in working together that we do reach that point. So I would be in agreement to that.
The Chair: I suggest that we recess until approximately 4:05.
The committee recessed at 1551.
1605
The Chair: I would like to call the meeting to order. We are dealing with the Liberal amendment on -- sorry?
Mr Wessenger: Since Mr Sorbara is not here yet, I wonder if we might proceed with some other motions which I think are non-controversial.
Interjection: There he is.
Mr Wessenger: Oh, he is.
The Chair: If I could resume, we are now dealing with the Liberal motion which is on page 26, a Liberal amendment to Bill 17.
Mr Sorbara: Has this been moved yet?
The Chair: Yes, it has.
Ms S. Murdock: A clarification, right page 26?
The Chair: Left page 26.
Ms S. Murdock: Mine says government motion.
The Chair: Liberal motion, page 26.
Mr Elston: That was then, this is now.
Ms S. Murdock: That is what I am wondering.
The Chair: Okay, Mr Sorbara? Any comments? I do not want to rush you.
Mr Sorbara: What are we on, SCOE? You thought I was serious, did you not?
First of all, let me begin by thanking the committee for indulging me with a brief recess. I am just learning how to juggle all the balls of an opposition member, and as it turned out today, not only was I obliged to respond to the Attorney General's remarks on the report of the select committee on Ontario in Confederation but be here as well to try to defend out party's position on Bill 17.
The amendment that we are on right now is, I think, central to our party's position on Bill 17. We are dealing now with the section where we would like to see some movement from the government. I want to make that point perfectly clear. We have had interesting debate, thank you very much, on a lot of the sections, but hey, folks, we are now down to the heart and soul of it. We are right where we ask you, in the name of fairness, justice and good public administration, to set aside your blind commitment to what the Attorney General says you are supposed to do and consider an amendment or two.
What is it that we are asking you to do? We are asking you to consider an amendment to clause 3d(2)(a) as printed. The section as it stands now, or as it stands in the printed form of the bill which I wave before you, for the benefit of Hansard, reads as follows. Perhaps I better read all of subsection 3d(2). I am beginning with subsection 3d(2). It says:
"The court may suspend a support deduction order under subsection (1) or subsection 3k(6) only if" -- and here is the offending section or clause -- "(a) it finds that it would be unconscionable, having regard to all of the circumstances, to require the payor to make support payments through a support deduction order."
What that clause says in good old English is that in almost no case at all will a judge be able to suspend a support deduction order and say to the people before him, the spouses who are about to separate: "Go in peace. Work it out yourselves. I am of the opinion, having regard to all of the circumstances, that you need not call upon the state and the Child and Family Support Office" -- I am getting the name of the office right now, because some day this bill will pass and their office will be called that -- "you don't need the support and the interference of the state in this matter. We are satisfied" -- the court often speaks in the royal "we" -- "that these matters of the payment of support can be worked out as between the two of you."
What makes it even worse is that the section as presented by the government says that the court can do that if it finds that it would be "unconscionable" not to do it. Now what the hell does "unconscionable" mean in the circumstances? We do not know. The act does not define it. The act has a number of terms that it does define, but it does not define "unconscionable." So what is going to happen? Lots of money for lawyers making lots of interesting cases after doing lots of interesting research on the question of unconscionability in family law matters. Talk about supports. Who in the heck are we trying to support here, the lawyers or the spouse who is supposed to benefit from a support deduction order?
The act does not tell us what is or is not unconscionable. But guess what? In the amendments as presented by the government, the act tells us what unconscionability is not, and this is really something. Pay attention to this. It is the following subsection, and I am going to quote it:
"(3) The following shall not be considered by a court in determining whether it would be unconscionable to require a payor to make support payments through a support deduction order" -- these are the things that the court is prohibited by statute, based on your views as legislators, from looking at when considering unconscionability -- "1. The payor's payment history in respect of his or her debts, including support obligations."
So, for example, if the person, man or woman, who is the subject of the support deduction order and is going to have his or her paycheque docked -- if he has a record of always paying his debts and in fact has been the subject of other support obligations and has always paid on time, every single occasion, guess what? The court is not allowed to hear that; prohibited by statute, cannot hear about honesty. Honesty is irrelevant here, because of the amendments proposed by the government.
The second thing that the court cannot look at is, "2. The fact that the payor has had no opportunity to demonstrate voluntary compliance in respect of support obligations." In other words, a spouse who is about to be made the subject of the support order is prohibited from saying to the court, "Well, milord" -- oops, we do not use "milord" any more -- "Well, Your Honour, I want to be given a chance to prove to my ex-wife" -- or "my ex-husband" as the case may be -- "and to this court and to all my friends and neighbours and my children that I am an honest person, that I am going to pay regularly and without fault."
If you, Mr Chairman, or anyone else were to stand up in a court and make that argument if this law passed, the counsel for the other party would stand up and say: "Objection, Your Honour. Those submissions are out of order. They are prohibited by law." Gord, they are going to be prohibited by law. You will not be able to make them in front of the court.
Now what is the third thing? The third thing that the court is going to be prohibited from looking at is, "3. The fact that the parties have agreed to the suspension of the support deduction order." What does that mean? Well, the drafters did a pretty good job. This is good English. If the two parties to the separation agree that they want this support deduction order to be suspended, they want to do things without the help of the family and child support office, the judge will have to say, "I'm sorry, I'm prohibited from listening to that agreement between the two of you."
The state is getting pretty paternalistic. I thought we were finally working our way out of the paternalistic state. I thought that we were inching our way -- I am sorry, centimetring our way towards a situation where we were creating a new equality between men and women in this society. This says: "I don't believe you if you agree. I don't believe you if you want to prove your honesty. I can't hear any of the things that might bear reasonably on unconscionability. Can't hear anything. Sorry. I'm prohibited by the New Democratic Party's view of your ability to be honest. They passed a bill that said it would be unconscionable for me to listen to your debt history or your agreement or your desire to prove that you are an honest person."
That only tells us what the judge cannot listen to when considering unconscionability; there are no words in the statute about what the judge might want to consider. So where does that leave us with clause 3d(2)(a), which says that if it is unconscionable, you can relieve yourself of SCOE and go about it on your own? What it basically says is that nobody is getting out, subject of course to clause (b), and I will talk about that in a few minutes. The amendment that we have proposed is not draconian, I say to my friends, particularly my friend the member for Durham East, who is always reasonable on these matters and who is now well rested.
Mr Elston: Don't exaggerate.
Mr Sorbara: I am exaggerating. I am sorry. My colleague reprimands me appropriately. I was just thinking that he did spend a little bit of time down in Dunedin reviewing the fortunes of this city's baseball team, so he cannot be all bad.
Our amendment is pretty simple and straightforward. It actually is a reasonable amendment. It is in no way unconscionable. This is not an unconscionable amendment. This is straightforward and simple. We suggest that we chuck the concept of unconscionability, which is entirely unworkable for the court, and put in something more straightforward, and I am going to quote it now. We suggest that clause (a) read as follows: "It finds that there is, having regard to all of the circumstances, a substantial reason for suspending its operation." In other words, if the judge, who after all is in the best position to decide, having heard the submissions of the parties, agrees that it is better to not use the support deduction order than to use it, he can suspend it.
Certainly that would require agreement. The spouses would have to agree, but there would be something more as well. The judge, with his or her history of listening to cases on the question of support, could exercise the kind of discretion and understanding that judges generally use and are supposed to use.
Mr Elston: Keep it up, Greg. I think they are weakening.
Mr Sorbara: Well, if they start to see reason on this, I am ready to stop and pass the rest of this bill at the drop of an amendment or, to be more precise, the adoption of an amendment.
Let me just say one other thing about clause (a) and why this is a more reasonable approach. I am sorry that the legislative counsel has left us for a few moments, because this is a matter that I will need his views on, so maybe I will just wait for those remarks until he returns. I wonder if the clerk might help out in that regard.
We will be proposing -- oh, my goodness, I do not see it here. We could propose, if the amendment had been drafted, some changes to clause 3d(2)(b), which is the exception allowing people to relieve themselves from support deduction orders upon the posting of security.
The Chair: Mr Sorbara, legislative counsel has returned.
Mr Sorbara: I have a lot to say and I know that my colleague Mr Elston has a lot to say on the question of security, but inasmuch as legislative counsel has returned, it is time now for me to just express my concerns about some grave inconsistencies in the act. I ask the indulgence of my colleagues in the New Democratic Party because this is fairly technical stuff, but all of you now have been elected for six months or so, so you are ready for this rather heady clause-by-clause kind of stuff.
1620
I want to take my friends to subsection 3(6) of the bill as printed. Are you all there? Are you all with me on this clause? Subsection 3(6) was referred to in the side notes as the "prompt filing" section. I have a little note on my own copy which refers to it as the opt-out clause. Just let me read this section through with members.
Mr Fletcher: On a point of order, Mr Chair: Are we discussing one section or are we discussing the whole thing? I thought it was clause 3d(2)(a) of the bill as printed. I thought that was what we were discussing.
Mr Elston: This bill is very intricately interrelated. Obviously, this has some play.
The Chair: Mr Sorbara, could you point out how this particular point refers to your motion?
Mr Sorbara: What I will be doing in my arguments is showing that under the clause which we are discussing and which is the subject of the amendment, it is very difficult to extricate yourself from a support deduction order -- a support deduction order, I repeat. But under the subsection that I just referred to, it is far easier to extricate yourself from the support order, which is the foundation document upon which a support deduction order is based.
The Chair: Your discussion then of this other section is not relevant to the support deduction order?
Mr Sorbara: It is entirely relevant because I am proposing an amendment.
The Chair: I suggest that you return to the conscionability issue.
Mr Elston: That's unconscionable.
Mr Sorbara: I defer to legislative counsel on these matters, and the clerk. In trying to describe an amendment, surely I have the right to refer to other subsections and clauses of the bill.
The Chair You are referring to another matter. You are referring to the support order, not the support deduction order and the issue of conscionability.
Mr Harnick: All part of the same bill.
The Chair: I would ask you to return, as you so eloquently do, to your own motion.
Mr Sorbara: Mr Chairman, in discussing my motion I am referring you now to subsection 3(6), which reads as follows: "The clerk or registrar of the court that makes an order described in subsection (5)" -- that is, the support order -- "shall file it with the director's office promptly after it is signed" -- now these are the important words -- "unless the person entitled to receive support files with the court and the director's office a written notice signed by the person stating that he or she does not want the order enforced by the director."
Do my friends understand what that section means? That section means that if the court has issued a support order and the person who is to benefit from the support order says, "I don't want the support order enforced by SCOE," he or she simply needs to sign a document, send it to the director and file it with the court and he or she does not come under the power of SCOE, except that it does not apply in the case of a support deduction order. Even if you sign that order and say, "I don't want your help," under this bill the court still has to issue a support deduction order and still has to enforce it with a deduction from pay. Does that make any sense?
Mr Fletcher: Yes.
Mr Sorbara: It does?
Mr Sorbara: Surely to God that does not make any sense. If I go to the court and I say: "Thank you very much, milord, for the support order. I would prefer to have this enforced directly, without the interference of the law or the director's office,'' even under those circumstances the court is bound by this act, as a result of section 3a, to issue a support deduction order, send it to the director's office and have the director enforce it. That does not make sense, and the reason why I asked legislative counsel to be here is to determine whether that is actually what he meant in drafting this bill.
It seems to me to be entirely inconsistent with reason and good sense. If the person who is the beneficiary of the support order signs a document which says, "I do not want this support order registered with the director of the Child and Family Support Office, thank you very much," and files that document with the director and files it with the court -- it has to be written, it has to be signed, presumably witnessed, probably should be in the form of an affidavit -- even having done that, section 3a says the court cannot even consider that, must issue a support deduction order if there are periodic payments made at regular intervals and file that support deduction order with the Child and Family Support Office. And the director, unless it is unconscionable, must start the deductions within 14 days. I cannot figure that out.
If the woman or the man says, "I don't want the director interfering with this support order," why in heaven's name would you write a bill that says, "We're going to do it anyway"? At least get rid of this section that says you can get out of it. Take this out and say, "Except in the case of a support deduction order," because it does not make sense. After all, think of it in your own circumstances.
If the law tells you, any of you -- are you awake there? -- that you can go to the court and relieve yourself of the interference of the state, and the law says you can do that but in another section it says: "No, we were just kidding. If your spouse is getting periodic payments paid at regular intervals, we're going to issue a support deduction order and we're going to require that payments start being deducted," I think the lawyers who read this are going to say: "Hold on a second. Did you really mean that? Are you going to have men or women filing notices that they do not want the director to interfere and then, nevertheless, issue a support deduction order and the only way that you can get out of it is by way of the unconscionability section?" Give me a break. We will look like fools if we pass this.
That is why I have got this amendment here. This amendment says if it is reasonable, in the view of the judge, to let you out of the support deduction order, then you can get out of it, you can suspend it; not that it is not written, because the act says it is always going to be written. The question is whether or not its operation is going to be suspended. That is all I am asking. I am asking for some consistency.
If you folks, with legislative counsel, want a better way to draft it, that is fine with me. I am not wedded to these words; there is no magic to them. All I am saying is, let's be consistent. If in one section we tell people that they can file a notice and not have your support deduction order filed with this person here who is the director, but then in another section you say, "We're still going to garnish your pay," it does not make sense. Who the hell is running the ship? Who is directing the ship here? We have got this ship going in two different directions.
On the one hand we say, "You can get out," and on the other hand we say: "I've caught you. You're in and you've got to prove unconscionability to get out." By the way, do not look at my honesty when it comes to unconscionability and do not look at my bona fides -- that means my goodwill -- and do not look at the agreement that I have made with my friend who I am divorcing. Some people divorce as friends, believe it or not. They agree that they do not want to live their lives together, they actually can do it -- not many, but they can do it -- amicably and they can say to the state and the court, "You know, we really have worked this thing out." Maybe that is 2% of the cases, and that is a minority, but you know what? The humanity of a government is based on how it treats its minorities, no matter who they are, not how it treats the majority; not on how draconian it can be, but how it treats the minority. Gandhi said it and every great leader has said it, how you treat your minorities, how you treat the few exceptions.
The few exceptions might be able to come to an agreement. You are telling the court that it cannot even listen to that. That is stupid. It is not only draconian, it is stupid, and it is stupid to say that you have to prove unconscionability to have a support deduction order suspended, but you can just sign the notice and have the whole support order not filed with the court, with the director. So the director is going to have support deduction orders filed and not have the very support order upon which it is based filed because the person said, "Sorry, I don't want it."
1630
Somebody, for God's sake, Mr Chair, the clerk, legislative counsel, any of the NDP members, any of the Tory members, any of my old members, anyone from the audience, please, someone explain to me, tell me that this makes sense and I will withdraw my objection, I will withdraw the amendment. I will give no more speeches on this bill; I will pack up my papers and go home. But I want to be convinced that these crazy dichotomies in this act make sense, please.
Mr Mills: If we could believe that, we would do that.
The Chair: Any further discussion?
Mr Carr: I am just going to speak very simply. I think some of the words that the mover used, like "reasonable," seem to come to mind, and I think that essentially when you look at this, what he is saying -- said more eloquently, probably, than I could -- I would agree with their motion and I think everything that he outlined here states it very clearly. So I will be supporting the motion.
The Chair: Okay, any further discussion?
Mr Sorbara: Now that I have finished my speech, I have a question or two to ask: To the parliamentary assistant of the Attorney General, am I correct in my understanding that these two sections are supposed to stand together so that petitioners before the court who are beneficiaries of support orders can relieve themselves of the interference of the director under subsection 6 as it appears on page 3, and yet at the same time cannot relieve themselves of the effect of the support deduction order?
Mr Wessenger: Yes, the whole concept here is to ensure that basically the support deduction order is universally applied to the largest extent possible, and that is the intent.
Mr Elston: Universally to the largest extent? Could you clarify that?
Mr Wessenger: Universal application with limited exceptions, perhaps we should say. That is the basic premise on which the bill has been established, to make the support deduction universally acceptable.
It is true that the bill also provides that the support order itself does not have to be filed or enforced, because a support order, first of all, could contain provision with respect to custody, which I understand is an obligation under the act, to enforce the custody provisions, and the party can elect not to have the branch do that enforcement.
In addition, there is a situation where the support order could be enforced by other means, other than support deduction, and the party is again allowed to opt out of those aspects. For instance, the party might elect to enforce on his or her own. They might be of the opinion that they could have that option to enforce on their own rather than through the branch, the other means, other than support deduction.
Mr Sorbara: Just again then to the parliamentary assistant, do you not think it is going to be a rather odd circumstance when a support order that provides for periodic payments at regular intervals is made by the court and then, before the court, the person who is the beneficiary of the support order files a notice "that he or she" -- and I am quoting the act -- "does not want the order enforced by the director," files that notice under subsection 6, and then is subsequently made aware that a support deduction order has been made and filed and is enforced?
Mr Wessenger: I am certain that person would be aware of the law and advised by his or her counsel as to the consequences of a support order being made by the court.
Mr Sorbara: Well, what does that person do then who is the beneficiary of that order who wants to take the real benefit of subsection 6, and that is that he or she does not want the order enforced by the director?
Mr Wessenger: If it is the intent of that party that he or she does not want a support deduction order enforced, then he or she has to go under the provisions of the exception with respect to the agreement of the parties and the posting of security.
Mr Sorbara: Or the section on unconscionability. I think that is foolish beyond belief. Do you not think at least it would have been appropriate to amend subsection 6 then, instead of fooling -- this is legal fooling around, suggesting to people that they can sign a notice if they do not want the order to be "enforced by the director," and I am quoting again.
Mr Wessenger: I might perhaps ask legislative counsel. I think you did indicate you wanted his opinion with respect to the clarity of the legislation.
Mr Sorbara: I would love to hear legislative counsel's views on this.
Mr Revell: Without getting into any of the policy issues, Mr Sorbara's interpretation of the law is correct. The act definitely provides that a support order may be withdrawn and it also provides that, unless an order is made under the section that is under consideration, with the amendments now on the floor, a support deduction order cannot be withdrawn.
Now the question is asked, where do you make clear the relationship between all of these provisions, and in a complicated act there are no easy answers, because you cannot put everything into one sentence. But subsection 2b provides that:
"The director shall enforce a support deduction order, subject to any suspension order or variation, until the support order to which it relates is terminated and there are no arrears owing and despite the fact that the support order to which it relates has been withdrawn from the director's office," if it is not in the director's office.
As I say, it is a difficult situation of putting everything into one subsection. Subsection 6 would be two pages long. I think it is clear that the support deduction order operates notwithstanding any withdrawal from the director's office. As to the policy issues, I cannot speak to those.
Mr Sorbara: I appreciate that. I thought this policy issue was so weird, to tell you the truth, that you could file a notice and keep the support order away from the director but you could not be relieved of the effect of the subservient document. When I say subservient document, in law, it seems to me, a support deduction order is subservient to the support order. You cannot get a support deduction order if you do not have a support order. I thought it unbelievable that the Attorney General would propose that a person could get out of the director's office in respect of the principal document but not the subservient document. That is why I asked legislative counsel to comment as to whether or not I was reading this thing properly, because statutory interpretation is not my strong suit.
But now that he mentions 2b, I want to say to all of the members of the committee that this seems to support my argument that it is inconsistent. Yes, it does say that:
"The director shall" -- I like that word "shall" -- "enforce a support deduction order, subject to any suspension order or variation, until the support order to which it relates is terminated and there are no arrears owing and" -- now get this -- "despite the fact that the support order to which it relates has been withdrawn from the director's office."
Let me read that again, "despite the fact that the support order to which it relates has been withdrawn from the director's office." But that suggests that it is there in the first place.
These guys can enforce a support deduction order even when the support order has never been filed in the director's office. So the director is without any legal ability to know the terms of the support order. She or he cannot know that. She cannot go -- I was going to say "screwing around." She cannot go off fumbling around in the court's files to find out what that support order said. She cannot know. Legally, she is prohibited from knowing, which is in the foundation document, the support order.
1640
Can you imagine that? A litigant says, "I don't want the state to know and enforce this order," and then the state says: "Okay, that's fine. By the way, we gotcha, because we've got your support deduction order." But this subsection 2b suggests that the order can still be enforced, even if it is withdrawn, and I say that there is a legal implication there that it was once there. I think it is crazy of you to pass a law that says you can enforce a support deduction order, a subservient order, without the principal document being filed with the director, and I plead with you to adjourn so that these folks can work out better wording.
If you insist that you will not let anyone away from a support deduction order except under unconscionability or the posting of security, that is fine. That is your political judgement. But I say that subsection 2b suggests, at least by implication, that the order was once there and is inconsistent with subsection 6 on page 3, and to that extent the bill does not make sense and should be withdrawn, or at least those sections ought to be amended.
By the way, there is an inconsistency in subsection 7 relating to 2b, which we were just discussing. But I will let legislative counsel answer whether there is not some sort of suggestion in 2b that the order was there in the first place.
Mr Revell: I think I have to agree with Mr Sorbara's reasoning at this point. I have just been discussing it with Ms Feldman and we would be looking at this over that particular point as to whether or not a further change is required.
Mr Elston: Gregory, you rescued those NDPers from themselves again.
Mr Mills: A knight in white armour.
Mr Sorbara: As I look at a television, Mr Chairman, Ernie is still speaking on the Constitution.
The Chair: Mr Elston, go ahead.
Mr Elston: Just to support Mr Sorbara's analysis about the documents, one being subservient to the other, this is akin to someone suffering a judgement which is then lodged in the sheriff's office. The sheriff's office is then asked to levy in respect of the execution filed against somebody's property. If the judgement itself is taken away, destroyed, the sheriff has nothing to act upon if the execution is requested by some interested parties.
From my point of view, it seems to me that if the initial decision no longer exists, as described by Mr Sorbara, certainly the support deduction order itself should not be allowed to exist. The sheriff would have a very hard time levying on an execution if the judgement itself was taken away. He/she would not act on it if he/she does not have a judgement on which to act.
So it is very difficult. We are not condemning anybody for overlooking this. This is a very complex bill. In fact, when the people came to see us, I think even the people from at least a couple of the legal associations had indicated that their preference would very much have been to have seen a bill which was far less complex than this one is, no question about that. This is just one of those little things that does cause us problems.
I think we ought to await the deliberations of counsel, both as advisers to the Ministry of the Attorney General's and legislative counsel, to try to straighten this thing out, because there is no point getting ourselves into a bunch of litigation, the result of which will be that somebody who is wealthy enough to fight it will fight it and some other poor people will not be able to do anything about it, although they may be just as unfairly -- in fact, from my point of view, to get back to where I was a long time ago when we went through a number of the presentations, the people who were unable to go to court to determine or decipher the real meaning and the real sort of legality of this piece of legislation are going to suffer more than the folks who can afford to take their lawyer with them to clarify them as points of law.
So I think we should take a moment, because I know that the government members, although I indicated earlier that I thought they were interested in voting for us, appear anyway to have moved back from that. Their interest seems to have waned or drained from supporting this amendment, as reasonable as it is.
But on that point, I just wanted to make those observations. I do have a couple of other observations with respect to the test of reasonableness, but that will await the second part of this debate, I guess, if we find out from counsel whether or not there are some more logical changes to be made to the way the bill has been structured.
Mr Sorbara: Just on that very point, I think there is at least some ambiguity here. When the act says a person can sign a notice and prevent the support order from being filed with the office, but then, perhaps unbeknownst to that party, the order gets filed and support deductions get made, if I were a lawyer representing a case dealing with these sections, I would argue strenuously that the employer was without authority to deduct the amounts and pay them over because the fundamental document, the support order, had, because of the notice of the recipient, not been filed.
A circumstance like this might arise under these circumstances. The parties do not know that a support deduction order is being made, so the payor is paying directly and then funds start to get deducted, unbeknownst to him at first, so he notices it on the paycheque. I would argue that the parties relied on the subsection 6 that I was referring to and that those deductions were improperly made.
Now a court, in considering which section applies, is not able to refer to the debates that we are having in this committee. That is stuff that courts do not listen to, because most of it is the kind of stuff that you are getting from me so much of the time, but the legal argument is a very interesting one. How can a director enforce a support deduction order, which is, I say to Gord again, subservient to the overall support order, when one of the parties to the application in family court had signed a notice saying, "Do not file my support order with the director of the office of child and family support"?
If you want to take that section out of there, that is a policy decision. I can understand why you might want to do that. I disagree with that. I think that you need more flexibility. I think you need to give litigants, particularly spouses who are going through this terrible stuff, an opportunity to have more impact, within a strong legal framework, of the flexibility that characterizes a free and just society.
In other words, I want women to be able to avail themselves like that of a support deduction order if that is what they need -- just like that. I want this office to be well funded, and I want the support deduction to come into force. If she says, "That is what I need," let that be the case. But if there are situations where they agree or situations where they do not need the office, let's go by way of subsection 6. Let them tell the court together and let the court look at that and say, "Yes, that's reasonable."
Know what? I am afraid that politically the government would lose a few political points from the most strident. You do not have to do that. You can support this and just say, "I'm not going to go along with those strident choruses, the ones that say that every single payment has to go through the hands of the government."
It costs money to put those payments through the government. It costs a lot less for you to send your spouse a cheque regularly than for the state to take it, probably about $15 a cheque, by my reckoning. That is what the banks now charge to handle that kind of stuff.
I put it to you, be reasonable. Consider that you are going to expand on this and that this is a good reasonable test. This section reads, the parties have to agree and the court thinks it is a good idea.
I certainly will agree to any recess that the government wants to consider how to improve these through other amendments, but I think my colleague Mr Elston has comments on reasonableness.
Mr Elston: I merely want to suggest that perhaps, at least if there is no recess to be had, this item be stood down so that we can come back to it, because I know there is some willingness for the people to work on this between legislative counsel and the adviser to the Attorney General's department. I do not think there is any point in our carrying on with the discussion if there are going to be some changes either proposed or brought forward. I take it, from what was said, that Ms Feldman and the legislative counsel are at least looking at some things that might ameliorate some of the concerns.
Mr Wessenger: Could I just state that if we are going to stand down section 3 so that we can work on work on some technical improvements to the clause, I think there have been some concerns --
Mr Elston: It is more than just technical improvements, because it does affect --
Mr Wessenger: I think that should be clear, because there is no intention to weaken the universal application of the section. But there have been some points that have been raised concerning the technical wording which I think do merit some further consideration.
Mr Elston: I appreciate what the parliamentary assistant has said, that they are not going to necessarily consider "substantial reason" as put forward in our amendment, but the impact that may be felt by the changes that are made may have something to do with the potential changing of wording in our amendment. That is all that I was getting at. I was not indicating that the New Democrats, by agreeing to stand this down, were going to go back and think about moving from their position that no matter how consensual, no matter how much goodwill there was between the parties, everybody gets looked after by the government. I am not suggesting or even considering that, but I am suggesting that for the betterment of this and the discussion about it, which we can carry on for the rest of the day, it just does not seem to be meritorious for us to do that until we see the context of the changes that you are proposing. That is why I think it is rational to do that. We can move on to another section.
Ms S. Murdock: I just have a question. If we stand this down, what we are standing down is the Liberal amendment. Is that what we are standing down? I do not know what we are standing down. Is that what we are standing down?
Mr Sorbara: Yes, because we are talking to --
Ms S. Murdock: But the motion has nothing to do with the reasons that we are standing it down.
Mr Wessenger: Let me just see if I understand what Mr Elston is saying. I think what he is saying is that there may be some problems with the wording of section 3 and it might be that, if I understand him correctly, if we make some changes in section 3 for technical purposes, that means that they would also want to make some changes in their amendment.
Mr Elston: There is a possibility, but the point that I merely want to raise here is just a matter that here we are going back to this part that is really spawning some real concerns about how this section 3d works or does not work or will not work. It might be necessary if there are changes, but there is no point our talking about it now until we know. That is all.
Ms S. Murdock: I guess what I am having --
The Chair: We have a request for a five-minute recess. Is there unanimous consent?
Mr Elston: You have caught Sharon in full flight.
Ms S. Murdock: Yes.
Mr Elston: Why do you not let finish her what she was about to say?
Mr Sorbara: He is like that.
Ms S. Murdock I know.
The Chair: Some full flights take quite a lengthy time before they come back to roost. Could we have unanimous consent to recess for five?
Mr Sorbara: As long as Sharon agrees.
The Chair: Thank you, Sharon. We will resume at 5 o'clock.
The committee recessed at 1654.
1701
The Chair: Can we resume discussion of Mr Sorbara's motion on page 26? Any further discussion?
Mr Sorbara: Yes. I think Mr Elston wanted to talk about reasonableness.
Mr Elston: If we are going to step that down, then I will wait to say something about that later.
Mr Wessenger: No, we are not.
Mr Elston: Oh, you are not.
Mr Wessenger: These matters, I think, relate to all of section 3, and we are going to be on section 3 for a long time. The matters Mr Sorbara has raised do not particularly relate to this motion, but they do relate to the section as a whole.
Mr Sorbara: I notice, Mr Chairman, that the parliamentary assistant to the Attorney General is having a little caucus discussion with the majority of the committee. Is there anything they want to report to us as to how they plan on proceeding?
Mr Fletcher: I am just going to speak to the amendment, to your amendment, not to everything else that you have been speaking about.
Mr Sorbara: I was only speaking to the amendment.
Mr Fletcher: No, you were not.
Mr Sorbara: Yes, I was.
Mr Fletcher: I wish you were.
Mr Sorbara: I was.
Mr Elston: He will.
Mr Fletcher: I know he will.
Mr Elston: Give him a chance.
Mr Fletcher: I know he will. I was afraid that was going to happen.
One of the things that bothers me about the amendment -- there is more than one thing, but I think that --
Mr Elston: Give us the full range.
Mr Fletcher: No, I will not. I think in our society what has happened as far as the court payment is concerned is that when a person does not pay, it is not seen as being wrong; it is seen as, "Oh, you didn't pay it, fine." There is not the societal pressure on a person to pay the support payments, and that is what we are looking at in this piece of legislation, to make sure that the act does force people to make their payments when they are due.
Also, if this motion were to pass, it would take away the universality of what the legislation is trying to do, and that is to make sure that payments are equal across the board and that the penalties are divided equally across the board. To put more discretion into the courts, as far as I am concerned -- we can see it with other laws where there are discretionary powers given to a judge. One person may get a lighter sentence than another person. A murderer may get paroled or be allowed to walk the streets, whereas another may not be able to, and that is because of discretion. I can see that if it were to be at the discretion of the judge, one person --
Mr Harnick: You are not referring to Mr Drainville, are you?
Mr Fletcher: Yes, Mr Drainville is a good one; he did not murder anyone. I would just hate to see the discretionary clause where one person would be allowed not to pay and yet another person would be.
Mr Harnick: Just treat everybody like a big criminal.
Mr Fletcher: Yes, let's treat everyone equally. I think we should treat them all the same. I think that is a good idea.
Mr Harnick: Whack them all over the head with a big stick.
The Chair: Mr Fletcher has the floor.
Mr Fletcher: I think that is what this piece of legislation tries to do, make sure that everyone is treated equally and that the support payments are definitely being paid to the people who are in need.
The Chair: Further discussion on the motion on page 26? All in favour of the motion?
Mr Sorbara: Hold on a second, hold on a second. There is more discussion on the section.
The Chair: Go ahead, sir, and please indicate it when I ask.
Mr Sorbara: I know, but you are getting so good at your job, Mr Chairman, and I think the committee is unanimous in that respect. I recall the first few days that you were in the chair, you were sort of searching for direction. You were advised by a competent clerk.
The Chair: Mr Sorbara, I appreciate the compliment, but --
Mr Sorbara: Now you are almost getting too aggressive when you say: "Further discussion? All those in favour?"
The Chair: Would you refer to the bill, please, sir.
Mr Sorbara: It reminds me of the Democratic national convention of 1960. When the chairman of the convention was bringing about the adjournment of the convention he said: "The motion before this convention is to adjourn. All those in favour? Opposed? The ayes have it. The motion is carried. This convention is adjourned sine die." And there were thousands and thousand of people out there. The Democratic national party has huge conventions.
The Chair: Thank you, Mr Sorbara. Mr Elston, please.
Mr Sorbara: This convention is adjourned "sine die."
The Chair: Mr Elston, please.
Mr Sorbara: I think my friend Murray Elston has some comments on the subject.
Mr Elston: I think that probably what we should do then, if we are going to have to work at these section 3 amendments, not only this one that we are speaking about here, I guess we will spend a wee bit of time and talk about the whole makeup of this. I agreed with some of the remarks made by my -- most of the remarks made by my colleague, not only just some --
Mr Sorbara: Nice recovery.
Ms S. Murdock: The truth will out.
Mr Elston: Actually, you know, it is interesting, because the Liberal Party has always had a history of having sort of a series of members who have independent perspectives. I will just reply to you, Sharon, because I will tell you the reason --
The Chair: Mr Elston, you will refer to the motion.
Mr Elston: -- that we hold independent views is that we see a little bit of merit in the individual. Really all that we are talking about in this amendment is setting out the circumstances where individuals can have something that fits their circumstances, that it does not have to be seen as one group of individuals without exception, a member of a collective. Not everybody is the same. Not everybody is a scoundrel who refuses to make payments, and under the bill, of course, these people are all being told that they have no way of proving, as the bill is currently written, no way of getting themselves out of the support deduction order unless they are able to meet the test of "unconscionable." All I am saying is that there is, I believe, some justification for moving to allow individuals to show that there is a substantial reason, that in other words there is a very good reason, not just, "Milord," or "Your Honour," depending on what it is, "I don't want to make the payment, so as a result, don't do it to me." They have to show some real cause.
1710
I do not believe that there is any rational argument to be made by people there that when judges are considering all of the ramifications not only of the support required in terms of quantum, and also the fact that in respect of the division of matrimonial property, and with respect to access and custody, if those are also items, we should be so doggone concerned that the judge, in his or her ability, is unable to also levy some sort of reasonable, balanced judgement with respect to the issue of a substantial reason for not allowing the support deduction order to go to the director's office.
I do not see, when you are making such earth-moving decisions part of the ambit of the decision of that man or woman who sits as judge as these people dissolve their union, that you cannot also allow that man or woman to say, "On balance, because these people agree and because I think it is in the public interest, these people ought not to have to go through the government." It just does not make sense.
I know Mr Harnick is going to make his argument, if not under this amendment, certainly under a series of amendments which he shared with us at an earlier time, even as the deliberations of this committee were being held as people came in the door, because Mr Harnick has held this view, if not from the inception of his days here at the Legislative Assembly, certainly as soon as he saw this version of the bill, and I compliment him for seeing through that.
But I have to tell you that "substantial reason for suspending" even, in my view and the reason I said I did not agree with everything my colleague said, will require some degree of determination through litigation. And any time you get into the courts, as we heard the panel of people who represented law associations and individuals who had gone through the process, you might as well kiss goodbye to several $100 bills as it goes to appearing in front of our legal system now.
Basically what we were trying to do as we got on to the issues at the very outset of this clause-by-clause, and we had confirmed by you, Mr Parliamentary Assistant, was what we want to try and do is get the money to where it is needed. We missed out on my little amendment, which you did not sort of want to go after. I saw a whole lot of sympathy but not many votes, so we passed by that. But now here in a situation where we do not need government help, you are saying we are going to get involved anyway.
In situations where people who have very little left of a union which at one time was so promising, you now strip them of the last portion of the human qualities which they thought they had, which is dignity. At least if they have failed in a union which started out with great promise, you could allow them to get out of it as gracefully and with as much honour and dignity as is possible and as is practical.
You have to understand the human element to this thing, and the only reason -- not the only reason but a substantial reason, if I can use the amendment's own words -- why I think this is an important concept to build into this bill is so that you can allow a man or a woman to retain as much dignity out of failure as is possible. What a great psychological boost it is for some people just to go through this thing and say, "When everything else has fallen around me -- I may have lost my business, I may have lost my house, I have certainly lost my family, I certainly have seen the disposition of a union with which I thought I was going to conquer the world in my early glory days at least now I can perform and show people that I have been able to tackle the responsibility of carrying out my obligations without somebody looking over my shoulder and saying, `No, you can't pay directly; you've got to pay us and then we pay somebody else.'"
What would be a substantial reason for not having the support deduction order enforced? Well, think of this example. A man has been paying his wife and their children directly for some period of time, loses his job temporarily, gets behind one payment. SCOE, as it now is known, is then introduced to the situation and he becomes an active member of the file, as does his spouse. On becoming reemployed, he reinstates his payments, actually catches up his payments, and starts paying the regular monthly payments directly to SCOE.
Problem: Wife's rent is due the 15th of the month. She does not get the cheque from SCOE until the 24th day of the month or something. Okay? What happens? His wife and children are always trying to catch up to the landlord's request to pay the rent. Solution? The man pays one month's rent. Good for the wife, bad for the husband. You know why? Because he cannot get any credit from SCOE, and in fact they record him as being in arrears when he says, "I just paid the rent and I'll only pay you the balance."
Is there not a substantial reason for allowing those people to go ahead and deal directly so that, because of the mechanisms of bureaucracies that are set up, which have standard payment dates and all that sort of stuff, there can be some reasonable way of conquering the very practical nature of problems that men and women suffer every day of the month that they live separate and apart?
A substantial reason is, it is not practical to have these people sending the money through the mails or whatever way, or wiring it. I guess it will probably get into electronic deposits some time, if they can clear freedom of information and other problems, computer problems. But a substantial reason might be it just is not practical. A substantial reason might be that this man has been paying every time there has been a need for assistance to his wife and children.
This is not a hypothetical case. It is a case that occurred in my own riding, and it is a problem for that man, because the wife -- two people who broke up and hated each other -- came to his house one evening -- they still live in the same town -- crying, because she was again under financial difficulties. Let's face it: It is not easier to establish two households on the same amount of money that you used to have trouble running one household on. And here is a situation where, just trying to help, he ends up on the wrong end of this thing, and there is not a single way that they can get themselves out of it. There is not any way that they can extricate themselves from the difficulties of the bureaucracy receiving the money -- he may pay on time -- and then her paying it, because the landlord has come to think that perhaps if there is a date on which he -- or she; I have forgotten whether it is a man or a woman landlord -- is to receive the pay, he should wait for an extra nine or 10 days every month. They used to get just a little bit concerned, because, for some strange reasons, they have payments to make.
I am not sure that a judge could tell you that that in itself is a reason which is unconscionable under the meaning of your clause (a) as it now stands. Why in the world can we not give these people something to hang their hats on if they have a practical problem? I will tell you, you are not giving it to them under the section as it is written.
"A substantial reason"? I am not sure that perhaps -- and the reason I said I did not agree with everything my friend said -- "substantial reason" in every case would work out the difficulties with very practical, day-to-day living exercises which people find themselves confronted with as we consider the bill. But I will tell you, it will get worse if we do not give them a real exit opportunity when the circumstances require.
It is not always a situation, by the way, where somebody is going to go out and beat up on his or her spouse and say, "Sign up and agree that I don't have to go through this, or else." Sometimes there are people who are genuinely concerned that they will not be able to function reasonably in our society without themselves taking charge of their circumstances.
Interjection.
Mr Elston: Mr Fletcher over there is mumbling about some kind of funny thing.
Mr Fletcher: There's nothing funny about it.
Mr Elston: But I am telling you, these people did not think it was very funny when they were confronted on the telephone by somebody from SCOE who said: "You people don't have anything to complain about. Once that money comes to us, it's our money. It's not your money; it's our money." I will tell you, if you do not give people real reasons, real abilities to carry on with their own lives in a reasonable fashion, you are taking away the last ounce of decency and integrity which some people feel has probably been left them in unions which started out, as I said, with so much promise when the marriage vows were first taken.
1720
How can we basically go and strip people of the humanity that we expect them to exhibit in other relationships? How do you expect to have anybody carrying on in our society under rules of social decorum when you are basically saying, "It doesn't matter whether or not you can relate one to the other; you have to go through some bureaucracy"? I am not saying anything about individuals in the bureaucracy, but by the very nature of administration of public funds in this type of thing, you have to be impersonal. You know, you just cannot go and get involved in each one of the subjects. You cannot be sitting there sort of saying, "Yes, we'll look after you." You can only do so much, because once you get involved in it, you are stepping over the duties.
The duties of this administration are to provide evenhanded administration of these trust funds. And although I put in an amendment which suggested that there should be some clear statement that there is an equal responsibility to either party, which was thrown out, it goes without saying that, as trust funds, the handling of this stuff has to be done in an evenhanded manner.
Where we are not being evenhanded is that by putting up this fake exit door, we are basically telling people: "You can't get out of it, because once we got ya, you ain't getting away from us, and we don't care what it's about. We don't care whether you are the best citizen in town. We don't care whether you have agreement with your people. We don't even care whether you have arrived at a consensus between the two of you as to how you're going to arrange your affairs. It's government, and that's it." That is why "a substantial reason," even with its vagueness, is far better than "unconscionable," because at least there is an opportunity for expecting good results from "a substantial reason."
I remember when we had the presentations here and I first sort of got on this case, I talked about two or three things, but one was "unconscionable" and the other was this thing with the four-month deposit and all that stuff I basically said at that time, and I think it was agreed by the policy director and probably by others, that really the combination of that, the "unconscionable" and the consent, was to make it so that nobody -- nobody -- could really escape this. That is what I found most objectionable, I think, about this, because that pretends that there are no circumstances under which people should be able to conduct their own affairs, and that is very difficult for us to say.
That does not even get us to the secondary problem, which is the fact that the volume of activity is so high dealing with just the good guys, if I can put them in that tone; that there are so many dollars being routed and rerouted through the bureaucracy. It goes from the payor to the bureaucracy to be processed, matched. Is it the amount right, it is right? -- There is going to be a receipts clerk someplace. They are going to have to do each cheque. I do not suspect you are going to be able to do that by some mechanical means. I suspect you are going to have to look at them, file them; they are going to assign them into a trust account of some sort, operationally, because you cannot mix -- I hope you cannot mix, anyway -- trust money. So you are going to have to have trust accounts for each of these activities. You are going to have to credit interest on the overpayments made by some people who mistakenly maybe make the cheque for too much. You are going to have to charge debits against the people who do not send in enough. And those are for the good people, the people who are not the problems. Then you have all the ones who are problem people. Just by the very sheer volume, you are going to have a bureaucratic nightmare in making sure that the payments are taken from the payor to government, then paid out on time, in a timely fashion, to the men and women, with their children, who need them. That is tough too. That is almost impossible when you consider the level of funding.
I know that Floyd is in the process of doing his budget. I know you folks are probably up to your ears right now in briefings by each of the ministers as they come to you to explain why they think you should probably lobby the Treasurer just a little bit harder about the benefits of tourism, as Mr North was talking about today, or perhaps Ms Akande, who was talking about the money that needs to be sent out through Community and Social Services.
How many dollars do you think are really going to be made available for the successor to SCOE? How many dollars? Because we heard here, again from the witnesses who appeared in front of us, that the only sure way of making sure that there is better performance is by making sure that there is better funding. We did not hear exactly how much money was needed. We heard that some people had already anticipated a certain amount of dollars, because the clerk, over his own hand, had sent out a letter to one of his constituents saying that there was another $5 million, I think. Remember that guy who came in and said, "I got a letter from you and this looks like your signature"? Do you recall that guy? He was talking about the funds that were going out to support this effort.
Well, I will tell you, this amendment basically has not only a reasonable and rational and academic merit to it, but it also has a very practical merit to it just from a public administration point of view. If you allow our test that is apt to have real affect, that is apt to give people real decision-making power, that is, as Mr Fletcher says, "able to be allowing judges some discretion," or at least use of reasonable discretion, then you might very well be able to have a bill that works and offers these people who are running this successor to SCOE's regime a chance at successfully providing money to men, women and children who need it. That is the problem that this is trying to address.
"Unconscionable" is practically never to be achieved, and I think probably somewhere on Hansard, if I were to go back and look diligently, but I do not propose to, you will see printed an acknowledgement from either the parliamentary assistant or from the director of policy for the AG's department or from Ms Feldman, I am not sure, that said basically they did not want anybody to escape support deduction orders. It was not very reasonable to assume that we are going to get better levels of service when we all know now that the level of service is not sufficient to make sure that people can live.
So just to recap, personal dignity for those people who have suffered probably one of the worst experiences of their lives, probably the one time when they are using this as a building block to go on to something else that proves that they really can do something; creation of an illusory exit door for those people where they will go to a place and the lawyer will say: "Yes, that sounds unconscionable to me, son, I think we'll just try this out, and by gosh, just pay your retainer here. What do you mean, not this week? Oh, okay, well by next month. You give me the retainer next month and we'll start the application immediately after that." Several months later, by the way, after the support deduction order is already in full force and effect, they are still arguing and another retainer is required.
Then you have the practical problem about whether or not leaving this thing airtight is going to prevent effective administration of this program. We all have heard what this program is running into now, where we are only enforcing a proportion of the claims against it. Remember, we are not even going to enforce all of the claims. Remember, if something is too difficult to enforce -- what is it? What did we arrive at, it is "not practical"? Yes. If it is not practical to enforce the order, then the director may determine that she does not have to. So the only option that you are going to leave some people who get offended by this whole line of activity is that they are going to find ways of making it impractical to have this thing enforced, and that is not what we are trying to accomplish. In fact, that is what we are trying to eliminate.
How in the world can we be seeing ourselves as creating good public policy if the only way out is to make it as impracticable as possible for the government to enforce the order when people are more willing and diligent to enforce their own obligations? There is certainly in our society, in our culture, a diligence on our part to avoid anything that has activities tied too closely to the government, and sometimes people can be offended for the wrong reasons and hurt individuals they would have dealt with more reasonably directly, if they believe they are also beating the government at its own game.
1730
I feel strongly about the problems associated with the test of unconscionability. I feel even more strongly about the issue of the human side of this, where people are being sort of told, "We don't give a damn if you have suffered the worst setback in your sometimes very young life and we don't care if you want to try and use this is a way of re-establishing yourselves." But I also have a real difficulty with legislation that seems to say one thing and then sets it up so that you cannot reach the objective that the section speaks to.
I can see the letters going out to the people who will complain that, "I have been able to pay for the support order for my child and my spouse for the last five years." I can see the letter coming back, drafted through the Ministry of the Attorney General, saying, "Show them clauses 3d(2)(a) and (b)." They can say, "Yes, you can go to court and you can establish that you can get out of this thing but it has got to be unconscionable." And they would ask, "Well, what is unconscionable?"
It will depend on each circumstance individually assessed by a judge sitting in his/her chambers to determine whether or not your circumstances fit the case and therefore would be allowed to be free; ie: "I wish to wash my hands of that. The section is there, you use it and, by the way, you pay the lawyer." Meanwhile the guy is sitting back saying: "Oh my God, I've got to pay those people again? This isn't my fault." Then you have somebody who is irate and then you go out and you see somebody who, having been fed up with the whole thing, says, "I'll show those SOBs. I'm through. I'm gone. If they think they're going to be able to find me, let them find me, because I tell you, I've got lots of friends who will hide me in Alaska or some place," wherever they go.
For me, that is the difficulty that we are faced with, and just small changes in this wording are not going to really compromise the circumstances to such an extent. A judge equally can make a decision that the reason put forward by an individual is not a really good one, but "unconscionable" is just a little bit difficult to swallow. I just want to put my remarks on the record. I want to warn us about the human side of it. You may think as Liberals in our track record in the last five years we did not have much response to humanity, but that is not quite the way it is. We did then and we do now.
Mr Mills: That was then and this is now.
Mr Elston: Yes, and we are still the same old gang, somebody might say, but this particularly is crucial and there is not much partisan gain to be made in this, because I will tell you, there were New Democrats, there were Liberals, there were Conservatives, there were the unaligned, there were people who do not give two hoots about politics except because of this committee and there were people who just want to be left completely alone to do whatever it is they do. And they acknowledged, some of them who came to see us, that if they cause problems, "Yes, they should be right in it." If somebody is defaulting -- it is the old story, of course: "I'm not to blame, but if somebody else is having a problem, get him." They acknowledge if they are causing problems themselves and if they are not doing what is required, then bring them in. But why should we not contemplate allowing people that one last kick at human dignity? "This is real life," to quote an advertisement that precedes advertising for The Sports Network, but this really is real life, and I just want you to really think about it.
Mr Sorbara: Mr Chairman, I am going to make a proposal that will have us out of here a little bit early. First of all, I want to show you how different Mr Elston and I are one from the other in our party. He said he agreed with most of what I said. I am different; I agree with everything he said. That is the difference between us.
I want to propose that we vote on this amendment today. I want to propose that we vote on it in a few minutes and I want to propose that we do that on the basis that as soon as we vote on it we will adjourn for the day. If there is agreement on that, that is fine; if not, I am going to call for a 20-minute bell anyway, so that is all the work we are going to get done. If we agree on that, that is great. Okay?
Ms S. Murdock: Is Mr Harnick not speaking?
Mr Sorbara: I do not mind, but when we are ready to vote, we will vote on it and then we are out of here.
Ms S. Murdock: We have been at it since 3:30.
Mr Sorbara: I want to hear from Mr Harnick. I just want to put one more example to you before I finish my remarks. Mr Elston put a number of examples. I think they are relevant, but I just ask the indulgence of the committee members to listen carefully to this example, and if you can show me how the people in this example can relieve themselves of this act, then I will pack up my toys and go home.
Mr Elston: Leave your notes; we may need them.
Mr Sorbara: I will leave my notes. I might come back on another day, but I will pack up my toys and go.
Two people have been separated for a number of years; let's say, five years. The separation was mutual. There was no document of separation, there was no court order, they just said: "We can't live together any more. Let's separate." Okay? And they agree about what the support is going to be. He is going to pay 50% of what he makes at his steady job regularly and he just does --
Ms S. Murdock: No lawyers?
Mr Sorbara: No, they have never gone to see a lawyer, they just did that privately, between one another. They just said: "We've got to get out of one another's hair. You're going to look after the kids," and they have never seen a lawyer and they have never been to a court. The payments have been made regularly every month. That part of the paycheque goes from husband to wife and no public official knows anything about this. I want to say that there are more cases out there like this example than you and I know about.
Mr Elston: That is right, no public notice.
Mr Sorbara: Now something happens: She falls in love and wants to remarry.
Ms S. Murdock: Or whatever. Who cares?
Mr Sorbara: She falls in love and wants to remarry. This requires, I say to my friend Ms Murdock, the intervention of the state, because it requires a divorce. She cannot remarry. So at that point they have to go before the court and put in legal form the substance of the support order that has been part of their lives for the past five years. Even though they say to the court: "Look, we've been living under these arrangements for five years. We don't want the director's help, we don't want a support deduction order," there is nothing in this act that allows these people the freedom from the state, because the unconscionability test does not apply. We have already gone through what the court can and cannot consider. So even though they have lived without this for five years, if he or she wants a divorce to remarry, suddenly the state is going to start managing the payroll deductions.
Maybe in my example some couples like this would say, "That's fine," but others might say, "No, that's not what we need." You cannot get out, and that is all we are saying to you: Just let some people out who do not need this.
I would like a letter from the Attorney General saying that the bloody Liberals have been filibustering on this stupidity for days and days. I would like to stand this thing down, and if we get a letter from Howard Hampton saying the following things, "I have met with my own NDP members of the committee and we have discussed this thing and I have reconsidered it and we're not prepared to make an amendment," that is fine. I do not even know if the parliamentary assistant to the Attorney General has raised this thing with Howard. I do not know whether they have even considered taking an amendment to the cabinet submission to cabinet. We are talking here, but nothing is coming back. Do you know what I mean? Just tell us what you have done.
I want to tell you, on the most controversial bill that I ever took before Parliament, Bill 162, Workers' Compensation Board, I met regularly, almost weekly, with the Liberal members to hear what they were hearing in the committee, on a regular basis. At least I considered it as minister. On some things we said, "Yes, we should give a little on that, take a little on this," and that is what we did. All we are asking is to create some flexibility here so that the people Mr Elston has talked with -- and you know what? The people in your communities will thank you. I will tell you something: The democratic process will thank you, because if you do this, you are here for more than just putting up your arms when Howard Hampton tells you to; you are here to make a difference, and that is why you are elected.
1740
So think of my couple who has been doing it on their own for five years, no interference by the state. There is no way for them to get out. If there is, I want to hear about it. I want to know that upon agreement, when the judge has reviewed the circumstances and says, "Pax vobiscum, go in peace," I will be satisfied. The unconscionability test does not provide for them to go in peace, and the next section, dealing with security and putting up money, does not allow them to go in peace, because you have to put up funds. That is only for rich people, not for poor people.
That is what we are asking. That is what this whole story is about. If you want to bring me a document saying that you have met with your minister on this, you have discussed it, then I will pack up my toys. Or if you want to change this, then I will pack up my toys. But frankly, I am getting frustrated because I am talking until I am blue in the face and boring you to tears, but I am not getting any feedback.
Mr Elston: They are not bored.
Mr Sorbara: Mr Chairman, I know Mr Harnick has something to say on this. After that, I am prepared to vote on it, if we adjourn right after the vote.
I find this bill objectionable in its basic philosophy. I find it objectionable because the bill is attempting to do something that demands an adjudication between individuals on a universal basis. I find it objectionable that this bill is being approached as if we are doling out social welfare.
Interjection.
Mr Harnick: I will have some comments regarding some of the things Mr Fletcher was saying in a moment, but I find it objectionable that this bill is going to deal with conflict between individuals on a universal basis and I find it objectionable that we have a bill that is going to take away the opportunity of a court to tailor to individuals that redress they need in order to put their lives back together and in order to maintain a steady flow of funds on a proper basis between the payor and the person who needs the funding.
It is interesting that there is such great fear for a court to have the discretion to make these decisions. Mr Fletcher, and I overheard him, said, "What about the right of appeal? Everybody has the right of appeal." Dealing with this legislation, there is no right of appeal because there is no right of a proper adjudication at first instance, because the judge's hands are tied.
Mr Fletcher: I did not say that.
Mr Harnick: That is what you did say.
The Chair: Could we refer only to the matters that are in front of us? I did not hear Mr Fletcher's comments, nor should they --
Mr Sorbara: I support my friend the member for Willowdale.
The Chair: Please.
Mr Harnick: The judge's hands are tied, so not only is there no opportunity to appeal, there is no opportunity at first instance to have a judge tailor to the individuals the redress that they need, because the philosophy behind this bill is that we dole it out like universal health insurance.
I can tell you that dealing with Bill 162, the Premier, as he now is, the opposition leader as he then was, discussed the kind of redress available under Bill 162, and what he said was: "Bill 162 is no good because it deals with meat chart justice. You get what is prescribed and you have no right of appeal." Well, that is what this bill does to the idea of support. It ties a judge's hands, so you get what the legislation says you can get.
Interjection.
Mr Harnick: I am not commenting on Bill 162 or the contents thereof, but I am commenting on the fact that this bill takes away people's rights. It does not expand people's rights; it takes them away.
You know, it is interesting, because when you take a look at something as contentious as a family breaking up, you find that there are families, probably 25%, if the Attorney General's figures are accurate, that comply with their obligations without having to be forced to go to a court and to have an order imposed against them. If we now create a situation where those 25% are thrust into a system where animosity is easy to breed, we are now affecting more than just support; we are affecting the whole family. We are affecting the custody. We may not be dealing with custody, but when we force people into court and we force people to go into a system that is based upon animosity and fighting between one another, we affect the custody rights. We affect the relationships between mothers and fathers and children.
Why anybody in this room would want to take the 25% of people who comply and force them to get into this system is beyond me. I suspect that every one of you who votes for this particular bill as it now stands, without the amendments, is doing your utmost to get more people to be engaged in the adversary system and to get more people to hurt one another than we ever had under the existing legislation, and I suspect that if that is what you want, that is what you are going to get, but it is not right.
You do not dole this out like you do health care. You do not dole this out like you do social welfare. These are matters that have to be determined based on the facts in every situation, which are always different. When you take away from the judge the opportunity to view those facts and to make a determination, after people have been cross-examined on affidavits or cross-examined by being put in the box directly, when you take that opportunity away, what you are creating is a bad system, because it is a system where everybody is treated the same way, and you do not do that with legislation that is supposed to protect individuals.
If you think that creating a universal system is going to protect individuals, you are wrong. I suspect that every person in this room has to look himself in the eye, in the mirror, and say: "This is bad legislation. We can do better." But if your marching orders are to pass this legislation because somebody told you, without looking at what it really does between individuals and without looking at the fact that it takes away the right of the judge to tailor legislation for individuals, then you are creating bad law.
If that is what you want to do, let it be on your heads, because nobody has come in here and said, "When those 25% more are put into the SCOE system, the SCOE system is going to get 25% more funding, because right now they can't handle what they have." You are just going to compound an already bad problem by forcing inadequate resources in an area where you do not have resources now, plus you are going to be creating bad law.
It seems to me we have a golden opportunity now to say that actions between individuals do not have to be determined on a universal basis, they can be determined on the facts in every case. As soon as you stop looking at the facts in every case, you are going to create bad law and you are going to create a situation where people do not have the right of appeal.
I recommend that everyone read what the Premier said in his comments about Bill 162, the right of appeal, legitimate appeal. We do not have the right of legitimate appeal in this bill, because it takes away people's rights. It ties judges' hands. Why bother even having a court? The judge cannot do anything anyway. His hands are tied. Why not just let the director do all of it? There is no discretion here. There is no reason to cross-examine people, because the legislation says once you are in, you are in and you cannot get out.
1750
You have a great opportunity now to make this bill better and you have that opportunity to make it better for the individuals it affects, and every one of them is affected in a different way. I find it objectionable that anyone would come in here and use the word "universality" for a bill that is supposed to look after the relationship between individuals. Anybody who uses that term "universality" and treats everybody the same is creating bad law. You have the chance now, at least some of you, to say: "I am not going to toe the line and make bad law. I can make this bill better."
The Chair: Any further discussion?
Ms Mathyssen: I would suggest that if couples really want to opt out, they can create separation agreements that are not filed.
Mr Sorbara: No.
Ms Mathyssen: About 80% of couples settle amicably without a separation agreement. Bill 17 deals with the 20% who cannot agree and for whom there is a real possibility of default. With this in mind, I suggest that we vote on this Liberal motion.
Mr Mills: I thought one of the points that I heard my colleague Mr Sorbara mention was that there had been no discussion about your point of view and your concerns with the Attorney General -- none -- you know, that we are here like seals, we are snapping at fish and we are just going to vote because we are marching to Zion and we have been told to march in that direction.
Mr Elston: We know they are keeping you hungry.
Mr Mills: In respect to what you said, surely the parliamentary assistant here can tell you that there has been some talk about your concerns with the Attorney General and the Attorney General has recognized those concerns. He has more or less said to us that, notwithstanding that, it changes the whole thrust of what we are trying to do and we are not about to bend to that change to the thrust. I would be remiss personally if I thought that you thought that we do not take any notice of what you said and that it has not gone back to the Attorney General, because it very much has gone back to the Attorney General.
Mr Elston: Oh, so he is being intransigent.
Mr Harnick: I would hope that on the basis of what Mr Mills says, and I believe that he says it with great sincerity, what we have discussed in this room today should go back to the Attorney General if in fact that is the case. I think before we vote on this and before we make a decision that we are going to regret later on, the Attorney General should hear the remarks that were made. He should read the transcript and he should have the opportunity to reconsider, because you are about to pass bad law here. At least take back what we have said today to the Attorney General and say to him, "Tell us that this is wrong so that we can go back to that committee and we can stand up and say why it's wrong and why Mr Sorbara was wrong and why Mr Elston's wrong," and I suppose why I am wrong. Do us that favour and take this back to him. You have now got the opportunity.
The Chair: Ms Murdock, were you just stretching?
Ms S. Murdock: I just wanted to respond to Mr Harnick's comment. Everything that has been said here today has been said here before, and those very comments have been taken back to the AG and we have discussed them. Basically, if this clause were to go through, the effect of it would be no different from what we have at the present time. I say that we do not leave today until we vote on it.
Mr Sorbara: I am offended by what Ms Murdock has just said. Look, she said to me that this is the heart and soul of the bill. She is saying therefore that universality is the heart and soul of the bill. But the testimony that we heard from the Attorney General and from the staff of the Attorney General, and the director and the parliamentary assistant, said that this bill is very different from the current system that we have. If we are only talking about this one section as making the bill different from what we have now, what in the world have we been doing over the past -- my God, it is almost two months since we first started discussing this bill.
Besides that, what she said is wholly in contrast with what Mrs Mathyssen said. Mrs Mathyssen said that most people do not have support orders. I think that was the thrust of the comments that she was putting on the record. Well, if she can convince me or the parliamentary assistant of the Attorney General can convince me or Mr Mills can convince me, or Mr Fletcher or anyone, that the couple I described in the example that I spoke to you about a few minutes ago can get out of SCOE, then I am satisfied. But I would like to hear from --
Interjections.
Mr Sorbara: Well, I am sorry, because I thought we were going to vote after my remarks, but everyone interjected, so I am interjecting now too.
I want to apologize to Mr Mills. If he is saying to me that this committee and the parliamentary assistant to the Attorney General have sat down in council with the Attorney General and discussed these matters, then I am satisfied. That is all. And if he is saying to me that he really believes in his heart of hearts that it is important to have universality, not to let anyone out, that is fine.
The Chair: Could I interject at this moment, Mr Sorbara?
Mr Sorbara: Sure.
The Chair: You had proposed half an hour ago or so that we vote on this particular amendment. It is almost 6 of the clock and I have one small item to distribute.
Mr Sorbara: Then we will vote tomorrow.
The Chair: Should we adjourn until tomorrow to continue discussion of this amendment?
Mr Sorbara: Sure.
Mr Wessenger: Why do we not just do what Mr Sorbara said, vote on it?
The Chair: Mr Sorbara suggested that, but he seems to be retracting that suggestion.
Mr Mills: He said if we had discussed it with the Attorney General, we would be prepared to vote, and I am saying we did.
Mr Wessenger: I am just suggesting, why do we not take Mr Sorbara's suggestion and vote on it?
Mr Harnick: I have appointments. I would really like the opportunity to mull this over tonight.
The Chair: Mr Harnick and Mr Elston want to continue discussion. Mr Sorbara's remarks seem to have been retracted.
Mr Harnick: It is now 6 o'clock.
The Chair: It is one minute to 6. I doubt that Mr Elston and Mr Harnick and Mr Sorbara will be finished by 6 o'clock.
Mr Harnick: I want to think about this overnight so that I might be able to convince you people that what you are doing is wrong.
The Chair: Are there any further comments on this?
Mr Sorbara: I have a motion to adjourn, being 6 of the clock, and you have matters to take up, so let's get out of here. I have people waiting for me.
The Chair: We sit until the House adjourns, which is 6 o'clock.
Mr Sorbara: Do you have things that have to be considered while we are in committee, prior to adjourning?
The Chair: I have something which I have to distribute before we adjourn.
Mr Sorbara: Okay. Shall we just agree to stand down this debate until tomorrow and let the Chairman distribute what he has to distribute so that we can all go to our 6 o'clock meetings? Can we agree to that?
Mr Carr: I have one at 6:30 in Peel.
The Chair: You are going to be late, lad.
Mr Sorbara: Unanimous consent? Yes?
Mr Harnick: You have my consent.
Mr Sorbara: Well, he does not want us to adjourn until he distributes something, so let's move on to that. Let's stand down the discussion of this matter until tomorrow.
The Chair: It is a reply to the referral to the Speaker which I am distributing.
Mr Sorbara: This is all to Cam Jackson, the reply.
The Chair: That is right, yes. We are adjourned until 3:30 tomorrow.
The committee adjourned at 1800.