The House resumed at 8:30 p.m.
FAMILY LAW REFORM ACT (CONTINUED)
Resumption of the adjourned debate on second reading of Bill 140, An Act to reform the Law respecting Property Rights and Support Obligations between Married Persons and in other Family Relationships.
Mr. Speaker: When we rose at 6 o’clock, I believe the hon. member for Peterborough (Ms. Sandeman) was in the midst of her remarks. She may continue.
Mrs. Campbell: In a vacuum we proceed.
Ms. Sandeman: Are we to expect the return of the Attorney General (Mr. McMurtry) or his parliamentary assistant?
Mrs. Campbell: Neither one of them is here.
Mr. Reid: It is pretty thin over there, except for the member for Parry Sound (Mr. Maeck).
Mr. Swart: Pretty indifferent.
Mr. Speaker: I’m sure the hon. minister will be along in a moment and, if he misses something here, undoubtedly he will pick it up in Hansard.
Ms. Sandeman: Yes, I’m sure he will; every last deathless word he’ll pick up in Hansard.
I’d like to look for a moment at the support sections of this bill. Again, a very important principle is being enunciated here. I think it’s true to say that women welcome the recognition of our abilities and our rights in support obligations. I’m happy to see the archaic provision that only husbands were required to support their wives is now dead and that women are looked upon as human beings who are capable of both supporting and being supported, according to needs and ability.
Mr. Kerrio: We always looked at them that way.
Ms. Sandeman: The basic equality in the marriage relationship which existed under the old law, in which only husbands had to provide, has now gone. We find ourselves welcoming a good socialist principle in section 12 of the bill which says: “Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.”
But I think there’s a confusion in the support sections of this bill. I believe also, as my colleague from Riverdale (Mr. Renwick) suggested, that there is an intrusion into the support sections of matters which are not really relevant to this bill. I believe there are two complementary systems of support operative in our society. One is the system, the network or whatever you want to call it of private support obligations between husband and wife, parent and child, child and parent, which operates in most families.
Mr. Deans: Mr. Speaker, on a point of order, I think it unfair that a member should be required to speak on an important bill without the presence of the minister or the parliamentary assistant. I was quite prepared to agree to have the parliamentary assistant sit in in the minister’s absence. Unfortunately, we were unable to come to an understanding with regard to that. The business of the House really cannot go on properly without the minister involved in legislation of this importance. I would ask that you agree to a 10-minute recess, at which time we will reassess it.
Mr. Breithaupt: Mr. Speaker, speaking to the point of order, before the House leader for the opposition arrived, the comment had been made just before the opening at 8 o’clock, and it was my understanding, that one or the other of those two worthy gentlemen would be present so that we might continue. While it is correct that the Attorney General can obviously read Hansard, as can all of us, still it was my understanding also that we would have the advantage of having the Attorney General present. Because of a dinner at which he was the guest speaker, the House did not begin this evening until 8:30 in order to convenience him. That of itself, I would have thought, was a reasonable thing to do in the circumstance of a long-standing speaking engagement, particularly because of these bills happening to come forward at that time. To have not one member of the executive council present seems to be --
Mr. Kerrio: There’s one.
Mr. Breithaupt: The Minister of Education (Mr. Wells) is present and that is indeed worthwhile --
Mr. Reid: But not on this bill.
Hon. Mr. Wells: It is always worthwhile.
Mr. Breithaupt: -- but not necessarily on this bill. I would think it does seem to be, in the presence of a debate of this landmark legislation, according to the Attorney General, rather curious that we cannot have his presence, with the other considerations having been granted.
Mr. Speaker: I recognize the difficulty and, if the House is in agreement, I would consider a 10-minute adjournment. We’ll ring the bells in five or six minutes and, if there is nobody here to meet those objections at that time, then I would entertain a motion to adjourn the debate.
The House recessed for 10 minutes.
Mr. Speaker: Now the member for Peterborough may continue.
Ms. Sandeman: As a matter of fact, Mr. Speaker, I don’t think I’ll continue. I’d hate the Attorney General (Mr. McMurtry) to miss one single word, so I’m going to start over. Don’t despair -- I’d only been going on for about two and three-quarter minutes. Welcome back, Mr. Minister, we hope you had a good dinner.
Hon. Mr. McMurtry: A lot of your colleagues were there, and they are still eating the dinner.
Ms. Sandeman: Oh, I admire your self-sacrifice to come back here. Oh, well --
Mr. Reid: You can afford to miss the odd meal -- me, too.
Ms. Sandeman: I’d like to turn my attention to the support obligation section of this bill. Once again I’d like to begin by welcoming the fact that a very important principle is recognized in this part of the bill. Women, I think particularly, welcome the recognition of our abilities and our rights, which are recognized when we remove the archaic provision that only husbands are required to support their wives while somehow women sit decoratively at home accepting the support.
I know a great many men are relieved to see that archaic provision removed, and the suggestion of basic inequality in the marriage relationship which it carried along with it. I think very few people would now subscribe to that old picture of the marriage relationship, in which one partner was the supporter and one was the supportee and everybody knew everybody’s place in the world.
I welcome this section 12 of the bill particularly, because it seems to me to be modeled on very sound socialist principles -- from each according to his or her ability; to each according to his or her need. Section 12 of the bill spells out for us that every spouse has an obligation to provide support for himself or herself and for the other spouse in accordance with need to the extent that he or she is capable of doing so.
Mr. Conway: Heady stuff.
Mr. Kerrio: The evening was over before the socialists showed up.
Ms. Sandeman: I think there is some confusion in this bill around the support obligation. I believe, as my colleague from Riverdale (Mr. Renwick) suggested earlier, that there is an intrusion into the bill of matters which are not really relevant to it. I’ll try to explain why I believe that.
It seems to me there are basically two complementary support systems operative in our society, which this bill attempts to address itself to. The first and most basic is the support system that operates within families that are surviving -- where husbands, wives, children, grandparents, great aunts and so on are supporting each other and living in a reasonable family situation.
We have the private family support system which this bill speaks of, and we also have our obligations as a society to support those members of society who, for some reason, cannot support themselves -- whether because they are sick or aged, or very young, or disabled, or whatever it may be -- and those members of society whose family support systems have broken down. They are people whom we are obliged, and happily obliged, to support.
It seems to me that the sections of the bill which introduce that second concept, about society’s obligation to support its own members, and then try to relate it to the first concept, the family support network, are curiously one-sided. It is made quite clear in section 15(1) that an application may be made to the court by the dependants or public agencies for support by individuals. But the bill does not spell out the fact that individuals in need have a claim on public agencies and could in fact make application to the court for pension support, for old-age pensions, for support for sick persons, or for whatever it may be, from the agencies of the state.
The minister I am sure will say to me, “Those matters have no place in this bill.” I think I would agree with him, but I am nevertheless uneasy at the intrusion into the bill at section 15(2) of matters which I think are more properly the business of the Ministry of Community and Social Services, the Department of Veterans Affairs, or whatever it may be. We are in fact stressing in the bill the right of the public agency to go after the individual for support, but we do not see spelled out in the bill the right of the individual to apply to the society for support.
There is a strange one-sidedness there, and I think the one-sidedness is open to some dangerous aspects, too, in that section 15(2) could really be very much abused when put into practice. I would suggest to you, for instance, that the picture of welfare agencies suing husbands or deserted wives as a matter of form, at large expense to the public without much gain, is a pretty depressing picture. We already see the enormous costs in court time and money which we go through to sue husbands of deserted wives, who normally don’t have enough money to support two independent households. The whole operation is unproductive as far as helping either the community or the deserted wife. I am afraid that section 15(2) may lead to an enormous amount of harassment and unnecessary orders for support being asked for by public agencies.
I think, as my colleague suggested earlier, that at the committee stage we shall want to look very carefully at section 15(3)(g), which brings the whole knotty, insoluble, unhappy problem of blame for the breakup of a marriage back into the question of determining support. I think when you are determining support, all the other reasons which can be placed before the court are reasonable, they are objective, they can be assessed by the court in an objective manner. But the minute you try to assess conduct, you are back into the bitterness, the subjectivity, the completely unscientific kind of reasons which people try to impute to each other as to why they should or should not get support. I hope we will be able to persuade you to remove that section during the time for amendments.
I have just got some brief comments about the section on the marriage contract. I am reminded of an anecdote which I believe my colleague from Lakeshore (Mr. Lawlor) was going to share with you but unfortunately he is unable to be with us tonight. He was reminding us that when George Bernard Shaw and Mrs. Campbell were engaged in a very fruitful relationship --
Mr. Grossman: Which Mrs. Campbell?
Ms. Sandeman: I’m sorry to drag out her private life like this. Actually it was Mrs. Patrick Campbell. When they were engaged in a relationship of great wit and liveliness, they began to draw up a contract which would govern the terms of their relationship. Mrs. Campbell came back to George Bernard Shaw day after day with new clauses which she wanted incorporated into the contract. Finally, after several weeks of this, George Bernard Shaw threw up his hands and said: “All right. I give in. I’ll marry you!” Which perhaps is indicative of what happens when you get too mired down in a contract.
Mr. Reid: Better watch for that trick.
Mr. Gaunt: That’s the way it’s done all right.
Mr. Kerrio: That happens to all of us.
Ms. Sandeman: The principle of the marriage contract is an excellent one; it suggests the ability of people who are planning to get married to come to rational decisions about how they wish their relationship to continue. Sometimes, of course, the problem is that these decisions are not made with great wisdom.
I would like to be sure that somewhere in the bill we ensure that people who are planning to get married, and to use the terms of a marriage contract, have an independent lawyer for each party. I can see a young couple in the first blush of emotion going to a shared lawyer; they’re in love, they’re going to share everything, so they share the lawyer -- and there are certain obvious dangers in that.
Mr. Conway: Tell me more.
Mr. Reid: I’m all ears.
Ms. Sandeman: Ask your legal friends how you share a lawyer.
Ms. Sandeman: I believe that each member of the couple should have a separate lawyer to look after his or her interests in these contracts.
Ms. Sandeman: I have some reservations about the sections that deal with the ability of the court to call the contract into question, section 46(2), which provides that “where the provision for support in a marriage contract, or the waiver of the right to support, results in circumstances in which the spouse qualifies for an allowance for support out of public money, the court may proceed under part II notwithstanding the waiver or agreement.”
Maybe I’m wrong, but that seems to say to me that only if the wife finds herself on welfare or the husband finds himself on welfare, may the court look behind the provisions of the contract. I can envisage situations in which a spouse is left in extremely straitened and unfair circumstances, given all the terms of the contract, but because they don’t have to end up in municipal or provincial welfare offices, the court doesn’t have the right to proceed under part II. Maybe I am wrong about that; there may be something hidden in another section which prevents that. No?
Hon. Mr. McMurtry: You’re right.
Mr. Cassidy: She usually is -- one of our great strengths.
Ms. Sandeman: One of the things that has concerned me about the way family courts and the family benefits system operate at the moment in relation to marriage breakdown, is that if a woman goes to the family benefits office and makes application for family benefits, as the rules of Community and Social Services stand at the moment, she may not qualify for support under family benefits, unless she can prove that she is deserted. If she has entered into a separation agreement in good faith because she thought that would be sensible, sensitive and a way to operate without too much bitterness in the marriage breakdown, she may not in fact qualify for family benefits.
My question is, if a husband and wife have entered into a marriage contract which provides for her under possible breakdown of marriage circumstances and provides for the kind of support on which she cannot possibly live, will the family court and will the family benefits people say to her: “You have entered into a contract, into an agreement with this man in which he has said he will pay you some money; the fact that you cannot live on it is neither here nor there; under our law and under the rules we cannot say that you are deserted”?
In other words, are women who enter in good faith into a marriage contract going to find themselves in exactly the same box in which women who have separated with a separation agreement now find themselves when they hassle with Community and Social Services? That’s a very serious question, because a lot of women are getting caught by that now and many more possibly could if these marriage contract provisions are not seriously considered in conjunction with the Ministry of Community and Social Services. I hope they have been. I hope the Ministry of Community and Social Services is working every step of the way with the minister on these support regulations.
An hon. member: Are they?
Ms. Sandeman: I’m sure he’s going to tell us in a moment. Unlike my colleague from Riverdale (Mr. Renwick), who has a legal mind and therefore works from the back of the bill to the beginning, I’ve tried to work in a --
Mr. Breithaupt: Both ways from the centre is more like it.
Ms. Sandeman: -- sporadic kind of way from the front of the bill to the end. When I reached the point at which he started, which is section 49 of the bill, I recognized that that is, as my colleague said, the principle that is at the heart of this bill. Now we have a piece of legislation that assures us that for all the purposes of the law of Ontario a married man has a legal personality that is independent, separate and distinct from that of his wife, and a married woman has a legal personality that is independent, separate and distinct from that of her husband.
That is a principle that I welcome. But I look forward to the chance to discuss at the committee stage of this bill the reservations I’ve expressed about specific sections of this bill, and others that my colleagues will be drawing to the minister’s attention. I think it’s very important to ensure that the principle and intent of this bill are not weakened or vitiated by individual parts of the bill which, as I’ve suggested in some places, go very far toward almost denying the principles that the bill sets out to enshrine.
Mrs. Campbell: Mr. Speaker, I, too, would like to express to the Attorney General (Mr. McMurtry) my commendation on this bill. The principle is one which will appeal, in my opinion, to all thinking people in this province. Certainly it is being welcomed with some exceptions, which are always inevitable, by the women of this province.
As with some of those who’ve spoken before, I have some concerns. I would like to deal with this matter of the right of the agency to intervene. I understand the thinking which says, for example, that this is a family law bill and therefore should not have the intrusion of the public agencies. But I do not accept the position which has been taken by the official opposition to date, and I would like to explain why.
The last speaker addressed herself to the present situation where the function of the court in this particular area is really within The Deserted Wives’ and Children’s Maintenance Act, an Act which I am pleased to note is to be repealed in this legislation. But let me say to you, Mr. Speaker, and to the Attorney General, I think it is important that it should be spelled out that the agency may proceed.
Under the present law, the agency has been, in effect, a back-door operation forcing the woman into the court under the threat of being cut off welfare. Many times, because of their lack of knowledge of the law, they have cluttered up the courts with cases which had no right to be there. Under existing legislation, there was no desertion, for example; but they forced the wife to go through this process.
Quite candidly I would much prefer, and I think anyone working in the courts today would much prefer, to see these agencies taking responsibility for ensuring that their cases are properly prepared and that the spouse not become the litigant but rather the witness to the particular situation. I don’t know how many times judges have taken the time of the courts to try to explain to a spouse that the wife did not come of her own volition -- because there is always the chance that that marriage may not go completely on the rocks. But there’s nothing more readily available to do that than to have a woman pushed, at this point, into laying criminal charges.
So I am of the opinion that, sad as it is, the Attorney General was perfectly correct in making this provision -- so that we could hopefully protect if not the marriage or the relationship, at least not have two warring spouses with the children the guided missiles between them. I think it would be effective in this case.
I have a concern which I suppose again grows out of experience with what happens when this Legislature undertakes amendments. The Legislature some time ago raised the age for support for children to 18 -- and I’ve forgotten the terminology -- provided these children were in a regular institution of learning or something to that effect. It put the courts into quite an embarrassing position to try to work out what type of orders could be made. At that time it was decided that, notwithstanding the legislation, what we would do would be in effect to make the orders available to the age of 18 and then accord to the father the opportunity to come forward to prove that the child was really no longer a dependent and that in effect he should be discharged of his responsibilities. One of the things that no one seems to think about is that these orders most appropriately are made for a period of time. The child before the court may be nine years of age, and it is appropriate that the order states the time of the operation of the order.
Now that this proposes to reduce the age, again to 16, I have great concern. It would seem to me the operation of these sections would indicate that the young person must come forward and seek support, if in fact there is reason for that support beyond the age of 16. The order, as I see it here, would not be made for any support beyond the age of 16. I think it is a flaw. I think it’s a flaw which should be corrected.
Let the support be until 18 and then let those who quarrel with it come forward to have an amendment to the order. It seems to me that that has greater equity. Of course, the clause itself bothers me in that the wording doesn’t satisfy me that the fact that a child is continuing an education is really covered by the blanket clause “or other cause to withdraw from the charge of his or her parents” and so on.
I would urge the Attorney General (Mr. McMurtry) to give consideration to this. It seems to me that it is a time for us to have some consistency in our age arrangements in the province and surely judges should be able to make the orders to the age of 18 with the right, as I say, to these parents to come forward and deduce evidence as to why the support should not continue beyond the age of 16.
I also -- and I have given full notice to the parliamentary assistant to the Attorney General -- want to ensure that when we deal with the obligation of a child to support a parent we now are clear that the statute means what it appears to mean, and no child of the age of nine can be required to support a parent as has been done in this province in the past. Of course, the Attorney General is aware of the fact that I’m still singing that note of concern for a child who has an award in the courts.
I want clearly in this bill a statement that an award to a child for damages must be the child’s and that it cannot be withdrawn for the purposes of the support of the family. I would also want it clearly indicated that even at the age of 18, when that award would presumably in most circumstances be paid over to the child, that again that money could not be used as support obligations to what amounts to the family. It seems to me if a child has been damaged and if a court has found it has been damaged to that extent, that award belongs to the child and to nobody else. I too have some concerns about the definitions about this. I believe that that will be amply covered when we come to the consideration of the amendments.
I would like to say that I suppose to me it is one of the great things that I am standing here at this point in time and enjoying the fact that we are eliminating dowers, presumably for once and for all. The right of dower has held women back in this province for years. When we, as members of the Women’s Law Association, tried to impress upon women that this was a snare and a delusion, they wouldn’t believe us. They firmly knew they were entitled to one third of the value of all their husband’s real estate, and what kind of idiots did we think they were that we would expect them to give up this right. They were so happy in this belief that they saw no reason to change the law. I must confess there were very few male lawyers that I knew who encouraged them to do anything else but rely on their dower rights. I am delighted that those rights have gone. I note that the courtesy rights -- I must have missed that particular bill -- the courtesy rights, I take it, have now been eliminated in another piece of legislation.
I hope the Attorney General, either in his response to this particular debate or at some point, will explain to us more fully what sort of undertakings he has had from the federal government with reference to the operation of this bill. One of the immediate questions which does come up is the matter of income tax. One of the sections which I rather welcome, which is the garnishment section, gives me some concern, and it came up last night in a discussion. Will the federal government permit garnishment of its civil servants and will the provincial government permit garnishment for the purposes of this bill?
It could be rather an empty sort of provision, if we haven’t some kind of an agreement. I also would like the Attorney General, if he would, to touch on the question of reciprocity. I am sure the Attorney General has not had the opportunity for any discussion on reciprocal arrangements, except possibly within those provinces of Canada which are within the reciprocity arrangements. But I wonder how this Act functions and whether we will have the same types of reciprocity with, say, New York, Texas, various states of the Union, Great Britain and the rest. I think it should be clarified if it is possible to do so.
I am disappointed that we have maintained as a part of the bill the matter of jail. I recognize there are those who believe that the concept of court and the ensuing sentence are somehow deterrent. I have the same dichotomy about that as I have in the capital punishment situation. I didn’t see it as a great deterrent. In fact, if you were professional it seemed to be welcomed, particularly as of course the professional organizations did not view a jail sentence as conduct unbecoming a professional person.
I’m wondering if it is really necessary to place it in this kind of legislation, when there is general provision for a contempt of court and I rather dislike seeing that kind of provision in a family law bill. It has been a real bone of contention in the past and I really would hope that the general revisions of contempt might cover it; I may he wrong in that, but I don’t like to see it retained in this particular bill.
I would urge that there be some provision, as my colleague suggested, for some type of draft agreement that could be used by those who are not, as my colleague suggested, quite as sophisticated as others, so that all of the people of this province could have the advantage of the marriage agreement. It may be just a semantic in so many cases. We have already referred to the fact that this doesn’t do an awful lot for those who have no property and I’m not at all sure that we’re going much further in trying to be able to enforce support orders.
I have a concern for this type of situation where a wife will work to provide the funds for the education of the husband and when he’s educated he finds that she is somehow not a desirable partner and he moves off into another situation. They haven’t established a marital home where there is any degree of ownership; there’s an apartment involved. He takes off. He has his profession and his professional accounts and I just wonder where a woman in that situation is protected.
We’ve seen the specific letter with reference to doctors and early divorces. I don’t see that there is ample provision to cover the situation of that kind where the husband undoubtedly couldn’t have acquired what he’s acquired without the sacrifice of the wife.
I am delighted and I again compliment the Attorney General (Mr. McMurtry) on the proposal of the unified court. I recognize the jurisdictional problem. I could hope, as he would hope, that we could finally have one court which deals with all these factors, and I trust that before long that will come about. But at least there is a great step forward here and I am looking forward to getting reports from the Hamilton project as soon as they may be reasonably available, because it does interest me tremendously.
I think that almost anything else that I would say would be simply reiterating much of that which has gone before. I shall look forward to hearing the submissions from those who will be coming forward and participating in the amendments which I think even the Attorney General might agree would be useful after the submissions have been heard.
Mr. Deputy Speaker: The hon. member for Windsor-Sandwich.
Mr. Bounsall: Thank you, Mr. Speaker. I can at least say that much correctly, eh?
When we got a note from the Attorney General in October inviting us all to comment on the fact he was going to be introducing legislation in the family law area and inviting us to make our comments to him, I was quite tempted simply to dash off a very short note saying simply that my comments were clearly outlined in the private member’s bill I brought forward in April 1975, which was debated in April 1975, and was based upon the Ontario Law Reform Commission recommendations. I thought maybe I would expand upon a few of the points, but time pressures and other work were such that I never did end up sending that letter. Although I doubt it would have made any change to the legislation brought before us, I do regret that I didn’t send that short note.
In looking at this bill, I find myself very disappointed with the family property section of this bill. All those who have contacted me over the years -- mainly women -- about the problems which arise upon the dissolution of their marriage and the problems brought about often by desertion -- when they read in the press that we are having a bill which basically reforms family law, they phone me with some enthusiasm. I find myself in a position of saying to them “this bill, as it relates to family property, really isn’t a step forward.”
The principle of this section of the bill is quite nicely and neatly stated in section 4(3) and that is one in principle we can support. It states the purpose as being to recognize that inherent in the marital relationship there is mutual contribution by the spouses, whether financial or otherwise, to the family welfare entitling each spouse to equal division of the family assets upon termination of the marriage, etc.
But the rabbit goes into the hat because the bill defines family assets in a way that continues to ensure that justice is not served properly. The definition of “family assets” is so inadequate and so narrow that justice isn’t achieved here. I could agree with the section indicating the purpose as it is stated, until it mentions the family assets as defined by the Attorney General. It is very similar to the private member’s bill which I brought in. I said it in slightly different form -- that any marriage is a partnership and all the assets contributed to that marriage by both spouses -- whether or not one has only performed the social part of that marriage and has not brought any financial income into that marriage -- should be divided equally.
All assets means everything that is acquired since marriage, and appreciation of all assets held singly before marriage; everything is simply divided down the middle and it is said to be all assets. One doesn’t leave great loopholes in assets, as this bill does, because moneys in registered retirement savings plans and in stocks and bonds, and particularly the business assets of perhaps one spouse only, will not go into that reckoning.
The Attorney General says clauses (e) and (g) of section 4(2) take that into account. They do not take that into account, I would suggest, because section 4(2) says that if the judge finds that division to be inequitable, he may look at the other circumstances under clauses (e) and (g). In essence the bill says these are the narrowly defined assets and they are to be divided equally. Only if the judge finds that the division somehow is inequitable -- it’s inequitable right from the start but only if he, in his discretion and in his judgement, determines that it’s inequitable -- does he look any further.
I really regret that we didn’t follow the Ontario Law Reform Commission recommendations that all assets be considered and that there be no discretion given to the judge in this large area where he has somehow got to feel --
Hon. Mr. McMurtry: Did you hear your colleague from Peterborough (Ms. Sandeman)?
Mr. Bounsall: I heard my colleague from Peterborough and I will continue to comment in this area. I will continue to comment specifically about that. The judge in his discretion, having decided somehow that there was some authority there, can now go beyond a half share to the one spouse -- and my concern, of course, is that the woman has not contributed financially -- and say, “Okay, I will take into account some other circumstances.”
I really don’t feel that the word “maintenance,” which occurs in section 4(2)(e) and in section 7(2) of the bill, is really going to allow any judge to take that decision to say, “Okay, here is one spouse who has performed only social functions. They are equally as important; therefore, I am going to take all of the property and make an equal division, including funds in retirement savings plans, all the stocks and bonds and that portion of the business which has appreciated in value since the marriage occurred.” That is the only fair way of doing it. The way we have it here is simply not an adequate step forward at all.
Unless I sound completely negative, let me say that I find some of the other sections of the bill, by and large, to be adequate. I’ll perhaps have the odd comment on those as I go along, but I think the other sections of the bill, with some exceptions, are quite worth supporting. I have real difficulty with this section, however, because I feel it does not meet the needs. I feel the Attorney General has really copped out on one of the basic recommendations of the Ontario Law Reform Commission in terms of the justice of the property and asset division by defining assets so narrowly and not making it include everything.
In terms of the Ontario Law Reform Commission report, I do not share the idea of my colleagues, the members for Peterborough and for Wilson Heights (Mr. Singer), that an accountant coming in and doing only the simple arithmetic -- at some point they may have to divide by two; I hope that isn’t too complicated a thing for the member for Wilson Heights -- is an unreasonable way of determining the 50 per cent split.
Mr. Kerrio: That’s a brilliant statement.
Mr. Bounsall: According to the definition by the Law Reform Commission, you bring in an accountant --
Mr. Eakins: Come on!
Mr. Bounsall: If the hon. members had been here, the member for Wilson Heights talked about the complex and very tough formulas as outlined in the Ontario Law Reform Commission report. There’s nothing to it. There’s no exponential term, there’s no log term, there are no equations with brackets around them. You simply sum up the assets and you divide by two.
Well, believe me, those people who have objections on those grounds -- the member for Wilson Heights, that was his objection; he finds that difficult to do.
Mr. Conway: What are you going to do for bachelors?
Mr. Bounsall: What am I going to do for bachelors? This refers to breakup of marriages, you know.
Mr. Bounsall: There’s nothing complicated about that, it couldn’t be more straightforward. I don’t agree with my colleague from Peterborough when she says she has --
An hon. member: Shame, shame!
Mr. Bounsall: I don’t share her concern at all about the equalizing claim when that accounting, simple as it is, is done. All it simply says is that when they make the accounting not all of the moneys are going to be in the bank account of one spouse or in bonds owned in the name of one spouse. It would be quite unusual if, when they did the accounting and got $70,000, for example, they found that each of them in their own separate holdings had $35,000 worth. All it says is that there’s going to be some difference of the amount in the formal possession of one compared with the other, and that one simply has a claim on the difference.
Mr. Kerrio: Well-heeled socialists.
Mr. Bounsall: Usually one owns even part of a house these days, particularly in a large metro area -- it may not be true of eastern Ontario, I don’t know the housing values there.
Mr. Conway: What you don’t know fills volumes.
Mr. Deputy Speaker: Order, please.
Mr. Bounsall: All I know is that the housing values in Windsor are not nearly like they are in Toronto.
Mr. Deputy Speaker: Will that bachelor from the Ottawa Valley try to control himself?
Mr. Conway: That was the member for Cornwall (Mr. Samis).
Mr. Bounsall: I am sure we will expect to hear him at great length on this bill, having no little experience in this matter.
Mr. McClellan: Send that member back to school.
Mr. Bounsall: But all it simply says is that one owes the other a simple amount, and if there’s difficulty with the payment of that one to the other that’s where you would go into court and that’s where the judge would make this determination and perhaps give some length of time for that equalizing payment -- the difference to make it equal -- to be paid.
There’s nothing I find distasteful about that. There’s nothing complicated about that. Whenever you make a division, determining the total amount and making a division of 50 per cent, one will owe something to the other. The matrimonial home would, of course, all be part of that summation to the total. And that is what should have been done in this bill.
There are certain deficiencies in it. In my private member’s bill I did not take the definition of separation and a separated couple into account. I spoke of divorce and nullity of a marriage, but it’s contained in this bill. It should apply when spouses are separate. I think that is reasonable.
It goes on, “where ... there is no reasonable prospect of the resumption of cohabitation.” The Ontario Law Reform Commission took that point of view as well, but put a time on it. Here it’s left very ambiguous and very vague. They put a one-year time on it, if I recall and I’m sure my recollection is correct. They said: “Look, if separation has taken place for a year, okay, that’s when the provision for property separation can apply.” We do not have that time in here, and the ambiguity will certainly lead to litigation in court hassles, the very type of thing which we should be trying to avoid unless we are again trying by this bill simply to create a lot more work for lawyers.
One of my purposes, as I see it, in this Legislature is to try to get legislation before us which does not --
Mr. Kerrio: What do you have against lawyers? Lawyers are good people.
Mr. Bounsall: I have nothing against lawyers per se -- I must make that clear -- but I don’t like to see legislation come forward which really in my way of looking at it derives a lot more work for them. I find this one to have all the capacity within it to do just that, where there is no time period on it and where one spouse could frustrate the other one by always saying: “I think there’s quite a reasonable prospect that we will resume cohabitation.” The whole point of even thinking to include them is therefore frustrated and a matter of disagreement between them.
In dealing with certain of the other sections, I certainly agree with the member for Riverdale (Mr. Renwick) on the sections relating to support obligations, that there are sections in here which are good. Section 12 is an excellent section. It says that every spouse has an obligation to provide support for himself and herself, in accordance with need, to the extent that they are capable of paying. That statement of principle is well worth supporting.
But again, when we get into some of the details of the sections, there are some reservations. When we get to section 15(3)(g) we see cropping up again, that in terms of determining the amount of support that should be paid, the bill is allowing conduct and behaviour of the applicant still to be a criterion in determining the amount of support. That section should be removed. It brings back in the entire concept of fault in a marriage. The section should be removed and should not be there.
In many ways we should be getting away from it, but in terms of support payments we are bringing back the whole concept where people look at each other, determine their behaviour and there are counter-charges back and forth and so on. If we are in a period where there is any possibility of cohabitation taking place, the existence of this section is not conducive to a reunion. The minister is fully experienced with this situation. There are some couples who return together even just before the very last minute. But when they get into this sort of situation, the bill really is encouraging them to delineate, outline and further bring to the front of their minds the conduct of the other which they find unacceptable. It’s not conducive to any sort of reunion between the two couples.
Mr. Conway: Two couples?
Mr. Bounsall: The two persons of the couple. As for the matrimonial home, rather than having a separate section for it, I would just as soon see it simply as part of the split, although I recognize that we do clearly need in Ontario some rules written down speaking to the right of one spouse or the other to occupy it. Even in this section, as far as I read it, this does not include shared ownership by both parties nor actual possession of it by one, if again it is left to judicial discretion. If the court decides otherwise, neither gets possession of the house, as I read the matrimonial home section. We can get into this in committee when we get there. To me, that is a disadvantage.
The Ontario Law Reform Commission’s view was one which again coincided with my own, that the judge be granted very little discretion in these cases. I agree with that principle. The accounting is done by an uninvolved accountant, except if there are conditions, such as payment to be made over a term or a family business would flounder because of equalized payments.
Determining what form an equalization payment would take is the tiny bit of discretion which I would leave to the judge under the law reform. I’m happy with that. But all throughout this bill I find that there’s just too much discretion left to the judges. In many jurisdictions it could be years before the equality that is granted in this bill comes forward through the decisions of our judiciary. And that does leave me in a position of finding those parts of the bill quite unacceptable, to me personally, in terms of meeting the needs of society as we see it today.
I could go into a lot more detail on portions of the bill, all of which interest me greatly. You’re shaking your head, Mr. Speaker, and I certainly will bow to your superior wisdom in all of this. I certainly hope that the timing of the bill in committee is such, and that my other obligations are such, that I could follow this from beginning to end in committee. It’s one of my major interests.
But I say to the minister that I fully agree with the portion of it that defines the common-law union as being two years. I’ve had people say to me, how does one recognize the start of it? I don’t think that’s too big a problem. There are many ways in which the start of the two-year period can be recognized.
I’ve had people pose ridiculous sorts of situations to me as they question me about it: Can one spouse one day shy of two years move him or herself out of the situation for a day, and then return?
Mr. Kerrio: Certainly. Two years less a day.
Mr. Bounsall: Of course that is covered, and is not possible under the situation. I’m very glad of the definition.
Mr. Warner: Sounds like a sentence.
Mr. Bounsall: But the basic principle in the family property part which recognizes in all respects that marriage is a partnership and the division of all assets should be equal --
Mr. Kerrio: No way.
Mr. Bounsall: -- is what should take place. The very narrow definition of assets here, so that that doesn’t take place, I find quite unacceptable. In closing I would say --
Mr. Kerrio: You are going to vote against the bill.
Mr. Bounsall: -- that I find it very regrettable that you did not buy the Law Reform Commission’s attitude with respect to this section. In it, you simply have an accountant making an accounting of all the assets acquired since marriage and appreciation of those held before marriage and simply say that’s the amount, there’s the division. When difficulties come with that division, or if one should apply for a time period over which to pay the one part of that claim, I very much regret that that wasn’t your view.
I don’t really see this therefore as much of a step forward at all. The bill is such that I will not vote against it. I would hope that we would have many amendments in committee. There will be many points that need to be discussed fully in committee and I look forward to that. But I really feel that I could not support the bill on third reading if some really significant changes don’t take place, primarily in the family property section at the committee stage.
Mr. Cassidy: Mr. Speaker, I find myself speaking on the bill now although I had hoped to speak next week. But I shan’t be here on Monday and I shan’t have the chance to talk with the minister about the bill at that time.
I’d like to raise some points now and maybe raise some later during the course of the committee stage of the bill. It’s an area in which I also have taken an interest. I have been telling the member for Renfrew North (Mr. Conway) that I have a certain experience of marriage maintenance although not a marriage breakdown, and I’m not sure whether there are experts on the latter as well as on the former here in the House today.
I don’t want to reiterate the points that have been made by my colleague about the areas where we are in agreement with the minister or where we think he is headed in the right direction. I guess it’s true that almost everybody in the House welcomes the fact that a very genuine effort is being made to sweep away a lot of musty traditions and come to grips with marriage and marital relationships as they stand today.
I have to say that despite the efforts by the minister’s predecessor to involve people across the province, I am rather disturbed at the combination of his speed and the slowness of the post office in preventing a great deal of public comment and input on this particular bill. The honourable the Attorney General’s booklet on family law reform is in fact a model --
Mr. Conway: Heavy on the honourable.
Mr. Cassidy: -- of the kind of material which should be prepared in conjunction with bills, both for the benefit of members of the Legislature and also the public. I would recommend that to some of his more retrograde colleagues of whom there are many.
Mr. Cassidy: However, I have to say that about nine days after I mailed out my copies of this to various interested parties in the Ottawa area they hadn’t yet arrived, thanks to the post office. If the replies take as many days there will be no time for any serious consideration and I won’t hear from them until next Wednesday.
Mr. Conway: It’s run by the socialists.
Mr. Kerrio: Let’s take over the post office.
Mr. Cassidy: That apart, it is a pity that there has been misunderstanding from the early impressions of the bill and that there has not been an opportunity for people who are seriously interested to get their input back into this bill and into this debate before it was held.
I would like to comment on some of the points which are raised in the bill and I will structure my comments along the lines of the minister’s opening statement because I think that’s a fairly useful kind of approach.
I think we have to begin by saying that the minister’s claim that this bill recognizes the equality of the sexes is spurious. In a very limited way the bill recognizes the equality of the sexes but it does nothing significant at all about the basic inequality of the sexes which exists in our society. If you don’t correct that inequality of the sexes, then the difficulties with the marriage relationships which are related to inequality are going to continue.
Efforts to provide equality within the marriage relationship are good as far as they go, but we still must not ignore the fact that when partners, for example, determine whether or not to have a marriage contract they will be affected by their inequality. When support obligations are being determined they will be influenced by inequality. When the degree of contribution to the non-family assets of a marriage is being determined it will be influenced by the inequality of the sexes.
When one is trying to determine what a partner has lost by taking some time out to look after his or her children while the other spouse works, that will generally be affected by the inequality and the fact that it is usually the wife who works.
The obligation to support is a limited one in a case where a spouse is capable of working, but after a marriage breakdown you can easily have a situation where the man is capable of earning $20,000, or $25,000, or $30,000 a year. The wife is capable of supporting herself, sure, but only at a level of $8,000 or $10,000 or $12,000 a year and the years which she has given to that marriage relationship which could have been used in order to build up her experience and her earning capacity through education and training and work experience are lost years which can never be regained and never be made up and will not be compensated by the support obligations of this particular bill.
We are concerned, I am concerned as well, that in emphasizing the duty of individuals to take responsibility for themselves the minister, perhaps influenced by his colleague, the Minister of Community and Social Services (Mr. Taylor), is fixated about the question of welfare costs to the exclusion of the other factors which should be borne into account.
It seems to me that if one reads section 12 of the Act it states that each partner has an obligation to support himself or herself and to support his or her spouse, that is a statement with which I as a socialist am in thorough and complete agreement.
Mr. Cassidy: When I get into further parts of the bill, however, and when I listen to the minister, both in his introductory statement and also in the statement that he gave this afternoon, I find the only real purpose of inclusion or of continuation of those sections of the bill is a feeling that exists in the Conservative Party that there is a bunch of people who are living common law or who are living in marital relationships and who are trying to rip off the public purse and are trying to ignore the support obligations.
Mr. Hodgson: He wouldn’t do that.
Mr. Cassidy: It seems to me that it is demeaning to the whole state of marriage and the responsibility which was shown by couples, one to another, in this province, for the minister to see that as the only problem and the only need for these support obligations to be borne in mind.
I can cite case after case after case of spouses who have had the misfortune to have a spouse, a partner, who became crippled, became sick, became disabled, or became mentally deranged and had to go into an asylum or something like that, but the one spouse stuck with the other spouse and provided support, money and encouragement. One spouse even became senile, and had to go to a home of some sort. The other spouse hung in and week after week, day after day, was there with comfort, was there as a visitor, was there to bring whatever cheer he or she could to his or her particular spouse.
When the minister refers to the support obligations as mainly relating to welfare and the cost to the Treasury, frankly I think that he demeans marriage as it’s practised in this province.
Mr. Conway: Shame, shame.
Mr. Kerrio: Shame. Oh, isn’t that awful.
Mr. Cassidy: I think the third thing that concerns me is the fact that the minister and the government have been extraordinarily reticent, if not reluctant, in coming to grips with the fact that a large number of couples in this province now have chosen to live in relationships which are not sanctified, neither by the sacrament nor by the legalities of marriage, and are living common law.
The minister went to great lengths today to reassure the House that people who are living common law don’t have to share what would otherwise be known as their family assets. So be it. However, in his introductory statement he also went to great lengths to say that people living common law should not be able to sign and enter into a marriage contract -- what one might call a non-marriage contract. It seems to me that that particular statement by the minister and policy by the government is rather quixotic and is irrational.
There can be instances, for example, where a couple who are living together as man and wife cannot get married in the legal sense because of the laws of the province which prevent bigamy, and because of the fact that one partner is irrevocably married and in a relationship which he or she simply cannot or will not break. I have in mind, for example, a case where somebody has religious objections to divorce and therefore will not divorce or cannot see his way to divorce. There are those very sad cases where a partner is hospitalized in an incurable way. I don’t know what one’s judgement of it is, but certainly these things happen where the partner who survives and is living in the outside world keeps up the pretence with his disabled partner so that the relationship continues, but in the meantime he is living as man and wife with somebody else, because he does not wish to commit all of his years to a spouse who will never recover.
There may be reasons where common-law partners, for reasons of ideology, of belief, of determination, or maybe of doubt about the other partner, don’t wish to marry and where they do wish to enter into a marriage contract. I would like to suggest in fact that the existence and operation of a marriage contract within a living, vital, vibrant marriage is something which should be as important to us, as residents of the province of Ontario, as what happens under a marriage contract in the case of breakdown.
What happens in the case of breakdown is, it’s a dead thing. It determines who gets the sticks of furniture, who gets the Volkswagen, who gets the Buick, who gets the cottage, who keeps the home and that kind of thing.
Mr. Kerrio: Those are Conservatives you are talking about now.
Mr. Cassidy: You never know.
Mr. Hodgson: Experienced man.
Mr. Cassidy: You find them in the strangest places.
Mr. Hodgson: Is the member for Riverdale (Mr. Renwick) here?
Mr. Cassidy: I think one of the very important things that has emerged over the last five or seven or eight years of changing relationships between the sexes has been a much more deliberate entry into marriage by spouses, which is reflected in a number of cases either by informal agreements or by actual written agreements which have the status of marriage contracts. One can talk in very joking terms about who takes the garbage out and whether he will do the dishes on Friday night and whether she will allow him to have one night out with the boys.
Mr. Kerrio: No argument in my house.
Ms. Sandeman: Or her to have one night out with the girls.
Mr. Cassidy: The member for Peterborough suggests he will allow her to have one night out with the girls.
Ms. Sandeman: Or with the boys.
Mr. Cassidy: Or with the boys.
Mr. Deputy Speaker: Order, please. I will be happy to recognize either the member for Renfrew North (Mr. Conway) or Niagara Falls (Mr. Kerrio) after the member for Ottawa Centre has completed his remarks.
Mr. Cassidy: I am trying to make a serious point here. As the minister knows, there are in fact unusual relationships which are being written about and which are being practised now, where spouses who marry or spouses who enter common-law relationships agree that instead of the traditional kinds of fidelity which we have been accustomed to, at least on paper, they accept what everybody knows often happens, that is, under certain conditions they accept a certain amount of infidelity, and this becomes part of a contractual relationship.
Much more important, they accept in the contract a sharing of duties and obligations towards children, towards the housework and the scut work, towards the other nastier sides of marriage rather than simply assuming that those things will be left to the wife as was the case in the past.
It seems to me that whether or not the minister recognizes that common-law couples can have marriage contracts, some of them are going to have them. In certain cases where those contracts do relate to matters of property and not to matters of behaviour or who takes out the garbage or who does the dishes, they should be enforceable in courts of law.
Hon. Mr. McMurtry: They are right now and they will be.
Mr. Cassidy: If the minister says they are right now, and I had thought he might take that position, then it seems to me that for the draft paper and for his statement to say that common-law couples are somehow in some inferior place where they can’t have contracts, should be retracted and the right of common-law couples to enter into marriage contracts should be recognized at law.
Hon. Mr. McMurtry: I never said any such thing.
Mr. Cassidy: It should be reiterated at law in this particular document which is the new statement by the province of where things stand.
I would like next to go to the basic property divisions that are involved here, the family assets approach. As the minister may realize right now, there is concern in the New Democratic Party that the family assets approach is limited for a couple of reasons.
One reason that can be raised in more detail in the committee stage of the bill is a feeling that the definition of family assets is too limited. If he has a yacht down in Toronto harbour, for example, and she can’t stand sailing, then that is not a family asset unless she can sneak one of the kids into the trunk of the car and get the kid on the boat one afternoon when her husband isn’t looking. Literally speaking -- and I am not sure whether the courts will be that literal -- that determines whether or not in the case of breakdown she has a piece of a $20,000 asset for the purpose of recreation which he has bought during the course of the marriage. I suppose one could say that if she acquires certain kinds of handicrafts which are valuable and keeps them, however, in her study and never lets him have a look at them or touch them or talk about them or something like that, likewise, those would not be considered as family assets.
That’s a matter of definition but I would like to go beyond that. The member for Riverdale (Mr. Renwick) has already expressed our concern at the exclusion from this bill of one of the crucial sections of the 1975 amendments. That was the section which said that just because you contributed to the acquisition of an asset in performing your normal duties as a spouse, it didn’t mean you couldn’t have a share in it. We believe that that should be brought back into this particular bill. We think that the minister should reassure the House that the exclusion was accidental and not by intention.
I thought very carefully, Mr. Speaker, about the question of the various alternative property regimes which could be used on the case of marriage breakdown or divorce, bearing in mind the original approach which has been taken by this ministry and government, and bearing in mind the alternatives. I think it should be borne in mind to begin with that the system which Ontario is bringing in is a system of judicial discretion with strong guidelines. In other words, there’s not a guarantee to a 50 per cent share of family assets but the guidelines are sufficiently strong that the 50 per cent rule will apply unless the courts find some other reasons for going in a different direction. That’s as it should be because we mistrust whether the courts, with justices whose formation was perhaps still mainly before rather than after the Second World War, are capable of understanding the spirit as well as the letter of the law on division of property as it has been written.
However, the objections to going further to either deferred community or full community of property, Mr. Speaker, it seems to me could have been dealt with in a different way. As the minister knows, we intend to suggest that a certain amount of what one might call the non-family assets of a marriage be included in the community of property which would be created at the time that a marriage breakdown occurs.
I want to go to the minister’s own booklet on this, because it seems to me that his reasons for rejecting full community or deferred community are far more a judgement that the Conservative government has made about the public opinion among the people who they hope will vote for them in the next election than a measure of the public opinion of the citizens of the province as a whole. The objections that are otherwise raised by the ministry are on the basis of technicalities and not on the basis of principle.
Let me turn to the question of full community of property first. The ministry says: “Co-ownership of all assets during marriage, severely inhibits the couple’s freedom to deal with property, including a business. Each spouse is also automatically responsible for the other’s debts and the system suffers from rigidity and complexity.” I think that they are right to say that the benefits that are achievable under deferred community of property in the case of marriage breakdown are pretty comparable with those of full community, provided that they come into play at the time the marriage breakdown occurs.
Let me tell what the minister says about deferred community: “There is a lack of overall public support for this alternative.”
I am not sure what this means. It may mean that the women who we talked to support it but the women who they expect will keep them in office don’t.
“One of the chief drawbacks it is said is a lack of flexibility. It would also call for a record-keeping and valuation of property owned before marriage, gifts and inheritances. A second calculation would be required to value property on marriage breakdown. It might be necessary for accountants or lawyers to straighten out the financial affairs of average couples.”
The point I want to make, Mr. Speaker, is that in all of the discussions of deferred community of property, there is really no effort made by the ministry or the minister to dispute the principle that the contributions that spouses make, whether through running the business affairs of the partnership, the economic affairs of the partnership, or to performing the duties of a spouse, and thereby helping the other spouse do those things and make money. There’s really been no denial by the ministry of the principle that the activities of the one spouse in making money and of the other spouse of raising the kids and looking after the home, don’t really justify an equal sharing of the property that has been built up between them both as family property and also as non-family property.
The ministry doesn’t deny that the spouse that stays at home should have an equal share. The ministry simply says that the public isn’t ready for it and that there are drawbacks because of the lack of flexibility.
I want to suggest, Mr. Speaker, that a very substantial step towards the deferred community of property could be achieved and the drawbacks of which the ministry speaks could be avoided if one chose a limit for non-family assets and said any non-family assets up to that particular sum should be included along with the family assets at the time that you broke the total assets in two. The non-family assets which would be included would be non-family assets regardless of whether they have been accumulated before or during the marriage.
The reason that you can take that rough rule of thumb and say, “we’ll take non-family assets that happen to have been owned by one of the partners before marriage,” is because you set an upper limit on it. Then you allow the partners, through a marriage contract, to make some other arrangements if, for example, there was a very substantial sum of non-family assets brought into the marriage by one spouse when the marriage began.
The actual figures that are involved -- the dollar value of non-family assets that should be included -- is less relevant than the principle. The need for accountants and lawyers and so on would not be present in the case of an ordinary marriage because the value of non-family assets in most cases isn’t going to be very great.
Somebody may have an interest in a corner store that’s worth $25,000. It’s a non-family asset, despite the fact that the wife has contributed an enormous amount because she’s kept the family together while the husband was working there 15 hours a day. There’d be no hassle about including that asset -- the $25,000 worth of the store -- in the community of property in the case of a marriage breakdown. But that hassle exists, and the wife has to go to court to get her contribution recognized, under the proposal that the minister makes.
Somebody comes into a marriage with $100,000 and a business; his wife and he live happily together for 20 years; at the end of 20 years she has no greater claim to the $100,000 worth of business than she had at the beginning. Yet I would have thought that she really has contributed and earned a share in that business over that period of time, even if she’s never visited the place where the business is carried out. But that principle isn’t recognized by the minister and we think that it should be.
Mr. Kerrio: That’s socialism.
Mr. Cassidy: It’s a step towards socialism. We need a few more steps towards socialism.
I would suggest that the fact that this is a simple procedure and doesn’t require accounting and record-keeping at the beginning and the end of the marriage would help to gain public support for it in the public mind. The fact that it’s fair for average Ontario couples would help to win support for this proposal in the public mind. The fact that the right to opt out of a marriage contract is still there would help to win support for this proposal in the mind of the public of Ontario. The fact that if a spouse shares in the non-family property, then he or she, usually she, is thereby made much more independent and, therefore, less liable to require support from the other partner in the case of marriage breakdown, would also help to win public support for this particular proposal from the people of Ontario.
That’s why I would like the minister to very seriously consider this proposal I’m making. There have been problems in the definition of “family assets” which have been allayed only to a certain point. Some women find that they’re the ones who’ve got the assets in the marriage and they’re married to some guy who really is pretty much of a bum and they’re going to have to share their assets with him in the event of family breakdown. I would say to them that while I recognize that problem they have a couple of options. One is to kick the bum out; another one is to draw up a marriage contract and get him to sign it; and a third one is to recognize that for every woman who may be prejudiced in her mind in those terms, there will be dozens, if not hundreds, of women who will benefit from the equal sharing under the family assets approach, whether or not it could be broadened.
It’s also fair to point out, as I’m sure the minister will, that in the case where a woman has made all of the contribution to the family assets and her husband has simply sat at home and drunk beer, then it may well be that the courts will use their judicial discretion to make an unequal rather than an equal sharing of the family assets.
The next point I want to raise, Mr. Speaker -- I don’t want to touch any more on the welfare-bashing that the minister is indulging in under the question of support obligations -- I have also talked now about the question of allowing common-law spouses to enter into marriage contracts. It seems to me that the only difference between a common-law relationship and a marriage relationship should be on the question of the sharing of the matrimonial home and the automatic equal sharing of family assets. There is an incentive to get hitched for those reasons, I suppose.
The minister should also realize that if he pushes this too hard, if he makes common-law relationships too difficult, he could have a very destructive impact across the province. I’m not sure about his friends in North Toronto, but I have to tell him that in Ottawa, and maybe in other parts of the province, one of the worst things that can happen to a common-law relationship is marriage. I have seen many common-law relationships founder because the spouses decided to go and get married. Almost as soon as they get married, they start looking around for a divorce, whereas if they stayed unmarried, but together, they might be together to this day.
Mr. Kerrio: That could ruin a marriage. Marriage ruins a lot of relationships.
Mr. Cassidy: But I would have thought that if the minister thinks that stable relationships are important in this province, he should bear in mind, that some people can live together more stably not married than they can if they actually take that terrible step.
Mr. Kerrio: You don’t believe that?
Mr. Cassidy: Not only do I believe it, but I’ll give evidence.
Mr. Warner: Right on.
Mr. Cassidy: The penultimate point I wish to raise is a fairly serious one. I don’t think it has been really considered by the minister. It’s certainly not touched on in this particular booklet on family law reform.
I think real problems of rigidity are introduced with the provisions for marriage contracts as they exist, because of the fact that they are binding on both parties and cannot be altered, as I understand it, except by the consent of both parties.
I understand that the courts can intervene in a marriage contract where they feel that a marriage contract was written under duress. The kind of problem that I have in mind, however, is where relationships change, or the nature of the economic and social relationship between partners changes, and the marriage contract has not been updated to reflect those realities.
I can give a hypothetical example -- and I know it’s hypothetical -- let’s suppose that a 19-year-old girl, whose only had a year or two of college, gets married to some fellow who comes from the blueblooded end of Toronto; he is well-endowed financially and seems to be well-endowed in career terms, having just come out of Osgoode Hall Law School and entering into a fairly brilliant career in the law.
Let’s say his family suggests quite strongly that the marriage contract should allow that many of the assets which he receives from his side of the family should be sequestered for the benefit of the children and not be put into a position where she can have a share of them. She agrees.
Let’s go five or 10 years down the pike and suppose that his early promise has not worked out; he has a fairly obscure partnership in a rather dismal Toronto law firm and isn’t making very much money --
Hon. Mr. Kerr: There ain’t no such thing.
Mr. Kerrio: There are no law firms like that.
Mr. Cassidy: -- while she has become, say, a cinematographer, is doing quite well and is contributing a great deal, both in éclat and in finances, to the economic relationship of the partners. Thus, the relationship between the two of them is much different from what people had assumed at the beginning.
We then find that because they were starting out with a $200,000 mansion, which was given to them by the family but which in the contract was designed to go down to the children and not be shared to her, that the contract provided that the family assets basically go to the kids and that she would not have a half share in them. That would be a contract that would not realistically relate to the relationship of the spouses. But the question is, how can she get a change in that relationship if he feels threatened and doesn’t want to change it and if she, on the other hand, loves the guy and doesn’t really want to push her side of the case to the point where a marriage breakdown is threatened?
It seems to me that there should be some means by which marriage contracts can be reopened and that they should not be graven in stone if one partner or the other adamantly refuses to broach any changes. The arrangements that people make at the age of 19, 21 or 23 may not be the arrangements they wish to continue with in their 30s, 40s or 50s. Relationships change, mature, differ. It may be that they want to have a different kind of relationship or that one partner is seeking to have a different kind of relationship but is boxed in because of the way in which that contract had been drawn up.
I want to make a specific suggestion which comes from me personally and which is the kind of thing that can be debated further in committee stage, that where a marriage contract exists there should be a means for either spouse to reopen it at regular intervals, perhaps every five or seven years. You could say that it had to be reopened actively, that is, the two partners had actually to sign --
Mr. Kerrio: Have a union and negotiate every three or four years.
Mr. Cassidy: The member for Niagara Falls doesn’t understand what this is all about.
Mr. Kerrio: You aren’t kidding.
Mr. Cassidy: The two partners would actually sign the marriage contract anew, to renew it every five years. Or it could be a more informal kind of thing where, if one spouse wished to reopen it, then that spouse could so indicate and, once the spouse had indicated, then the contract would have to be renewed. In other words, there would be a certain period of time, perhaps every five years, and if the spouse at that time indicated that he wished the contract to be reopened, it would lapse and a new one would have to be signed or else it would have to be renewed jointly together.
Hon. Mr. Kerr: When would you discuss that with her? Would that be over the second cup of coffee in the morning or when you are changing a diaper?
Mr. Cassidy: What would happen would be that if the marriage contract was effectively repudiated or a new agreement could not be reached, then the partners would lapse into the family asset sharing or the deferred community approach, whatever approach happened to exist under the law at that time or as it stands at this time.
It seems to me that that would be a protection against spouses who might enter into unwise marriage contracts at an age when they are not particularly mature. On the other hand, it could be healthy as well in forcing people to re-examine their relationship from time to time to see what they should do about it.
Finally, I want to raise a question or two about the powers of the family court. I’m concerned that the minister is going to have a pilot project for three years of a unified family court in Hamilton, while in the meantime Ottawa, York and the rest of the province have to wait with the existing inadequate system as it stands. I don’t think that’s good enough. I think the Attorney General should be making reforms in the family court system across the province and doing it much more rapidly.
Hon. Mr. McMurtry: You don’t understand the problems. Speak to your friends about them.
Mr. Cassidy: I understand that there is a problem. I’m concerned at the minister’s lack of urgency in tackling it.
Hon. Mr. McMurtry: Oh, nonsense.
Mr. Cassidy: Long before this minister was in office, member after member on this side of the House -- Mrs. Campbell, since she’s been in the House as well -- was telling the government --
Mr. Speaker: Order, please. It should be the hon. member for St. George.
Mr. Cassidy: -- what a shambles the family courts were in and the kinds of problems that existed. Now the government finally comes along with the crusading member for Eglinton (Mr. McMurtry) in order to come along with a reform, but the reform is going to be some time in the 1980s. That simply isn’t good enough and it reflects his party’s inability to adapt to the kind of changes that are taking place in the province at this time.
Hon. Mr. McMurtry: You really don’t know what you are talking about. You are so burdened with sanctimony you have a difficult time to see the forest from the trees.
Mr. Speaker: Order, please.
Mr. Cassidy: As a matter of fact I dipped into my cup of sanctimony just to have a hit of it available in case of need.
Mr. Speaker: Order please. I’m not sure that this is part of that bill.
Mr. Cassidy: Mr. Speaker, the minister has been wrapping himself up as a progressive, and that’s not true.
Hon. Mr. Kerr: He should be.
Mr. Cassidy: It’s slightly misleading, shall we say. Deep down, he’s still a Tory and he’s been put up as a progressive flag bearer for the party --
Hon. Mr. Kerr: You keep your flags to yourself.
Mr. Cassidy: -- in order to keep some credibility with the two-thirds of the province that wants that kind of a thing.
I want to raise a final point in relation to the family court and I’ll be very brief about this. I think there are enormous problems, whether you have a unified or a disunified family court, in the enforceability of family court orders. I have had some absolutely heartbreaking cases to deal with of family situations where there have been child custody orders which have been flouted, where children have been literally kidnapped, but where there was no action under the Criminal Code because the family court order wasn’t strong enough to bind the other partner or for the Crown to act. In fact, the family court order dies 25 miles out of town. It turned out in some cases that the orders of the superior courts are also not sufficient to bind. They certainly are not sufficient to bind outside of the province of Ontario or outside of Canadian jurisdiction in the United States -- despite the fact that you can take a kid and in two hours you can be out of Toronto and in Buffalo and right outside of the law’s grasp -- and that has happened.
When parents have broken up there is, in many cases, a really legitimate desire by the parent who has kept the child to allow the other partner to continue to have certain rights of access. In other cases, whether that desire exists or not, the right of access is ordered by the family court, and so it should be. Where that right is abused and a child is spirited away, you create enormous heartbreak; you create enormous disrespect for the jurisdiction of the family courts; you create situations where the people who have been wronged say, “The hell with it, I’m going to do the same thing they did. I am going to snatch my kid back” -- you get a complete disrespect for the law.
It seems to me, Mr. Speaker, that it is very important, if we are going to have an adequate system of family law in the province, if we are going to try to take away from these passionate disputes, which are so heartbreaking and which can wreck lives for so many years, between spouses who are at odds, that the decision-making by the family court should be seen to be fair and equitable and that its decisions should be made to stick.
That is not the case in many, many situations right now. As the minister knows, support obligations are dishonoured and ignored; the payment obligations are forgotten; orders about sharing a property are not respected; and orders about the custody of children are not respected and enormous heartbreak is created by that. I would hope that during the course of this debate the minister could talk about that particular subject. It seems to me this is one of the matters which has got to be sorted out during the course of the overall reform of family law.
With that said, Mr. Speaker, I thank the member for Scarborough-Ellesmere (Mr. Warner) who allowed me to go ahead of him so I could speak today on this bill. While we welcome the bill, there are a number of major areas where many of us have suggested amendments should be made, and which are sufficiently broad that we feel we may not be able to support the bill on third reading if it is left in its present stage without substantial amendment. Thank you.
Mr. Speaker: Perhaps it is not worthwhile at this time of evening for the hon. member to start. If he wishes to adjourn the debate I accept that.
Mr. Warner moved the adjournment of the debate.
Motion agreed to.
On motion by hon. Mr. McMurtry the House adjourned at 10:30 p.m.