31st Parliament, 1st Session

L024 - Tue 18 Oct 1977 / Mar 18 oct 1977

The House resumed at 8 p.m.


Resumption of the debate on the motion for second reading of Bill 59, 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 the hon. member for Lakeshore had the floor.

Mr. Lawlor: At the break, Mr. Speaker, I was outlining a fairly fundamental disenchantment and general pervasive psychotic unhappiness on the part of myself and my colleagues with the legislation qua. I am not seeking to imitate a duck. I don’t say, “Qua, qua.” I say “qua,” just as it is -- just as the wretched stuff comes to us.

I was saying that it made an amalgam of deferred property and the discretionary system in other jurisdictions. I have never been quite clear as to why that has been done. It’s always been a bit of a mystery. It’s a kind of curious tangent to go off on. Since that’s the very core of the principle, perhaps the Attorney General (Mr. McMurtry) would spend a moment or two to outline the raison d’être for this and for having brought this -- I was going to say something of an abortion but that’s not quite fair; nor could one even say stillbirth, so we are going to have to rely upon this rather anaemic child that has been produced.

Throughout the lengthy and even somewhat tedious debates that we’ve had downstairs, largely arising out of the legislation, the Attorney General has given considerable ground in area after area, approximating where he felt it was at all feasible, to a full community concept. But the main structure remained in place and adamantly remains focused primarily on the concept of the family assets. I don’t know at this late date whether the Attorney General is amenable to extending the concept of family assets. We think it’s too rigorous, too narrow. He has made some moves in that particular direction, but picayune, nothing monumental. That’s the area, if the legislation is going to have greater efficacy, that the broadening would have to take place in that whole area of definition.

I confess to you, Mr. Speaker, that I do not feel since it has been so thrashed over and winnowed that the Attorney General certainly doesn’t appear to be very much given to giving further ground or any other ground on that.

Mr. Roy: It is going to go to committee and we have got the majority on committee, We can do what we want.

Mr. Lawlor: We will see what comes in committee on that.

Mr. Roy: You are going to have to convince us.

Mr. Lawlor: I think it is only wise to mention in the course of it that legislation of this kind is not like ordinary legislation at all, that it is a very delicate stuff, that it is close to the bone and to the lymphatic glands of the population. A change in this kind of law which so intimately affects human lives must be handled with the greatest care and intimacy. The Attorney General in one of his statements made references to other jurisdictions and their reformulation of family law.

I remember an instance when Kemal Atatürk of Turkey, wishing to westernize his nation, so to speak, overnight in his modernization brought in major improvements in that near eastern or quasi-oriental law touching marriages. He brought it all in. It looked tremendously beautiful on paper and took into cognizance a full panoply of intermarital relationships and the relations to children, and nobody paid a damn bit of attention. The whole nation of Turkey went on its way in its traditional customs for another 25 years before it even began to dawn upon them that Kemal had passed a law altering, modifying and changing the marital relationships in that country.

Therefore, that’s what can happen to this kind of law. It is not like securities legislation where they are all highly sensitive and aware of every jot and tittle in the legislation. Here, if it doesn’t meet the consensus or accord contemporary in the community at the time, then the law will receive scant attention. It will be more abided in the breach, et cetera, and that’s why we have to pay particular attention at this time in matters like common-law relationships.

The Attorney General has changed the period from two to five years. We can play games with numbers, et cetera; I should have preferred three. I think there is recognition of the fact that this is a widespread phenomenon of our modern society, involving mutual obligations, and which is very often sloughed off in a kind of John Stuart Mill libertarianism as between the sexes, people exploiting one another in their lives, et cetera. I give the Attorney General credit. It’s in line with what has been recommended by the Law Reform Commission. He has come down fairly heavy. He came down heavier before. Public resentment and outcry were such through the committee hearings that he has been moved to extend it to five years. Again, it’s somewhat petty to dwell too much on the figures. I simply say I thought three would be better. We’ll leave it at that for the moment.

With respect to misconduct, that has been a bone of contention perhaps. When people begin to focus monomaniacally on a particular section of the piece of legislation, they tend to lose sight of the whole terrain, where things fit in and the just weight that should be accorded to various concepts. I indicated in committee and indicate here tonight that I don’t think that misconduct qua should be removed completely nor has it been. But what has been done I think is fine. It winnows it down.

The only thing I would want to mention at this juncture is that I would have to speak against the position of my absent colleague, the member for Riverdale (Mr. Renwick).

I want to pause here for a moment. As the only other lawyer in the New Democratic Party, I want to offer homage and recognition of how much we all miss him in this Legislature.


Mr. Lawlor: As the applause indicates, we all wish him enormously well and I hope this will be conveyed to him.

I don’t mention him just to take issue with him, although I do take issue with him at this moment, He recommended that it be put into a separate section, which has been done. There’s some feeling that that may be a mistake. In other words, it having been segregated and given a position of special attention, the judges then may give it some kind of weight over against that long series of factors that they have to take into consideration in support obligation and give it undue weight, when the very thing we were seeking to do was to play it down and to give it the just but subordinate position over against everything else that we desire that it should have.

We may have to reconsider on that and put it back into the other area so that conduct as such may tend to get lost a bit, because, as we know, numerous groups that come before us are somewhat suspicious of judges and at least the traditional lawyers.

Hon. B. Stephenson: And even more so lawyers.

Mr. Lawlor: They think that because they gave such an enormous emphasis to conduct in the marriage as to who was at fault and to tracing out and making judgements upon the acts of one party or the other, when we all know that most marriages break up on the basis of a fairly good distribution of fault on both sides.

In any case, thank heavens, that type of judgemental attitude towards marriage gradually is being evaporated in the modern world and that is no longer the central core. But for many of the long-sitting judges, it is so rooted in their groin that they would have great difficulty indeed to give it the kind of weight that my friend and I are interested in.

I further agree with the Attorney General on this, and I would even like to quote from a mysterious source. In other words, I quote the devil as scripture. The Attorney General says somewhere:

“Take, for example, the case of an alcoholic husband who is prone to violent physical attacks on the children and who is unemployable because of alcoholism. Or consider the wife who goes off to live with another man because he fulfils her emotional needs better than her husband and leaves him with the kids; the other man lives on welfare and the wife has no job skills. Can we say to the wife in the first example or to the husband in the second, ‘You must provide support for your spouse regardless of his or her conduct’? In both these cases the need of the spouse has been self-created; that is, created by his or her own conduct. I wonder how willing the spouse ordered to pay in such circumstances would be to live up to the legal obligation of support.”

There can be no doubt they would default on support. They would resist it. They would fight it to the last inch. They would probably in some instances be prepared to go to jail before they would be prepared to pay, and I don’t blame them a bit.

Today, as W. H. Auden once said, “we are all Freudians.” We think that sexuality governs everything. There seems to be no cruelty left in the world and no drug addiction and no various forms of alcoholic intake. These factors get lost over against the bickering or the mutual animosities that are engendered out of a purely sexual appetite. So, let the libido squirm, I say. I am concerned with the correction. While dear old Freud tied one in deeply with the other, I won’t go along with him. I’m Jungian tonight and pace, Sigmund.


Those are considerations that must be taken into account and justifiably permit us to retain, in my opinion, the gross conduct business, whatever it means. When we have our committee hearings we will find out what the general public thinks it means and whatever you and I think it means, it means nothing, as you well know, until some judge who thinks it means a great deal says so, and then frustrates all our purposes. All we good-intentioned people are as nothing as against a judge of 25 years’ standing. Then, I suppose, we have to keep on amending it until such time as instructions are thoroughly laid down but we’re not doing that tonight.

There is one case in which the Attorney General should have made -- I won’t say the fundamental compromise -- I mean he should have taken the categorical choice, the categorical choice of the matrimonial home. There, he didn’t have to temporize. He didn’t have to fence sit or go off into deferred concepts. Why did he bother? There’s no deferral necessary. That’s the one place where there should have been full community of property called, ipso facto, joint tenancy, right from the word “go,” all through the duration of cohabitation. He would have satisfied a great many people, particularly women’s organizations if he had made that particular gesture.

I want him to give some consideration to it at this date, at this time. There’s plenty of time, this thing won’t come on; he’s got lots of time to think about it. It probably won’t come on until ‘after Christmas but, if we can arrange it as we talked about it here in this House, to bring it on before and bring this legislation to fruition before that time, so be it. He has a little less time to think about it.

But why make that deferred? He has to concede that logically and legalistically both, what he has done in these particular sections is effectively grant community property. He says whichever spouse owns the property, they can’t sell it, they can’t deal with it, they can’t mortgage it, they can’t lien it, they can’t do anything with it legally without the consent of the other spouse. So why not give the thing its full weight, its scope and its amplitude from the word “go”? Why does he play with these things? There seems to me very little point in pressing that particular aspect.

In the next area, I would just like to mention the marriage contracts themselves. A marriage contract is the pivotal and guiding instrument in the Attorney General’s legislation. Everything turns upon it. One can pretty well, in the marriage contract, except for several items, do whatever can be agreed upon between the parties. It being so crucial and axial to the whole operation, what was recommended to the Attorney General by some lawyers who appeared before the committee, such as the necessity of independent legal advice, perhaps should be embodied in the legislation making that a requisite, and so forth, so that these contracts, which are going to become far more pervasive than they presently are, are going to govern, in the future, most marriages, let’s face it, because people will want to distribute their so-called family assets, so-called, in a quite different way than what he has disposed of within his legislation.

Because he has made his legislation the way it is, they’re going to be obliged, if they want to set up alternative arrangements, precisely to enter into a marriage contract. So these new instruments will become deep-rooted in the community, will become an acceptable thing and the fewer exceptions that can be worked into it, the better.

One of the exceptions is, obviously, the matrimonial home itself. That must be accepted as it stands. Another one is that it will be recognized in a support application, it may be varied, modified, changed and radically changed in the course of court proceedings. That is, of course, the way it should be.

Finally, with respect to children, section 55(2) says, “In the determination of any matter respecting the support, education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining thereto where, in the opinion of the court, to do so is in the best interests of the child.”

Those are the three salient exceptions in the legislation as it stands and I don’t suggest any change in those exceptions. I may very well have some changes in committee, adding to what may not be varied or contracted out of.

For the rest: I am willing to accept small gains, even from the Greeks -- that they bring in the large-headed horse, or their little burgeoning cornucopias in the fall with a few grapes at the bottom where you can hardly see them. I am willing to accept that. We must be humble in this life and when there are small gifts given, great hearts respond. As R. D. Laing says: “Let your heart be like the sun, shine alike on everyone.” This is what the Attorney General has done to us. But if he had only included the last two pages of the legislation as it stands, I would perforce, as a somewhat weary lawyer, be obliged to vote for the wretched thing -- because he has abolished a lot of things.

It is not what he has done but what he has undone whereby he’s blessed. In a dark seduction -- criminal conversation, alimony, enticement, loss of consortium, all these sacred cherries of the law which we worshipped not 10 minutes ago, or should I say 10 years ago. You don’t know how many hours were taken up talking about the loss of consortium, for heaven’s sake; and with the wave of his hand, the magician has caused them all to evaporate into air -- yea, into clean air, leaving not a wraith behind. It is just something marvellous that he can perform, and we can perform in this chamber.

All these otiose old doctrines are disappearing down the drain. That alone is heart’s balm to the last warrior at Wounded Knee.

Mr. Kerrio: It is a great man who follows that act.

Mr. G. Taylor: It is better than following a dog act, anyway. Mr. Speaker, I am pleased this evening --

Mr. Reid: Or vice versa.

Mr. G. Taylor: I am pleased to be able to speak to this legislation this evening as one of my first moments of talking on such legislation. As a lawyer, I have practised greatly in this field.

Mr. Reid: You have ruined your credibility.

Mr. Martel: You should never have said that.

Mr. G. Taylor: I have seen the wreckage that it puts through. I have seen the divorces that go through my office. They talk about divorce mills where you gain the experience from this, and I applaud the Attorney General and this government for putting forth such legislation. It has a long gestation period. It has not been without problems to arrive at this stage.

The family law has developed over many years and the common law has developed in that area. The Attorney General has put forth a piece of legislation that will take care of that. It has gone through, as we are all aware, the law reform commissions, bar associations, lawyers and social agencies. It has been studied and recommended upon. This government has seen it and it has acted. Albeit it may not be, as the critics will say, the most perfect of legislation, but it is a piece of legislation that is trying to improve upon a situation.

The family structure is something in our society that we must preserve; it is something that when it ruptures and when it breaks down, the emotions overcome, and they overcome rational thought to a point that the human wreckage spews forth upon all parties -- children, spouses and those associated with them. The wreckage may be from revenge, from greed, from guilt and jealousy, but it is there. It is often the result of archaic legal principles and laws which were behind the social customs and theories of our times, and not in accord with the reality of today.

Where our laws are inadequate, we try to meet those needs. Here, this piece of legislation will meet some of those needs. Where the laws have been inadequate to meet reality, we hope that this law and this piece of legislation will come forth and be closer to reality. Where the laws are inadequate because the Legislature will not act and had not acted sooner and forgot the human emotions, this law pleads forth to solve those human emotions with this, a family piece of legislation.

This legislation has human elements in it. It puts predictability into the law where it was not before. That’s where the problem was created -- the lack of predictability for lawyers and for spouses and for legal advisers in this piece of family legislation that would not end squabbles quickly but would proceed, in fact, to enhance the squabbles because there was not the predictability in law that was necessary to end the squabbles.

The permanence of the family is something necessary in this society. We have all come to that conclusion; it is not new, it is not original. However, a portion of our population will not remain together as a family unit, and we must recognize that. We must prepare for their needs. It is probably not desirable that these family units break up, but that they stay together. But if the determination is upon them that there is going to be a severance, then let us prepare for it, let us bring forth legislation that will allow for it to be as amicable as possible.

This legislation brings home at the outset of the marriage its importance that there should be maintained a family unit. Where the unit fractures, where the family relationship goes stale, where it ruptures, indisputably there is an end to that marriage. But it then must be taken care of so that the human element is looked after.

I have been in situations where they argue over the most menial and trivial of things, like records and books. Those should not be, but our laws at present provide for that type of squabble, and that should be ended. How sad it is that the economic factors, which already magnify the disharmony, should be bedevilled by an antiquated legal structure. This type of legislation should rectify that. Our law should not be as it is.

This legislation should create a new system of law dealing with economic relations between husband and wife and children. While there is a shredding of the marital ties, let the legal system put together a better future for them. It recognizes the contribution of both spouses to the marriage as an economic unit. It recognizes the splitting of that economic unit. It recognizes by a set of rules with predictability that the major asset, the matrimonial home, which probably more than anything else gave cause to many of the squabbles, should be dealt with equitably.

This bill will be a code of economic relations between the spouses upon the severance of that union. The division of the family assets amplifies the existing problems at a time when the brutality of an economic dispute is not at all needed. Here we fought over useless things, amplified often by lawyers who took the participants and took them into needless disputes, because even they could not recognize what the law was and what it should be.


This bill recognizes also greater economic relationships, those that would be developed between a husband and wife, maybe for estate reasons, business reasons, various economic reasons -- these have been created. This bill allows for those to be settled early in the marriage. It also allows for their settlement by judicial discretion. Oftentimes we do not put upon the judiciary the tools to allow them to settle disputes. But here, this piece of legislation is one that will give them a greater deal of comfort to be able to allow them to settle disputes in a more amicable arrangement between the parties.

The support obligations have not been unnoticed in this piece of legislation. There has been an equality in recognition of the sexes, of their contribution to the marriage, of their endeavours to put together a unit, but then upon severance let’s recognize what they have put in to the union. It confers no privilege upon either one but recognizes their support, to each other and to their children and those that are dependent upon them.

This legislation allows for a great deal of flexibility within the family. It also encourages settlement; when you have predictability of rules it encourages and enhances a settlement to a quicker conclusion than one where, if the rules are not precise, the burden of dissolving the marriage is lengthened by arguments over it.

Mr. Lawlor: The Attorney General seems to have taken you in.

Mr. G. Taylor: With this greater predictability this piece of legislation is of greater satisfaction to the legal profession. It is of greater satisfaction to the judiciary, so that they might be able to settle a legal predicament that has been upon us.

Mr. Bounsall: All that business flowing their way.

Mr. G. Taylor: The marriage contract will possibly bring to those embarking upon marriage the realities of the bed, the betrothal and the breeding, so that we will be able to recognize those things before they embark. It is often said, “For $5 I get into this, and for $500 plus I get out.” This recognizes that and puts the burden upon those entering marriage early in the situation. The insertion of the marriage contract may strengthen a union, which may be then accorded the church, the clergy, the state, the accountants and lawyers, so that all are in on it at a very early stage rather than at a later stage.

We have the obligation of the spouses to the children of the union, till now often forgotten. Here there is one recognition that a custody order may go forth without that economic union of dollars being attached to it.

So again, many situations that have not been covered before, the Attorney General has covered in this piece of legislation.

This bill, I suggest, will be innovative. This bill will resolve many of the problems perplexing the matrimonial laws of this province. This will cure some of the ills.

To some it may be too futuristic. I’m not unmindful that there will be critics of this piece of legislation. It may not be perfect, it may not be the ideal, but it has embarked upon an area that has not been touched before. It has embarked upon areas that hitherto have given to the profession, to the spouses, to the judiciary, too many problems. These may be overcome by this piece of legislation. I hope they will.

The bill will lessen the burden, the wreckage left by unleashed emotions which, assisted by an outdated legal system, destroy many a possibility of solving matrimonial disputes. Let us hope that this piece of legislation will pass quickly through committee and this House and put some harmony into the dissolution which may before not have had that harmony.

Mr. Lawlor: Hallelujah.

Ms. Gigantes: I rise in support of this bill -- in support because although the bill is not good enough to provide a public reflection of the equity we feel to be vital in good family law, I feel it’s not bad enough to be rejected in principle.

Ontario has waited so long for reform on the subject of property rights and support obligations attached to the family relationship that this bill is a major relief, even though it’s far from ideal. As most housewives would probably agree, half a loaf is better than none. It is a paradox that it is in the dissolution of a marriage that we can examine the degree of equity that exists in the institution of marriage. It is sad to see that this bill does not provide for the full equity of the partners in marriage. I’ll concentrate on two points to explain this judgement.

First of all, there is the definition of family assets within the bill. Section 3 of the bill defines family assets as follows: “Property owned by one spouse or both spouses and ordinarily used or enjoyed by both spouses.” These are the family assets, which according to Bill 59 will be equally divided between the partners in the event of the ending of the marriage.

But is it easy to see how limited a notion of equity this definition implies and how limited a reality of equity it would provide in many cases. One partner, for example, may own property which is not “ordinarily used or enjoyed by both spouses.” Or one partner may hold money in an account which is not ordinarily used for family expenses. This property or account would not be included as family assets within the definition of this bill and would not be subject to equal division between partners, in spite of all the flowery words we heard from the government benches just a moment ago.

I would like to quote briefly from a brief which was sent to the justice committee, which had been considering an earlier version of this same bill, in the spring of this year. It came from one Dianne Baig who is a member of the social planning council of the Lakehead.

“The Ontario government has chosen to ignore the deferred community system recommended by the Law Reform Commission and institute instead the family assets approach which, it claims, is a blend of the judicial discretion and the deferred community systems. The deferred community system recognizes marriage as an economic partnership. Upon marriage breakdown, the product of the marriage, that is, accumulated assets, minus what each partner brought into the marriage, and excluding also gifts and inheritances from people outside of the marriage unit, are divided equally.

“In the position paper entitled, ‘Remarks of the Hon. Roy McMurtry, Attorney General,’ at the Law Society of Upper Canada program on family law, July 30, 1976, at page eight, the government gives its reasons for not following the recommendation of the Law Reform Commission, reasons which on examination are non-substantial. The government is, in effect, paying lip service to the idea of marriage being an equal partnership and, at the same time, severely restricting the assets which are liable to division on marriage breakdown.”

There has been an improvement in the legislation that is before us, compared to the legislation that we looked at in earlier sessions. I will read a section of the bill which, I believe, will allow in Ontario under this legislation one partner to be able to make application for consideration of sharing of the old interests of the family on the breakup of the family which was not permitted under the old bill -- certainly not with the kind of wording that this bill directs towards judges and lawyers.

In section 7 we read: “Where one spouse or former spouse has contributed work, money or money’s worth in respect of the acquisition, management, maintenance, operation or improvement of property other than family assets, in which the other has or had an interest, upon application the court may by order

(a) direct the payment of an amount in compensation therefor; or

(b) award a share of the interest of the other spouse or former spouse in the property appropriate to the contribution,

and the court shall determine and assess the contribution ... without regard to the relationship of husband and wife or the fact that the acts constituting the contribution are those of a reasonable spouse of that sex in the circumstances.”

I hope it is this section, because the others would not provide for it. I hope it is this section which will ensure that in Ontario under the legislation the famous Murdoch case would not be repeated. I hope that clause will give the protection that is required for the dependent person in a marriage to have access to a sharing of all the wealth, if you like, Mr. Speaker, that is owned by the family.

On the second point I wish to raise, the whole controversy that has gone around the question of conduct and whether or not, in legislation of this kind, the conduct of the applicant for a benefit in a division of equity should be considered. A previous bill, 140, which was the forerunner of this legislation, defined that in determining the amount of support to be paid to one partner by a second, the court should consider “any course of conduct by the applicant tending to repudiate the relationship.”

I feel, and my colleagues on the justice committee felt, I think, and still feel, that that clause is much too wide open to see a repetition of the kinds of judgements that have been made on the behaviour of the dependant, who is usually the woman, in terms of trying to decide how much that dependant shall be allowed to benefit in the division of the equity, the wealth of the family.

I would like to read briefly from a submission on this point of conduct sent to the justice committee, in earlier consideration of earlier similar legislation. The provincial council of women is not particularly noted for being wild-eyed. It’s a very responsible group and I think its submission to the justice committee was of high quality. This is what it has to say on the question of conduct:

“Should fault matter in awarding support? Last January, Judge Steinberg in Hamilton told a panel on this subject which was co-sponsored by the council that fault should be retained, because if people didn’t feel guilty and hadn’t even been found at fault by the courts, they could never be made to meet their existing support obligations.

“He failed to add that at least 70 per cent of men owing support don’t meet those obligations anyway. Obviously court-decreed guilt doesn’t provide much in the way of positive reinforcement. Various individuals,” including the Attorney General himself, “have argued that some behaviour is so gross that if a court were required to overlook it, this would instil a sense of gross injustice in people. And yet neither the existing law nor the proposed law talks about behaviour so gross that it cries to heaven.

“Existing laws contain certain conduct conventions -- desertion and adultery, for example. These acts are easily established. These acts are also typical of behaviour during the breakdown of a marriage relationship. They are the outcome, the result of a problem. Often they are the end result of years of psychological warfare waged by the so-called innocent party. It is widely accepted that these conventions mock the concept of justice and often discredit it.

“Similarly, the proposed law merely refers to conduct tending to repudiate the relationship. The proposed law does not speak of gross conduct. It does not stipulate that this conduct must have occurred during the time the spouses lived together. Thus, a dependent wife, the victim of, say, 15 years of psychological bullying by her husband, who leaves, deserts, will probably still have no claim to support. Yet, she worked within the partnership for years and has never developed an ability to support herself because of her work within that partnership.”


The council went on, Mr. Speaker: “If the Act means gross behaviour it should say gross behaviour; otherwise, you know as well as we do that the judges in our courts -- judges are people and hence like most of us creatures of habit -- will continue to use the same discredited case law derived from the application of the principle of fault when they are deciding support questions.

“In concluding our comments on fault we must refer to the tragic effect which interminable wrangles and artificial convictions have on the children involved. Is it worth it, simply to provide a rationale for collecting support? It’s hard to believe that a concerted effort to establish a climate of toleration would not do at least as well financially and much better emotionally for all concerned.”

Those were the comments of the provincial council of women looking at the previous bill. We’re pleased to find in the new bill some change on this subject. Bill 59 has a change in the wording on the subject of conduct. In section 18(5), it reads as follows: “The obligation to provide support exists without regard to the conduct of the spouse requiring the support, but the court may limit the amount of support having regard to a course of conduct that is an obvious and gross repudiation of the relationship.”

I would prefer to see all mention of conduct removed from the legislation. Obviously, what we are dealing with in Bill 59 is a big step forward from the previous bill. It’s better but it’s not good enough. There is, for example, no limitation on the time when this gross and obvious conduct is judged relevant to the alleged repudiation of the relationship. One would think that the time should at least be limited to the period of cohabitation.

I’d like to mention one final problem, and to begin with I’ll refer back to the quotation I provided earlier, from the brief to the justice committee by the provincial council of women.

Mr. Speaker: I must remind the hon. member that that was in response to a previous piece of legislation that we’re not dealing with tonight.

Ms. Gigantes: Exactly. I wish to point out that this is why I can support this bill -- and with these clauses in it -- more easily than the last bill. There has been improvement which I’m pleased about.

The provincial council of women in the earlier brief noted that 70 per cent of men owing support don’t meet their obligations. For many men, the case is simply that they can’t meet their obligations. But there are many who can and don’t. Bill 59 provides for garnishment of wages in such cases and assigns priority to attachment of wages to meet support orders over attachment of wages for any other purpose.

Further, the sections 26 and 27 of the bill provide that notwithstanding the Proceedings against the Crown Act, employees of the Ontario public service can also be subject to an attachment of their wages. There is no such protection provided for a dependent partner whose spouse is a federal public servant; and it’s obviously outside the jurisdiction of the government of Ontario to provide for change in the privileged status of federal public servants or remove their haven of attachment-free wages.

But -- and this is a very important matter -- the Ontario government could bring enough pressure on the federal government to amend its own legislation on the question. I believe the Attorney General of Ontario could win the co-operation of the federal government on this matter if he would, and I think he should.

Particularly coming from the Ottawa-Carleton area, I’ve run into a number of women who, in spite of court orders for support from former husbands, do not have any security of support or in some cases any support paid to them because of the legal interdiction against the attachment by the Crown of wages of federal public servants.

The Attorney General told us in the spring, when we were considering Bill 140, that he would pursue the federal government for the required reform on this point. I would like the Attorney General to provide the members of this Legislature with whatever correspondence he has had on this question so that we can know the degree of vigour with which he’s fulfilling his commitment to members of the justice committee. Women in Ottawa are waiting for this change.

Women in Ontario are waiting for the family law reform contained in this bill. It’s a reform which is urgently needed and which we must pass, with reforms, with all due, deliberate and considered energy.

Ms. Bryden: Before I commence I would like to take this opportunity to congratulate you, Mr. Speaker, on your elevation to the very high office which you now occupy. I don’t think a better choice could have been made. We have admired your fair-mindedness as Deputy Speaker in the past, and we look forward to many sessions under your fair-minded tutelage.

Mr. Reid: Benevolence.

Ms. Bryden: This bill is somewhat unusual in that it has a preamble. Preambles are not very common in Canadian legislation. You find them much more in American law. I’m not sure whether I think we should be adopting Americanisms, certainly not just for the sake of adopting them. We should look rather at the purpose of a preamble. It seems to me that it can be one of two things, either a statement of motherhood or a statement of philosophy. If it’s the former, it is certainly redundant. If it is the latter, it is liable to provoke some disagreement among members of the House who represent different philosophies in their respective loyalties and their respective beliefs.

It also is questionable as to what is the role of a preamble before the courts. To what extent should a judge take it into account in interpreting any of the following sections?

I wonder about the motivation of the government in putting in the preamble, because it deals with three points. First, it says that “it is desirable to encourage and strengthen the role of the family in society.” I think most of us would support that principle but when we look at the details of the legislation one wonders whether it really implements that principle, because the thrust of the legislation is not to strengthen the family but to deal with the breakup of the family and to envisage the breakup of the family.

The fact that the legislation, in its latest versions anyway, recognizes such a thing as a cohabitation agreement in addition to a marriage contract indicates that the legislation has a rather broad view of the family. It probably is a recognition, though, of our present society where there are a good many common-law marriages and there are a good many reasons why people enter into common- law marriages and it probably is desirable to recognize them in the legislation, but some people may ask, “Is this encouraging the family?”

The third thing in the legislation which perhaps goes contrary to that premise is the stress on the adversary system. There will be a great deal of the settlements under the legislation which must be effected through a court, and the stress on the adversary system as opposed to attempts at reconciliation, at pre-breakup counselling, and so forth. This does leave one to wonder whether the legislation really is designed to encourage and strengthen the role of the family.

The second point in the preamble is a statement of the equality of men and women in marriage and to recognize marriage as a partnership. I’m sure that all of us agree with that statement but it has been enacted already in previous legislation in this House and I’m not sure whether it advances the concept any further.

The third point in the preamble is recognition that there should be an orderly process of settling the affairs of the spouses when there is a breakup. I think that is a gratuitous statement. It leads one to feel that the preamble is largely a window-dressing statement which is not fully supported by the actual implementing sections of the Act which follow. It is, perhaps, a statement of the intent of the Act in the three sections of the preamble but, as with a lot of other legislation from this government, we find that the intent is not always carried out by the details when you look at them closely.

For instance, we are not satisfied that the bill does achieve all the objectives and we have pointed out some of the shortcomings of it. We’re pleased to see that some of our objections have been met in the third version which is now before us and some of the points raised by people appearing at the public hearings have also been met.

For example, we noticed that in considering the amount of support, losses of a pension benefit have been taken into account. We also noticed that the statement of how to value the spouse’s contribution in determining her share of a commercial asset has followed the wording of section 1(3)(c) of chapter 41 of the 1975 Act which we had suggested should be incorporated into the new legislation because this wording, I think, would prevent a Murdoch case decision and I think it does provide that the spouse’s contribution as a spouse, regardless of her contribution of work or money, is recognized in the buildup of assets. So those two things are valuable advances from one version to the other.

However, our main criticisms of the bill’s deficiencies have not been met. For example, the definition of assets is still much too narrow and does not really provide for equal sharing of property. Most commercial assets are excluded, except under very specialized circumstances where the judge can take them into account when a case comes before a judge.

The family home, as my colleague has pointed out, is not vested in the two spouses but becomes a matter of deferred ownership after the breakup of marriage even though there is the right to occupy it during marriage.


There is the question of retaining the consideration of conduct, although here, too, the government has listened to some of the complaints and has considerably modified the wording so that the conduct that is to be considered is conduct that amounts to “an obvious and gross repudiation of the relationship.”

While we have our reservations as to whether even that should be included, I would hope that the jurisprudence will show that that section is very rarely used, if at all, because I think that when it’s a question of maintenance, people enter marriage for better or for worse and they are entitled to maintenance if one has suffered a disadvantage during the marriage.

We also think there is still too much discretion left to the courts in the law and that there should be more outright rules about the sharing of assets so that fewer cases will have to go to the courts. There will thus be less of a bonanza for the lawyers. There will also be less call on the legal aid fund. Overall, there will be less of this adversary relationship and the dragging into court of all sorts of family matters, which can do very little except exacerbate the bad relations that have led to the breakup and which can have profound effects on the children as well.

Another defect in the legislation, I think, is the extending of the recognition of a common-law marriage from two years to five years. This seems rather too long. If we are going to recognize common-law marriages, I think a shorter period would be desirable. Under the Workmen’s Compensation Act, a common-law marriage that has been in effect for two years is recognized for the purpose of benefits. I would ask the minister if he would answer whether or not that particular right under the Workmen’s Compensation Act to receive compensation benefits would be affected by the definition of a common-law marriage under this Act.

Despite these defects, we have decided to support this bill on second reading because we feel it is high time to start clearing away the cobwebs and archaisms in our family law legislation. In fact, Ontario is now behind other provinces in this process, as it is in a lot of other social legislation. Manitoba has a much better Act on the statute books already and I doubt very much if the new government there will have the courage to provoke the wrath of most women and a great many men in the province and repeal the bill or water it down.

This government has been dabbling in this field since the spring of 1975, when it brought in a very simple bill declaring that married men and women were equal before the law, but that didn’t go very far to remove all the cobwebs and the archaisms in our family law. Since then the government has produced three versions of this bill, held a few public hearings on the first version, and then scuttled version three by calling an unnecessary election which made very little change in the composition of the House.

Mr. Martel: A $6 million roll or a $3 million roll, I’m not sure which.

Ms. Bryden: Right, it cost the taxpayers probably $30 million and simply delays for another year the adoption of any family law reform. We think the government should bear the blame for the delay in this legislation and we regret that the women and men of Ontario have had to wait so long for some modernizing of family law.

It may be that the legislative logjam which the government has created by its unnecessary election will delay further consideration of this bill before the end of the fall session. We hope that will not be the case and that the bill will be given the kind of priority it deserves. We hope and pray that it will not be allowed to die again on the order paper. Unlike cats, legislation should not have nine lives, and this legislation has already died twice.

Despite its shortcomings, we intend to support it. I think there are three reasons why I feel I want to support it. One is the inclusion of section 65, which re-enacts the statement in the 1975 legislation about the equality of married men and women and their independence before the law, and the fact that they have all the rights of an unmarried person. While this is a re-enactment I think it is worth restating and I think it may have effects far beyond the field of marriage breakup. I think it may have an effect on the whole attitude of men and women towards each other and towards the question of equality of the sexes.

A second reason for supporting it is the wording in section 7, which I have mentioned, which recognizes the contribution of the spouse who stays in the home and contributes to the child-rearing responsibilities while her spouse may be developing commercial assets.

The third reason for supporting it is the sweeping away of all the archaic family law which my colleague from Lakeshore mentioned and the bringing up to date of some of our ancient statutes. In many cases these changes should have been made long ago. Only a moribund government would have left the cobwebs around so long.

For these reasons we are prepared to support this first tentative step in family law reform. We hope it will not be the last and that we won’t have to wait another 34 years for some more steps.

At the same time I want to indicate to the government that we do not think this is the be-all and end-all of family law reform. We think the government must undertake much more positive steps in addition to this law to strengthen the role of the family in our Ontario society. It must do this by action in such areas as the provision of affordable housing, helping parents with handicapped children to cover the extra costs that they incur, and seeing that things like family counselling are adequately funded instead of being the first areas subject to the savage cutbacks of the Treasurer (Mr. McKeough). Day care is another area where they must advance, rather than follow the trend, which is to eliminate practically any new day-care development this year.

In addition, we want to see much more action from the government in reducing the dependency of women so that it will not be as necessary to require spouses to provide financial support for each other. The federal Law Reform Commission, in its booklet on maintenance on divorce, said:

“What the law should not do is perpetuate or sanction the idea that marriage itself is an arrangement provided by society as an alternative to full participation by women in all levels of the economy or to retain female dependency roles that furnish a convenient rationalization for denying women an equal opportunity to do so.”

We must have more vigorous action to put women on an equal basis with men in job opportunities, in education, in retraining. We must have action to raise women’s earnings by application of the principle of equal pay for work of equal value. In addition, we must see that whichever spouse takes on the responsibilities of child-rearing is given the opportunity of part-time work and of retraining when they re-enter the labour force.

It should of course provide for the provision of adequate day care. In fact, there is a danger that this bill may lead women to believe that the only way they can escape from dependency is to arrange for a marriage breakup and hope that a judge will give them an adequate allowance to ensure their independence. Of course, that is not a solution that we are recommending.

The elimination of dependency will also depend on a change in society’s attitudes towards the responsibility of child-rearing. Both spouses must accept equal responsibility for it, and if they prefer to have one specialize in the discharge of this responsibility, there must be arrangements under the law which will adequately recognize the value of that contribution to society, and will ensure that whichever spouse takes on the work of childrearing is not at a disadvantage with the other in regard to either remuneration or career opportunities.

I hope the government will consider these additional positive steps that it must take in this field of encouraging and strengthening the family, removing the disabilities which women suffer under the law and eliminating the barriers to full participation in society by women, which have resulted from the position of dependency for many of them.

It is only a step along the road, but as we all know the saying goes, “Every journey starts with the first step.”

Mrs. Campbell: Mr. Speaker, I don’t intend to speak at length on this matter at this time. I think that full debate will come in the committee and that that is where it appropriately should occur.

I would like to say a word or two on the matter of conduct because it has been something which has been disturbing to me for a long time. I suppose in part one finds it difficult to dissociate oneself from that which has been taking place in our courts and in our statute law over the long years, where without question the matter of conduct was related in precise terms to the conduct of the female in the marriage situation.

When you approach the matter of conduct in this particular bill you tend to relate it to the past experience. I think this is quite appropriate for all of us who have been very much opposed to the specifics in the Deserted Wives’ and Children’s Maintenance Act and other pieces of legislation which allow a judge no real opportunity to look at the facts of a case if one finds, for example, a wife has been proven guilty of adultery.

So that in looking at this particular situation, I suppose that the first view one has of it with that experience is that when conduct is raised in this bill in any form, it is apt to relate unfairly to the female portion of the marriage.


However, I had the opportunity some months ago to speak at OISE on the matter of battered wives. I may say that those with whom I spoke who had been battered would not wish to be in a position where they might at any time have an order made against them for the support of a battering husband. I think we have to get this into that kind of perspective. I would hope that there would be very full discussion of the matter of conduct when it goes to the committee.

As for the other matters, there are two of them which have disturbed me throughout. I certainly am concerned about sections 16 and 17 of the bill. I would like to urge when it goes to committee that we might look very seriously at those two sections because I wasn’t present for all of the deliberations and I am wondering if perhaps those two sections were somewhat lost in the general concerns of the marriage, the marriage breakdown and support and these sorts of things.

I am aware that it seems to be, if I may make an inference legally or otherwise, a matter of the philosophy of the ministry that if parents haven’t established a relationship with their child whereby at the age of 16 the child wishes to leave home, there is very little that anyone can do about it. There are certainly those children who ought to leave home because of the damaging effects of the home. I do have a very real concern about this provision because so often one sees a child at the age of 16 making all sorts of determinations which, had there been an opportunity for the child to remain longer at home, there might indeed have been a different result in the manner of the life of that child.

I feel that in some ways in subsection (b) there is almost an encouragement to everybody to ensure that the child does not remain. I wonder if (b) couldn’t be strengthened at least to consider the fact that the child is unable by reason of illness or disability or -- something to this effect -- is at the point in time in an educational institution, something which was brought in by way of an amendment a few years ago, because when one says unable to withdraw then one does sort of infer that the cause must be something in the nature of a disability of one kind or another.

I do feel that we should make it clear. We must remember that in these cases so often there is a family breakdown and almost any kind of excuse is given in order to evade responsibilities for maintenance of a child beyond the age of 16. I would like to have greater protection built into that section if, in fact, the committee is of the opinion that that is appropriate -- certainly being in the charge of a parent, but unable by reason of illness or disability, fine.

The other clause I think ought to be clarified at least with reference to education and educational opportunities for the child. I would like to say that this is strengthened. I don’t know the interpretations at present, but of course in the legislation with which I was most familiar it was in precise terms and it certainly made it a lot easier to try to enforce orders, for example, for the protection and maintenance of a child.

I also feel that when it comes to a matter of conduct we ought at least to be very careful that we have very strong provisions under section 17 on the obligation of the child, because certainly I have had representations made to me by young people in our community and they feel very strongly that, having in mind the conduct of the parent in this particular case, they would leave the country before they would undertake any sort of support.

I know that this matter will be going to the committee. I don’t know whether my remarks would be helpful to the committee but I give them for what they are worth and trust that at least the committee will give due consideration to those two sections and not perhaps spend all of its time on the other sections which have been debated at length in the past.

Mr. Bounsall: Mr. Speaker, in the debate on this family law reform bill’s predecessor, Bill 140, on November 18 last year, I expressed my severe disappointment with the approach taken in the family property section of the bill, and outlined my objections and my position carefully as to what I would like to see -- indeed, felt very strongly should be -- in any family law reform bill in the province of Ontario.

I concluded my remarks in that debate by saying, and I quote, “I don’t really see this bill, therefore, as much of a step forward at all. The bill is such that I will not vote against it now. I would hope 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, basic changes don’t take place in the family property section at the committee stage.”

The previous bill has gone through extensive committee hearings and there have been virtually no basic, significant changes in the family property section. I therefore, cannot vote to support this bill in this form and feel that there is no way that this bill can be amended to reverse the attitude that one sees expressed in the family property section.

I still support, in full, the approach taken by the Ontario Law Reform Commission in which all assets acquired since marriage are divided equally, including the appreciation on all assets owned singly and separately before marriage and the appreciation on things such as gifts, inheritances and damage awards. Those last three, in my opinion, are the only items attained since marriage that seem reasonable to exclude from the capital split. But again, the appreciation on those three items certainly should be included in the split.

Anything short of this, in my opinion, does not recognize that marriage is an equal partnership. The provisions of this bill, with its very narrow definition of assets and with all divisions in any dispute left to judicial discretion, do not in any way guarantee that equality in marriage, and therefore that marriage is an equal partnership, is recognized.

A bill like this is extremely long overdue and, when finally passed, it is not one which we will see back for amendment in the very near future in terms of its basic approach, certainly in the family property section. In this bill we are setting down a system that is going to operate in this province for quite some time. It is at this point in this bill’s life that we should write our philosophy of marriage, and what happens when that marriage breaks up, in a clear and succinct manner and in a way that’s going to last for a considerable time in the province of Ontario.

I don’t think we will see amendments to this Act in a basic form. There may be some twiddling with the figures at the edges, but nothing basic for many years. The only thing that would militate against that, of course, would be the government’s changing; and let’s hope that will happen so we can get at this bill before many years pass.

I don’t think the family property section can be amended either. I feel I must vote against this on second reading because I do not feel the basic approach now embodied in this bill can be amended in committee. What we have in the family property section of this bill is a blend of deferred community of property with judicial discretion, large amounts of judicial discretion -- in fact, judicial discretion coming in at every turn of the road -- in virtually every clause as you go through this division. As well, assets are very narrowly defined.

Faced with the same situation as we have here in Ontario, the province of Manitoba has taken the right approach, in my opinion. The province of Manitoba has a system of deferred community of property for all the commercial assets.

Hon. Mr. McMurtry: Manitoba should have known; they thought of the approach.

Hon. Mr. Kerr: Do you think that new government --

Mr. Bounsall: No, it’s in.

Hon. B. Stephenson: You don’t suppose it had something to do with the election results?

Mr. Bounsall: No, not at all.

Mr. McClellan: Do you think he is going to abolish that?

Mr. Bounsall: This is one that won’t change. This is one bill -- I will stay on the principle of the bill, but let me make a slight detour with respect to what I was going to say. This is one bill for which there is no party philosophy. I don’t think any party philosophy comes into one’s approach to what one feels should be the equal division of marriage property upon the dissolution of that marriage. I don’t think there is a Conservative approach, a Socialist approach and so on. I think it’s very much a matter of how each person sees equality in our society; and I’m willing to admit that no one party has a corner on the market on what one thinks of equality. The only thing which comes into this bill -- and it’s rather ironical and it doesn’t really touch the bill, is the fact that I as a socialist find myself getting on my feet and talking about --


Hon. Mr. Kerr: You are admitting it.

Mr. Bounsall: -- a division of property when I don’t believe in private ownership of property in the first place.

Hon. Mr. Kerr: Arrest that man.

Mr. McClellan: Go back to sleep.

Mr. Bounsall: Having had to accept some private ownership of property in the first place rather than an Israeli-style kibbutz system across Canada, one then is confronted with looking at how one should equitably and equally divide that property.

Hon. Mr. McMurtry: You are asking all sorts of people to taint themselves.

Mr. Bounsall: To taint themselves?

Hon. Mr. McMurtry: Yes, if you believe in non-ownership of property.

Mr. Deputy Speaker: Order, please. The member for Windsor-Sandwich has the floor.

Mr. Bounsall: I’ll be interested in talking to the Attorney General in committee in this regard when that committee reconvenes.

With the Manitoba approach of saying the non-commercial assets will be divided, but we will defer that until the marriage breakdown -- deferred community of property -- but everything else being a shared community of property during marriage -- that is the matrimonial home, the furniture, the family car et cetera and virtually all of the non-commercial aspects -- they have arrived at a position which I feel is consistent with the recommendations given to us by the Ontario Law Reform Commission and one which I could certainly support.

But we have in this bill the opposite of that. It’s interesting that we take the matrimonial home and the other things associated with the matrimonial home and say they will defer those and share upon the dissolution, but it’s a deferred one. Although it’s interesting because of the way in which you have to give your permission for sale, et cetera, you inevitably arrive at the same conclusion, I would think, which is that you cannot sell without permission, meaning that in fact you are anticipating doing some sharing in the decision-making even while the marriage is in effect.

It would have been much neater and cleaner to say simply that all the non-commercial assets are shared during that marriage. This bill takes a completely roundabout way of arriving at roughly that same point. The attitude expressed and the way one arrives at that position not only is circuitous but is in fact the wrong attitude to take. All the non-commercial assets should be shared communally during marriage and all the commercial assets be a deferred community of property system for the division, which is the exact opposite of what’s in the bill.

Therefore, I cannot see how we can in this bill in committee basically reverse the clauses of the bill. I’ve taken advice on this, and understand and have been told that it would be a complete reversal of the principles here embodied. Not that that might not be tried by someone. I don’t know; but it’s too basic a reversal in principle for anything to be achieved by amendment in committee, no amendments of this nature having been pressed upon, or accepted at least, by the Attorney General as a result of the lengthy committee hearings of last winter and spring.

In addition, according to what we have in the bill, I frankly object to and do not trust judges’ decisions in any property decisions involving women.

Mr. Roy: There we go, what are we going to replace them with?

Mr. Bounsall: If, for example, at this time half of our judges were women and all of those judges were children of the 1950s rather than the situation we have, I might not feel the way I do. But the decisions that judges have made in the past where it comes to a division of property between men and women, the man and the wife, in the event of a marriage dissolution --

Hon. Mr. Kerr: Interpreting the law.

Mr. Bounsall: -- give me absolutely no confidence that the judges of today should be the group of people to which judicial discretion in this regard can be entrusted. We may get there but it’s going to take a long, long time.

I don’t mind preambles to bills in the Legislature. I think they’re kind of fun because one can use them in estimates to twit the ministers about because the bills themselves do not live up to the preambles. There are very few that have them. The Labour Relations Act has one which directs the minister to help organize unions across this province, in essence. Of course, the other clauses within the Labour Relations Act ensure that this does not happen, in essence.

Here, we have a preamble to this Act. I think that “whereas” one and three are quite acceptable, and “whereas” number two is quite laudatory. I will read that “whereas”: “And whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership.” It is negated by the bill itself. The bill itself negates that second “whereas” without question, because marriage is not going to be an equal partnership as it’s implied by this second “whereas.”

There are other things about the bill that concern me a bit. The conduct section in section 18(5) simply is unacceptable as it stands but would be acceptable if it concluded after the first comma so that the section read: “The obligation to provide support exists without regard to the conduct of the spouse requiring the support.” If it stopped there it would be acceptable. The way it goes on to talk about gross repudiation of the relationship, and conduct and so forth, simply is unacceptable. Again, we’re leaving tremendous discretion to a set of judges who, in the majority, I do not trust to interpret this in any reasonable way.

Mr. McClellan: He’s starting to convince me.

Hon. Mr. McMurtry: It’s an irrational attack on the judiciary.

Mr. Bounsall: No. The Attorney General says it’s an irrational attack. No. All one has to do is look at their decisions in measures regarding family property and how they’re likely to interpret conduct, particularly as it relates to a woman. I challenge the Attorney General to come forward with the decisions that would ease my suspicions, which are certainly there.

Certainly, the Ontario Law Reform Commission approach would simply use the services of accountants in a neat, clean, impersonal and very understandable way, of course. The Law Reform Commission method, with the use of accountants to determine the split, is one which anyone can follow. If one can add, subtract and divide by two, anyone can follow what has been done in arriving at the split so arrived at.

Perhaps some members of this House would have problems with that. I would hope not. The suspicions which I have heard voiced would lead me to think they think there’s an exponential term or something involved in adding, subtracting and dividing by two but --

Mr. Lawlor: Damn scientists.

Mr. Bounsall: But if they ever need any help, I’m available at all hours on dividing by two.

Mr. Breithaupt: Or even multiplying.

Mr. Bounsall: No, we don’t need to multiply, that’s the interesting point. You never need to multiply in this bill, in this method of accounting. At least, if you need to multiply you can get around it by simply adding.

Mr. Lawlor: You can always do that.

Mr. Bounsall: So there’s nothing complicated about the other approach. There is nothing lengthy about the other approach. Certainly, there’s nothing as complicated as trying to follow the convoluted arguments presented before the judiciary -- and I don’t envy the judiciary in this position, in having to involve themselves in legislation of this type. I may not trust them on the one hand, but on the other hand I don’t envy them their job either, because this legislation is not clear enough. It gives them far too much discretion and not nearly enough direction, whereas of course under the Ontario Law Reform Commission approach I would remove them from the --

Mr. Lawlor: Do you think they can add?

Mr. Bounsall: I have been asked if I think the judges can add. I would say yes, except I have heard from lawyers, who tend to be the people who become judges, that they have problems adding. So in response to that question, I can only consult with lawyers.

Section 7 again is believed to be the one that takes care of the Murdoch case in the minds of the people who try to find a way to supporting this very bad piece of legislation. But here again I think it’s a hope, because here in this section it’s the judiciary which will be determining the money’s worth of the work contributed to the marriage by the wife -- judiciary discretion again. I really don’t think, again for all the reasons I have mentioned, that that kind of discretion should be left in the hands of the judges which we have in Ontario today.

Mr. Breithaupt: Who would you give it to?

Mr. Bounsall: You obviously don’t know -- I say this in no critical way -- that the Ontario Law Reform Commission has said quite simply it’s an accountant who simply adds up all those things which are to be divided equally and presents it.

Mr. Breithaupt: That seems more sterile than --

Mr. Bounsall: Yes and that’s one of the advantages of doing it. It is one of the advantages of doing it because it is quite impersonal. Among the things, as any member is aware, involved in breakups are some tremendously damaging emotional scenes, including the whole appearance before the courts and so on, which I think would be best avoided.

Mr. Breithaupt: I have a fear for a law that’s quite invincible.

Mr. Bounsall: And of course once it’s as clearly cut and dried as that, it’s like studying Latin. You know where you are when you go into a marriage and you know where you are throughout it and know what’s going to happen should you get out of it. That’s the kind of well-defined situation that we should be having in Ontario with respect to the legal state of getting married and getting divorced.

All of those persons who have contacted me over the years -- mainly women I will admit -- about their property and asset division problems which arise upon the dissolution of the marriage, when they see and hear in the media that a bill is coming up again reforming family law phone me again with some enthusiasm. I find myself in a position of saying to them: “This bill is a step forward only if you get a very good, committed lawyer and have the very good luck to come before an enlightened judge,” a combination that is not likely to arise too often.

I must vote against this bill because it does not establish a deferred community of property for commercial assets. It does not establish a shared community of property during marriage for all the non-commercial assets, such as the matrimonial home, furniture or family car, et cetera. Therefore it does not equally share the property and therefore it does not recognize that marriage is an equal partnership with the home-residing spouse still getting the shaft under this legislation.


Hon. Mr. McMurtry: I will attempt to be relatively brief in view of the fact that this matter is going to the standing committee where there will be very full debate. I certainly welcome the continued full debate on this very important piece of legislation, although I must say I am heartened by the suggestion, even though I appreciate it was put forward by the member for Lakeshore as a possibility only, that this legislation could be dealt with by the committee and reported back to the House before the end of the year; because even those who are somewhat less than totally enthusiastic in their support of the legislation appreciate, or do indicate, that it’s a valuable step forward, and I think would concede that it’s in the public interest to make this legislation into law. We happen to think it is good legislation, and even those who have criticized it at least seem to share the view that it is an important step forward.

I would like to thank the Justice critics of the two parties opposite for their valuable contribution during the past year in the ongoing debate in relation to this legislation and the members of the justice committee for the efforts they have expended in improving the legislation with respect to the principles that were accepted on second reading when it was first debated in the House. I am grateful for the interest that has been demonstrated by all of the members who participated in the debate on second reading with respect to the earlier bill and again with respect to this legislation. In view of the fact that it is going to standing committee, I don’t intend to attempt to respond to all of the speakers, as I don’t think it would serve a useful purpose.

I would like to thank the member for Ottawa East for his support in relation to the family assets approach and for his recognition of the wisdom of enshrining in the legislation the wide judicial discretion. Obviously, this view is not shared by the last speaker who feels somewhat uncomfortable with wide judicial discretion. But I think we have to recognize that a rigid system and rigid guidelines can likely cause more injustice than providing the courts with the tools to arrive at the most just result in any particular case.

In so far as the family assets are concerned, it has been the view, not only of the government but the view of many thousands of people about the province who responded to the Ontario Law Reform Commission’s report in relation to the deferred community property proposals, that this would build in a rigidity that just was not in the public interest. It wasn’t just a matter of equipping people with an adequate lawyer, but obviously to resolve this would require very expert legal assistance, as well as accounting assistance and could cause a very serious dislocation with respect to ongoing businesses that would not be in the long-term interest of dependants who would be looking for support through these assets.

I think what we have accomplished by section 4 and section 7 of the Act is very broad judicial discretion, which in effect allows the court to attach any assets whatsoever in order to arrive at a just result. With this approach, combining as it does the best of what we have been able to find with respect to presumption of property sharing on the one hand and wide judicial discretion on the other hand, I am confident that the judiciary in this province is committed to arriving at a just result in each and every case.

I must admit I regard the comments as nothing short of ludicrous in the statement suggesting that male judges should not be trusted to deal with property matters in so far as they affect the women of the province. To hear such a ludicrous statement coming from a member of this Legislature, in my view --

Mr. McClellan: Look at the record.

Mr. Bounsall: Show me the record.

Hon. Mr. McMurtry: -- I can only regard it as distressing. I think that’s putting the kindest character to it.

The matter of conduct is a matter that has caused us all some concern and I think it may be of interest, particularly as the member for Carleton East (Ms. Gigantes) has expressed concern in relation to this legislation and some other legislation regarding how the term “gross and obvious conduct” is defined.

This definition, this phrase is taken from English legislation. I think it might be of assistance to that member, as well as members of the Legislature generally, if I were to refer very briefly to a leading decision from the British courts, namely the decision of Lord Justice Denning in the case of Wechtel versus Wechtel, which as I stated is one of the leading English cases dealing with this issue. I quote as follows:

“There will be no doubt a residue of cases where the conduct of one of the parties is, in the judge’s words, ‘both obvious and gross,’ so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support where it would otherwise have ordered. But short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame.”

In another case of Harnett and Harnett, Lord Justice Denning has this to say about the same legislated phrase. I quote: “It will not be just to have regard to conduct unless there is a very substantial display between the parties on that score.”

Further on, Lord Justice Denning states: “In my view, to satisfy the test, the conduct must be obvious and gross in the sense that the party concerned must be plainly seen to have wilfully persisted in conduct or a course of conduct calculated to destroy the marriage in circumstances in which the other party is substantially blameless. I think that there will be very few cases in which these conditions will be satisfied.”

There is a decision of the English Court of Appeal in relation to this phrase that we have incorporated which undoubtedly will be of great guidance and assistance to our own courts.

The member for Carleton East also directed a question to me in relation to what progress we had made with respect to support orders in relation to the federal civil service. We have been advised by the federal government that they have supported the right to garnishee federal civil servants in principle. We are waiting to see some action in that regard, and we will continue to press them.

There was some reference made to the adversary nature of the legislation. I would only like to inform the member for Beaches-Woodbine (Ms. Bryden), who raised this issue, that we have conciliation projects that are in place in various parts of the province. In our view, the proposed legislation leaves the field wide open to plug in as many family support services as any community may wish. Of course, I would remind the members of the Legislature that the parties at all times are free to settle their disputes by a simple agreement. At the same time, for those who are unable to resolve their differences outside of the courtroom structure, even with the assistance of conciliators, I think it is essential that the fundamental right of the citizen to his or her day in court be preserved; hopefully, that will be the appropriate and desired course of action in only a very small percentage of cases.

The member for St. George (Mrs. Campbell) raised some issues in relation to support of children. I would simply state that that wording was taken directly from the federal Divorce Act in order to maintain some degree of uniformity between the two pieces of legislation in relation to marriage breakup and, of course, the federal legislation is relevant to the dissolution of marriage. We are not wedded to the wording. I sympathize with the concerns expressed by the member for St. George and will welcome further discussion in this respect in committee.

There are a number of other issues that I don’t wish to deal with now because of the hour and in view of the fact that we will have an opportunity to pursue these matters in detail before the standing committee. I look forward to pursuing these matters in the interest of the best possible legislation, which I hope will be passed as soon as possible.

Mr. Speaker: The motion is for second reading of Bill 59.

Motion agreed to.

Ordered for standing committee.

House in committee.


House in committee on Bill 60, An Act to reform the Law respecting Succession to the Estates of Deceased Persons.

Mr. Deputy Chairman: Are there any comments, questions or amendments to this bill?

The hon. member for Lakeshore. Which section?

Mr. Lawlor: About 35, I would guess.

Mr. Deputy Chairman: Section 35?

Mr. Lawlor: No, my dear fellow; there are about 35 comments, so far as I am concerned. The first comment, remarkably, has to do with section 1.

Mr. Deputy Chairman: You may proceed.

Mr. Lawlor: I find that startling. Don’t you?

On section 1:

Mr. Lawlor: Regarding subsection 3 of section 1, the Canadian Bar Association people recommended that there be some additions made to that section.

Subsection 2 applies in respect to wills made on or after September 1. You have changed the date, I guess.

By the way, Mr. Chairman, I want you to know we have been recently delivered the bill. I am going to continue to work from the one on which I worked so very hard, rather than transfer all those changes to a new sheet of paper. So I may be on the wrong section all night.

Mr. Breithaupt: That’s 85, is it?

[10:0 0]

Mr. Lawlor: But whatever that section says in the new bill, they added “except in respect of a will made before that date.” Why did you not include their recommendation?

Hon. Mr. Welch: We did.

Hon. Mr. McMurtry: We did.

Mr. Lawlor: No, you haven’t. Subsection 2 says, “applies in respect of wills made on or after the 31st day.” They go on and deliberately and expressly exclude wills made before the date involved in this --

Hon. Mr. McMurtry: That’s what subsection 3 states. You are on Bill 60?

Hon. Mr. Welch: Look at subsection 3.

Mr. Breithaupt: It seems an awfully easy way to get out of it.

Mr. Lawlor: I’m on Bill 60. You forced me to look at the darn thing.

Mr. Deputy Chairman: Subsection 1, subsection 3?

Mr. Lawlor: Subsection 3, yes. You know the bar comments.

Hon. Mr. McMurtry: Totally familiar, totally; absolutely.

Mr. Lawlor: I don’t care whether you do it absolutely or positively or hypothetically or categorically or any other damn way; what is the answer?

Mr. Breithaupt: Explain why you have done it.

Mr. Roy: If I may ask a question on that, I thought the question from my colleague from Lakeshore was, why does it not apply to wills made before the 31st? As I read it, it doesn’t apply --

Mr. Breithaupt: It says “hence,” six months from now.

Mr. Roy: Well, as I read it “in respect of wills made on or after the 3 1st,” how does that apply before?

Hon. Mr. McMurtry: It doesn’t.

Mr. Roy: It doesn’t? Well, that’s what he wants.

Mr. Lawlor: I think it’s a small point. It’s not something that I’ll go to the barricades over, but it’s there, they have recommended it. They are not dunces. I think I know what the answer is; I want to know if he does.

Hon. Mr. McMurtry: We incorporated it. They didn’t want it to apply to wills made before March 31, 1978.

Mr. Breithaupt: Or even on proclamation of this.

Hon. Mr. McMurtry: That’s right; and we incorporated their wishes.

Mr. Lawlor: I am not going to labour the point, Mr. Chairman. It’s not what they wanted. Whatever the date was on which this piece of legislation affecting wills becomes effective, they wanted to clearly and explicitly say that wills made before that date were not brought within the ambit of the legislation. They wanted both the positive and the negative expressed in the legislation. You’ve expressed the positive and you put in the negative; all right, leave it at that; I think the professionals understand anyhow.

Mr. Breithaupt: I would hope so.

Section 1 agreed to.

Sections 2 to 5, inclusive, agreed to.

On section 6:

Mr. Lawlor: It will be agreed that holograph wills are an anomaly, to say the least of the problem. A holograph will is one written out by hand in full and it needs the signature of the person who wrote this thing out in longhand and that’s about it. Lawyers are really suspicious of these wills. I suppose my question has to do with why the breach with the past approach and the whole purpose of large sections of this legislation, setting up the formalities which will constitute a valid will, and opening of the door to holograph wills.

My second question deals with those will forms that people buy from stationers, et cetera. They are partially printed. But just where they begin to get interesting, you write or type. If a person bought one of those wills and filled it out in long hand, filling it out in long hand would very much exceed the printed form; could that conceivably be considered a holograph will?

Mr. Breithaupt: No.

Mr. Roy: Not according to this.

Hon. Mr. McMurtry: It says, “wholly by his own hand.”

Section 6 agreed to.

Mr. Deputy Speaker: Any further comments on this bill?

Mr. Lawlor: Yes, there are some more, bear with me for a moment. Section 12 is my next area.

Sections 7 to 11, inclusive, agreed to.

On section 12.

Mr. Lawlor: Another point of clarification is required on section 12, subsection 3. The wording there has to do with undue influence, but you say “nor the spouse exercise any improper or undue influence upon the testator.” Why have you inserted the word “improper”? Isn’t just “undue influence” enough? What do you mean by “improper?” Tell us -- we don’t know,

Hon. B. Stephenson: He’s more worried about impropriety than propriety.

Hon. Mr. McMurtry: That’s a word that has been defined, Mr. Chairman, by many legal decisions in the past. I don’t have a legal dictionary with me at the moment, so I don’t intend to guess at the precise legal definitions which are many and which are recorded. I certainly know that with the learned member for Lakeshore’s extensive grounding in the words of the law, he has more than a passing acquaintance with the meaning of that word, not only in English but I suspect also in Latin.

Mr. Lawlor: No malarkey. I don’t know what it means and neither do you.

Sections 12 to 16, inclusive, agreed to.

On section 17:

Mr. Lawlor: I’m lucky the two bills are pretty parallel. Take a look at 17(2). It has to do with divorce proceedings, and the bottom line says “except where concrete intention appears by the will, whereafter the testator makes a will, his marriage is terminated by a judgement absolute of divorce or is declared a nullity,” and then it goes on, “the devise or the appointment of his former spouse as executor, the conferring of a general special power of appointment are revoked and the will should be construed as if the former spouse had predeceased the testator.”

What provision is made in that? Where do we look to elsewhere in the legislation if there are children in these contingencies?

Hon. Mr. McMurtry: It doesn’t have any effect on the rights of the children, Mr. Chairman, because the children are obviously not dealt out by this section.

Mr. Lawlor: That’s what the Attorney General says; I suppose it’s a straight question of disagreement. If he says that’s what he thinks it says, so be it. But on the other hand, I think no provision is made for the children. I would like to know -- on the position of the former spouse having predeceased -- what arrangements are made under these particular circumstances for such children. I suppose the only thing one can say in this context is that, again, it will have to be construed by the courts -- I don’t know.

Mr. Breithaupt: Perhaps, Mr. Chairman, I can give some assistance to the member for Lakeshore. It would appear to me that the section deals particularly with the mechanics of the operation of the will with respect to either executorship or with respect to certain bequests which might go to a former spouse. Surely the section only deals then with the removal of those particular operative parts and would otherwise leave a valid will, perhaps a will that would have to have an administration and perhaps a will that would deal with other residual problems, but surely still a valid will that would deal with the ordinary wishes of the testator, save and except with respect to the former spouse. Is that not the correct view?

Hon. Mr. McMurtry: Yes, that is my understanding. This section 17(2) specifically implements a recent recommendation of the Ontario Law Reform Commission.

Mr. Deputy Chairman: Any further comments on section 17?

Mr. Lawlor: Do you think that’s ex cathedra? Am I supposed to keep quiet, having heard that ominous announcement?

Hon. Mr. McMurtry: I just thought it might be of assistance.

Mr. Lawlor: Really.

Sections 17 to 28 inclusive agreed to.

On section 29:

Mr. Lawlor: The section says: “Except when there is devised to a trustee expressly or by implication an estate for a definite term of years absolute or determinable or an estate of freehold, a device of real property to a trustee or executor the fee simple ...”

My problem is in wording there. In other words, does the Attorney General feel that it’s clear enough? You’ve got a whole range of various types of estates passing by way of devise and one of them is an estate of freehold. Obviously, an estate of freehold would pass the fee simple. But from the way you’ve got it worded -- true, you go on and say, “or the whole of any other estate or interest” if it happens to be something short of fee simple estate, then that’s what passes. I think it’s all badly worded. Do you agree with me?

Hon. Mr. McMurtry: I must confess I’ve always been very impressed by the drafting ability of our legislative counsel, Mr. Stone. In the event of a disagreement, I’m normally very influenced by his recommendations. I would say that in this particular case I am satisfied. As a matter of fact, I am also advised that --

Mr. Foulds: I’ll bet you haven’t read it before tonight.

Hon. Mr. McMurtry: -- this is a uniform section, again recommended by the Law Reform Commission. I am advised that it overcomes a common-law rule, whereby the executor would take only a limited interest, and a freehold in the context could be a life estate as well.

Mr. Breithaupt: The member for Lakeshore would prefer to have fee tail returned.

Mr. Deputy Chairman: Is there any further comment on section 29?

Mr. Breithaupt: If necessary.

Mr. Lawlor: By George, you’re the child of authority tonight, aren’t you, eh? First of all, we have to listen to a very short sentence making reference to some kind of --

Hon. Mr. McMurtry: In matters of succession law reform, I recognize my betters.

Mr. Lawlor: By gad!

Mr. Roy: So do I.

Mr. B. Newman: He is recognizing the member for Lakeshore there.

Mr. Deputy Chairman: Does the member for Lakeshore have further comment on section 29?

Mr. Lawlor: No.

Section 29 agreed to.

Mr. Deputy Chairman: Any further comment on this bill?

Mr. Lawlor: Does an executor of an estate --

Mr. Deputy Chairman: What section are you discussing?

Mr. Lawlor: Oh, I haven’t got to it yet, but it’s 33.

Sections 30 to 32, inclusive, agreed to.

On section 33:


Mr. Lawlor: I’m sorry. Bear with me for a moment, Mr. Chairman. Yes, section 33. Does an executor of an estate, if there is an undisposed-of residue, ever become personally seized of that residue?

Hon. Mr. McMurtry: I wouldn’t have thought so.

Mr. Lawlor: That’s what this seems to say.

Hon. Mr. McMurtry: I’m advised that in common law that that could happen.

Mr. Lawlor: Is that right? Okay, thank you very much.

Section 33 agreed to.

On section 34:

Mr. Lawlor: I just want to comment on it for the record. In 34(c), under this doctrine of conflict of laws, a definition is made here that “‘internal law’ in relation to any place excludes the choice of law rules of that place,” and that is a very penetrating change in the law. What happened previously, because land was situated somewhere else or chattels were situated somewhere else, you made reference to the law of the place in which they were found, particularly in the case of land, and when you got to the law of the place they were found, the law there referred the whole thing back to you, which is called the renvoi.

Mr. Breithaupt: The renvoi, it was called.

Mr. Lawlor: This kills the renvoi. It says that you may not refer back.

Mr. Breithaupt: It’s one of the few things I remember.

Mr. Lawlor: We will deal with the internal law of the place just as the internal law is, and that’s the end of the road.

Mr. Roy: There it is -- the renvoi is killed.

Mr. Lawlor: The renvoi is dead in Ontario. You can erect a tombstone over it and lie down upon it, Roy, if you want.

Section 34 agreed to.

Sections 35 to 45, inclusive, agreed to.

On section 46:

Mr. Lawlor: I just have a comment on this. It’s not so much a question. Whenever I make a comment it’s always laudatory; whenever I ask a question it’s depreciatory, I hope.

The preferential share of a widow now being set at $75,000, and changing the present law with respect to that by permitting her, out of an intestate property, to lift the amount that she receives until it gets to the $75,000, is a complete reversal in the present law and a change which would be very welcome throughout the province.

Section 46 agreed to.

Mr. Deputy Chairman: Are there any further comments on this bill?

Mr. Lawlor: Yes, I’m just going to have some fun now, Mr. Chairman. Take a look at section 48.

Mr. Deputy Chairman: Before we get to that, shall section 47 carry?

Section 47 agreed to.

On section 48:

Mr. Lawlor: On section 48, subsection 8, I just want the Attorney General to explain all this to me. I’d like to while away the time. I’ve got nothing better to do. It’s too late to do anything else tonight anyhow. Let’s take a look at the section, Mr. Attorney General:

“For the purposes of subsection 6, degrees of kindred shall be computed by counting upward from the deceased to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.” Come on, let’s hear you.

Mr. Deputy Chairman: Shall section 48 carry?

Hon. Mr. McMurtry: I will write you a letter.

Mr. Lawlor: What a cop-out we have here.

Mr. Deputy Chairman: Mr. Attorney General, the member for Port Arthur has asked for an explanation. Do you wish to give one?

Mr. Roy: Which section is that?

Mr. Deputy Chairman: Section 48, subsection 8.

Hon. Mr. McMurtry: You may have to wait a moment, Mr. Chairman, while I gather my thoughts.

Mr. Deputy Chairman: There is a motion to carry section 48. There is a request, Mr. Attorney General, for an explanation from the member for Port Arthur about subsection 8.

Hon. Mr. McMurtry: I think it’s a fairly satisfactory legislative method of determining kindred relationships, and I am advised by the experts in the field that it is anticipated that we will have astonishing success.

Mr. Foulds: Mr. Attorney General, I would like an explanation of the difference between “half-blood” and “whole blood” and to know why it is necessary in the section.

Hon. Mr. McMurtry: As I understand it, Mr. Chairman, these descriptions are appropriate and in common usage for those who deal with matters of wills and estates, and there would be no difficulty in their being understood by those who deal with these matters from day to day. The main thing is that it makes it absolutely clear that a half-brother or a half-sister get the same treatment as a full brother or full sister.

Mr. Breithaupt: Full share.

Hon. Mr. McMurtry: Full share, yes. It’s to equalize the treatment that is accorded someone who may be regarded as a half-blood as opposed to a full blood. A half-brother will share equally with a full brother, and half-sister with a full sister.

Mr. Deputy Chairman: Shall section 48 now carry?

Section 48 agreed to.

Mr. Deputy Chairman: Any further comment on this bill? The member for Lakeshore.

Mr. Lawlor: Section 50.

Mr. Breithaupt: Just a moment, section 49. Surely this other blow at the structure of the common law must be referred to in the House. We dealt, Mr. Chairman, with the renvoi and now we deal with courtesy. Surely, those are two of the more interesting aspects of international law and of the traditional common law studies. I almost fear for the lecturers at the law schools who will now have to redraft two and, possibly, three lectures; whereas, the notes have gone on from year to year in the past without anyone ever having asked any questions.

Hon. Mr. Welch: It will be a cinch to get through law school now.

Mr. Breithaupt: Well it may be, you know. We are quickly legislating not only the members of the House of legal background but indeed those who profess the common law into ignorance. At the moment, though, this other interesting aspect of removing courtesy --

Mr. Lawlor: There is very little courtesy left.

Mr. Breithaupt: There are very few courtesies left but, in any event, the removal of this as the other side of the coin from the dower situation --

Mr. Roy: Renvoi, courtesy, dower.

Mr. Breithaupt: -- is one which is indeed a most involved traditional aspect of the common law; surely, the last 10 centuries require that at least there be a paragraph or two of an obituary on its demise.

Mr. Lawlor: Good for you.

Hon. Mr. McMurtry: In that context, Mr. Chairman, I can only respond that I must admit that I sometimes fear that the destructive potential of members of my ministry is simply unbridled and recognizes no boundaries whatsoever.

Mr. Roy: But the dean of the law school will be pleased to still have half of section 48.

Mr. Deputy Chairman: Are there any further comments on section 49?

Section 49 agreed to.

On section 50:

Mr. Lawlor: Section 50, over against the last edition that came off the press -- I think it was the early morning edition; it was Bill 8 -- has been remarkably and substantially changed. Now that we are going to get the Children’s Law Reform Act through anyhow, we need not have changed anything; we could have left it pretty well the way it is.

Subsection 2 has to do with the search by a personal representative for children born outside the marriage. A good deal of comment has come forward from the Canadian Bar Association, Ontario branch, touching that. I have no doubt that you perused carefully the brief submitted by the bar; it was, as you know, a fairly elaborate one and you had the good grace to adopt most of their recommendations, which were numerous and pithy and very much to the point.

They did some yeoman service on this particular bill. But they subsequently submitted a brief of about five pages on your second version of the bill, and it takes continual issue or looks askance at the second version. We will not be given the opportunity for these people to reappear before us to present this additional and relatively new section of their brief. I just want some assurances that they have been well considered.

Hon. Mr. McMurtry: Excuse me, Mr. Chairman. I don’t want to shorten my friend’s remarks, but I can give him some assurance that this section 50 has been discussed and, we might say, cleared with the chairman of that section of the Canadian Bar Association. They are aware of the present drafting and are satisfied with it. I have that assurance from my senior staff.

Mr. Lawlor: To speed it up then, and not to launch into an analysis of the thing, I just want to ask you a question. At the bottom of page 3 of that brief, it says:

“We recommend that section 28(2), as set out in the original bill, be amended to provide that where there is no actual notice of the person born outside marriage, there should be a time limit, after which property cannot be traced into the hands of other beneficiaries.” But, as I look at your legislation, you have provided no time limit in this regard. Oughtn’t you to?

Hon. Mr. McMurtry: We will be doing so in our statute of limitations, which we hope to introduce shortly. There will be a 10-year limitation, I believe, in the new statute of limitations. The member for Lakeshore is quite correct; they do wish limitation. It is our desire to deal with all these limitation periods under one statute rather than, as in the past, in individual statutes; that is why it is not dealt with in this statute.

Mr. Breithaupt: I am pleased to hear the Attorney General’s comments with respect to that. It appeared to me as well that this section as it stood was somewhat harsh in that it would appear that it was at the risk of an executor or of a representative that any estate be wound up because again of the situation of “the laughing heir,” perhaps from Lakeshore or some other location -- even from Australia -- who might come, with all good intentions having been exhausted by the representative, and completely upset what was otherwise presumed to be a fully administered estate. I am pleased to hear that that limitation is going to be attended to.

Mr. Roy: May I ask one question related to this? I don’t know if it is dealt with by this section or otherwise. Do you propose -- and I have seen that problem come up occasionally -- to have any limitation at all on the interpretation of a will? As it stands, I am not sure whether there is a limitation as to how far back you can ask for interpretation of a will after probate. I am wondering whether that should not be something that -- I may be wrong on that, but I was not aware that there was that sort of limitation. It could be a problem after a long time, when the will is being challenged and some of the property has been disposed of.


Hon. Mr. McMurtry: I think all I can say is that I am not aware of any limitation at the moment. This is something we’ll have to pursue with respect to our statute of limitations.

Mr. Roy: That could be a problem too.

Hon. Mr. McMurtry: Yes, I appreciate that.

Mr. Deputy Chairman: Any further comment on section 50?

Section 50 agreed to.

Mr. Deputy Chairman: Any further comments on this bill? The member for Lakeshore.

Hon. Mr. Welch: Mr. Chairman, it is now 10:30. Does the hon. member have much more? Can we complete this bill shortly?

Mr. Lawlor: Go ahead. You can complete it, yes.

Ms. Gigantes: No, he can’t.

Hon. Mr. Welch: If we require more time, I would move the committee rise and report.

Mr. Breithaupt: Perhaps before that we might be able to finish part II at section 53 if you wish.

Mr. Roy: Let’s finish.

Hon. Mr. Welch: I don’t want to rush.

Mr. Deputy Chairman: Is there any comment on section 51, 52 and 53?

Mr. Lawlor: No.

Sections 51 to 53, inclusive, agreed to.

On motion by Hon. Mr. Welch, the committee reported progress and asked for leave to sit again.

Mr. Speaker: A motion for adjournment under section 28(a) of standing orders is deemed to have been made. I will now recognize the hon. member for Waterloo North for up to five minutes.


Mr. Epp: Thank you very much, Mr. Speaker. I appreciate very much having the opportunity afforded to me to comment. I want to thank the hon. member for Humber, the Solicitor General (Mr. MacBeth), for being here this evening. I was sorry that we didn’t have this opportunity in July but the House recessed at about half an hour prior to normal -- about 10 at that time -- and then everybody went for a reception and they never had a chance to hear me.

The matter I want to raise has to do with the Fire Departments Act and amendments thereto. The Solicitor General is aware of the fact that, first of all, a committee of southwestern Ontario mayors and then the Association of Municipalities of Ontario and the PMLC, the provincial municipal liaison committee, discussed a number of amendments to the Fire Departments Act.

We felt the amendments concerned a number of items. We felt that after a number of arbitrations in the province with firefighters -- our own experience in the city of Waterloo was 21.6 per cent and there were some higher than that, 25 per cent, and I think some of them might even have been close to 30 -- that these were somewhat unreasonable to the extent of being unconscionable. The amendments that were proposed to the Fire Departments Act at that time were that the management be given more prerogatives and that a panel of arbitrators be established rather than having an arbitrator appointed by the firefighters, by the city or municipality and by the government. We felt that often the arbitrators appointed by the government weren’t as well versed and were going way out on a limb in trying to resolve the problem and making settlements that were somewhat out of line with settlements in other parts of the sector.

The Statutory Powers Procedure Act was taken out of the Fire Departments Act back a few years ago. It was the feeling of the mayors and AMO and the PMLC that this should be reinstituted because it didn’t give a fair opportunity to cross-examine as was felt necessary.

There was also feeling that through common law, precedents have been set or rulings have been made, specifically in Windsor, that mean firefighters in other areas, because they are not outlawed, can go on strike. It is felt that the firefighters can go on strike and there was a feeling that maybe they should be prevented from going on strike. We are aware of the fact that they at this point have a resolution on their books that they won’t go on strike, but that could be taken off the books very quickly.

Another item was that everyone above captain should be asked to be in management and excluded from the bargaining unit. I respectfully ask that the minister initiate the amendments to the Act in accordance with the requests of the provincial-municipal liaison committee, as were put to him back in October 22, 1976, at a meeting of the PMLC.

Hon. Mr. MacBeth: Mr. Speaker, I do appreciate the sincere concern of the member for Waterloo North in regard to this matter. I will admit that when he asked me this question on July 8 I was somewhat curt in my reply. Sometimes we on this side become a little frustrated with the progress of the House as well, as I am sure from time to time those members on the other side become frustrated.

As far as the purposes of this Act and the proposed amendments or the suggested amendments that my hon. friend has made are concerned, I think we are pretty close together in our points of view in regard to it. I too hope to bring in some amendments that will be along the line that the municipal liaison committee has requested, and as I had indicated to the municipal liaison committee that I was prepared to do.

However, in those days immediately prior to July 8, I had the feeling that the House was not moving as expeditiously as it might, and having a rather large program I was concerned with that too.

Mr. Foulds: That’s provocative.

Hon. Mr. MacBeth: It may be provocative. I am expressing --

Mr. Foulds: During the 10 days we had in July we actually accomplished a heck of a lot.

Hon. Mr. MacBeth: Well, maybe we did, but there was a period in there when we were not moving very quickly. I would remind the House that I had responsibility for the passage of legislation and the kind of House we have at the present time depends on the co-operation of all three parties in the House.

Mr. Foulds: It also depends on how long we sit.

Mr. Speaker: Order, please.

Mr. Foulds: Your leader has chosen not to sit very long this year.

Mr. Speaker: Order.

Hon. Mr. MacBeth: I have also found that no matter how long we sit, there is a certain extent -- and I shouldn’t criticize today because great progress has been made today. But I don’t want to get into that. I am just explaining my own frustrations over here on this side of the House and I don’t want to be argumentative with the interjections.

The question was asked, when might this be. I made an honest answer that, although it is contemplated legislation, I could not give the member a time when it would be there. Let me tell him what we want to do. We have amendments to the Police Act, amendments to the private investigators and security guards legislation, some amendments to the Coroners Act and the Highway Traffic Act, just from the Solicitor General’s ministry alone. All of that has to fit in to the program of the standing committee on justice. So I don’t know just where that is going to come and when we are going to get those Acts. Following that Act are the amendments that the member has requested.

That is the kind of priority we have and I have pressure on to proceed with those. We all know the type of heavy justice matters that the House has to deal with in the next few weeks and I still don’t know when we will be able to get to the member’s interest. When I said we hoped that we would get to it this fall, that was a hope that I expressed to the municipal liaison committee. When I expressed that, I didn’t foresee the intervening election, which I think has slowed down the business of this House.

So I say, Mr. Speaker, it is on our list to do. I have mentioned some things that we have in the ministry’s mind as priority. I hope to be co-operating with both of the critics, as I mentioned last evening, in trying to sound them out on the legislation that we have, to see which matters we are ad idem with, and then proceed from there.

At the present time, the best hope I can express to the member is that perhaps this matter that he is so concerned about, and rightly so, will be dealt with in the spring.

Mr. Speaker: I deem the motion to adjourn to have been carried.

The House adjourned at 10:40 p.m.