The House resumed at 8 p.m.
FAMILY LAW REFORM ACT (CONTINUED)
On section 4:
Mrs. Campbell: Mr. Chairman, I have presented an amendment, a rather lengthy one, as of last week. I have given notice to the member for Riverdale (Mr. Renwick) and, of course, to the Attorney General (Mr. McMurtry) and others of one slight amendment. I don’t know whether you wish me to move the whole amendment at this time. If you do, I shall.
Mr. Chairman: It is the proper procedure. Mrs. Campbell moves that subsections 5 and 6 of section 4 be deleted and the following be substituted therefor:
“(5) The purpose of this section is to recognize that child care, household management and financial provisions are the joint responsibilities of the spouses and that inherent in the marital relationship there is joint contribution whether financial or otherwise by the spouses to the assumption of these responsibilities entitling each spouse to an equal division of the family assets subject to the equitable consideration set out in subsections 4 and 6.
“(6) The court shall make a division of any property that is not a family asset where (a) a spouse has unreasonably impoverished the family assets, or (b) the result of a division of the family assets would be inequitable in all the circumstances having regard to (1) the considerations set out in clauses (a) to (f) of subsection 4, or (2) the effect of the assumption by one spouse of any of the responsibilities set out in subsection 5 on the ability of the other spouse to acquire, manage, maintain, operate or improve property that is not a family asset.”
Ms. Bryden: On a point of order, Mr. Chairman, should these two sections not be dealt with by separate motions? That’s the practice we’ve been following in the past, I think, of dividing amendments and dealing with one subsection at a time.
Mrs. Campbell: Mr. Chairman, I would like to accommodate my friend but I believe the matter has to be dealt with as part of one scheme under this Act. For that reason, my proposal is that it be dealt with in whole.
Mr. Chairman: It would appear to me that the previous sections were companion sections and therefore they should be handled together. Is the committee agreeable?
Mrs. Campbell: Mr. Chairman, throughout the deliberations on this bill to date we have talked about the equality of the marriage and of the partners in the marriage, but this time, for the first time, I believe, we now spell out the fact that child care, household management and the financial provisions are joint responsibilities and that, in fact, child care and household management both have an economic and financial aspect to them.
I am of the opinion that by spelling it out in this form and by, in effect, directing the court, we are overcoming some of the problems which we could not overcome, at least from my point of view, in other suggestions which were made.
As I have said throughout, it is my firm belief that marriage is an economic partnership of two equal partners. I have never disputed that. I have had difficulties with some of the other amendments by reason of what I could foresee, perhaps wrongly or perhaps rightly, as certainly possible disruptions of our economy and, of course, the whole question of the tax problems which could arise, as I understand it, if we were to spell out in any precise terms the commercial assets or any of the points raised by the members of the third party.
However, it is important that we recognize in the substantive part of this Act what we have spelled out in the preamble. I have done that, it seems to me, in this section. Then we have proceeded to indicate, within the terms of reference of the new subsection 5 as proposed, the sorts of things which must be taken into consideration by the court in effecting a division of the property. I have used the word “shall” instead of “may” because it does seem to me that it limits the discretion of the court in a way which may in some measure go to meet the objections of those who are deeply concerned at too wide a discretion in the courts themselves.
It seems to me that in this particular amendment all of those things which were suggested in the earlier amendment proposed can be looked at and should be looked at by the court. But in the event, for example, of pensions, we would have to recognize that the court indeed would have to take into consideration the laws pertaining to pensions and the actual pension scheme which would come before the court at any given period of time, because it is my view, rightly or wrongly, that this legislation cannot alter a pension plan already in effect and only the pension plan itself could be altered by the normal procedures.
I feel this particular amendment does give direction to the courts in specific circumstances. I recognize it still means that possibly the female of the marriage may have to be a suppliant, but I would also recognize that the male could very well be in the same position under this amendment and this type of approach. To me, by indicating as we do in such specific terms, we have taken this legislation into a new dimension. I would urge the members of this House to support the amendment so that we can have the necessary degree of flexibility built into this amendment and into the Act to overcome some of those objections raised by others in the process of discussion of this bill.
Ms. Gigantes: I rise in support of this amendment. As far as I am personally concerned, and I believe the other members of my caucus, there is absolutely no reason to object this amendment. At the personal request of the mover, I looked over the amendment again a few days ago to see if perhaps it could meet some of the requirements we felt were necessary when we proposed earlier amendments to the assets section of this bill. I did that because I respected that personal request. I feel still, and so do the other members of my caucus, that this amendment does not meet those well-expressed concerns of our caucus on the question of equitable division of property. This amendment, in our view and in my personal view, adds nothing to the bill, but because it adds nothing, one cannot object to it. Therefore we will support it.
Hon. Mr. McMurtry: I want to indicate that I support this amendment but not on the basis that it adds nothing. I think the member for St. George and I, notwithstanding the fact that we don’t always agree on everything, do share the same view as to what this Act is intended to accomplish.
I am grateful to her for moving an amendment which I think strengthens the Act and strengthens the concept of partnership and joint responsibility. I want to make it clear, therefore, so far as the government side of the House is concerned, that it is an amendment that should be supported. It does add something to the legislation.
Mr. Nixon: I want to speak briefly to this amendment as well. I have listened to a great deal of debate on the bill, particularly on the former amendment which was designed to divide the property that would come under the judgement in a marriage breakup down the middle.
I feel that the amendment put forward by my colleague from St. George effectively makes it clear to a judge who has to make a decision in these cases -- and there are many more of them now, I suppose, than there used to be -- that he has the responsibility to undertake a fair and equitable division of all of the property that is included in the ambit of the bill.
I haven’t spoken on the bill on second reading or up until this time, but I am sure you would be interested to know, Mr. Chairman, that there has been some debate around our home about it. My wife being an active member of various organizations in the community, I suppose she has been a channel to me of views from the local women’s institute and so on, and probably a very effective advocate for the concept of the amendment put forward by the member for St. George.
I personally believe it does add substantially to the bill. While other may feel it goes without saying that the responsibilities for family care and responsibility are equally shared, I believe it is an important addition that the amendment spells it out specifically and certainly gives it to the responsibility of judges when property must be divided.
Being a farmer myself, I am aware that the impetus for this legislation in the first instance probably came from the famous or infamous Murdoch case. During my years as leader of the party, this was debated quite vehemently in many forums. I felt at the time the position of our party was to express the joint responsibility for family responsibility, and certainly the responsibility for a judge who has to divide these matters in some equitable way, that he must consider the whole list of property and assets.
Frankly, I have been offended at some of the unfair attacks that have been levelled, not so much against the members of the Liberal Party but specifically against the member for St. George, who has worked -- and I hesitate to say so, but certainly it is true -- for many years in leading the community in a fair and equitable approach to this difficult subject. In my opinion, she has been in the vanguard of public opinion and is now taking an eminently sensible, moderate and supportable stand.
The fact that some other members have said that this amendment adds nothing to the bill perhaps simply adds to the offensive connotations that have been directed to her and to us, her colleagues, in the debate in the past. I believe it is an important amendment, and I am glad that all members of the House have now indicated they are going to support it. I think it adds tremendously to the concept of this bill, and certainly in my view it is a landmark for which she and, through her, we should be congratulated.
Mr. Renwick: I admire the member for Brant-Oxford-Norfolk for his valiant attempt to repair the damage done to his caucus by the failure to support the amendment which was before the House the other evening.
Mr. Nixon: We never make a mistake in opposing your amendments.
Mr. Renwick: I did want to ask whether the member for St. George and the Attorney General and their legal advisers would look at the disjunctive nature of items 1 and 2, which modify subsection 6(b), to see whether between now and the final printing of the bill it is the intention of the member for St. George to make that disjunctive; in other words whether or not the court or a judge must consider either item 1 or item 2 but not both. I can quite well see that there would be situations where a judge should take into consideration not only items (a) to (f) of subsection 4, but should also take into account the purpose and intent set out in item (ii), which also modifies subclause (b) of subsection 6 of section 4.
Mr. Roy: Mr. Chairman, I rise and enthusiastically support the amendment brought forward by my colleague from St. George and I wish to say --
Mr. Bounsall: Now we know it’s suspect.
Ms. Gigantes: That should worry you, Margaret.
Mr. Roy: I notice, Mr. Chairman, that the members to my left --
Ms. Gigantes: We’re proud to be on your left.
Mr. Roy: -- especially those in the second row, some of whom have tried to make some contribution to the justice committee -- are somewhat, I suppose I could say frustrated in the sense that they’ve put forward, I suppose they’ve put forward --
Mr. Bounsall: Proper amendments.
Mr. Roy: -- as I can recall over the last two years, even in the justice committee, as long as somebody came in with a piece of paper and put something forward they would present it, whether it was --
Mr. Bounsall: Never, Albert.
Mr. Roy: -- on behalf of the women’s groups in this province or whether it was on behalf of the frustrated husbands who were hanging around the committee at the time we were discussing this.
Mr. Swart: How did you know what went on in the committee, Albert?
Mr. Roy: So that every sort of conceivable amendment has been brought forward; and of course --
Mr. Chairman: Order, please. Is this in reference to the amendment before the committee?
Mr. Roy: Yes it is, Mr. Chairman; I’m right on.
So it is, I suppose, with some frustration that they find that once a reasonable amendment is put forward that it is accepted. It’s accepted by the members opposite, and the Attorney General In his wisdom has seen the objectivity and the in-depth --
Mr. Bounsall: It doesn’t do any harm.
Mr. Roy: -- in-depth logic of this particular amendment and has accepted it. I suppose all of their amendments having been rejected they are somewhat frustrated.
Ms. Gigantes: We don’t like meaningless fights, that’s all.
Mr. Roy: Let me say this, that the members to my left who have postured for a period of time, over quite a period of time over this legislation --
Mr. Bounsall: Who’s posturing now?
Mr. Roy: -- one has to keep in mind that the legislation itself generally, the way it was drafted, the way some of the amendments have been made to the legislation, was intended to apply to the majority of people in this province. I would hazard to guess that for 80 to 90 per cent of the people in this province, the only assets they would have would be those mentioned in the family assets as defined under the present legislation. I think that has to be kept in mind.
The second thing that has to be kept in mind in relation to the amendment is the fact that many of the amendments -- and I can’t help but think this as I hear them yapping to my left, and I’ll give them the benefit of the doubt for this -- that they didn’t understand the full import of the amendments that they were bringing forward. Because if they did, all I can conclude is that in fact the amendments were or their attitude was highly irresponsible.
Mr. Lawlor: Mr. Chairman, he is completely out of order. Everybody has agreed to it for heaven’s sake. What is this for?
Mr. Roy: I know my colleagues don’t like to hear what I’m saying, but it was in fact irresponsible.
Mr. Lawlor: You go on at too great a length.
Mr. Roy: In their attempt to be too rigid what in fact would have happened would have been one of two things.
Mr. Bounsall: It isn’t fairness that you want here.
Mr. Roy: It would have caused far more litigation; and secondly they would have driven everybody into lawyers’ offices getting involved into marriage contracts.
Mr. Lawlor: Which of the seven deadly sins is that?
Mr. Roy: This is where more flexibility and the logic of the amendment by the member for St. George has application, in that it’s finally, as one who’s been in practice, who’s had a family law practice --
Ms. Gigantes: Not on Legal Aid.
Mr. Roy: -- and who’s seen the problems happening out here; and as I say, I don’t think, apart from reading about it, that members to my left, the most vocal ones, really know what happens in fact in a difficult time when there is marriage breakdown.
Mr. Bounsall: We’ve done more in our constituency work than you’ve done in your legal office.
Mr. Roy: I can say to you that the greatest concern, basically, as I have seen it in the real world out there was the lack of recognition for the contribution by n housewife who had been a good mother, who had been a good wife.
Ms. Gigantes: What about a widow? What about the support of widows in law?
Mr. Roy: And at the time of separation there was not recognition of this. And so with the wisdom she has put forward on many other issues, the member for St. George has brought forward an amendment which will finally give recognition to that contribution, which will tell the court that this is something for the court to look at in the contribution toward a particular asset.
To me, the amendment is not only sensible, it is practical. And it is not irresponsible as many of the amendments put forward by the members to my left.
Mr. Lawlor: We all agree with it.
Mr. Roy: And they will be bringing forward more irresponsible amendments, as I have seen from the list of their proposed amendments.
Mr. Lawlor: Who are you arguing with?
Mr. Bounsall: I wouldn’t like you to be Attorney General.
Mr. Roy: And so it is to the great credit of the member for St. George, who has weathered some of the abuse of the members to my left, that we have taken a responsible approach.
Mr. Foulds: You shouldn’t talk about Murray Gaunt that way.
Mr. Roy: What is of interest to us is to represent the people of this province, that is our major interest. Our interest is to be responsible and not just to posture every time we feel something might look politically good or because we might impress someone here in the galleries. We take a responsible approach. The member for St. George with this amendment --
Mr. Bounsall: It does nothing.
Mr. Roy: -- has finally put into legislation, has made it clear to the court and to the judge, what should be recognized and what he should look at under section 4, when the division is made of certain assets.
So I say, to the great credit of the member for Brant-Oxford-Norfolk who stated it earlier, that we in this party are not so much interested in posturing but are interested in having workable legislation; we are interested in having legislation which will be to the great benefit of the people of this province.
Mr. McClellan: These things are relevant, aren’t they?
Mr. Chairman: The hon. member for Beaches-Woodbine.
Ms. Bryden: Thank you Mr. Chairman. No one, I guess, can be against spousehood, or a statement explicitly recognizing the equal responsibility of spouses for child care and household management.
But that recognition is negated if we reject a legislated equal division of all the assets which come into a marriage after the marriage. It becomes rather like the preamble, which is a window-dressing statement of objectives not implemented by the legislation.
I am disappointed that this is the only contribution the Liberal Party has brought forward in an attempt to improve the bill.
Mr. B. Newman: She admits the contribution.
Mr. Roy: What contribution have you made?
Ms. Bryden: I will be coming to that in a minute.
An hon. member: That’s what we’re afraid of.
Mr. Bounsall: We shall know what they are up to.
Ms. Bryden: I think that this bill, while it is an improvement over many of our archaic laws, still needs a great many improvements.
This amendment, in my opinion, adds nothing to the bill that is not already there, explicitly or implicitly. For instance, the concept of recognizing the extra contribution of the spouse who undertakes the child care and household duties is covered in my amendment, which I moved in the justice committee and which was passed by the justice committee and which is part of the bill now in section 19(5)(o).
Section 8 also recognizes the contribution of the spouse beyond a contribution of money, beyond a contribution of work, but simply recognizes a contribution when the contributions “are those of a reasonable spouse of that sex.” In other words, contributions of the spouse who traditionally stays in the home are recognized in section 8.
This amendment adds nothing to the bill because it doesn’t change the definition of family assets. It applies therefore only to that little corner of the marital sandpile where the family home and the TV set are located. It doesn’t obviate the necessity of going to court.
I fail to understand how the member for Ottawa East can say this will decrease litigation if every situation where the one spouse wishing to share in any assets beyond that narrow little definition of family assets has to go to court. It still leaves the sharing of any assets beyond the family assets entirely up to judges. And we know from past experience that judges are not always in the 20th century in recognizing the contributions of the spouses, in making up for the fact that the spouse who stayed in the home has forgone career opportunities and does not come out into the labour market on an equal basis with the other spouse if there is a marriage breakup.
We also know that in most cases this legislation will work against women, who have been traditionally the ones who stayed in the home, who are disadvantaged, who come out into a labour market where female wages are about 60 per cent of male wages. Therefore we need to recognize by legislation that they are entitled to 50 per cent of the assets which came in during the marriage if we are to recognize that marriage is a partnership.
So while this amendment does no harm I can see that in my opinion it does no good. It doesn’t change the legislation at all. It doesn’t change Bill 59 to be a recognition that marriage is a partnership of equals.
Mrs. Campbell: I am grateful to my friend from Riverdale; he is quite correct in his comment about clause 6(b). Following the end of the first (i); the consideration set out in clauses (a) to (f) of subsection 4 presently reads “or”; I would move that it be amended to read “and.”
Mr. Chairman: Is the committee agreed to change section 6(b)(i) by changing the word “or” to the word “and”?
Ms. Gigantes: I would like just to touch on that, Mr. Chairman. It seems that not only is the member for Riverdale always right on matters of law, but he’s always right on English too.
Mr. Roy: There you go.
Mr. Renwick: Every matter of substance though.
Mr. Sweeney: I want to stand, Mr. Chairman, in support of this amendment.
Ms. Gigantes: You mean to change “or” to “and”?
Mr. Sweeney: We are still speaking on the amendment, I understand; is that correct?
Mr. Chairman: Correct.
Mr. Sweeney: I want to stand in support of it --
Ms. Gigantes: It should be a subamendment though.
Mr. Sweeney: -- and just make three short observations. The first one is to point out that in fact the changes which my colleague from St. George has introduced are in fact important, substantial and necessary.
Ms. Gigantes: Point of order, Mr. Chairman. Did we pass the subamendment?
Mr. Chairman: The suggestion to change the word “or” to “and” was agreed by the committee.
Ms. Gigantes: You mean before I rose and you recognized me?
Mr. Chairman: Yes.
Mr. Roy: You are completely out of order.
An hon. member: You want to amend it to “but”?
Ms. Gigantes: Mr. Chairman, that doesn’t seem correct to me.
Mr. Roy: You weren’t in your seat.
Mr. Conway: It was so much easier in CBC Ottawa.
Mr. Chairman: Order.
Mr. Foulds: Mr. Chairman, on a point of order.
Mr. Sweeney: Mr. Chairman, I rise in support of this amendment.
Mr. Chairman: Your point of order?
Mr. Foulds: Does not the passing of a subamendment in fact therefore pass the amendment? And does the vote not need to be taken immediately?
Mr. Chairman: This was not placed as a subamendment. It was drawn to the attention of the member for St. George by the member for Riverdale and I asked the committee if they would agree to change the word and the committee agreed.
Mr. Bradley: Let’s get together over there.
Mr. Foulds: Mr. Chairman, with all great and due respect, any change in the clause is an amendment or a subamendment, and I would suggest to you that when you asked the committee if they agreed with this change, you were puffing a subamendment.
Mr. Roy: Oh boy.
Mr. Chairman: I have to tell the member for Port Arthur that I asked the committee only to change the word. The committee agreed and there was no objection at that time.
Mr. Foulds: Yes, right.
Mr. Chairman: I’ll recognize the member for Kitchener-Wilmot.
Mr. Sweeney: Thank you, Mr. Chairman. I’m at a loss to understand --
Mr. Roy: These matters of great substance.
Mr. Sweeney: -- why there’s some attempt made to prevent this. Mr. Chairman, may I repeat, I stand in support of the amendment put by my colleague from St. George and I suggest that, in contrast to what has been said, this amendment is a substantial one and a necessary one.
The first point I would make is that it has been brought to the attention of this House in the past that when a judge renders a decision he does so on the basis of the law as it is written, not on the basis of the law as it is intended by members of this House. As a matter of fact, recently a decision by the government was overturned by the Supreme Court of Canada and the judge made it very clear that it was not his job to try to know what was in the minds of the legislators when they pass legislation. It is his job to deal with the legislation as it is written, and by making this amendment we are clearly saying to any judge who looks at this piece of legislation in future --
Mr. Lawlor: What about the golden rule? What about all these wretched rules?
Mr. Sweeney: -- what we mean when we say an equal partnership in every sense of the word, a partnership in which the housewife in particular -- and I think that’s who we’re talking about in most cases -- clearly, by the job she does in her home, by the job she does with her children, makes it possible for her partner, for her husband, to go out into the business world to acquire other assets, and that those assets would be taken into consideration if and when it is necessary to make a judgement. I think it’s important that we make that particular observation, and it’s important that it be listed very carefully for any judge who may so rule in the future.
I would also point out that I think it is more important to do it this way than to deal with a mechanical -- a mechanistic, if you will -- so-called 50-50 split, because if there’s one thing that any successful-marriage couple will indicate very clearly it’s that marriage is not a 50-50 split. And it’s not “50-50 or fight”; it would be “50-50 and fight” --
Mr. Foulds: Only in your case, John.
Mr. Sweeney: -- because anyone who starts out in a marriage or anyone who tries to continue a marriage on the basis that everything is split down the middle and that half is yours and that half is mine, won’t have a marriage that lasts very long.
Mr. Bounsall: Read the bill.
Mr. Sweeney: Any successful married couple knows that a marriage always entails that each partner at all times wants to give more than he or she expects to get. That’s what this clearly points out -- the equal partnership in the best sense of the word. It’s that kind of partnership in that best sense of the word that my colleague from St. George has presented here and that we should support.
Mr. Swart: Mr. Chairman, very briefly, I’ve heard the word “substantial” used many times over on that side of the House with regard to the amendment which they have put forward. Of course, we all recognize that the issue of a wife’s contribution to the home is very substantial, but that’s not really what this amendment is talking about. When you boil the whole thing down all it really does is change the words that are in there. It says that “the purpose of this section is to recognize that inherent in the marital relationship there is mutual contribution by the spouses, whether financial or otherwise, to the family welfare.” They say: “The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibility of the spouses.”
It clarifies it slightly, and that is all it does. It doesn’t change the principle of this bill whatsoever.
Mr. Haggerty: Quit while you’re ahead, Mel.
Mr. Swart: There are two types of assets in this bill. There are the family assets where the principle is that they are to be jointly divided. Then there are all the other assets which belong to the individual spouses; they may be varied by the court. This makes a very slight change in the wording as to how they can be varied. We’re going to support the bill, as I have already said. Perhaps “supporting” isn’t the right word; we are not going to bother to oppose it, because it is so inconsequential that it means nothing.
Section 4, as amended, agreed to.
Sections 5 to 10, inclusive, agreed to.
On section 11:
Mr. Chairman: Mr. Lawlor moves that section 11 of the bill be deleted and the following substituted therefor.
“11(1) Where property is transferred from one spouse to the other and delivery or registration is effected or where one spouse directs property to be placed or taken in the name of the other spouse, unless there exists proof of a contrary intention, the transfer shall be deemed to be a gift to the donee spouse except that
“(a) where the property is placed or taken in the name of the spouses as joint tenants, unless there is proof of a contrary intention, each spouse shall be deemed on a severance of the joint tenancy to hold a one-half beneficial interest in the property; and
“(b) money on deposit in a chartered bank, savings office, credit union or trust company in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purpose of clause (a).
“(2) The rules of law applying to the presumption of advancement and resulting trust in questions of ownership of property as between husband and wife are abolished.”
I wonder if the other members have received copies of the proposed amendment.
Mr. Lawlor: I sent copies to the Attorney General and, I think, to the member for St. George. The member for Ottawa East probably hasn’t got a copy.
Mr. Roy: I had better have one if you want my support.
Mr. Renwick: This is what I call a substantial amendment. We lawyers could argue this one all night.
Mr. Lawlor: No, I don’t think we need to go on for very long on it. It’s a nice point of law. The best way to approach it is simply by reading into the record part of the Law Reform Commission study documents. On page 376, it says: “The Presumption of Advancement and the Presumption of Resulting Trust: The recommendations in the two preceding sections -- they have to do with mint bank accounts and common funds -- “will mean that the presumption of advancement and the presumption of resulting trust will no longer apply to most of the significant financial transactions between husband and wife. There remains to be dealt with the situation where one spouse, using his or her own money, purchases property and directs that the title be placed in the name of the other. At common law, as has been indicated elsewhere in this report, the effect given by the law to such a transaction differs, depending upon whether the purchaser is a man or a woman. If it is the husband, he is presumed to make a gift to his wife. If the purchaser is the wife, her husband is presumed to hold the property in trust for her.
“These results have been criticized with increasing frequency in recent years and are often disregarded in Canadian courts. It is obvious that they no longer serve the requirements of married people or of contemporary society. The commission therefore recommends that, subject to the special provisions respecting the matrimonial home, where one spouse, whether husband or wife, acquires property and causes the title to be placed in the name of the other, then, in the absence of evidence of a contrary intention, the transaction should be considered as one of gift. The same principle should apply in direct transfers between husband and wife. These proposals have the merit of making the view of the law coincide with the factual appearance of the transaction, while still leaving the parties free to demonstrate their true intentions, if those are different. The presumption of resulting trust between husband and wife, and its outdated ambience that married women require some special protection against the unwisdom of their own dispositions, would thereby be done away with.”
It comes down to this: When property passes -- and this is in a direct context as opposed to the earlier section, section 8, which is precisely the Murdoch situation -- and where that doctrine called quantum meruit comes into play; that is, the contribution that has been given should be recognized, in the old law if it wasn’t a complete payment, only a partial one, it was ignored. Then an equitable doctrine grew up, saying that to the extent that a contribution was made, then it was accepted; but certain kinds of contributions weren’t accepted, namely labour or “the indirect contribution,” as it is called.
The section we’re dealing with, section ii, is concerned with direct contributions only and only as between husbands and wives. So you go one way or the other: Either what passes between the spouses, irrespective of sex, is a gift or it’s a resulting trust. You take one or the other.
What the Attorney General has done, against the explicit setting forth and argumentation of the Law Reform Commission, is just the opposite. He abolishes the presumption of advancement, the gift aspect of it, and places his emphasis upon the resulting trust notion; that is, the very notion that purportedly was supposed to protect the wife against her own ill-advised giving of gifts.
Why he has done that, I’m not sure. It’s a change over against what was in the original legislation. To consider it a gift, to place the emphasis or the onus there as applying to both spouses, seems to me a more equitable and sensible disposition of the matter than to abolish the gift concept, as he seeks to do in the legislation.
I would like to hear from the Attorney General further statements and further rationalizations as to why this particular disposition was made and why he places the weight or onus where be places it.
In any event, in this particular context I think both concepts are outmoded. What I have tried to do in the section as I brought it forward is to say, in layman’s language -- getting away from all this talk about anticipations and advancements and resulting trusts -- that a gift is a gift. If there are circumstances -- and there can be; I used the word “proof” rather than the word “evidence,” because I believe the word “evidence” to be weaker, although it possibly comes to the same thing -- if there is a witness present, a bank manager or somebody, or if there is a written document saying in effect that the giving of this ostensible gift was not meant as a gift but that the true intention of the gift was that it would come back to the husband or that he would retain the ownership, which is really what the point is, then so be it. But I think the evidence would have to be substantive and even conclusive, otherwise it remains against. And seeking to pull back on it and set up all the labyrinth of litigation that has happened in these things; because every time the marriage breaks up one spouse or the other -- usually the husband does; that is claim he didn’t mean to do that at all. The judge will then ask him why he did it. Very often, he gives the excuse that it was to protect his business interests, to protect him against creditors should they attack.
The courts have gone both ways on that. They say: “That is a subversive intent. That has a quasi-fraudulent ring to it, and therefore we won’t give cognizance in an equitable situation to your advanced intention to defeat your creditors.” They therefore have ignored it and reaffirmed the gift. But in certain circumstances the property has been allowed to come back to him on those rather shaky grounds apart from anything else.
The business about intention is hard to define after the event, his submission to the court that this was what was really in his mind at that particular time.
I used the word “common” earlier, because Laskin, the Chief Justice of Canada, uses it extensively in the Murdoch judgement in his dissenting opinion, which is a superb piece of legal reasoning. He seeks, in the course of his judgement, to abnegate or get away from the resulting trust notions and all that is implied by that. He places his full weight upon what he calls a constructive trust notion. There are elements in the constructive trust that I don’t want to import in here, I want to retain intention. Constructive trust operates either with or without intention, whereas I want the intention to be explicitly affirmed.
Secondly, in the particular context in which he speaks, he speaks of common intention constantly. That is probably pushing it too far. If a unilateral intention by either spouse can be conclusively proved to the satisfaction of the court, then the property never did pass as a gift. There is no necessity then to resort to resulting trusts or anticipations or anything else. It’s either a gift or it’s not a gift. What flows from one is that it remains his property or her property ab initio, despite the fact that it appeared to be on the surface a gift, because there is adequate external and objective proof that that was not the case, and therefore from its very beginning, a fee simple transfer never took place -- or an absolute transfer in the case of personal property.
So it boils down to trying to write a little bit of this legislation, since it has enormous impact upon the man and woman in the street, in terms that they might understand. This is not true about a good deal of legislation. At the same time, we should be saying that these ancient concepts having to do with trusts law are no longer applicable in this. No way is the concept of resulting trust thrown out -- it is only in the context as between husband and wife. It may apply in a thousand other situations but not here; and it ought not to apply here, it only muddies the water. I think that’s enough to be said about it. I commend it to the Attorney General and would ask him to accept this amendment.
Hon. Mr. McMurtry: I’d like to have the opportunity to respond to the member for Lakeshore. I appreciate what he is trying to accomplish but it’s my respectful view, Mr. Chairman, that this is really quite counterproductive and can only cause a great deal of confusion for the following reasons: First of all, the amendment will accomplish nothing insofar as family assets are concerned because of course there is the presumption of division in any event and I think it’s quite evident that it will accomplish nothing in the case of non-family assets because of section 8.
Certainly what the proposed amendment to section 11 might accomplish insofar as presumption of gift is concerned could be back under section 8, because under section 8, obviously if it’s a husband making a gift to the wife, he could establish, in the words of section 8, that the “spouse or former spouse has contributed work, money or money’s worth in respect of the acquisition, management, maintenance, operation or improvement of the property, other than family assets, in which the other has or had an interest, upon application, the court may by order, direct the payment of an amount in compensation therefor ... ”
So what happens if your amendment to section 11 passes? There’s a presumption of gift, but in a situation that you are talking about the husband could simply apply under section 8 and get it back. The purpose of section 8 is to protect, in many cases, the contribution of the wife who, by work or money or -- it’s usually work or money’s worth -- has contributed to the acquisition of a non-family asset, and that section 8 is to protect the wife so it won’t be said, “Well, the wife is making a gift of this work or money’s worth to the husband.”
We are saying section 8 in effect rebuts the presumption of gift and this normally, in the majority of cases, will work to the benefit of the wife. Obviously section 8 has been supported and I think there is general agreement among the members as to what we are attempting to accomplish by section 8, which really rebuts the presumption of gift for the reasons I have just mentioned.
Section 11 creates the presumption of gift, which again is really meaningless in view of section 8. But furthermore, our concern goes beyond that in relation to the problem that it can create for women -- and families, I should say -- where a husband may wish to place certain property in the wife’s name to protect the property from creditors. In our view, section 11, particularly in view of section 8, will accomplish nothing in so far as the wife is concerned. Quite apart from that, it will act as a disincentive to husbands to protect property in such a way, and that, in our view, is a manner in which the woman can be prejudiced by this particular section. Furthermore, before I even was a member of it, this Legislature in 1975 passed the 1975 Family Law Reform Act creating a presumption or adopting the principle of the presumption of resulting trust. That Act has been in force for almost three years in the province, and certainly so far as we can ascertain, it has not caused any problems but indeed has advanced the position of women somewhat considerably. So furthermore, it is our view that this amendment can only create a great deal of confusion, particularly in view of the 1975 Act, but more important than that, it is in conflict with section 8 and --
Ms. Gigantes: How can you say that?
Hon. Mr. McMurtry: Well, it’s quite clear if you would bother to read it, but judging by some of the things you have said --
Ms. Gigantes: Are you suggesting I haven’t read it?
Hon. Mr. McMurtry: -- I really wonder if you have read the legislation.
Mr. Roy: The Attorney General talks as though he hadn’t read it.
Mr. Conway: Give it to her.
Hon. Mr. McMurtry: For those reasons, I really don’t think it would be in the public interest to accept such an amendment.
Mr. Lawlor: I am afraid my construction is quite different from that of the Attorney General on this particular head on two counts. First of all, with respect to section 8, if it is read carefully, it is the Murdoch section. That has to do with indirect contributions, as I said earlier. Basically, the very word “contribution” is an indication of that. It has to be read as a whole. It is with respect to the acquisition, management, maintenance, operation or improvement of property, none of which matters has been given cognizance in previous law, except for an amendment which was made about 1975. But that was directed on to that particular problem. Where someone makes a contribution which cannot be measured in money or money’s worth, some kind of assessment has to be made of that particular situation.
There is money and money’s worth, that which can be turned into those things. It is with respect to these various dimensions of dealing with property, whereas section 11 has to do with the direct contribution, as has been indicated by the Law Reform Commission, where someone either hands over money to a vendor and directs that the property be taken in someone else’s name -- here specifically in the name of the spouse -- and designates in the process of doing this that that shall be the very person who will be the donee of the gift.
The Attorney General hasn’t, when he was on his feet, explained why he has reversed the onus; why he has abdicated the concept of gift and gone for the concept of resulting trust. Surely the resulting trust fund idea is the more inequitable and the more iniquitous. In every situation where this happens, the claim that a resulting trust took place will surely arise. You are inviting litigation. Who is it that is mostly giving these gifts? It’s the male spouse and he is going to say that and you are reaffirming that in giving legislative sanction to a position of denying what ostensibly was a gift and almost in every instance lending credence to the concept of a resulting trust.
In this particular context, I won’t repeat my previous arguments with regard to one concept or the other. These presumptions are ill-advised in this particular context. In the relationship that we are seeking to recognize and give a kind of new legal orientation to in the process of this legislation, to resort back and to place emphasis upon a somewhat hoary conception of the law which breeds all kinds of nice evils in terms of these presumptions seems to me to be a backward step. Therefore, I would ask you to consider your position.
Mr. Roy: I can recall back in 1975 when the legislation was passed to change the old presumptions as we knew them under the common law, we at that time had supported the change in presumption. The problem with that legislation had been that it was not clear when it came into effect. There has been court interpretation on this that it was not retroactive. That was one of the problems that was encountered with that piece of legislation. With this Act, it is going to make it very clear about the retroactivity of that presumption.
The reason we had supported the change in the presumption was that the old presumption as we knew it under the common law was not a fair presumption; and secondly, it was in fact not a presumption that was reflecting what the parties intended. I say to my colleague from Lakeshore that in most cases when in fact this transfer takes place, the intention of the parties is not that it be a gift, but it’s for another reason, whether it be for reasons of income tax or whether it be for reasons of creditors -- wanting to protect his spouse and children from creditors. So the presumption as established in section 11, the present presumption, which just repeats what we were talking about back in 1975, to me is a presumption which reflects what the parties had intended.
My colleague from Lakeshore says in most cases this is going to be a situation where the husband is the one who is going to be making the transfer to the wife, and I agree with him that that’s going to be the case. I would hope we would encourage husbands to continue doing this -- putting property in their wives’ names.
Mr. Renwick: Particularly for the purpose of defrauding their creditors.
Mr. Roy: But if we change the presumption around, we’re going to be discouraging this. I would hope, I would trust that the members to my left who are the so-called --
Mr. Foulds: The member for St. George is giving you a fishy look -- and to your right.
Mr. Roy: -- protectors of the rights of the weaker spouses --
Mr. Lewis: What do you mean “so-called”?
Mr. Foulds: Stop talking about Murray Gaunt that way.
Mr. Roy: -- would in fact, by suggesting that type of presumption --
Mr. Lewis: What do you mean “weaker spouse”? What is this?
Mr. Roy: -- would in fact be discouraging the husband from putting property in his wife’s name to protect either against creditors or for income tax purposes.
Mr. Lewis: What are you trotting your pathology out all over the House for?
Mr. Roy: Mr. Chairman, I want to say to you that --
Mr. Lewis: Don’t put that interjection in Hansard.
An hon. member: Put it in.
Mr. Roy: -- I think my colleague to the left, from Lakeshore, is in fact misguided if he thinks that by changing the presumption to gift, which is not what the parties intended -- well, most husbands, as he says, are not going to make the transfer -- in fact, you’re going to be inviting situations where the spouse is going to end up in many instances, for credit or other reasons, part owner with somebody else, with another third party.
We’ve just had a lot of advertisements in the papers about local registered retirement savings plans. One of the schemes is to put the plan under your wife’s name, so that when it starts paying out you’re going to have a lower rate of taxes. To accept the argument of the member for Lakeshore, it would be deemed that having put it into your wife’s name, a gift is made, when in fact that was not the intention. The intention was to put it in her name to get a lower rate of taxes when the payments start coming out.
I should think we should continue encouraging husbands to do this.
Mr. Lewis: Absolutely.
Mr. Roy: The same thing applies to other types of property.
Ms. Gigantes: That would be only decent.
Mr. Roy: I would hope that even the members from the NDP and even the member for Carleton East might be able to understand that, that we should continue to encourage the stronger of the two spouses, if that’s his intention, to protect the weaker spouse --
Mr. Lewis: Always the male, you’ll notice.
Margaret, do you hear this?
Ms. Gigantes: Margaret, do you agree?
Mr. Lewis: I don’t want you to be confused as to the stronger and the weaker.
Hon. Mrs. Birch: I have no --
Mr. Chairman: Order, order.
Mr. Roy: It was in fact the member for Lakeshore who kept saying that most transfers would be by the husband.
Mr. Lewis: This is not a debate about equality.
Ms. Gigantes: Let’s hear it from the provincial secretary.
Mr. Roy: So I say, Mr. Chairman, in their misguided attempt to so-called protect one of the spouses --
Mr. Lewis: Why did I come tonight? Why am I here?
Mr. Roy: -- it’s working the opposite way.
Mr. Lewis: Albert, invite me to leave.
Mr. Bounsall: Mr. Chairman, I must say that if the only argument that the member for Ottawa East could make for not putting this really into a presumption of gift or a substantive gift in this section, as the amendment of the member for Lakeshore does, is because of the retirement savings plans that would he deemed to be a wholly transferred gift and you want some sharing of that for tax purposes and so on, then that was very easily solved by supporting our amendment about the right to that retirement savings plan being a property of both for as long as those people are together. You can’t argue in favour of one section which you have voted against in order to defeat the purpose of another section.
Mr. Roy: The amateurs are trying to be the legal experts.
Mr. Bounsall: However, that is no more illogical than the member for Ottawa East usually is.
I might say that the Attorney General’s argument that he put forward is an argument which can be applied either way, in trying to say that the presumption of gift as outlined by the amendment proposed by the member for Lakeshore would be negated by any actions taken under clause 8 of the bill. That same exact sentence can be said about the presumption of resulting trust -- it can be negated by those very same arguments made under section 8 of the bill. So it is no argument either way.
Mr. Lewis: That’s right.
Mr. Bounsall: That argument does not work when considering either of those two presumptions because it works in the same way on both of them.
I must admit that this is one of the sections of this bill which has intrigued me, particularly of late, when it was brought to my attention by a staff member of the federal Status of Women Council that it was deemed by women that this section of the bill as presented by the Attorney General had some real problems for them. Not being a lawyer, I started to ask lawyers with whom I came in contact what presumption of resulting trust in fact means, and what did presumption of advancement mean. I found much to my surprise, unless they were wholly immersed in the practice of family law, you couldn’t get an answer from them. They had to reach for their law books. Then they would come back to me and say: “I think this is what it means,” and they would read an almost unintelligible section from their student days law books.
I found that first rather confusing and then rather amusing, and thought I had better speak to someone who really knows, someone who deals on a continuing day-to-day basis with family law. I am not slandering the member for Riverdale when I say this, it is just that his student law book wasn’t very good and very clear when he read out the passage to me.
Mr. Lewis: Imagine if you’d consulted the Attorney General.
Ms. Gigantes: Heaven forbid.
Mr. Lewis: The man hasn’t read law in five years.
Mr. Bounsall: His law book may be a year or two more updated, or a different version, and maybe the explanation contained therein would have been clearer.
Mr. Conway: Stephen, you must have a few of those old law books around.
Mr. Lewis: I have about 30 of them, as a matter of fact.
Mr. Roy: Tell us how far you got into law school.
Mr. Lewis: About one month.
Mr. Deputy Chairman: Order. Would the member for Scarborough West address the Chair when it is his turn?
Mr. Lewis: As a matter of fact, it isn’t my turn. Therefore, I am not addressing the Chair. I am just interjecting happily and wantonly.
Mr. Deputy Chairman: Would you allow your colleague from Windsor-Sandwich to continue please?
Mr. Lewis: By all means; certainly, Mr. Chairman.
Mr. Bounsall: I would just say of the member for Scarborough West’s interjections that at least his mind has not been clouded --
Mr. Lewis: By law.
Mr. Bounsall: -- by the textbook definition of presumption of resulting trust or presumption of advancement, which in this instance is certainly an advantage.
Hon. Mr. Grossman: I think you should have a QC too.
Mr. Foulds: Next year.
Mr. Lewis: I have never been defamed by legal knowledge.
Hon. Mr. Grossman: Or helped by it.
Mr. Bounsall: By resorting to going to someone who worked on a day-to-day basis in family law and asking them what in fact it meant, it became very clear what presumption of resulting trust was and how it applied prior to 1915. It is simply that -- and it worked in a derogatory way, there is no question -- when the husband gave a gift to his wife --
Mr. Roy: I have serious reservations.
Mr. Bounsall: -- the presumption of resulting trust was operated; that is it was not a gift, the wife was only holding that item in trust unless she could prove otherwise.
Presumption of advancement worked the other way -- transfers from the wife to the husband; that was indeed a gift to her husband unless she could prove otherwise. So in the situation as it applied prior to 1975, the woman was disadvantaged both ways. Anything she gave was gone unless she could prove otherwise and anything she got wasn’t hers unless she could prove otherwise.
A previous Attorney General had a choice to make back in 1975. If he was going to abolish one presumption, which presumption would he abolish? I don’t know how close the decision was but he chose the wrong one. He abolished the presumption of advancement.
Mr. Lewis: That’s right.
Mr. Bounsall: Anything transferred between husband and wife was never thereafter ever a gift. Anything that therefore was transferred under the presumption of resulting trust, which has been in effect since 1975, means that everything transferred between spouses is simply held by the receiver in trust for the one that is giving, and vice versa. That wouldn’t be a bad concept for the transfer of property or gifts or what-have-you between spouses in a marriage, if at the end of that marriage everything was divided equally between them. But that not having been done in the assets section of this bill, under presumption of resulting trust they are transferring gifts and properties to each other which always remain the property of the giver.
This might be all right if all assets were divided equally and everything was being retained within the family to be so divide and so on; but we have this very narrow and restrictive asset split upon the time of divorce, which means that, in choosing between those two presumptions, presumption of advancement should be the presumption that is retained so that gifts transferred between spouses become gifts unless otherwise allowed, as in the amendment by the member for Lakeshore where he has allowed for it. A gift in essence is a gift unless there exists proof to the contrary. The objections of the member for Ottawa East are thoroughly met by the amendment we have before us placed by the member for Lakeshore.
It clearly indicates that transfers between spouses will be gifts unless there exists proof to the contrary. I can register my retirement savings plan or I can register my summer cottage or all these other vast property holdings which I have in my wife’s name at any given time. She simply gives me a paper saying “I understand that I am just holding this in trust for you until you want it back.’ That covers the objections of the member for Ottawa East and it is completely allowed for in the amendment by the member for Lakeshore.
Mr. Lewis: That’s an excellent analysis.
Mr. Bounsall: And I would certainly say that this amendment is one that makes great common sense.
Mr. Lewis: Hear, hear.
Mr. Bounsall: I really think sometimes that the member for Scarborough West should have gone to law school as he sees these things that come before us with too much immediate clarity on occasion.
Mr. Lewis: As a matter of fact, you’ve driven them from their seats.
Mr. Bounsall: Yes, they are deep in consultation. They are trying to explain to each other what it is and what they recall from their law book of student days.
Ms. Gigantes: They are about to reread the amendment.
Mr. G. Taylor: We’ve heard such a variation from you that it’s hard to understand and remember what we were taught.
Mr. Renwick: Lawyers Perkins and Stone are straightening out the Attorney General. Late one afternoon, a week ago last Thursday I believe it was, the member for Lakeshore and I were making our final conversation before he committed something to paper on this amendment.
Mr. Lewis: Just a minute, that was poetry he was writing.
Mr. Bounsall: That was poetry. He always squeezes the law lines amongst the lines of poetry that he has just composed.
An hon. member: Is that part of the bill?
Mr. Lawlor: It depends what paper it is.
Mr. Bounsall: An interesting position was whether or not we would reverse what is proposed in Bill 59 and replace presumption of resulting trust by presumption of advancement. We had both agreed we had run into so many lawyers who didn’t really know what either of them was clearly, that it would be best to abolish them both, as he has done, and spell out in common language, understandable to all, that a gift is a gift --
Mr. Lewis: Unless so otherwise stated.
Mr. Bounsall: -- unless so otherwise stated.
Mr. Lewis:. Unless it isn’t a gift.
Ms. Gigantes: Hear, hear!
Hon. Mr. Grossman: Okay.
Mr. Renwick: Mr. Chairman, I want you to know my colleague from Windsor-Sandwich often advises his constituents along that line.
Mr. Lewis: I’d like to challenge the Attorney General.
Mr. Deputy Chairman: The member for Carleton-Grenville has the floor.
Mr. Renwick: Can’t you put an end to it, Roy, by accepting the amendment?
Mr. G. Taylor: Those engineers would repeal the law of gravity given the chance.
Mr. Lewis: Here comes the legal sophistry.
Mr. Deputy Chairman: Order, please.
Mr. Lewis: Now we’ll hear the convolutions.
Mr. Conway: Well, if anyone could recognize sophistry --
Mr. Lewis: That’s right. As a sophist, I can recognize it. You go back to your books, young fellow.
Mr. Conway: And you to your law.
Mr. Deputy Chairman: Order.
Mr. Sterling: Mr. Chairman, surely the intention of section 8 and the other portions of this bill is to look back in the marriage retroactively to the contributions of the two spouses and try to give to those contributions, whether they be in labour, in child care, or any measure of contribution, some meaning.
Mr. Lawlor: That’s right.
Mr. Sterling: I do not see the differentiation between a contribution of labour and a contribution of cash, as we are recognizing in abolishing the presumption of gift -- we’re not abolishing the presumption of gift, we’re reinstating what was in the Act in 1975.
It perhaps may be argued that section 11 as it now stands is making it clearer that the abolishment of the presumption of gift is retroactive. The whole thrust of this Act, as I understand it, is to recognize contributions of spouses to the marriage, no matter what that contribution might be. I only throw out to the member who has proposed this amendment that I cannot understand his differentiation between labour in lieu of cash or cash itself.
Mr. Bounsall: It puts the onus on the right foot, though.
Mr. Lewis: Absolutely.
Mr. Lawlor: One must view it in context and as a whole and there are several factors. The other wording, “management, maintenance, et cetera” is number one. The second one, “in which the other has or had an interest,” has very particular meaning. If what you’re saying is true, there’s no necessity for dealing with section 11 at all. But I have just a simple question to ask the Attorney General: Why has he reversed the onus? He hasn’t answered that question.
Mr. Lewis: Yes. Where did he go?
Mr. Lawlor: As he has it now, you weigh the evidence, you weigh the situation in favour of the husband rather than the wife.
Mr. Lewis: That’s right, comme d’habitude.
Mr. Lawlor: Previously, and as the Law Reform Commission thought the Attorney General should do, it should be on the basis of weighing it in favour of the advancement. It can be rebutted; one goes back, one goes into the resulting trust; the resulting trust flows from the other.
The Attorney General has turned that around. I don’t understand why he did. I don’t concede his argument with respect to the differentiations that I see between this section and section 8 -- but leave that aside for a moment; why did he change this; turn it on its head?
Mr. Lewis: Yes; by way of a question, Mr. Chairman, since I regard the Attorney General’s arguments as entirely specious, particularly since I heard none of them before coming into the Legislature and therefore was able dispassionately to judge them in advance, may I ask the Attorney General what he was consulting about under the gallery so frantically? Does he intend to amend this clause in order to reflect what my colleague has indicated in the Legislature?
Hon. Mr. McMurtry: I was consulting with the member for Riverdale on an entirely unrelated matter.
Mr. Lewis: No, with your colleagues under the gallery.
Hon. Mr. McMurtry: Oh, I’m afraid we were already on another section.
Mr. Lewis: Oh.
Mr. Sweeney: He’s one ahead of you.
Mr. Lewis: Can you answer the question of why you --
Mr. Deputy Chairman: Order.
Mr. Lewis: -- have shifted the onus?
Hon. Mr. McMurtry: I say that with no disrespect for the member for Lakeshore, I have indicated to him my views and my interpretation of section 8 is somewhat different to his, and so be it.
Ms. Gigantes: The Provincial Secretary for Social Development (Mrs. Birch) doesn’t agree with you.
Hon. Mr. McMurtry: I think section 8 makes it quite clear so far as the onus is concerned in that respect.
Mr. Lawlor: Well the Attorney General has dug in his heels, Mr. Chairman, and so be it. All right. I still would ask, piteously if you will, if your mind can stay on this section long enough to work out its implications, why did you reverse the onus?
Mr. Lewis: That’s right. That’s a serious question.
Ms. Gigantes: That’s something the Provincial Secretary for Social Development would like to know too. She has left; she is fed up.
Mr. Lewis: People in your caucus are walking out.
Hon. Mr. Grossman: Look at yours.
Mr Lawlor: There can only be two answers to this question Either he doesn’t know why he reversed the onus -- which I rather suspect is the case -- or to reverse onus is something that is rather easy to do in the middle of the night; but if he does know why then he knows it’s nefarious, so take your choice on that particular dilemma.
Mr. Chairman: Shall Mr. Lawlor’s amendment carry?
Those in favour please say “aye.”
Those opposed please say “nay.”
In my opinion, the nays have it.
On section 12:
Mr. Roy: I’d like to speak to section 12. I spoke earlier in the day to the Attorney General about my concern in section 12 and the application of this part, to clarify when the application would take place. I think the Chair has received a copy of the amendment as drafted by the legislative counsel and the staff of the Attorney General, but basically we want to clarify the application of this part.
Mr. Chairman: Mr. Roy moves that section 12 be amended by striking out all after clause (b) and adding thereto the following:
(c) a proceeding to determine the rights between the spouses in respect of property has been commenced or adjudicated before this part comes into force.
Mr. Roy: If I might speak to the amendment, Mr. Chairman, I was concerned by the present wording of section 12, in that it appeared that not only did this Act not apply to matters that were proceedings before the court but also would not apply to any type of property which had been the subject of a proceeding at some time prior. Having discussed it with the Attorney General this afternoon and having expressed our concern about the fact that certainly, first of all, it was not clear and, secondly, I think the intent was not in fact going to be realized by the drafting of the Act, we think it would be more acceptable to have the wording as has been proposed in the amendment.
I must say that the Attorney General and his legislative counsel not only obliged but went even further, and so we have before us the amendment on which I have moved. This makes it clear that this part of the Act would apply to all property after the proclamation of the Act, even if it was a matter that had been proceeding or was before the court; and we go further to say that it be adjudicated before this part comes into force.
My only concern -- and I leave it at that for the consideration of the members -- is that theoretically you could have a situation whereby parties have just been before the court and the court has made adjudication, and judgement has been handed down -- let’s say on March 25, and the law comes into force by proclamation on April 1 -- and then, because of the new rights and obligations under this Act, the parties start litigating again.
I appreciate that we may not have the same property, because certain rights are given under this Act which did not exist before the Act came into force, so we may be talking about something different. But having moved the amendment, I do express that concern. I want to say that the amendment as drafted and as we have discussed it with the Attorney General would in fact apply to all property after the proclamation of the Act.
I know situations out there where counsel has started actions thinking that this Act was going to come into force, so avoiding the implications of this Act. So this amendment would frustrate that, and well it should. As the Attorney General said, we feel the purpose of the Act is to create that partnership, to create that balance, which did not exist before, and if we’re proceeding in this Legislature to do this, then we should enforce it and make it applicable to all property after the proclamation of the Act.
As I said before, I had the one caveat about where we say “adjudicated before this part came into force.” But if there is an excess on that side, I’m prepared to think that it would be in the best interests of the community we serve that if we’re going to lean too far we lean in favour of the application of this Act.
Mr. Deputy Chairman: Any further discussion on this motion? The member for Lakeshore.
Mr. Lawlor: I think it’s okay.
Motion agreed to.
Section 12 as amended, agreed to.
Sections 13 to 15, inclusive, agreed to.
On section 16:
Mr. Chairman: Mr. McClellan moves that subsection 1 of section 16 be amended by deleting in line 2 the words “education and”.
Mr. McClellan: I’m quite convinced that this amendment will be acceptable to all parties in the House. I believe that the words “education and” are simply a piece of inadvertent drafting carelessness that are completely extraneous to the section. The section deals with the obligation of the parents to support the child. I don’t understand why it is necessary in the section dealing with the obligation of the parents to support the child to include an obligation to provide education. The obligation we’re dealing with is the obligation to provide support. I think that’s all that the section needs to say.
I believe there is an inadvertent danger that is very real by leaving in “education and.” For example, it gives a legislative sanction to the denial of education services to learning disabled children. I’m sure that that is not the intention of the government or of the draftsman, but the fact is that if this clause stands as it is, it provides a legislative sanction for the denial of educational service to a learning disabled child. The Education Act imposes the obligation of the parent to send the child to school.
Hon. Mr. McMurtry: I don’t think that will happen but we’ll accept your amendment.
Mr. McClellan: That’s fine. I won’t belabour the point. But I don’t think we want to have, even inadvertently, the opportunity for denial of rights and education is a right.
Mr. Sweeney: I would stand in support of that amendment for the very reasons that were given which were very clear and very good.
Motion agreed to.
Section 16, as amended, agreed to.
On section 17:
Mr. Bounsall: Mr. Chairman, we circulated an amendment which, as you realize as Chairman, is not in order. It was just telegraphing to you that we would be voting against section 17 of the bill in order to delete that section.
This again in the committee was one of the most interesting sections. After the debate had taken place, the chairman of the committee indicated that that was the first time the committee had come together and that the interdynamics of it were such that it operated as a committee. There were no party lines followed in the consideration of whether section 17 would stay in the bill. The Attorney General indicated at the time that we really didn’t care in a sense whether it was in or whether it was out. On due consideration by our caucus on the principle of this, the member for High Park-Swansea (Mr. Ziemba) felt very strongly, and I do as well now, that we should remove section 17 from the bill, this being the section which spells out the obligation of the children to support parents. There are arguments which can be made on both sides of the question.
Mr. Roy: Which way is the member for Welland-Thorold going?
Mr. Bounsall: He may speak on the matter. The argument was made that the onus of support in financial terms will fall mainly on children when they are in their phase of their life when they are least able to pay, that is, when they themselves are raising a family and when they themselves have high mortgage payments, although we would expect and hope -- and this is true in the vast majority of cases -- the children in the province of Ontario would support their parents, if not financially, then in a whole host of other ways. It’s only the very unusual case in which you have children acting like the children of King Lear where anything else occurs.
We have here in the Act a clause making it obligatory that children support their parents. Although a social service agency cannot use this clause to force children to support their parents, or take the children into court on behalf of support for their parents if they are in a nursing home or a home for the aged, although that clearly isn’t in the bill, the fact that it is would perhaps cause these children to be threatened with that from time to time. That again is not the kind of family relationship which we in Ontario are encouraging. It is not a relationship which can be encouraged by threat: “Support your parents or we may find some way of using section 17 of the Act.” A support of parents should be one which flows naturally from the child to the parent and we do not improve or foster that relationship by making an obligatory clause in this Act indicating that it’s their duty to do so.
So on balance, Mr. Chairman, the other members of the committee that considered the bill in January will remember the very interesting and productive discussions we had on it. I would hope most of them would now agree that this section should be deleted and that it really serves no useful purpose in an Act which encourages family relationships and strengthening of those family relationships.
Hon. Mr. McMurtry: Mr. Chairman, I think it would be interesting to reflect on the fact that I think one of the reasons that this section survived through committee was a very eloquent defence in support of section 17 by the member for Welland-Thorold.
Mr. Roy: That’s right. It had the support of that member. He voted for it.
Hon. Mr. McMurtry: I mention this not in any deprecating fashion certainly, because I made it very clear that I was concerned and uneasy about this section because it could be abused Members of a family could be influenced to put themselves in an adversarial relationship which wouldn’t be really in the interest of the family.
I just make the observation that it was the member for Welland-Thorold whose very spirited and eloquent defence in support of the principle that children who are able to should have this obligation to support this parents. This of course was really just repeating or reaffirming the obligation that has already existed as law under the Parents’ Maintenance Act, although it was an Act that was seldom if ever resorted to. My own view is that on balance it would probably be better to take it out.
I am content to support the elimination of that section for the reasons that the member for Windsor-Sandwich has stated. I have some difficulty in supporting the removal totally enthusiastically, simply because I think we all have some feeling for the principle that is represented by this section, but on balance it may produce a form of adversary relationship, bringing family into litigation that can be quite destructive.
Mr. Bounsall: I might just point out the member for Welland-Thorold did not indicate to the committee members at the time his obvious conflict of interest.
Mr. Roy: Yes, but he managed to convince the member for Windsor-Sandwich.
Mrs. Campbell: Mr. Chairman, I have some difficulties with this. I recognize some of the problems of maintaining this section, particularly as we might find this section applied more strenuously than that which is in existence today, It could create a very real hardship on some young people if they were forced to care for parents who were in one of the institutions or something of that nature. I have to tell you I am constantly worried with the way some of the government ministries move to try to shift onus for things on to individuals and municipalities, anywhere they can, rather than to assume them through the course of their own financing.
On the other hand, I can’t subscribe to what was said by the member for Windsor-Sandwich because it is my experience certainly in a major city such as this that that support is quite lacking. Perhaps if the support were there, there might be the odd occasions when some of these young people would take somewhat of an interest in what was happening to parents as they live a very lonely life in a large city.
I am not prepared to oppose the deletion, but I have a certain discomfort about removing it entirely. In fact, I had looked at the matter from another point of view in that in this case I felt that possibly some kind of conduct might be looked to for an obligation, so that if a parent had been a pretty difficult type of parent, the obligation would not flow. I frankly have a dichotomy about it. I do think as a principle that it is sad not to express our very real view that a child should be responsible for the support of a parent in so far as possible. Certainly, when one puts in “in accordance with need,” I am inclined to feel that that is something that should be maintained.
There are so many people in our community with a good deal of wealth who are quite prepared just to forget the parents entirely. I am not sure that should be the end result of our legislation. I would not want it to fall heavily on those who can least afford it, and that often might be the tendency of such legislation. So I guess I am trying to balance my feeling about what is best in this particular case. I guess on balance I would like to see it remain, but I am not going to fight the deletion of it. I just would like to express that kind of concern.
Mr. Philip: I share some of the anxieties and some of the conflicts that the member for St. George has expressed. I weighed both sides of this particular question, and I must admit that one of the members from the government party and the member for Welland-Thorold were quite persuasive at the time that this was debated. However, one of the things that I found interesting was that in discussing the bill and in trying to explain the bill out in the community, of all the major issues that I thought would be questioned and debated and discussed, the one that came up the most frequently and that seemed to pose the most anxieties was this one particular section.
There seems to be a great deal of anxiety out there. I think perhaps the anxieties are over-dramatized in the minds of the people who expressed them, but in trying to explain this section, I found there was considerable anxiety in the community. No doubt the Attorney General has found in his mail on the bill that there is considerable discomfort on this section. I think that weighing both sides, I have to come down on the side of eliminating the section.
Mr. Sterling: I would like to indicate to this committee that I will be supporting the retention of section 17 in this bill, as I indicated in the justice committee. I think it is important in this Act, which is a family law Act, to ensure that obligations are not only extended one way, but both ways. I feel that in certain circumstances children are put in a position to take advantage of their parents and unfortunately sometimes that does happen in our society. Fortunately, it is not too often that it does happen. But I think this section should be placed in the bill to protect parents who have basically gifted away most of their assets to their children and have been abandoned by those children after that time.
I think the other point I mentioned prior to the last -- that it is important for society to understand that on reaching 18 a child’s obligations will spring from that point on towards the parent, and they will reverse -- I guess part of this feeling is from a personal experience that I have had. I’m sure that when members come to vote on this section that their votes may spring from a personal experience themselves.
I do feel that in the balance we should give the benefit of the doubt to the parents in this situation. So much of the bill deals in the opposite direction -- that is, the parent to the child, rather than the child to the parent.
Mr. Sweeney: Mr. Chairman, I stand in support of leaving this section in the bill. As I look at the cover of this bill, we’re talking about an Act respecting support obligations. I also notice the note to this section says, “This replaces the existing Parents’ Maintenance Act.” I would understand by that -- and I stand corrected if necessary -- that if we take this out then it’s gone. There is no place in the statutes of the province where there would be any statement saying that there is an obligation on the part of children to support their parents. At least, that’s what I would understand.
I think one of the things that’s happening in our society far too often, is that we are allowing individuals to absolve themselves of inherent social and family responsibilities. We’re making it far too easy for the state to take over and do things for others that their family members should do for them.
As I read this section -- and my colleague from St. George has drawn attention to it -- it says very clearly, “is capable of doing so.” I can’t imagine a situation as has been described by my colleagues on the left where a young family person who is financially unable to help support his or her parents would be forced by the law to do so.
I would clearly understand the intent of this section is to draw attention to those people who do not have the individual sense of responsibility and who are financially able to help support their parents and yet refuse to do so. I think that for those few people in our society -- and I would certainly hope they are few -- it is necessary to have somewhere in the law of this province a statement saying they are responsible. For that reason I would move very strongly to leave this in.
Mr. Martel: Mr. Chairman, I wasn’t going to say anything on the bill, but the last bit of claptrap I’ve heard leaves me no other alternative but to speak to it. In a society where both the husband and wife in many instances have to work to maintain their own family -- and the numbers are growing every day -- what I’m hearing tonight is that while they’re doing that they have to be able to try to support their parents.
Who are we talking about? Are we talking about rich kids who might abandon their parents? The member who spoke from the Tory side of the House a few moments ago made allusion to that -- to those people who aren’t responsible. I don’t know who has money left over. All of us want to help our parents -- surely that’s something you teach in children. Surely when you raise your children you teach them a sense of responsibility. You don’t hand everything to them and expect, later on, that the state should pick up the tab. That, in fact, is what the minister has said, that the parents might give their all to their children and then their children would abandon them.
The class of people I represent are largely working class people who don’t have that problem because they don’t have that kind of asset left that they can pass it all on to their children until they become destitute themselves and the children are going to bail them out. Surely it is in the way you raise children that they have a sense of obligation to their parents; and if they can assist their parents, that sense of obligation is what prompts them to make it possible to help the parents. Surely a stupid law like this, which says that while you might have a few bucks in the bank, you should put yourself in bankruptcy to support your parents, isn’t going to cause that to happen anyway.
The only thing I can see is that we are talking about a group of people who have a hell of a lot of money and who might abandon their parents --
Hon. Mr. Rhodes: Watch your language.
Mr. Martel: -- because they have never learned to appreciate what their parents have done for them. I suggest that this isn’t going to change it. I suggest this is the wrong field we are going into.
I would urge the minister that, if need be, he go and preach in some of the churches that they raise their kids to appreciate their parents and to do it out of a sense of responsibility, rather than trying to legislate something like this. You can’t legislate it; it just won’t work. In our type of society, with the financial constraints on working class families, that isn’t going to happen. I would urge the minister simply to withdraw that section. It is totally ridiculous.
Mr. Bradley: I would think, Mr. Chairman, that in most cases what the member for Sudbury East says is true, that in most cases it would be very difficult for the young people to be able to support their parents. However, it is unfortunate the member for Sudbury East was not present -- because, of course, he is not a member of the committee, and shouldn’t be expected to be present; I don’t wish to imply that -- to hear the rather moving address of the member for Welland-Thorold (Mr. Swart) on this particular issue. He was extremely persuasive on that particular occasion.
Mr. Martel: I am not worried what the member for Welland-Thorold says. I have my own opinions. He is entitled to his. I disagree with him.
Mr. Deputy Chairman: Order.
Mr. Bradley: I suppose there are some dangers in aiming this at a specific group, but I think it is really aimed at those who are affluent enough to be able to support their parents in circumstances where their parents actually require that support.
I think there are more than one or two instances where the situation of sending property on to the children in form of a gift, and then having the state pick up the tab for the parents somewhere along the line, is taking place more often, or could take place more often than perhaps many of us would like to concede. For this particular reason, I think there is justification for retaining this particular section in the Act.
Mr. Swart: Mr. Chairman, I have to say I was rather delighted to hear our House leader say that I was entitled to my own opinion.
Hon. Mr. Rhodes: You never know where you will find democracy, Mel.
Mr. Bradley: Give him hell, Mel.
Mr. Swart: I am not sure at this point whether I interpret that to mean that we have a free vote in this caucus --
Mrs. Campbell: Obviously.
Mr. Swart: -- but I do want to make some comments on this section. The statement that has been made, that this would only apply or ever be used against a very small percentage of the population, of course, is true.
Mr. Martel: Then don’t legislate it.
Mr. Swart: I guess I would have to say that a great deal of legislation that we pass applies only to a very small percentage of the population -- the small percentage of lawbreakers and so on.
Perhaps the views that I expressed at the committee meeting were somewhat influenced by some experiences that I have had in sitting on a home for the aged committee where I can truthfully say that the actions or inactions on the part of some of the families to their parents who were in that institution were little less than despicable.
I’m not going to go into a great deal of detail on it, but I can think of one person, and there is at least one other person in the House who knows this person, who succeeded in getting the family farm transferred from the father to himself. Shortly thereafter the farm was sold for between two-thirds and three-quarters of a million dollars, and shortly thereafter he dropped his father off at the home for the aged in Welland and refused to pay a solitary cent towards his father for the keep of his father there. The end result was that that parent ended up with a daughter who had a very minimal income because pressure was put on that son to accept some obligation.
I’m sure every member of this House knows of some case where children have not accepted the moral obligation to their parents. In this particular legislation, of course we are not talking about moral obligations to parents, we are talking about legal obligations to parents, although I like to think sometimes that the legislation was pass reflects the moral qualities of our society.
I want to say that the result of the removal of this section could mean, as has already been stated by a couple of other speakers, that there might be some trend towards some transfer of assets to children so that the state might become responsible. I’m not really that much concerned about the state becoming responsible for the parents, except to say that in some instances this would mean that you were subsidizing fairly well-to-do families --
Mrs. Campbell: That’s right.
Mr. Swart: -- when you would be in fact taking over an obligation which should morally be theirs.
Mr. Roy: Right on.
Mr. Swart: I have to say that one concern about leaving this section in, and this has already been voiced, is the trend of the government of this province -- God, I hope it won’t be there long -- towards reverting to reprivatization in every field and to limit the amount of assistance that they are providing for needy persons in our society. The example of the family benefits I suppose is one, where they have been given an increase of eight or 10 per cent in something like three years while the cost of living has gone up more than 20 per cent.
With that kind of philosophy on the other side of the House I have some concern that that government might use this clause that has never been intended and hasn’t been used for many years. There is a reversal of the social philosophy; whether it is the reduction of the property tax to our senior citizens, whether it is social assistance to those in need, there has been a reversal to a tremendous degree on that side of the House with regard to those principles.
I read in great detail the special program review when it was tabled in 1975, and the government seemed to like to give Mr. Henderson the credit for that reactionary document which would even go to the point of sterilizing well are recipients. But the Treasurer (Mr. McKeough) was chairman of the committee that produced that.
Mr. Laughren: That’s the problem.
Mr. Swart: I find myself, quite frankly, in great difficulty with regard to voting on this issue. If we had a government on the other side of the House that was committed to humane principles and to equality, I would have no hesitation in voting to keep this section in.
Hon. Mrs. Birch: What a self-righteous character he is!
Hon. Mr. McMurtry: Pompous, self- righteous, holier than thou.
Hon. Mr. Maeck: Resign.
Mr. Swart: But with a government that is committed to the reverse, then I find myself in great difficulty. I guess between now and the time the vote is taken, I’ll have to decide which way I’m going to vote.
Mr. Bradley: Vote with your heart now.
Mr. Martel: Freedom of speech.
Mr. Swart: I want to say in no uncertain terms that the principle embodied in this clause is something with which I agree, that parents take responsibility for their children. And with due respect to the member for Windsor-Sandwich (Mr. Bounsall), I have no vested interest, I’m prematurely grey.
Mr. Ruston: That’s telling them.
Mr. Swart: At a later stage in life, I think there is an obligation on children to take care of their parents when they are able to do so.
Hon. Mr. Rhodes: I want somebody to take care of me.
Mr. Martel: You need somebody to look after you.
Mr. Bradley: Good speech.
Hon. Mr. Rhodes: My God, he is moving to the right.
Mr. Roy: I’m pleased to see that the member for Welland-Thorold has kept the same enthusiasm and sincerity he exhibited during the discussion of this clause before the committee studying the bill. As I recall at that time, good as his performance was this evening, he was even successful in convincing his colleague from Windsor-Sandwich, if I recall, to vote to retain the section in the bill.
Mr. Bounsall: That’s right. I have regretted it ever since.
Mr. Roy: I think the member for Welland-Thorold has made a concise and compelling argument for retaining the section.
Mr. Bradley: At least compelling.
Hon. Mr. McMurtry: You are losing control.
Mr. Martel: I lost the member for Ottawa East.
Mr. Roy: It’s interesting that during the discussions before the committee the Attorney General at that time had expressed his personal opinion that it should be taken out, and some of his colleagues disagreed with him. Some of our colleagues on this side disagreed with him.
Mr. Martel: So you’re with me after all.
Mr. Roy: I’m not sure if all my colleagues voted to retain it.
Mr. Martel: Yes, you don’t legislate for a few.
Mr. Roy: Then the member for Welland-Thorold convinced a number of his colleagues, amongst others the member for Windsor-Sandwich, to vote to retain the section in the bill.
Mr. Haggerty: It must have taken some convincing to do that to his colleague.
Mr. Martel: Delete it; the Attorney General’s first intuition was right.
Mr. Roy: I want to address myself to the concern of the Attorney General about this legislation. Let’s be very clear. The principle, as elaborated in section 17, is not a new principle. It’s been on the books, as the Attorney General has said, for quite a number of years. I’m not sure exactly how many but I would think for something over 50 years in this province.
Mr. Martel: It’s time we got rid of it then.
Mr. Roy: I personally think it’s a good principle, but as the Attorney General has expressed, it is the type of principle which can be abused. That is a concern expressed by all of us here. At least I have the satisfaction of thinking that while the principle has been on the books for so many years, it has not been abused.
Mr. Wildman: It hasn’t been abused though.
Mr. Roy: It has been used but, to my knowledge, it has not been abused.
Mr. McClellan: Yes, it has.
Mr. Roy: I think there is some evidence to alleviate the concern of many members that this is going to be the big stick that people are going to use to say, “Your parents happen to be in an institution and therefore their responsibility is on you,” when the children in those circumstances may have financial problems of their own. I have read many press comments -- in fact, the leader of the third party has said that what this principle would lead to is in fact the impoverishment of many children in this province in the support of their parents. I say that’s not so. The law has been on the books for a period of time and has not been abused.
I say to the Attorney General maybe we shouldn’t have bothered to amend the Act and just kept the old Act -- what was it, the Parents’ Maintenance Act? We should have just kept that Act and we could have avoided, I suppose, the expenditure of a lot of time and effort and kept the principle on the books. I think there is some evidence that this principle in the last so many years has not been abused.
The second thing is that it is a principle I agree with. Apart from the circumstances mentioned by the member for Welland-Thorold, it’s a principle I can see is needed, especially in rural areas where you have situations where parents owning a farm and so on make a gift to the children. It’s unfortunate that we have them, but we do have circumstances where you get children whose moral obligation towards their parents disappears. You have situations -- and I have experienced these situations in my practice -- where they just leave the parents and say they are the responsibility of the state, in spite of the fact that the parents have provided for these children and have made important gifts of, for instance, a family farm or a means of support -- a business and so on. You get children who then turn around and feel that they no longer have any obligation.
I am not primarily concerned about the fact that the state should be able to intervene -- that bothers me, but I am more concerned about the fact that at least the principle is there and that a parent consulting counsel can have that principle on the books and then that legally and morally there would be that right of action on the part of the parents.
These would be exceptional circumstances but at least that right would be there -- where you have unconscionable situations. Where children, for whatever reason, after having been given all of these things during their life and having had the family business or family farm for support, turn around and just leave their parents and feel they no longer have any obligation.
I would feel that a parent should at least have that right to consult counsel. If we take that principle away, I am concerned -- and maybe you can be of assistance -- if there is not proviso or clause within the granting of the business or the farm and so on, what right would a parent in those circumstances have? He wouldn’t have any if it is the decision of this Legislature to take away that right, but the court would infer at that point that in our wisdom we felt that was not a principle we should have on our books. That would bother me, because I frankly think that there are unfortunately circumstances where actions on the part of children are unconscionable and they do have that responsibility.
We have laws, in fact, for the responsibility of parents towards their children. We know that is a responsibility that most parents in this province accept willingly, but there are circumstances, unfortunately, where that does not happen and we require legislation on the books -- in fact, legislation in the Criminal Code -- to make it clear that that is not only a moral obligation but a legal obligation.
I think the same thing would apply in these circumstances. I would hate to see the day when parents who have been mistreated -- who have not received justice where children who had taken advantage of the kindness of a parent would turn against them -- and the parents, desolate, had no means of support and could not legally as well as morally turn to the children and say, “You have an obligation, in view of what has happened.” That is why I would like to keep that principle on the books.
We don’t go and set criteria. All we do is state a principle here. I think it is a good principle and I think we should retain the legislation.
Mr. McClellan: I want to speak in support of the deletion of the amendment and try to set forth as social services critic for this caucus why we feel it is so important that this section be deleted.
The Attorney General himself has spoken well, I think, to the kind of interpersonal dilemmas that this amendment can lead to. I’m not reassured at all by the closing comments by the member for Ottawa East. He in a sense validated that concern by the kinds of illustrations he was using.
Aside from that I think the Attorney General addressed himself adequately to that dimension of the dilemma. There is another one. It’s very important to me, and I think to this caucus, that these kinds of statutes, these kinds of laws which are based on outmoded social philosophy be removed from legislation because they serve to preserve inadequate social programs.
The social philosophy that is reflected in section 17 states that the child is responsible for the support of elderly people, that the family is the unit of society which is responsible for the provision, if you take it literally, not just of income maintenance but all of the other support services that the elderly need.
We live in a society where our gravest social crisis has to do with the elderly population. We have not even begun to experience the fullness of that social problem and we are already floundering around in our incapacity to deal with the needs of the elderly in this society on all levels, in terms of income support, in terms of residential services, in terms of health services and in terms of social support services elf all kinds.
We haven’t even begun to address ourselves to that problem. I think one of the reasons why we have failed so completely as a society to deal with the needs of the elderly is that we keep repeating to ourselves and enshrining in legislation social philosophies that bear no relationship to the realities. The reality is that the family cannot provide for the needs of the elderly in this kind of a society, and the needs extend far beyond the need for income.
The needs extend through a whole range of services. It serves no purpose to leave these delusional notions in legislation. We all share the sentiment that has been expressed. We all share a revulsion, each and every one of us shares a revulsion, at the individual child who abandons and treats badly the parent. Each of us realizes that that is sharper than a serpent’s tooth, but that does not address itself to the needs of the elderly in the community.
I believe we do ourselves a disservice and we do the elderly a disservice when we do not recognize in law -- and this is what we’re talking about -- the obligation of the total community to provide a total range of support to the elderly. I would hope we could remove this from the law so that we can then go forward with a clearer sense of where our responsibilities lie as a total community towards the needs of the community.
Mr. G. Taylor: I may be brief on this section to the delight of all my colleagues, but I too support the NDP in this situation, which may be unfortunate for my party on this side and my colleagues. When you look at section 17 and see what it does, you find it puts upon the minor that obligation to support his parents. When you extend it past there and look at some of the other provisions we have in this province, when we look at what takes place in the matrimonial situation where, even under some of our present legislation which might be termed social legislation, particularly in the field of the Family Benefits Act, the wife or spouse, as the case may be, seeks out support under those provisions of that Act and finds that she is met with some administrative situation whereby “you will not get support under that Act unless you take your husband or your spouse to court; before you receive our benefits, you apply and go this route.” That’s administratively done, and sure enough it may be correct or it may not be correct, but it says that before you get provisions from our society you will take this action on your own.
Here again, section 17 could provide, in the hands of administrative authority, that before the parent will receive the benefits from the state, before he will receive hospitalization, before he will go into one of our chronic care units, he is a parent so he will first seek out and sue his child for those benefits. Administratively done, yes, but it’s there. It may not often be used in the Act presently in the province and in existence, but there is that possibility; you put in there something that we should be providing for our people in another form over the years, something for which they have contributed to the province.
Where there is a parent, and particularly an elderly one who may fall into this situation, I do not believe it is necessary for us to enforce in a statute those obligations upon a child to support that parent. Some parents should be entitled to it. It may be only at the senior years of their lives that they are entitled to it, but I think they should be entitled to expect something from the state. When we put in social legislation to provide for them at that end of their life spectrum, surely we should not be going back against their child or causing them to sue their children for support.
Indeed, I would support the provision that would delete this, and also leave in section 84 deleting the Parents’ Maintenance Act. I support those provisions, Mr. Chairman.
Mr. Bradley: Now what we need is the speech on OHIP increases.
Mr. Stong: Originally, I would have spoken for the deletion of this section. However, I’ve been persuaded by the eloquent argument of my colleague from Ottawa East --
An hon. member: He always does that.
Mr. Stong: -- and I must say that in my respectful submission, the principle in law that is contained in section 17 ought to be retained in our statute. It recognizes an obligation which falls upon the duties of a parent to provide for a child. I suppose that if I were speaking against this section, I would have been persuaded by an argument that was brought to my attention by a mother whose husband has abandoned the family; she had become an indigent. Her very strong point was: “Why should my children be responsible for him because he did not provide for them in their youth?” That was a very persuasive argument and I agree with it. So I cannot speak of section 17 independently of an amendment that I would be moving to section 18.
Section 18, pursuant to my amendment, would require a court -- in assessing any support that a child would be responsible to his parent for -- take into account the duration and nature of care provided by that parent to that child in his minority. Having taken that into account, we still recognize a principle in our law -- for the reasons laid out by my colleague from Ottawa East in such special circumstances -- that that right ought to be retained in law. Maybe it has not been enforced recently, but it is there to cover specific situations.
In a situation where the enforcement of that principle would work a hardship, then my proposed amendment to section 18 would satisfy and alleviate any hardship that may be worked on a child.
So in my respectful submission, it is very dangerous to delete from this Act that principle which has been recognized in our statutes up to now and which, in fact, ought to be retained; and if this section is retained, I will be moving an amendment to section 18 that would perhaps take some of the onerous burden, and any of the inequities for hardship, off the shoulders of a child.
Ms. Bryden: I will be very brief. This section appears to me to be -- among other sections that have crept into this Act -- an effort by the government to shift back to the individual obligations which had been accepted by the state over the years on the ground of fairness and equity. Indigency among people is something that in most cases is beyond their control. It’s often caused by sickness, by unemployment, by economic conditions, by the policies of the government, but it is not due to circumstances which either the parents or the children have control over. Therefore to put the obligation for support on to the children is hit-and-miss taxation and it is unfair taxation, because only those who happen to be in the circumstances where they have indigent parents are the ones who pay. It seems to me that to keep this kind of a law on the books is a backward step.
I think we should look at the reasons the Parents’ Maintenance Act has fallen into disuse. I think most welfare administrators have found that it put an intolerable strain on family relationships to require parents to sue their children. I think most people recognize that the vast majority of children were not able to provide support for their parents.
It seems to me we should not pass a law to resurrect or to re-enact a law that has fallen into disuse, because it is not in tune with the modern thinking that we should all share the costs of looking after people who are subject to the misfortunes of life today.
Mr. McGuigan: Mr. Chairman, I would like to rise in support of retaining this section. It is difficult to add further argument, but for one whose philosophy is more towards the individual and less towards the state --
Mr. McClellan: Why don’t you want to abolish old age pensions then?
Mr. McGuigan: -- I would like to --
Mr. Sweeney: If we followed your argument, we would throw the whole bill out.
Mr. Cooke: You want regulation. You want to regulate everybody.
Mr. McGuigan: -- I would like to argue in favour of individual responsibility. Being a farmer and not a lawyer, I am not acquainted with all the implications of this law but I look upon all laws as setting a standard that we expect people to adhere to. Only a very few of those people are ever brought into court or forced to do it, but through our laws, we set the social standards that we expect decent people to adhere to and follow. I would like to retain this in order to make it known that it is expected of people they help support their parents.
I can think of a specific instance that might be of concern, largely in the agricultural field where the amount of moneys involved in owning land are so great, and where ownership is such a part and cost of doing that farming, that family circumstances change. One or the other spouse may die and the remaining spouse remarry. You then have a different family situation and a different look towards the grandparents and so on, and this introduces a whole new order of things. So it would be that much more difficult to have family care for those parents if section 17 were withdrawn. On those few items, Mr. Chairman, I would like to urge support of the section.
Mr. Chairman: The question before the committee is shall section 17 stand as part of the bill?
All those in favour please say “aye.”
All those opposed please say “nay.”
In my opinion, the ayes have it.
Mr. Bounsall: I assume it will be a free vote of all the members.
On motion by Hon. Mr. McMurtry, the committee of the whole House reported progress.
Report agreed to.
Mr. Speaker: A motion for adjournment has been deemed to have been made under provisional order 28(a). I will now recognize for up to five minutes the hon. member for Bellwoods.
Mr. McClellan: Thank you, Mr. Speaker. I appreciate very much the opportunity to have even a brief debate on this subject. What I want to do is not harangue the minister, or to give him perhaps a well-deserved tongue-lashing. What I want to do is to set before him the serious concern that we have about this matter.
On Thursday I raised a series of questions and presented some material to the minister, consisting of extracts from the financial report of Mini-Skools Limited. It consisted of computer printouts; it was partial material from a document entitled Mini-Skools Financial Report. I had given the minister some excerpts of that series of documents which had come into my possession which covered a few brief periods for the years 1976 and 1977.
The issue of great concern to us has to do with the presence of Mini-Skools Limited in Ontario. Mini-Skools is a subsidiary of the Great-West Life Insurance Company; it is a multinational corporation and operates a chain of day-care centres across North America. Six of them are here in Metropolitan Toronto. Our objection -- and our bias, so there is no misunderstanding -- is to the existence of this model of providing human care services. I believe and this caucus believes that it is incompatible with quality human care services to have it provided by a multinational corporation whose motive is not care, whose motive rather is profit. Its motive is profit; it is a subsidiary of a profit-making multinational; and that’s what it is in business to do -- to make profit.
We have expressed concern over the years about the operation of Mini-Skools. Those concerns I don’t believe have been adequately acknowledged.
On Thursday I presented to the minister documentation which indicated a number of serious problems within the operation of Mini-Skools. I had asked the minister not to give me a quick reply; I had asked the minister to review the material. But, more importantly, I had asked the minister to use his powers under the Act to obtain the complete information -- the entire package, whatever it is, of enrolment data and financial material that is contained within the Mini-Skool computer, among other places, and to study that material. I indicated to him on the basis of the material that I had, and which I had given to him, that there were serious irregularities indicated with respect to enrolment; that there was evidence in nine out of 34 periods -- and a period for Mini-Skools’ purposes is a four-week period, the year being divided into 13 periods -- at six centres, there was over-enrolment. I indicated some of those periods to the minister today in question period.
There was further indication of violation of the child-staff ratios in the very limited material which I provided.
My concern is that the minister has not done the kind of review that was asked for. The minister is aware that there is an injunction against the publication of this material. That puts a special onus on the minister, because the press will not report the contents of this material and it is not available to the normal kind of public scrutiny.
The questions raised will only be resolved if the minister does what he is responsible to do as the minister responsible for the welfare of kids in this province, which is to obtain all of the material from Mini-Skools, the complete set of computer printouts from the Mini-Skools’ financial report for the period that it is available, which I believe is from 1975 to the present, and to scrutinize that material and determine whether there has been a violation of the Day Nurseries Act and regulations.
Hon. Mr. Norton: Mr. Speaker, I might say at the outset that I have no misapprehensions with respect to the point on which the hon. member was objecting. He indicates that he objects to the particular model for the delivery of service in the province of Ontario, particularly one which might involve some degree of profit in the delivery of service. I understand his obsession with this particular model.
Mr. McClellan: It’s called the social industrial complex.
Hon. Mr. Norton: But if I might address myself for a moment to the specifics of the hon. member’s allegations, I would point out first of all that he is in error -- to the best of my knowledge, on the basis of the documents he has submitted to me -- when he refers to them as a financial report. In fact, what the documents indicate to me are that they are operating statements.
Mr. McClellan: You are wrong.
Hon. Mr. Norton: Also, a repeated error that occurs in terms of the assumptions that have been made in the interpretation of these documents, and in particular in the marginal notations -- the marginal notations in the documents, in an unknown person’s handwriting include such words as “fraud” or “fraudulent;” and I don’t know who wrote those into the margins of these documents -- is the assumption that the figures that are shown are profit. In fact, what they appear to be is net income; that’s quite a different matter from net profit.
The hon. member’s dissatisfaction with my reply in the House earlier seems to be that he assumed that I had failed to inquire completely or even partially into the material that had been submitted by him. Had he asked whether or not I had referred this material for review, my answer would have been emphatically yes. I reviewed this material and so did my staff. In fact, I referred it not only to the day nurseries branch of my ministry but also to the legal services branch of my ministry, and it was thoroughly reviewed by both.
With respect to the staffing ratios at Mini-Skools -- which do affect the welfare of children -- I have indicated that from time to time our field supervisors did find more children present in some rooms than the space requirements would permit. I have also indicated that at Tuxedo Court a conditional licence was issued in 1975 with respect to staffing. Mini-Skools were required to hire more staff, and they did so.
We have carefully checked the actual enrolments shown in the documents provided to us, and our review indicates there was an overenrolment of two at the Queensview Centre for the period in 1977 for which the documentation was provided. In 1976 for one period there were no over-enrolments. For the second period, one centre, Kingsview No. 1, was over-enrolled by 13. Provided that appropriate staff ratios are maintained, nurseries can over-enrol to take into account absences that may occur. If there is space for 150 children, for example, and 10 per cent are regularly absent on any one day, a nursery may wish to enrol up to 165 children. In fact, a 10 per cent over-enrolment is modest because the average absenteeism in day nurseries in this province is 17 per cent on any given day. In this way there can be a higher utilization of facilities, than if the enrolment and capacity are maintained at the same level.
As I stated previously, there has not been an enrolment in excess of licensed capacity at any time when our inspection visits have been made.
Mr. McClellan: But that speaks about your inspections.
Hon. Mr. Norton: As I indicated earlier in the House, we have had probably in excess of 25 inspections of the nurseries in question over the past two or three years. Our great concern is that appropriate staff ratios be maintained and this has not always happened.
Mr. Cassidy: Oh now, wait a minute. Get it straight. Which side are you on?
Hon. Mr. Norton: But where there have been inadequacies detected they have always been corrected with this particular operation.
With respect to the financial data supplied by the hon. member, I previously indicated that per diem rates have been negotiated by the --
Mr. McClellan: Justify 26 per cent.
Mr. Speaker: The hon. minister’s time has expired.
Mr. Cassidy: About time too.
Hon. Mr. Norton: May I just indicate that the financial negotiations are a matter between Metro and the contract providers, and at the present time it is my understanding that that matter is under review by Metro and we are awaiting the results of that; although the information the hon. member has submitted indicates no improprieties at this point.
Mr. McClellan: Twenty-six per cent isn’t objectionable to you at all?
Hon. Mr. Norton: The assumption of 36 per cent is based on misapprehension. As I pointed out to you earlier --
Mr. Speaker: Order. The hon. minister’s time has expired.
Hon. Mr. Norton: -- if you people would understand what a balance sheet is you wouldn’t make these errors. Dig a little deeper, and before you have somebody steal further information check on the accuracy of it.
Mr. McClellan: Point of privilege.
Mr. Speaker: There is no such thing as a point of privilege in the late show.
Mr. McClellan: He accused me of asking somebody to steal something.
Mr. Speaker: There is no such thing as a point of privilege in the late show. You may raise it tomorrow if you wish.
Mr. McClellan: Why is that?
Ms. Gigantes: I don’t understand.
Mr. McClellan: Cheap son of a bitch.
Hon. Mr. Timbrell: Oh, you’re such a genteel type.
OTTAWA PSYCHIATRIC FACILITIES
Ms. Gigantes: Mr. Speaker, the last time the Minister of Health attempted to insult me personally was on the question of Ottawa area nursing homes and was last July. I doubt that he would, based on what he now knows on that subject, take that stance again on that particular subject.
Yesterday, he accused me of being stuffed up because I made a serious comment about his attitude towards a question posed by a member of the official opposition concerning the health of pregnant women and their unborn children.
I proceeded to ask another serious question: Is he ready to respond to the serious criticism of the director of forensic services and the director of psychiatric services at the Royal Ottawa Hospital that his May 1977 promises of funding for improved facilities and services in the field of psychiatric services in the Ottawa area have not been initiated?
I wonder if this Minister of Health has ever experienced the realities of having to send an underpaid constituency office staff person out to spend six hours with a justice of the peace, a police team, a hospital’s admission staff, the staff psychiatrist, because a young constituent with an anguishing record of mental health problems was believably threatening violence to himself and other members of his family. I have and I was lucky. My constituent manager was good; the police were good; the JP was good, and the psychiatrists were good. That was just the beginning of a problem and we are not always so lucky.
The final outcome of such cases can be tragic. Last week in Ottawa two sisters, 12 years and 15 years old, were murdered. The person now charged with that murder is their 16-year-old brother. One and a half years ago that brother was admitted to the Royal Ottawa Hospital after a knife attack on a neighbour. The people responsible for his release from his second stay at the ROH were Dr. Selwyn Smith, chief of forensic services, and Dr. Gerald Sawer-Foner who is the chief of psychiatric services at the ROH.
What they are saying now, in very simple terms, is that we do not have provincial funding in the Ottawa-Carleton area, or indeed in the eastern Ontario area, for decent psychiatric facilities, decent psychiatric treatment or decent psychiatric follow-up care for the people in our communities -- and they are right to be angry.
In the fall of 1975 and the spring of 1976 I wrote to the member for Prince Edward-Lennox (Mr. J. Taylor), then the Minister of Community and Social Services, pleading for the continuation of funding for a project in Ottawa called the Mental Health Rehabilitation Centre. It was a good program and it was succeeding in its goal of providing follow-up psychiatric services for people who had been released from psychiatric institutions -- services so excellent that the rate of re-institutionalization of its clients was dramatically lower than for other ex-psychiatric inmates. The Mental Health Rehab Centre folded on March 31, 1977. The reason: There was no commitment from Community and Social Services for provincial funding.
I speak now to the Minister of Health, but I quote the executive director of the Ottawa-Carleton regional health planning council when he says, “When you have to deal with more than one ministry, you’ve got twice as many problems.” Let me illustrate the dilemma of the health planning council right now in Ottawa. Their request of over a year ago for a medium-security forensic unit at the Royal Ottawa Hospital lies waiting for approval. There is still a total lack of follow-up care in an area where over 1,000 people who have been residents of psychiatric institutions are released every year.
We are in trouble in Ottawa and in eastern Ontario, and the minister, even after our questions yesterday in the House, accuses the leader of our party in these words, “It’s the cheapest kind of politics for him to raise the issue. That’s typical of Cassidy to try and cash in on the miseries and sorrow of some people.”
Mr. Wildman: Cheap shot.
An hon. member: Not so cheap.
Ms. Gigantes: Mr. Speaker, I don’t think that kind of answer is really adequate from our Minister of Health.
Mr. Deans: You do your job.
Ms. Gigantes: This issue has focused in a particularly horrifying way in the Ottawa area over the last few days, and I think we deserve a better response from the Minister of Health.
Mr. Speaker: The hon. member’s time has expired.
Mr. Laughren: Start by apologizing.
Hon. Mr. Timbrell: Mr. Speaker, the hon. member has already explained, she brought to the attention of the House yesterday the tragic murder last week of two members of an Ottawa family and the fact that the alleged suspect who was charged was a member of that family. The member then asked if I was prepared to respond to the criticism that there are inadequate psychiatric facilities in the Ottawa area.
The teenaged boy is alleged to have murdered his sisters last week after discharge from the adolescent unit in the Royal Ottawa Hospital on January 27, 1978. We have been in touch with the hospital today and we were told that on discharge the boy was placed in an outpatient program and had two treatment sessions a week. On the very day the offence was committed he was seen by a member of the treatment team and appeared, in the words of one of the staff of that team, to be happy.
Lack of facilities was not a problem in this particular case. He has been under a continuous form of treatment for the past few years. He obviously did not respond to that treatment. We always hear about the small number of cases that go wrong but nothing about the --
Mr. Cassidy: You don’t know.
Hon. Mr. Timbrell: -- vast majority of people who are helped. This point was emphasized today by the director of psychiatric services at the Royal Ottawa Hospital. At present there are 13 forensic beds in Royal Ottawa in an unlocked setting. The only locked facilities in the province are at Oak Ridges division of Penetanguishene Mental Health Centre, a special unit for women at St. Thomas Psychiatric Hospital and the recently created Metfors unit at Queen Street Mental Health Centre here in Toronto.
My ministry, along with Correctional Services, the Attorney General and Community and Social Services, received a proposal from the University of Ottawa some time ago requesting a forensic unit for the Ottawa area.
Mr. Cassidy: And before the election you reacted positively.
Hon. Mr. Timbrell: That is not true.
Mr. Cassidy: That is what they told me.
Hon. Mr. Timbrell: I don’t care what they told you.
Mr. Cassidy: The ministry was being very positive at that time.
Hon. Mr. Timbrell: Let me finish this and I will deal with the interjections which are based on total fabrications from somebody.
This proposal requested a new building to house a 40-bed unit situated on the grounds of the Royal Ottawa Hospital. We received some preliminary figures. Members of my staff had a meeting with the group from Ottawa and advised the group to try to obtain some firmer figures regarding construction and operating costs, and to proceed through the district health council so that the project could priorized.
Ms. Gigantes: A year ago.
Mr. Cassidy: In January 1977.
Hon. Mr. Timbrell: Mr. Speaker, I’d like to finish the answer.
It is my understanding that the district health council has approved the proposal in principle only, since they feel that firmer figures and costs are required. That is where the forensic unit for the Ottawa region stands at this point in time -- still with the district health council.
Ms. Gigantes: Oh, come on.
Hon. Mr. Timbrell: Regarding other psychiatric beds in the Ottawa-Carleton region, there are 277 beds in total, 30 at the Montfort Hospital, 40 at Ottawa Civic, 40 at Ottawa General, 28 at Queensway-Carleton, 139 at the Royal Ottawa, including the 13 forensic beds which I just referred to, for a total of 277. There are, additionally, 460 beds in Brockville Psychiatric Hospital, which, although 70 miles distant, had in the first two months of this year 38 patients admitted from the Ottawa-Carleton region. The breakdown was as follows: from 15 to 35 years of age, 14 patients; from 35 to 55 years of age, 10 patients; and 55 years of age and older, 14.
Mr. Cassidy: You are wrapped in statistics and can’t see the problem.
Hon. Mr. Timbrell: As well as the forensic unit program, another high-priority is a psycho-geriatric program in the Ottawa area.
Mr. Cassidy: You’re convinced by all that.
Hon. Mr. Timbrell: You just babble. I’ve listened to you babble for six and a half years. You never ever listen. You couldn’t care less about stats, let alone people.
Mr. Cassidy: You were wrong yesterday and you’re wrong today.
Hon. Mr. Timbrell: As priorities are brought to our attention by the district health council, my ministry will endeavour to satisfy the most important needs.
Mr. Laughren: That’s your answer? You didn’t even apologize.
Mr. Cassidy: You should resign for that answer.
Mr. Speaker: I deem the motion to adjourn to have been carried.
The House adjourned at 10:52 p.m.