The House met at 10 am.
Mr. Renwick: Maybe we should have had a special prayer for the Attorney General (Mr. McMurtry) this morning. It could work a change of heart.
APOLOGY FOR REMARKS
Mr. McClellan: Mr. Speaker, may I have a point of privilege? I would like to apologize to you and to the House for my unparliamentary remarks during the adjournment debate on Tuesday.
SELECT COMMITTEE ON COMPANY LAW
Hon. Mr. Welch: Mr. Speaker, as you know, it was our plan to spend the morning in committee of the whole to complete Bill 59. The chairman of the select committee on company law indicates that that committee would like to continue meeting this morning. I am prepared with your permission to put a motion to the House authorizing the select committee on company law to meet this morning.
Mr. Nixon: That’s going to be in Toronto, is it?
Hon. Mr. Welch moved that the select committee on company law be authorized to meet concurrently with the House this morning.
Motion agreed to.
ORDERS OF THE DAY
FAMILY LAW REFORM ACT (CONCLUDED)
Resumption of the adjournment debate in committee of the whole House on Bill 59, An Act to reform the Law respecting Property Rights and Support Obligations between Married Persons and in other Family Relationships.
On section 18:
Mr. Chairman: Hon. Mr. McMurtry moves that subsection 3 of section 18 of the bill be struck and the following substituted therefor:
“(3) An application for an order for the support of a dependant who is a spouse or a child may be made by
“(a) the Ministry of Community and Social Services in the name of the minister, or
“(b) a municipal corporation including a metropolitan district or regional municipality but not including an area municipality thereof, if the ministry or municipality is providing a benefit under the Family Benefits Act or assistance under the General Welfare Assistance Act in respect of the support of the dependant.”
Hon. Mr. McMurtry: The proposed amendment allows the ministry or municipality to institute a support claim simply for a child as well as a spouse where the family is receiving welfare or family benefits. The child must be one who is under 18 and who may claim support under section 16, and I want to emphasize the fact that this amendment does not affect the rights of handicapped persons over the age of 18. It’s simply to allow the ministry or the municipal corporation to make an application which they can now do for a spouse; but where the spouse has a child or children who are receiving this assistance, it seems to make sense that that claim would be included as well. It does not go beyond that.
Mr. McClellan: I really have a question to the Attorney General, if I may. Generally, I think the amendment makes sense and the overall section is an improvement over the situation that exists now. I have only one concern and I’m not sure how to solve that. It seems to me that the section as it now stands would permit the ministry to make an application for support on behalf of a recipient without any obligation on the part of the Ministry of Community and Social Services to inform the social allowance recipient that this is a condition of receiving social allowance.
I would like some assurance that this would not be done without the knowledge of an applicant for family benefits, because there are more than a few individuals who have refused to apply for family benefits because they were not willing to have a support order obtained. That’s their choice. I think that choice has to be preserved and I would hope there would be an automatic procedure of advising an applicant that this is what the law requires, that this is a condition. I don’t know how that’s addressed. Perhaps the Attorney General has some suggestions on that.
Hon. Mr. McMurtry: I think I understand what’s on the hon. member’s mind. I would think any amendment would require an amendment to the necessary family welfare assistance legislation rather than to this Act. Certainly, in so far as this legislation is concerned, such an application could only be made with notice to the dependant. Of necessity, the dependant would have to have notice of the application. I don’t see how the application could be made without that notice. In other words, as I understand the legislation, it would be impossible to process a claim without notice to the applicant.
Mr. Bounsall: I’m not sure the Attorney General is right on that point. Maybe he could seek some advice from his staff. It is the Ministry of Community and Social Services in the case of the deserting husband that knows the record of that person’s lack of payments if the family is on family benefits. If the woman and children are on family benefits and the support being paid is less than required under family benefits, the woman and her children do not know whether or not he is living up to the agreement at all. His contribution comes through the courts and is paid to the Community and Social Services, so the ministry is the only one that would know whether it’s in arrears and whether it needs to take him back to court.
If not, it’s quite conceivable that it would not be necessary at all to involve the woman and the children because they’re not even aware how much in arrears or how continuous are his payments. Only this ministry is and it is the one concerned about the back collection. It seems to me there is no need for the ministry to unduly concern itself in informing the woman. I would say it wouldn’t be necessary at all and the ministry wouldn’t be concerned about her not knowing. As a matter of courtesy it could, but it is not involved in the woman or the children in the court case because they don’t even know what the arrearage is.
Hon. Mr. McMurtry: There’s a fundamental element of proof. It would be impossible for the ministry to prove their claim without the involvement of the dependant. There’s no question in my mind about that. It’s a matter of basic legal proof and it would be impossible to prove it without establishing the fact of the dependant. As a rule, that can only be done with the involvement of the dependant. That’s a clear matter of legal proof. If you would consult with any of your legal colleagues, the members for Lakeshore (Mr. Lawlor) or Riverdale (Mr. Renwick), they would confirm that legal view.
In any event, I can assure the members that the rules that are being developed will also involve the requirement of notice to the dependant, if that will be of any assistance. The rules in relation to this Act are being pretty well completed and they do involve the requirement of notice to the dependant. I give that assurance but, quite apart from that, it would be impossible to prove the claim without the involvement of the dependant.
Mr. Bounsall: Just continuing on that point, I don’t know whether the Attorney General realizes it or not, and I don’t want to go on on this point at any length at all, but all of the proof resides in the ministry and none of the proof resides in the hands of the dependant in these cases.
Hon. Mr. McMurtry: But you have to prove the dependency and the ministry can’t do that except on evidence which would be clearly hearsay. You have to start from the facts of the dependency.
Mr. Bounsall: The ministry clearly has that proof or it wouldn’t be continuing the mother on her mother’s allowance and providing coverage for her children. They have accepted that proof. They are in constant monthly contact with that family to ensure that all the children are still living at home and the mother has not taken a part-time job which would lessen the amount of the benefit coming out of the family benefits. They would handle all that proof on a continuing month-to-month basis.
I am not arguing that it would be nice to involve them or not nice to involve them, but the ministry has all that proof. It can say in court, “Mrs. So-and-so does reside at this address. We send her her monthly family cheques for herself and her three children.”
Hon. Mr. McMurtry: That is known in law as hearsay evidence and inadmissible in a court of law under our general rules of the introduction of evidence. I appreciate the member’s concern but really that is a fundamental matter of proof in courtroom. True, the ministry has the evidence, but again what is admissible in court and what the ministry has relied on are two different things.
Mr. McClellan: With respect to my concern, I accept the Attorney General’s notion that an amendment is appropriately made to the family benefits legislation and general welfare assistance I do want to restate the concern though that the section removes the right of decision of the dependants by virtue of making an application for social assistance. Just the act of making an application for social assistance then gives the power of decision to the Minister of Community and Social Services (Mr. Norton). It’s essential that at the time of the application, the applicant clearly understands what’s involved. I would ask the Attorney General to make a point of advising the Minister of Community and Social Services so that he can bring in necessary amending legislation.
Hon. Mr. McMurtry: That’s fine, I will discuss that with him. But again the applicant could frustrate any application in the court simply by refusing to co-operate, for the reasons I have just explained to your colleague.
Mrs. Campbell: Mr. Chairman, I don’t think I need to speak at length. What I was concerned about was, it seemed to me that the hon. member for Bellwoods had made a point which was not really being addressed by his colleague. That was the right of notice advice at the time of the application. I think it is important that this should be very carefully spelled out to anyone seeking any assistance, either under family benefits or under general welfare assistance.
However, I concur in what the Attorney General has said with reference to the proof of any case and the evidence which is necessary. It is true, however, that on the nonpayment aspect of it, it is a fact that only those providing the assistance know the record of payment or otherwise. Apart from that, of course, the other evidence has to be adduced in order to make a successful application, I would think. So I am satisfied now with the explanations.
Mr. Bounsall: My concern about this section is of another nature and again a minor one. I understand why we have to have this amendment by the Attorney General. In our efforts in committee to ensure we weren’t excluding the disabled from their benefit when they reached age 18, we had it left in this funny situation where only the Ministry of Community and Social Services or the municipal corporation could go after the spouse’s support if they were in receipt of those benefits. Where there were children as part of that support, the ministry or the corporation could not go after the support for the children. So this is a very necessary one.
But in the way it’s written, I have some concern that we may have opened a slight doorway, I don’t know how wide, to pursue the other matter. I talked with the Assistant Deputy Minister of Community and Social Services, Mr. Anderson, quite recently over this. His thought was that it wouldn’t normally be pursued by his ministry because he knows the intent of what it is we are trying to achieve. But he himself wasn’t sure that there wasn’t a doorway left open. He said that perhaps this section should very clearly read that the children we are talking about in the section are the children of the spouse who is receiving family benefits or the welfare award.
Perhaps in the last line, instead of just saying “dependant,” to be absolutely sure we should say “in respect of the support of the spouse and the children of that spouse,” rather than just leaving it as “dependant.” It is then quite clear that in a family benefits application we are talking about the spouse and the children of that spouse, rather than leaving it simply as “spouse and child,” lest in some circumstances we are leaving the door slightly ajar again.
Hon. Mr. McMurtry: You say an application for an order for the support of a dependant who is a spouse or child of that spouse? I have no objection to that if it will be of some assistance. Perhaps I might just consult with legislative counsel for one moment. I am quite prepared to amend that in that respect.
Mrs. Campbell: Could I ask when the Attorney General is speaking to his advisers if he would check to see what effect that amendment would have on section 16. I would have some concern with reference to section 16(2) unless I am misunderstanding the suggestion of the member for Windsor-Sandwich. I wonder if that could be clarified.
Hon. Mr. McMurtry: Could I have your indulgence for a moment, Mr. Chairman?
Mr. Bounsall: Perhaps in the interregnum period here I could address some comments to the last question from the member for St George. I assume it is the child between 16 and 18 about whom she is concerned. By definition under that section 16(2), it is a child who has withdrawn from parental control. I am not sure what her concern is, but should we be going after a parent for support of a child who has withdrawn from parental control? I don’t see that as being a reasonable application. The child has withdrawn from parental control and left the home. Why should welfare then go after the parent for support from the parent for that child who has clearly cut the ties with the parent?
Mrs. Campbell: This is a strange way to proceed in the House, I suspect, on a bill. What I am saying is that as I read it, and the Attorney General may be able to clarify it, if you remove the word “dependant” and simply make it “child,” then I think it does have an effect on section 16(2). The child who removes himself or herself from the home is still a child of the parent, although not within section 16(2) a dependant. That’s what I am trying to clarify with the Attorney General’s assistance.
Hon. Mr. McMurtry: I gather the concern of the member for St. George is over what happens if we amend section 18(3).
Mrs. Campbell: If I may, I would think we would have to amend subsection 2 in order to give effect to subsection 3; am I correct?
Hon. Mr. McMurtry: Clearly the intent of the legislation is not to pursue, as I understand it, a spouse for support of a child over the age of 16 years who has withdrawn from parental control. That child or that young person between 16 and 18 may qualify for social assistance in his or her own right. I’ll wait to see what our advisers have to say. I wouldn’t have thought that an amendment to make it clear that we’re talking about a child of the spouse would affect section 16, but you may be right.
Mrs. Campbell: If I may, Mr. Chairman, I’d just like to explain. It seems to me that what is being sought here is an amendment to subsection 2, which as I see it would read roughly, “An application for an order for the support of a dependant may be made by the dependant or a parent of a child under subsection 3.” Then you would amend subsection 3, “An application for an order for the support of a dependant who is a spouse,” and then you would introduce the word “child.”
I am concerned that there may be confusion if you substitute “child” for “dependant” in that clause, because what I’m saying is it might then -- reverting to 2, which spells out the dependency, as it were, of the child -- be removed unless we have a very carefully worded amendment. That is my only concern.
Hon. Mr. McMurtry: I don’t think there’s any intention to remove the word “dependant.”
Mrs. Campbell: I see.
Hon. Mr. McMurtry: As I understand it, the phrase is simply to be, after the word “child,” “a dependant who is a spouse or a child.”
Mrs. Campbell: Well, that is the intent.
Hon. Mr. McMurtry: We just wanted to insert the words “of the spouse” after the word “child.” So it will read: “An application for an order for the support of a dependant who is a spouse or a child of the spouse may be made by.”
Mr. Bounsall: That certainly was the intent.
Mrs. Campbell: As long as it’s clarified.
Hon. Mr. McMurtry: So perhaps we could insert those words in, Mr. Chairman, the words “of the spouse” to follow “dependant who is a spouse or a child of the spouse may be made by.”
Mr. Chairman: Is it agreeable to the committee to include the words “of the spouse” after the word “child” in the second line of subsection 3?
Mr. Lawlor: I hate to prolong the agony, but perhaps it should be “dependent child of the spouse,” for the very reason that Margaret’s making here.
Ms. Gigantes: Excellent suggestion.
Mr. Lawlor: A judge would, of course, construe the clause subject to subsection 2 of 16.
Hon. Mr. McMurtry: Yes.
Mr. Lawlor: But if they didn’t happen to advert to that they would then bring in any child and what you want is a specific sort of child.
Hon. Mr. McMurtry: Could we put the word “dependant” in then?
Mr. Chairman: So subsection 3 would then commence reading as follows: “An application for an order for the support of a dependant who is a spouse or a dependent child of the spouse may be made by” et cetera.
Motion agreed to.
Mr. Roy: The member for York Centre (Mr. Stong), who is not here, had an amendment to section 18 (5), clause (p) or (q). I think it’s (q).
Mr. Chairman: I have it in my hand here now.
Mr. Roy: I have been asked by my colleague, Mr. Stong, to move this amendment.
Mr. Chairman: Mr. Roy moves that subsection 5 of section 18 of the bill be amended by relettering clause (p) as clause (q) and by inserting the following new clause: “(p) where the dependant is a parent, the duration and nature of the care and support provided by the dependant to the respondent.”
Mr. Roy: Mr. Chairman, of course this amendment is contingent on section 17 carrying. In other words, that the amendment that has been proposed by -- I am not sure who -- I think it is the member for Windsor-Sandwich, his amendment was we strike out section 17 of the bill. Of course, this amendment is contingent on his amendment being defeated.
It is hard to judge exactly which way that amendment is going to go in view of the fact that there appears that there is no unanimity as to whether there will be that principle of support or we carry on with the obligation of a child to support a parent. Anyway, Mr. Stong’s concern was that if section 17 remains in the bill that there be this clause in the subsection 5 of section 18 so that that would be one of the criteria that the court look at in judging any support flowing from a child to a parent.
I might say, Mr. Chairman, in the debate that took place on the amendment to section 17 the other evening, and even this morning, it has to be clear that a lot of the concern of the members to section 17 was that the state initiate proceedings against a child on behalf of a parent. I think it should be very clear that under section 18 that is not possible. I did not speak to it when we were talking about the amendment, but it is very clear under section 18, subsection 3 -- the amendment has been accepted -- that the state cannot initiate proceedings or applications on behalf of a parent vis-à-vis a child. Nevertheless, my colleague not being here, I move that amendment on his behalf.
Ms. Gigantes: Mr. Chairman, I am having difficulty understanding the exact intent which the member for Ottawa East is trying to attach to this amendment. Am I correct in understanding that it has to do with the clauses that we have been dealing with in 17 and in 18(3)? Is it 17 you are trying to relate it to?
Mr. Roy: Possibly I can explain it again to the member for Carleton East. If the amendment, as proposed by your colleague from Windsor-Sandwich is defeated, and we keep section 17 -- which reads that the child “who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for and provided support for the child, to the extent that the child is capable of doing so” -- if that section remains, Mr. Stong, my colleague, felt that when the court is looking at various criteria for determining support, the amount of support and this type of thing, there should be a clause in there saying that if the dependant is a parent, the duration and nature of the care and support provided by the dependant to the respondent be one of the factors that the court look at in determining whether there should be support and, secondly, what the amount of support should be.
As I say, I am moving it on behalf of my colleague. It may be that on reading section 17 my colleague may well feel it is not necessary, because in section 17 we talk about the fact that there is a need on the part of the parent that he or she has been provided support in any event. My colleague thought that it was necessary and on his behalf I moved it. Do you understand?
Ms. Gigantes: I believe I do now, thank you. Mr. Chairman, as I now have it explained to me and as I believe I understand it, correctly, what we are dealing with here is the very essence of the problem of section 17 and I would like to point out to members of this Legislature that this kind of an amendment makes it so clear why we should get rid of the obligations imposed under section 17, and why our amendment on section 17 should carry.
What the hon. member for Ottawa East is proposing is a new conduct clause. It is a conduct clause that relates to parents. Now we shall ask ourselves, “Have these people been good parents? For how long have they been good parents? And what kind of parental care did they provide?” It’s precisely because you have to get into this kind of nonsense when you discuss the obligations under section 17 and we begin developing a new conduct clause -- yet another for this bill -- that I would suggest that it provides an argument for our amendment to section 17. I can’t support the addition of another conduct clause to this hill. I just point out to the hon. member for Ottawa East that this amendment points to the real need for supporting the previous amendment to section 17.
Mr. Roy: All my colleague had in mind in moving this amendment was to look at duration; it is not wanting to establish new conduct. In fact, section 17 talks about “his or her parent who has cared for and provided support for the child.” The principle is already established there and all my colleague is talking about is the duration and nature of care and support provided by the dependant. It is not showing anything different from the principle that is established in section 17. I want to make it clear as well that, obviously, if section 17 doesn’t carry, this amendment would he redundant.
Mr. Renwick: I have a feeling that probably it is not in order, because the phraseology in section 17, “who has cared for and provided support for the child,” is the same thing, and I think the member for Ottawa East agrees.
Mr. Roy: You may be right. Look, I gave an undertaking to my colleague that I would move his amendment. Don’t be unduly harsh.
Mr. Foulds: He should be here to take the flak himself.
Mr. Chairman: Any further comments? If there are no further comments, are you ready for the motion?
Shall the amendment carry?
Mrs. Campbell: With respect, Mr. Chairman, on a point of order. Earlier on in dealing with this bill --
Ms. Gigantes: In the middle of a vote?
Mr. McClellan: In the middle of a vote?
Mrs. Campbell: -- we refused to stack certain motions or questions because of the implications. If we are putting this particular amendment in the absence of the determination of the motion under section 17, I don’t know where we are heading. This is a redundancy of the section 17 vote.
Mr. Chairman: Order. I have already put the motion.
All those in favour will please say “aye.”
All those opposed will please say “nay.”
In my opinion, the nays have it.
The motion is defeated.
Ms. Gigantes moves that in subsection 6 of section 18 all the words after “spouse” in the second line be deleted.
Ms. Gigantes: Mr. Chairman, in beginning to discuss this amendment which is, to my mind, one of the more important points in the bill before us, I would like to refer you back to this clause in its previous form in Bill 59. Originally, the clause -- it was numbered section 18, subsection 5 -- read as follows: “The obligation to provide support exists without regard to the conduct of the spouse requiring the support, but the court may limit the amount of support, having regard to a course of conduct that is an obvious and gross repudiation of the relationship.”
What we are dealing with here, and what we had originally before us, was a clause which allows the courts to decide how much support shall be provided to a dependant and to take into account conduct The Attorney General, when he presented this clause to the justice committee in a previous hearing, argued that the phrase “regard to a course of conduct that is an obvious and gross repudiation of the relationship” was a reference to “gross and obvious conduct.”
We had a discussion of that previously, in which I spoke to the Attorney General and told him of my feeling that there’s a great difference between “course of conduct that is an obvious and gross repudiation” and “gross and obvious conduct.” Many of the examples he cited to try to reassure us about the application of this clause by the courts, were from English law and involved the use of the phrase in English law “gross and obvious conduct.” What we had before us initially was not “gross and obvious conduct” but “obvious and gross repudiation of the relationship.”
I make that point because I think it’s an important point to know that what we are writing into this law, and what we were presented with first, is not a precedent that we have long experience with in the English system. This is a new kind of phraseology, and it’s a phraseology that concerns me. I’m not happy, either, with the phraseology “gross and obvious conduct,” but “obvious and gross repudiation” is even less assured of interpretation than is “gross and obvious conduct.”
When we come to the bill now before us, as amended by the justice committee, we find that a new section has been added that allows the court to consider not only the conduct of the dependant in an application, but also the conduct of the respondent, the person who will provide support. The clause before us now reads: “The obligation to provide support for a spouse exists without regard to the conduct of either spouse but the court may, in determining the amount of support, have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.” That extra amendment too, I’ll draw to your attention, Mr. Chairman, which came from the justice committee, reads, “a course of conduct so unconscionable as to constitute an obvious and gross repudiation of the relationship.”
It’s obvious that those two amendments -- the addition of “either spouse” and the addition of “so unconscionable as to constitute an obvious and gross repudiation” -- which passed the justice committee are obvious evidence to me and should be to this House, I think, that the justice committee in its long consideration of this particular clause, now numbered section 18(6), was anxious about what the interpretation of this clause by the courts would be. There was anxiety there, and it’s reflected in the amendments that we have incorporated in the section before us right now.
I think that anxiety is a well-placed anxiety. One of the reasons I feel that way is that when discussion first began on this section of the bill when I was on the justice committee back in the early part of 1977 --
Mr. Lawlor: In 1953.
Ms. Gigantes: -- when we discussed this particular clause, and I asked about how the Attorney General thought the courts would interpret the clause, he provided me first of all with a written example from an Ontario court case, a divorce proceeding and an application for support and a counter-petition. I was not convinced by his example -- if he considered that example to be a good example of how very carefully the courts would consider the matter of conduct before making it a major determination in a support application.
It was an example that disturbed me very much. It was an example of a marriage of some length, an application by the wife for divorce and support and a counter-petition by the husband claiming that she had entered into a relationship with another man. I did not see from the facts presented about that case by the Attorney General just how this was going to be a very carefully worked use of this very delicate phrase, “obvious and gross repudiation of the relationship.”
Once again, it seemed to me in that case what we were dealing with was an examination of the behaviour of one party. It will always be a problem in cases such as this one to try to deal with behaviour by either party because the person whose behaviour will be examined carefully, scrutinized, analyzed and judged will the applicant. That’s the nature of support application. As the hon. member for Ottawa East likes to say, that’s the way the real world operates.
Mr. Roy: Not always.
Ms. Gigantes: Not always, but far too often. In any case, the example provided immediately, back in that early consideration by the Attorney General, was not to me a reassuring one. My concern is a general concern that this kind of clause leaves open the door for judges in the court to make judgements concerning what constitutes appropriate behaviour, particularly by a wife. It’s a kind of way in which judges could be allowed in Ontario to continue the tradition of accepting and perhaps even reinforcing the old double standard as is applied to judgements on behaviour of men compared to women.
I think there are enough examples currently of the effects of this kind of double standard and the propensity of some of our judges, not only in this jurisdiction but in others in the English law system, to exercise a double standard of judgement on behaviour that one has to be concerned. One has to ask oneself why we continue to perpetuate an opening in our law where judges may exercise a double standard. The Attorney General later provided members of the committee and in subsequent discussions since this past Christmas a long list -- I think there were about 10 cases in total -- of case studies involving gross and obvious conduct as a factor in support.
Those cases were not very reassuring to me either. One, I recall in particular, was a case of a wife who refused to reside in the home that her husband had purchased. The judge decided that her behaviour constituted a gross and obvious repudiation of the relationship in spite of the fact that she had not been consulted about the house. She didn’t know which house he was buying. She had not approved. She had not been asked by him whether it was an acceptable house. When she decided she wasn’t going to live in that house for what she felt were good reasons, the judge decided that she had in a gross and obvious way repudiated their relationship.
I will read you one little note which my colleague from Lakeshore gave to me just this past month, in February 1978. It’s a news story from London, England, and I am going to read it for two reasons: one, because this tends to be a heavy discussion in general and, two, because I think it points to what I am talking about when I talk about the double standard, and to my concern that this legislation with this clause 18(6) in it still permits judges to enforce a double standard. It’s a news story, a CP news story from London, England, and the headline is “Sex Life Lag Not a Reason for Divorce.” The article goes as follows:
“A wife who complained that her husband had not made love to her for 10 years was refused a divorce when Mr. Justice John Balcombe ruled that this was not grounds for ending the marriage.
“Iris Crafer, 46, of Forest Gate, London, complained that her husband was selfish, unsociable, lacked ambition and did not help with the gardening or home decorating.
“But Mr. Justice Balcombe in the High Court family division said the wife had blown up trivialities into major issues’. It was clear, he added, that the husband always sent his wife cards at Christmas and gave her presents on birthdays and other anniversaries.”
Now, that’s a funny story -- unless you’re Iris Crafer.
Mr. Roy: That’s divorce; that’s not support.
Mrs. Campbell: Such generosity.
Ms. Gigantes: No, I’m sorry. My friend from Ottawa East says that’s divorce, that’s not support. The same kind of double standard applies right through our courts. We know that. We know of cases here in Ontario. Within recent months we had a case when one of our judges told a witness that he could not accept her as a reliable witness because she was a woman of a certain age.
Mr. Roy: That is the exception -- not the rule, for God’s sake.
Mr. Renwick: If that is the exception to the rule, Albert, you’re one of the exceptions.
Mr. Roy: You really don’t believe that.
Ms. Gigantes: We cannot continue to permit any judge who may have such prehistoric notions about the female sex and its capacities, capabilities and needs, a judge who may have those views of the world and life, to go on without any kind of real bindings on his free use of discretion in these judgements on what constitutes good behaviour from a wife and from a woman. We can’t allow this kind of opening in our law. Section 18(6) needs to be removed.
Mr. Roy: Is there no conduct that should affect --
Ms. Gigantes: In the real world, which my colleague from Ottawa East kept raising whenever we discussed conduct in the justice committee -- he kept referring to the real world, saying, “You have to take these things into account in the real world. Conduct is important in the real world, and that’s a fact” -- there are some things about the real world and the way it’s operated that we want to change.
The kind of discretion that judges have exercised, and have exercised in intolerable fashion, to say to the public, to the world, and to an individual woman, what the proper role of a wife is and what proper behaviour from a woman is -- that has to be changed. That has gone on for far too long.
We have had a lot of arguments, and it’s funny how these arguments have changed, Mr. Chairman. I remember the first discussions on this particular bill two years ago, when I first became involved in studying it. The examples we were given of why we needed some kind of conduct clause in this bill generally had to do with the young, blonde female swinger who married the older man for his dough and then divorced him.
It’s fascinating though, as the months have gone by, how that example has dropped out of the parlance of the argument. Instead, what we’re being given these days is the drunkard husband who beats his wife, who is a working woman. He has no job, she works hard at her professional life; why should she have to give him support when his behaviour is so intolerable?
Mr. Bradley: In other words, it works both ways.
Ms. Gigantes: I am just delighted how the cases have changed and how we swing around now, once you get right down to it, to the protection of women. We’re going to be protected again for our own good. In this area I prefer self-defence, unimpeded by such clauses as this conduct clause. Take that last case, Mr. Chairman. I’m going to read to the members of the Legislature here assembled the number of ways laid out in section 18, subsection 5, clauses (a), (b), (c), (d) right through to (p ) -- I’m going to read every one of them. These are all the ways within this bill that a judge can use discretion to vary the amount of support.
I want to read these all out because I want legislators to ask themselves, once we have all these clauses (a) to (p), do we really need to have this conduct stuff in here? I won’t read them all. You can read them yourselves. But let me suggest that you turn now and look at the frightening array of circumstances which a judge can take into account to vary the amount of support given to a dependant.
Section 18, subsection 5, clauses (a) to (p) includes everything from the length of time of the relationship to the capacity of the dependant to become independent. Under these clauses -- under section 18, subsection 5. clause (b) -- the judge can say to that bum of a husband -- that drunken lout who beats her when she is just trying to carry on as an honest, professional woman, and who is making a claim on her money: “I’m looking at the capacity of you, Mister, to provide for your own support.” He can say as a judge, “I say to you, Mister, I think you’ve got full capacity if you’ll use it so I’m not going to give you a cent of support.”
Mr. Roy: He’s got a drinking problem.
Ms. Gigantes: “Your problem is that you haven’t decided to make yourself financially independent and there is no reason why your hardworking, honest, professional wife should have to provide support for you while you refuse to face your own problem.”
The sections we have here before us allow enormous discretion to judges to decide how to apply to provide support for a dependant in a relationship. I cannot see why we have to get into the kind of opening in the law that allows for judicial judgement on the behaviour, principally of females, that exists in 18(6) at the moment.
I’ll put one more point to you, Mr. Chairman. Even if the judge, without having the benefit of being able to look at the conduct of the party who is seeking support, without having that luxury to make a judgement about proper behaviour -- even if the judge, going through section 18(5) (a) to (p) doesn’t find a good reason for making a good decision about how much support should be provided -- if he makes a mistake -- there can be an application to reconsider that decision within six months under this legislation. Any circumstances which change in any period of time can be varied by an application to the court within six months of a support order.
I think I feel more strongly on this section than I did about the assets section, because most people in this society don’t have many assets anyhow. The principle involved in this clause, which deals with conduct and which will end up with dealing with women’s conduct, is one which I find an absolute principle. We have to remove the discretion which judges have freely exercised with some of them -- I won’t say it, I get so angry on this subject.
I think if we make section 18 a positive statement that there shall be no consideration of the conduct of either spouse in determination of one spouse’s need for support from another, then we will have done a great benefit to the standard of family law in the province of Ontario.
Mrs. Campbell: Mr. Chairman, the member for Carleton East makes a very strong and I think important point with reference to this whole matter of the conduct clause. I am sorry that I was not in the committee in January to hear the discussion on this clause, hut I very much participated two years ago when the matter was before a committee. I have taken this position on the matter of conduct because I am of the opinion that the member for Carleton East is abundantly correct in her view of the way in which judges have been functioning.
I was very pleased to have the opportunity to discuss three cases with a member of the Attorney General’s staff to try to see the way in which the British jurisprudence was functioning under its somewhat similar section. The case to which the member for Carleton East referred was to me a perfect example of just the way in which judges seem to approach this situation.
It’s interesting that in the other two cases we discussed, where the conduct of the male spouse was discussed, one of them was a case where the conduct was determined to be a “gross repudiation of,” within the meaning of their terminology. It was a case where he had battered his wife -- smashed her hands so that she would not be able to work. That seems to me in rather marked contrast to the determination in the case of a wife who simply refused to move into the matrimonial home.
The other case where gross repudiation, I presume, would flow in Ontario as a result of this precedent was a case where a husband entered into an incestuous relationship with his daughter-in-law, and in fact drove the wife and his son out of the home while he continued that course of conduct. I would think it wouldn’t take too much imagination to interpret that as a “gross repudiation” of something or other. The contrast, though, between the types of decisions in these cases I am afraid really does bear a great deal upon the way in which women review any conduct clause in our society today.
I think perhaps the case that we read about this morning, while it didn’t relate to conduct, had a kind of approach to this woman that bothered me somewhat. I don’t think two partners to a marriage should be able to contract the state’s support into their agreement in any way, but it was the attitude of this judge in adjourning the matter which is a part of the general approach of the courts to this situation.
I do have to say that I have been asked by a number of women -- the member for Carleton East will probably not agree, but there are a number of women who have been battered and who have asked that this kind of clause with some protection should be in the Act. Since that is on the increase and nobody is doing anything about it, it does cause me some concern.
I cannot understand why this particular clause should be needed under section 18. It was interesting to me when I was on the committee that the male members of my profession were the experts in this. They made their presentation and they didn’t blush or feel any sense of shame that women had been driven to take this kind of position through fear because of their long-standing experience in the courts.
The women who appeared before the committee were put down as nothing experts. They weren’t within the machinery of the Canadian Bar Association or anything else, so what they had to say on this subject was negligible. I regret, as it happened, the Attorney General was not able at that point to be present to hear what they had to say.
I don’t know what the discussion was in the committee. In my view, as long as people have no confidence in the law -- and it isn’t just the judges -- this is the problem. Women have no confidence in the legal profession basically in these cases before the court. I had one woman who is a battered wife. It took some 10 months even to get her husband out of the house where she was trying to protect her children, simply because the members of the bar don’t take that particular situation seriously. And some of them grow up to be judges. That’s the problem.
I’ve tried very hard to look at both sides of this particular question. Speaking personally, I have to support the amendment of the member for Carleton East.
Mr. G. Taylor: Might I speak briefly on this and to the Attorney General on this matter? I too might side with my colleagues on the opposite side of the House on this amendment indeed to the point of deleting the section entirely, as the member for Carleton East had in her earlier motion. I look at this and it does not give to either party, male or female, anything but a penal section. I do not hope that our judges, either male or female, are the fount of all knowledge and that their prejudices come out in all their decision-making powers, but it does allow there for a penalty. Do you get $2 for one punch or $3 for four punches? Do we bring in some great tort lawyers, such as a Mr. Melvin Belli, to plead pain and suffering and who will ask a jury to be present and will expand upon what is going on here so that we can embellish our damages to the point that we will see large cases coming out of the matrimonial situation, where we get a large damage result rather than the ending of a marriage through means that would be socially acceptable to the legislation?
I look upon the entire section as maybe one of the most heinous sections in the Act when we are looking to the conduct of each party and seeing how it should measure up, seeing if we can put a dollar value on this life that has gone on before, of either party, be it male or female, to the ending of the relationship. When we look at the Divorce Act, it has in there some words saying the conduct of the party should be looked at, but it doesn’t get down to the conduct that is then amplified and modified by gross repudiation.
When I look at the wording of the section I don t know whether or not the parties can separate or end the relationship because it is a gross repudiation of the relationship. As the modification of that section looks to me, it just works out to a dollar value. When you are putting in an Act a section that determines the amount of dollars, I can see endless litigation and endless time used up in the courts and in the court system, particularly in the matrimonial situation, which is a hard enough situation, a difficult situation to litigate and put people through a court system anyway. To then work it out so that we can put dollar values on this relationship that is going asunder becomes a very difficult process, both for the participants, the litigants, and the judges involved.
So, Mr. Attorney General, if you can see your way clear to this amendment and if this side of the House can see its way clear, I would support my colleagues on the other side to delete that entire section. There is plenty in the earlier section of the Act to determine what should go between the spouses in a monetary matter without putting what can be categorized as a penal section into the Act.
Mr. Renwick: I would like to address my remarks specifically to the Attorney General. I was very heartened when the member for St. George said that she would support the amendment proposed by my colleague, the member for Carleton East. I had for one brief, fleeting moment thought that perhaps we were going to achieve what the member for Simcoe Centre and the member for St. George and the member for Carleton East have tried to indicate to the House is necessary. I’m going to try to add my still small voice to that particular argument.
I find the specific clause so offensive that it’s difficult for me to marshal my thoughts about it and express them articulately in the English language. For once in my life I’m going to allow myself a brief personal allusion, because I have heard two or three times during the course of this debate from those people who are fortunate enough to have been happily and permanently married.
I want to address these remarks, because I very seldom do this. I want it clearly understood that neither in my own personal experience or in the experience I’ve had in relationships with advising clients in similar circumstances -- although it’s not a specialty that I practise -- I have never, ever seen a situation where you could impute conduct to one person that wasn’t a response to the conduct of another person and vice versa.
Mrs. Campbell: Exactly.
Mr. Renwick: It is always that way. There is no such thing as a case of marital relationship where of the conduct it can be said that the one person is black and the other person is white. It just doesn’t work that way. I’d say to the member for Ottawa East particularly, that’s the real world -- that’s the real world.
Mr. Roy: You’re wrong, you’re wrong.
Mr. Renwick: I may use one example, because the two persons are no longer living, and I use this quite advisedly, because I’m upset about the fact that we have to talk in horror stories to make this understood. The woman was an alcoholic over a period of time. It would take Freud to have figured out whether the relationship was the cause of the alcoholism or not. There was no question that the person was an alcoholic.
The husband engaged in a course of conduct which to my mind was depraved: when he wanted to go away himself for a week he’d bring liquor into the house. When he wanted to be at home, he would prohibit any alcohol in the house. He had it very skilfully worked out as to how many bottles a day the wife could drink, so if he wanted to go away for a week he’d bring X number of bottles of liquor into the house.
Would you ask me how anybody can sort out whether the course of conduct of the wife would prohibit her from getting support in a situation where the husband was engaged in that kind of contribution to the very conduct which was going to be used to deny the support?
I want to make one other point. You may think this is pure logic, but it’s not pure logic. In the English language that clause doesn’t make sense, because the amount of support which is needed for the future has no bearing whatsoever on the conduct in the past. If there is a reduction in the amount of the support payment which would normally --
Mr. Deputy Chairman: Does the hon. member for Riverdale wish to continue?
Mr. Renwick: No. I will continue when I have the attention of the Attorney General. The amount of support which is required in the future has nothing to do with the conduct in the past. Therefore, if you reduce the amount of support because of past conduct, somebody else is going to have to pick up the difference, be it the government through welfare assistance, or be it some other form of support. Somebody is going to have to make up the number of dollars required for that person to exist in our society. it is just that simple.
Do you allow one spouse to transfer a portion or all of that responsibility to the state or to somebody else and allow him, which is mainly the case, to escape the support obligation? I think we have to be tough. People make mistakes. There are marriages which flounder and are finished and over with. But that is tough. That doesn't eliminate the responsibility which in a civilized society we are trying to impose for the support for the future.
If you make a mistake, sure you have to pay somewhere. You can’t transfer it to somebody else. That may sound very tough and very awkward and very difficult, but that is the way in which the real world should function because you are responsible for your own mistake in judgement. The marriage doesn’t work out the way you want it to work out, but that shouldn’t allow you to escape the obligation which you have accepted by entering into that arrangement.
I have a complete sense from listening to the discussion here that in a funny way the attitude of this assembly appears to be to support this clause, despite what the member for St. George said and despite what the member for Carleton East has said. It seems to me to reflect very clearly the very concerns which they expressed about the court system. Even the members of this assembly get to be judges one way or another. I think it reflects exactly the problem which is before us.
I want to make a further point. What the member for St. George said was so very clear. If there is one area of English law -- that is, the law of Great Britain -- that has no place in the Canadian scene it is their law related to family relationships. The divorce jurisdiction of those courts and the way it was handled over the years reinforce time and time again the points which have been made that that is a male-dominated society and, despite successive Labour governments, it still is.
The Attorney General knows that it was the courts of Great Britain that fastened the law of domicile on to divorce jurisdiction, that fastened the proposition that a woman had no separate domicile but had the domicile of her husband by the very act of marriage, which meant she could never sue in the court for a divorce unless she could sue in the jurisdiction of the domicile of her husband. The Attorney General knows as well as I do the intricate legal measures that had to be revised through legislatures to overcome that particular judge-made rule. Flowing from that jurisdiction which came from the ecclesiastical courts there has been an acceptance of the proposition that the woman was an inferior partner in the marriage relationship and we are doing our very best in this bill to reverse many centuries of that kind of thinking.
I say to the Attorney General that to permit to be put into issue past conduct for the determining of the amount of money required for future needs without any clear avenue in the bill, if you insist on going this route, for the conduct of the other partner to be put into issue as well and have it all thrashed out, if that is what the government wants to happen in its family courts, then at least have it as a clear issue so that if on a support application it is intended by the respondent to put in issue the conduct of the applicant, the respondent has to so specifically state. The applicant can then state before the court one of the issues is the conduct matter and we will thrash out all of the two sides of the relationship before the courts.
Why do you want to impose on the courts with this kind of jurisdiction that kind of problem? What is the point in doing that? Why don’t you simply say, “Past conduct has nothing to do with future needs. Sorry, it’s tough. The only ameliorating provisions are the ones which are itemized in the items from (a) to (p)” and to (q) if that -- well, no, that other amendment was passed -- and those are the ameliorating circumstances? Let’s not disrupt the whole of the conception of this subsection 5. Let’s not disrupt the whole of the basic conception of it by throwing in at the tag end this proposition of past conduct.
I think it is an intolerable burden to put on those judges in those courts. It will not come up in a few cases, it will come up in many cases, because in the deterioration of a marital relationship between two people, much of which is in private, then you can be certain that someone will try to get off the support hook by calling in aid the past conduct of the other party, and the court will then have to make that decision. Perhaps the Attorney General would listen to his colleague, the member for Simcoe Centre, and agree that this amendment must be accepted by this assembly.
Mr. Sweeney: Mr. Chairman, I rise objecting to the amendment.
Mr. McClellan: Naturally.
Mr. Sweeney: I rise, in fact, to support leaving this clause in the bill and I would suggest to my colleague from Riverdale that it is really not so surprising that he senses the majority of members in this House, in fact, believe that such a clause should be in here. I would suggest to the member for Riverdale that, in fact, we are probably reflecting the mood of our society and that mood, that Judaeo-Christian tradition which moves our society.
Ms. Bryden: It’s a double standard.
Mr. Sweeney: Whether some members like it or not --
Mr. McClellan: What we don’t like is your sanctimonious hypocrisy.
Mr. Sweeney: -- that particular tradition suggests --
Mr. Lawlor: Sweeney, you are living in the midst of gross paganism.
Mr. Deputy Chairman: Order.
Mr. Sweeney: -- that people are responsible for the consequences of their actions. This has already been changed. It is clearly suggesting the words “so unconscionable” and “gross repudiation” and when such actually occurs then it must be taken into consideration. I must also disagree with the member for Riverdale that the situation is not always that both parties are equally responsible.
Mr. Renwick: Always.
Mr. Sweeney: I disagree with you, sir, I’m sorry.
Mr. Deputy Chairman: Order.
Mr. Renwick: On a point of order, I did not say that in all situations each party was equally responsible. I said It was impossible to determine whose conduct caused what conduct. You can’t equate the matters.
Mr. Deputy Chairman: The member for Kitchener-Wilmot may continue.
Mr. McClellan: The court is not the confessional.
Mr. Sweeney: Thank you for the interpretation.
Mr. Roy: We listened to you. We didn’t interrupt.
Mr. Sweeney: The point I would make is that there are sufficient examples where it is clear that one member of the marriage relationship has been seriously wounded by one other member and that factor must be considered. If this legislation is going to take the real situation and the real world into consideration, we cannot afford to leave this out.
Mr. Renwick: It has never been in it.
Ms. Bryden: I rise to support the amendment. I think it’s one of the key amendments that is needed to make this bill operative in the true sense of the preamble, which is to bring the spouses into equality before the law. I welcome the support of the member for St. George and the member for Simcoe Centre. I hope they will persuade their colleagues, when the vote comes, to support it also.
Many of the women’s organizations which appeared before the justice committee or which sent in submissions to the committee felt very strongly that the question of conduct should be deleted from the legislation. They felt that in applications for support the sole consideration should be the need of the applicant and the ability to pay of the other spouse. They have good support from a body of distinguished researchers in the law, namely, the Law Reform Commission of Canada, which recommended strongly that conduct should not he considered either in divorce actions or in awards for support.
I won’t repeat all the arguments that have been made very eloquently by my colleagues, the member for Simcoe Centre and the member for St. George, but I would like to summarize what I think are the five reasons why this clause must be amended so that conduct is excluded.
The first thing is that the women’s organizations particularly which appeared before us drew attention to the fact that the length of litigation in any support litigation was greatly increased because of the introduction of conduct and the bringing in of evidence about conduct. That means that the costs of such actions were also greatly increased. I think that that is a very strong reason for not including it and not adding to the judicial costs in this particular realm.
Secondly, we are moving to the no-fault concept in other fields. We now have no-fault divorce, if the spouses live apart for three years. We now have no fault auto insurance.
Mr. Roy: Not quite.
Ms. Bryden: We have that partly because it was felt that the difficulty of establishing fault for something that happened in, say, 60 seconds --
Mr. Roy: No, we don’t have no-fault insurance.
Ms. Bryden: -- and which may have been witnessed by a dozen people was still extremely difficult and that in some cases it was better to have the no-fault concept if we wished to see that justice was done.
In the case of marital relationships it is even more difficult to establish fault because, as my colleague from Riverdale has pointed out, conduct by one spouse is often a reaction to conduct by the other spouse. More important, it is impossible to establish a course of conduct that has been going on for many years and which has been going on in most cases behind closed doors without witnesses.
By asking a judge to determine conduct, we are asking him to take on the powers of God, to be all-knowing and all-observing. We are asking this Legislature to legislate an impossibility, to determine fault in a marital relationship, particularly one that has gone on for many years.
The third reason why we should exclude it is I think a humanitarian one; that is that bringing conduct into litigation for support means great embarrassment to the spouses. It can mean real pain and suffering. It can prevent the possibility of any future reconciliation or make it much more difficult. It can even prevent the possibility of a continuation of an amicable relationship between the separated spouses and, I think, it is very important that there should be an amicable relationship, particularly if children are involved.
The fourth reason -- and I think it too is a very important one -- is the double standard. We are putting blinkers on if we say that it longer exists -- that the requirements for the morality of a woman are considered to be different from those for a man. Judges and lawyers as well, as the member for St. George pointed out, are still influenced by double-standard thinking. Therefore, in their arguments and in their decisions they will be influenced by the double standard.
The clause we hope to strike out has words that are capable of many interpretations. While other jurisdictions have similar words, none of them has an identical wording. Therefore I do not think we can argue that the interpretations that have been put on similar clauses in other jurisdictions will dictate what interpretations will be put on these words.
The fact is that the words are capable of many interpretations and they can be broadened to include a great many areas of conduct, not just the few extreme cases that some people talk about.
The fifth reason is I do not see why we should give to judges the power to award punishment for what happened in a marriage relationship. Punishment is something for the courts to impose when a law has been broken and, in the case that the member for St. George cited, if somebody has been injured by the other spouse there are recourses in the law for compensation or for damages. To give a judge the power to award punishment for what has happened during a marriage is again to put him in a position of God, because he does not know in great detail what went on in those periods and he cannot bring enough witnesses before a court to establish it.
My final reason is that retention of the conduct clause in the bill means that the bill will discriminate against women, because they will be the applicants in 90 per cent of the cases and they will lose out if the conduct clause is invoked and is made to stick against them in any way. I think it is disgraceful, in a bill that purports to be bringing the spouses into equality before the law, to continue a clause that will discriminate against women.
We must, therefore, have a clear guideline to the judges that conduct is not to be considered. There are plenty of other guidelines there to guide the judges in producing what we hope will be justice between the spouses, but we will not achieve justice because of the reasons that I have just cited if we retain the present clause in the bill.
Mr. Roy: This question of conduct has been a concern of the members of the committee since the bill was introduced. We have discussed it in various forms, we have heard submissions from various groups. I recall it was exactly because of this concern when we first sat on the committee -- what was it, a year or a year and a half ago? -- that we asked the Attorney General to narrow the clause of conduct down. It appears to me that having done so -- having narrowed it down to its present form -- that we have gone about as far as we can go in responding to a piece of legislation which will be socially acceptable.
I’ve listened carefully to the different points of view that were brought forward. I’m pleased to see that when the member for Carleton East was bringing forward her amendment, she finally realized something. She made a comment which I thought was interesting.
When we talked earlier about certain amendments dealing with assets, there was posturing on the part of people on my left about how absolutely important all of this was. Then she made the comment that assets were not really that important. Finally we saw what it was all about, that assets were not all that important and that the importance was on conduct. I’m pleased to see the member agrees that basically in our society all males are not millionaire chauvinists. That’s not the case.
As I listened to the arguments being brought forward by certain members, there was an attempt to try to make a general rule out of an exception. We must be careful about that. First of all, from the way the amendment is phrased we’re making it clear to the court that the conduct we were referring to generally in the old days -- when they were saying that the courts were taking advantage of and were being unduly harsh on females; in the days when we were talking about dum casta clauses in separation agreements and things of this nature -- is no longer a factor for these purposes. We are giving guidelines to the court.
I find it ironic that in attempting to make the rule out of the exception, we distort the whole situation out there. I’ve been criticized very often in talking about the real world. There is one and we’ve got to be aware of it.
Mr. Roy: Every time I say that I get my colleagues to my left excited because very often they are not living in the real world.
Mr. Bounsall: It’s a very unusual real world you live in.
Mr. Roy: Out there we’re trying to have a piece of legislation which responds to a situation and will be acceptable to the majority in our society.
Mr. Roy: We have narrowed down the conduct provisions. I find it interesting that the member for Carleton East says: “If we leave that in, those male chauvinist judges are going to be jumping on us all the time to disentitle the female spouse.” Then she says: “Take it out and then those wise judges” -- all at once you take it out and then the judges become wise and experienced and no longer chauvinists.
Ms. Gigantes: Did I say that?
Mr. Deputy Chairman: The member for Carleton East.
Mr. Roy: Mr. Chairman --
Mr. Deputy Chairman: She has risen. I have to hear what she rises on before I can rule whether she is in order. On what point are you rising?
Ms. Gigantes: On a point of personal privilege, Mr. Chairman. I am being seriously misquoted by the member for Ottawa East. I did not use the phrase “male chauvinist.”
Mr. Roy: I didn’t quote her.
Ms. Gigantes: I did not use that phrase and I think it infringes on my personal privilege to have that attributed to me.
Mr. Roy: I didn’t quote her.
Mr. Deputy Chairman: The member for Ottawa East may continue.
Mr. Roy: I would only say to the Chair that people on all sides have sat here and listened with graciousness to the comments made by all the members. I would appreciate the same discretion given to us.
Mr. Bradley: They have two sets of rules.
Mr. Roy: We’re getting used to that. I was making the point that what basically the member for Carleton East was saying is that the courts cannot be trusted with section 18(6). But, if we take it out, according to the member for Carleton East, then the courts become all-wise and will look at other factors under section 18(5). They will disentitle, for instance, that alcoholic drunk who keeps beating up his wife. The point is this, once you take conduct out completely then the criterion for support, according to this section, is based basically just on need and capacity.
Ms. Gigantes: That’s right.
Mr. Roy: There, she agrees with me. What it does invite, Mr. Chairman, is decisions by the court that are so unjust and so unconscionable that the law is made to look like an ass. That’s basically what some of the points mean.
I was impressed with some of the things that the member for Riverdale said because he said them with sincerity. I agree with him, as one who has practised in the courts and has done family law. I agree with him, basically, that in most situations it’s not black and white that the fault is entirely on one spouse or entirely on the other spouse, but I can say to my colleague from Riverdale that I have seen situations when, in fact, you can see the black and white.
In most cases it’s the male spouse who is the villain in this, where you have some tolerance on the part of certain female spouses in this province and in this country which border on sanctity. There are those situations. We have to keep these things in mind, and surely this clause under conduct is meant to deal with situations that are unconscionable. That’s the purpose of leaving the clause in.
The other factor that the members must consider -- I can just see it happen -- is that if we were to accept this amendment the legal profession would just simply turn around and the emphasis would be put on disregarding this legislation for purposes of support and going into the realm of divorce under the Divorce Act where, in fact, conduct is a factor. As I understand it, and maybe the Attorney General can correct me, but once you proceed under the Divorce Act it supersedes this legislation. We’re trying to put forward a piece of legislation here which we say is progressive, which has a certain amount of balance in it.
By making it so unreal we’re inviting the legal profession and the public out there to disregard it and proceed under another statute, which I suggest to you is the Divorce Act, and we have no jurisdiction there. It’s a federal statute. In fact, we’re inviting people to use the Divorce Act to circumvent certain equitable provisions of this statute. I’m saying to you that we shouldn’t do this. What I am saying is to accept this amendment borders, to a point, on inviting decisions that are so unjust and so unconscionable --
Ms. Gigantes: Have a little faith in your judges.
Mr. Roy: Have a little faith, the member for Carleton East says. I say, have a little faith and leave the section in. That’s the way to have faith.
Ms. Gigantes: That much faith I don’t have.
Mr. Roy: You can’t have it both ways.
Ms. Gigantes: Neither can you.
Mr. Roy: The way the conduct provision is framed -- and they get annoyed when I say in the real world, but there is a real world out there --
Mr. Deputy Chairman: Order.
Mr. Roy: -- it’s very much like the mental and physical cruelty aspects under the Divorce Act. There are very few instances -- it’s the exception -- I don’t have the statistics, but I would think that under the Divorce Act there wouldn’t be more than one or two per cent of divorces under mental and physical cruelty where, in fact, the male is the petitioner. That is a clause that is beneficial to the female spouse more than it is to the male. I frankly think that the way we have framed this legislation is fair and that the people who would suffer the most by taking this section out would be the people the member for Carleton East is saying she is trying to protect, whose interests she says she is upholding. That’s what frightens me about it, that where there appears to be on the surface some proper intent, some sincerity in trying to do something, the results are exactly the opposite. I say to you that we, and I hope my colleagues agree with me on this, by and large are taking a responsible --
Ms. Gigantes: They will.
Mr. Roy: -- approach and, by and large, by leaving it in we are saying that there is certain conduct. I hazard to guess, Mr. Chairman -- I appear before the courts -- that I can say judges lean more often in favour of the female spouse than the male spouse.
Ms. Gigantes: Oh, boy !
Mr. Roy: You just can’t do, as one member has done, and refer to certain cases that she’s read about a judge in England or about some judge who has made a comment about women of certain age. Surely to God that’s the exception. We have thousands of judges in this province, male and female, who certainly don’t have that approach. You can’t make the exception. You can’t say the whole judiciary is biased or male chauvinist or whatever because there happen to be certain misguided souls. You don’t make the exception the rule.
We have faith in the judiciary, and I say that to accept the amendment by the member for Carleton East is to invite unconscionable decisions. We have more faith in the judiciary than she appears to have. We feel there are situations, especially situations affecting the female spouse, which will invite absolutely ludicrous decisions if we take that section out.
Mr. Bounsall: You’d love to be part of that judiciary.
Mr. Swart: Mr. Chairman, in the spirit of diversity which appears to exist within all caucuses here today --
Mr. Roy: Way to go, Mel.
Mr. Swart: Albert, you almost drove me to staying in my seat. Another speech, I think, perhaps would have.
Mr. Roy: At least you are consistent.
Mr. Lawlor: Sweeney would have been worse.
Mr. Swart: Especially the comment you made about my colleague from Carleton East, implying that she had said that assets were not important.
Mr. Roy: That is what she said.
Mr. Deputy Chairman: Order.
Mr. Swart: My interpretation of what she said -- in fact, what she said -- was they were extremely important but this was perhaps even more important.
Mr. Roy: You read Hansard.
Mr. Swart: I listened rather carefully to the debate, and I have to say that I am somewhat bothered about the debate that has taken place. I am a little concerned about the implications by some that the clause that we have before us under section 18(6) is a clause that provides inequality between the spouses or inequality between the male and female.
I think we would all agree that the original clause which was presented to the committee did provide some inequality where the conduct of the spouse requiring the support was the one that was to be considered. But it seems to me that a clause which reads, “The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,” would apply equally to the one who would be applying for the support as well as the one who would be responsible for that support.
I am not a lawyer but it seems to me that interpretation is rather clear.
Mr. Lawlor: I agree with you.
Mr. Swart: I, too, am concerned about the court system, which I think over the years has shown some partiality to the male. I think that is disappearing. I hope it’s disappearing. But I am not sure that legislation should be changed to take into account that partiality if any is there. It seems to me that it’s the job of the Attorney General to see that there is no partiality, and it seems that is where the change be made. I wear a button which says, “50-50.” I support that fully, and it seems to me that the clause which we have here is a 50-50 clause.
The second part of the debate that bothers me a bit is the discussion about conduct, which seems to imply that the conduct clause which is in there could be used in almost every case. Again, I am no expert in wording and no lawyer, but certainly it would be my intention, and I made some changes, and my interpretation of it now is that it would only be used in extreme cases. The English language, of course, is not exact, but when you say “a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,” it would seem to me that any reasonable judge would interpret that to mean only the very extreme cases.
I am particularly concerned about the discussion -- and it was introduced by the member for Simcoe Centre (Mr. G. Taylor) -- which said this clause was a “penal” clause, saying that it could penalize some person from getting the amount of money to which he or she was entitled. I suggest there is another side to that coin, or that dollar, whatever the ease may be, and that it could be a very great injustice perpetrated on an innocent party if you assess tremendous costs against that person for something which took place that was not primarily his or her fault or doing.
I know it is difficult to decide in these things where fault lies, but there is not one of us who doesn’t know some ease where you have a pretty strong opinion, a pretty justifiable strong opinion, about where the majority of the fault lies in a breakup. Certainly in the ease of battered wives and other cases of extreme abuse, it seems to me that somehow or other in our assessment of penalties on moral grounds we should not apply those penalties against the innocent party.
The things that I have talked about here bother me somewhat. I feel that I as much as anyone else want to see fairness done between spouses when there is a marriage breakup. I want desperately to see that wives are treated in the courts, and because of the laws that we have, in the exact same way that husbands are treated. I desperately want to see justice done to both sides. In any marriage breakup there are injustices, but I guess it is because I feel there can be greater instances of injustices if the clause is removed than if it is retained, I feel there is merit in keeping that clause within this bill.
It is always a difficult position to be in when you are not in full accord, even in one instance, with the colleagues for whom you have so much respect, but in this instance I know of people to whom there would be a tremendous injustice and a tremendous hurt done if their conduct could never ever be considered in awarding support. I felt compelled to rise to make these comments here today, Mr. Chairman.
Mr. Bradley: The voice of reason.
Mr. Lawlor: I have two concerns in rising. One is that we have to have this legislation through by 1 o’clock today and therefore I will truncate my remarks. I intend to speak rather quickly from time to time in order to get on the record the few now hoary, worked-over, full of ordure, ideas that I have left on this subject.
Of course, I want to support my colleague in this particular clause. I have done so from the beginning and continue to do so. It seems to me that the repudiation of conduct in human relationships, particularly of this kind, necessarily imports a repudiation of responsibility. To claim that you can’t segment these things out, it seems to me, is to claim that you can’t operate in everyday life in a way of trying to straighten out relationships or to even live with other human beings as to where the weight falls, et cetera. We do it all the time. It’s part of maturity and it’s part of growing up, et cetera.
I would make perhaps a distinction between no-fault divorce and support obligations under this kind of legislation. There is the inextricable skein of the marriage, et cetera, and if they want to cut the bond why then go into all the interminable interstices of who is at fault here or there? That’s not quite the truth here.
If this clause were knocked out, as some of my colleagues wish to see it, would it not encourage -- maybe that’s too strong -- a particular mode of conduct and a way of life which is the very thing, using this legislation, we want to rule out? If conduct has no bearing at all and need is the sole consideration, would not one of the spouses be subsidizing the questionable, to thy the least, behaviour of the other? Wouldn’t the other one feel quite free to engage in a range of activities which is quite blatant and thumb his or her nose at the whole operation of the courts? Doesn’t the opposite and malefactory aspect come into play if the clause remains? It seems to me that.it does.
Secondly, as my colleague points out, there is a reciprocity in the clause. If the offending spouse, let us say, is the husband, it’s not a penal clause at all, but it’s penal to this extent that exemplary or punitive damages might be levied against for a particular exacerbation of the relationship. There are circumstances in ordinary life where the mode of sexual conduct is so blatant and so heinous and so prolonged, and there are instances where the cruelty as between spouses is of such a kind that it has to be taken into cognizance in trying to weigh any just decision in the matter. That goes without saying.
To swing the opposite way because of abuses, because of an inherent tendency, particularly in English law -- I don’t think it’s as prevalent here or in the United States by any means; the British superior court judges have something of a reputation for this -- that’s disappearing and will disappear.
I’m anxious to bring this debate to a close. We’ve said, I think, in the past everything we can possibly say about it so I’ll sit down.
Mr. Bounsall: I rise in support of the amendment by my colleague from Carleton East, and in so doing I wish to say that I listened with great interest to the remarks of the member for Simcoe Centre and the member for St. George in support of our position in the deletion of conduct from the bill.
I must admit to the House that I do not, and cannot, get quite as emotionally involved in this one as I have over the division of assets, which I find to be completely and totally offensive as it now rests -- which is a good thing, I think, for my presentation -- but I certainly feel very strongly that this should be omitted.
I know the Attorney General, in defence of the case, has always given the extreme example of the professional woman who should he relieved of any obligation to support her ne’er-do-well, probably alcoholic husband, who heats her at every opportunity; that being the most extreme case one can think of.
My colleague, the member for Carleton East, is exactly correct when she points out that this type of situation is fully covered in section 18(5) of the bill and in several other clauses, in particular in clause (g) which reads: “The measures available for the dependant to become financially independent and the length of time and cost involved to enable the dependant to take such measures
Section 18(5)(g) would allow a professional woman before the courts to get, after a period of time, the alleviation of any support if the husband, as a ne’er-do-well, has not taken the appropriate steps as required by this bill to take his obligations into account, to become financially independent and to take and grasp those measures which are available and at hand for him to do so. Section 18(5)(g) is perfectly adequate in most eases to account for the most extreme horror story which the Attorney General brings forward.
I must say, in terms of what sort of real world people live in, that I am confident in this regard that the Attorney General does live in a more real world than does the member for Ottawa East. I don’t know what kind of real world he lives in, but I am sure it is not the real world that most people live in; however, it is a shade more real than the member for Kitchener-Wilmot lives in, which, as far as I can see from his remarks, is certainly a very convoluted, restrictive and restricting world.
Reality is how one has perceived it and how one experiences it, but the totality of real world experiences of the colleagues in this party certainly does not fit with the real world experiences as outlined by the member for Kitchener-Wilmot or the member for Ottawa East.
Mr. Bradley: He got under your skin, didn’t he?
Mr. Bounsall: I might just say that I have never been convinced in this clause that, in fact, we have limited the course of conduct or the conduct by which the courts may consider this matter when it is brought before them. Therefore, in that regard, by leaving this section in the bill we are going to ensure that when the support considerations come up before the courts in any divorce where there is any bitterness or any minutiae of contest, all the arguments are going to be dragged forward.
As a member of the committee, I insisted in mid-January that there be provided to us those 10 case law histories on which the British law is based and from which the phrase “obvious and gross repudiation” comes. I have read in detail, and carefully, all of those cases. I would just like to make very short reference to two of them.
In the one, Trippus vs. Trippus, where the husband and wife were married for 16 years, what then occurred was a period of 11 years in which they drifted in and out of the marriage. They were apart for various periods and back together and apart again and finally after 27 years of being formally married they separated. Of course, a divorce action by the husband was launched and a counter-divorce suit launched by the wife back in 1970. Finally, a decision came down by the judges in the matter and in January 1972 the husband, Ron Trippus, appealed the decision that the judge was wrong in law in his proceeding, in his erroneous view that the wife’s adultery should not be taken into account.
What happened after the 27 years is that the wife went to live with a married man. The husband thereafter formed an association with a woman, a woman whom he intended to marry once the divorce action took place. The wife had not made up her mind whether she would marry the man with whom she was living. The husband had appealed the decision of the judge that the wife’s adultery should not be taken into account and the case proceeded before the court of appeal -- Lord Denning, Mr. Phillimore and Mr. Scarman -- and after due consideration, in February 1973, the first proceeding before the courts having taken place in 1970, --
Hon. Mr. Davis: He wants his QC.
Mr. Foulds: He deserves one.
Mr. Bounsall: -- the decision came down -- and I quote from the decision: “Where it is clear that conduct does not play a significant part, it seems to me wrong to load the court with affidavits about ancient or modern discontents. A better use of the court’s time and of counsel’s and solicitors’ time would be to concentrate on what really matters, namely, the financial position of the family.”
We are trusting to luck here in this province by leaving the conduct section of this bill in; that, based on the decision of this court, none of these cases based upon adultery only will find their way into the court system. But I expect we will find the conduct argued interminably before our courts, as these appeal court judges have found.
We will, in fact, have before our courts affidavits about ancient and modern discontents and courses of behaviour, and will be looking through those affidavits rather than concentrating on what really matters -- and that is the financial position of the family and the statements as outlined in clause 15 of the Act before us, which should be the only operative part of this support section, in that the spouse has the obligation to provide the support -- if that spouse has the means -- in accordance with the need of the other one.
That is what should be operative and it should not be modified at all by any conduct section allowed in this bill. The Attorney General could have made the conduct section somewhat better and could have remedied this if he had added after “course of conduct” the phrase “before the separation took place.” Because, of course, what this conduct section allows for -- if I may give what would be a reasonable example -- is of one spouse before the separation having lived a life with the spouse in which on the first spouse’s part there was no course of conduct that could be argued under this conduct section of the clause.
A separation takes place but there are now some months or even years before the divorce takes place. In the course of that time, if the spouse whose behaviour up to this point was exemplary, went out and over those months or over those years went to live with someone else, that could then be argued by the spouse providing the support that indeed a course of conduct was now set up which constituted “a gross repudiation” of that marriage relationship which they are still in, because a divorce has not taken place.
So what this clause means is that between the time of the separation and the time of the divorce, there must not be any course of conduct on the part of either that would be a repudiation of that marriage relationship which by law they still have, but which by law they have not yet severed by a divorce. That could be cleared up by making it very clear in this conduct section that we’re referring to a course of conduct before the separation took place, but the Attorney General and his staff have chosen not to so limit it.
They have therefore invited, before the courts of Ontario, repeated applications on the part of one or both spouses for a new determination of the amount of support based on the conduct of the spouses who have separated. This is because the conduct since the separation can be called a course of conduct which repudiates that marriage relationship which in law still exists and for which the support is asked.
Mr. Stong: No, that would be turfed out. Any right-thinking judge would turf that out.
Mr. Bounsall: I’m saying that the judge may well turf it out. The point is the courts are going to be loaded down with applications, because this section allows for it. If you don’t believe this is going to happen, then you do not live in the real world of what is going to find its way before the courts of the province with respect to courses of conduct set up after the separation has occurred but before the divorce action has been finalized. But of course that would be only another small improvement in a section in which there have been improvement attempts made, but as far as I can see leaves everything wide open before the courts.
The second case of the British law that I wanted to refer to was, of course, the case of West vs. West. It was finally decided in 1976 and has been briefly referred to by my colleague from Carleton East. It is the case where the husband and wife were married and the wife continued to live in the home of her parents. The husband could never find a house in a location in which the wife chose to live. He could find suitable houses in locations where the wife wouldn’t live, but in locations where she would be agreeable to live, he could not find a suitable house. Finally, the husband went out and bought a house anyway, moved into it and said, “Move in.” That house location was not acceptable to her as far as the house was concerned. I gather the location was all right, but it was the house itself that wasn’t. She continued to live with her parents.
What took place thereafter, over the course of the next couple of years, was that the husband spent every weekend with her at the home of her parents, they proceeded to have one child and in fact they took all their vacations together and so on, But the refusal of the wife to move into the house which the husband provided was found to be a “gross repudiation of the marital relationship.”
The point I want to make here is that this case, used as part of the case history, will allow all sorts of cases to come before the judges in the province as a gross repudiation of the relationship. It applies, in particular, I could see, to members of the provincial Parliament who came from ridings outside of the city of Toronto, where we are away from our respective residences for four to five days of the week. Based on this case of West versus West, should a divorce or a separation come up in our family situations, this case could be argued as the one which would provide the gross repudiation of our marriage relationship.
Hon. Mr. Davis: But never in your case, Ted.
Mr. Bounsall: Let me tell you what happens in my case --
Hon. Mr. Davis: It’s an hour’s flight to Windsor.
Mr. Bounsall: But not always at convenient times, I might point out to the Premier.
Hon. Mr. Davis: Oh, I know you. You can find a convenient time anytime.
Mr. Bounsall: Not always when I am needed or required. I have had in my own situation, my spouse, Joanne, phone me up from Windsor and say, “I have a very important constituency case which demands your immediate and emergency attention at the moment.” The case which she refers to, as the constituent needing the great help, is the fact that she, Joanne Bounsall, is in desperate need of having the backyard grass cut immediately, and will I please see to that, as an MPP on behalf of a constituent of the riding.
Hon. Mr. Davis: So you go home and cut the grass.
Mr. Bounsall: I usually wait till the weekend. She wants to ensure that that constituent need is taken care of. Under those kinds of needs and under those kinds of situations that arise, in particular for out-of-town MPPs, as the case of West vs. West exemplifies, it is that kind of allowance, which was allowed by the way, which under obvious and gross repudiation can very easily be argued in the case of an MPP from out of town. I do not fear this argument ever being placed in my case.
Hon. Mr. Davis: I don’t ever expect to see Bounsall vs. Bounsall in the reports.
Mr. Bounsall: Should there ever be a time in which a separation or divorce occurs in this particular Bounsall family, it will be an amicable one. It will not be one which has to find a way into courts, except for the final formalities which one needs to go through. At least, this would be the hope. There certainly would be no problem in the equal 50-50 split of all assets acquired since marriage between the two of us and our family. This is the understanding between us which we have not felt the need to commit to paper. If there is ever a need on the part of my wife to see this committed to paper, there would be no problem in my saying that the asset split as we have proposed in our amendments to this bill in fact be that asset split which occurs between my wife and myself in the unfortunate event that that should occur.
Mr. Nixon: You could make a special agreement with your wife on that.
Mr. Roy: You would act as your own counsel?
Mr. Bounsall: Actually, I would feel much more confident acting as my own counsel than ever to have you acting as my counsel.
Mr. Roy: Then you would have a fool for a client.
Mr. Bounsall: If there ever was a disagreement between my wife and myself and I surely wanted to win my point, I would counsel my wife to take as her counsel the member for Ottawa East. Then I would be in a sure and winning situation.
Ms. Gigantes: You would never do that surely.
Mr. Bounsall: It would be such a vicious move on my part to do to my wife that really in all fairness I would not allow that to occur in her own interests and the interests of my children subsequently.
I will conclude by saying it is completely unconscionable for members of this House to allow this conduct section of this bill as it regards support to remain in this bill. It should be removed and I appeal to all fair-thinking members of the House to follow the lead of the member for St. George and the member for Simcoe Centre in ensuring that this clause is deleted from this bill.
Mr. Nixon: Let’s vote on it.
Mr. Chairman: I Those in favour of the amendment will please say “aye.”
Those opposed will please say “nay.”
In my opinion the “nays” have it.
I declare the amendment defeated.
Mr. MacBeth: What happened to all the NDP?
Mr. Chairman: Hon. Mr. McMurtry moves that section 19(1)(g) of the bill be struck out and the following substituted therefor:
“(g) the payment to an agency referred to in subsection 3 of section 18 of any amount in reimbursement for a benefit or assistance referred to therein, including an amount in reimbursement for such benefit or assistance provided before the date of the order.”
Hon. Mr. McMurtry: Mr. Chairman, this amendment is complementary to the amendment we have already passed in section 18(3). The proposed amendment makes it clear that the ministry or municipality may claim reimbursement of family benefits or welfare but no other kinds of assistance provided. As I say, it’s a complementary amendment to achieve that end.
Motion agreed to.
Section 19, as amended, agreed to.
Sections 20 to 23, inclusive, agreed to.
On section 24
Mr. Chairman: Hon. Mr. McMurtry moves that section 24 of the bill be amended by striking out “the respondent or debtor is about to leave Ontario” in the third and fourth lines and inserting in lieu thereof “the attendance of the respondent or debtor is necessary and it appears that the respondent or debtor is about to leave Ontario in an attempt to evade the obligation to provide support”
Hon. Mr. McMurtry: The proposed amendment, Mr. Chairman, is to define the conditions under which a court may order the arrest of the respondent or debtor who is about to leave the province. The existing section as it presently stands really incorporates an existing section of the Deserted Wives’ and Children’s Maintenance Act, which contains no limits whatsoever on the court’s discretion to arrest. Our proposed amendment really is in response to a request from the Ontario branch of the Canadian Bar Association to provide some limits on the discretion of the court to order the arrest of the respondent or debtor on a support obligation.
It’s felt that the power of arrest should he used sparingly and with some guidelines. Otherwise, it could be abused if it were left in its present form and I think this proposed amendment clearly states the intent of the discretion; otherwise, somebody could perhaps approach a justice of the peace and seek an order or warrant to be issued when the matter really has very little to do with any concern with respect to the respondent or debtor leaving the jurisdiction.
Mr. Bounsall: I have just one concern about this, and I assure the Attorney General that under this section I will not go through my other worries and concerns about all those people who have in fact already fled Ontario into the United States, about how one can at least prevent the application of those persons for landed immigrant status in the United States rather than work permits which they operate from and which allow them to flee to one of the other 37 states with which we do not have reciprocal agreements. We now have or are about to have agreements with 13 states shortly.
I will not go into my arguments there. My concern is that you have the word “and” here. You have added the phrase “the attendance of the respondent or debtor is necessary and”. I would be happy, I suppose, with an “or” there. With the “and” it implies to me that not only do you have the consideration of the debtor leaving Ontario, but in addition you have to have that person in both categories; not only about to leave Ontario but also require his or her attendance. I think that is an additional burden added to the consideration about whether they’re about to leave Ontario, although I don’t see it as harmful as it sits by itself, to link the two of them together by the “and” requires that both considerations be taken into account. I gather that a court could, in fact, allow a judgement in his absence if the respondent or debtor does not appear in court, because he has not taken the time nor trouble to appear. So what is key is whether or not they’re about to leave Ontario to try to avoid the whole obligation, rather than whether or not he is present or not for the hearing. With the “and” added there, it sounds as if you would have to consider both; you’re about to leave and you must appear. So if the Attorney General would insert an “or” instead of an “and” I would be quite happy with that amendment. The amendment would be okay with me, but not with the “and” there.
Hon. Mr. McMurtry: With respect, I don’t see how you can look at them separately, because I don’t see why the court would want to order the arrest of the person unless his attendance is necessary. For example, if the attendance of the person is not necessary and they’re going to leave the jurisdiction I have difficulty in seeing the need for the warrant for the arrest, so I really see the two as being tied together.
Mr. Bounsall: Could I just perhaps state my concern? If in the case of a husband who is living in Ontario and who has had decisions from the court requiring him to pay support -- that’s already taken place -- the evidence now comes forward that he is setting up a business in Chicago, Illinois --
Mrs. Campbell: Make it Quebec; that’s not a very good example.
Mr. Bounsall: -- he’s made an application as a landed immigrant to the United States and the business is being set up in Chicago, in Illinois, which state has consistently refused to enter into a reciprocal agreement for alimony and child support with the province of Ontario. So the move there is certainly a move simply to evade the obligation to provide support.
I can see where, as one of the moves I to make the evasion of support more difficult, a warrant for his arrest might be appropriate to let him know that the attempt to evade support by moving to Chicago, Illinois, has been noted as a move specifically to evade the obligations of his support.
He would not be obligated to appear in court. The court-ordered support payments in Ontario have been made; he is already making those payments and will be making them as long as he is in Ontario, but his going to Chicago, Illinois, of course, will result in no payments being made whatsoever.
Hon. Mr. McMurtry: If I may just briefly respond. Then, of course, his attendance would be necessary before the court in order to enforce the orders that wouldn’t be enforceable in Illinois. I think it’s just an illustration that you can’t separate the two, because in the illustration you just gave, his attendance would be necessary before the court to enforce the law,
Mr. Lawlor: I’m inclined to agree with the Attorney General on that,
I have another point that I would like to bring to your attention. The bar, in order to correct one error, emasculates, in my opinion, the position of the court completely. If you read the second part: “ ... and it appears that the respondent or debtor is about to leave Ontario in an attempt to evade the obligation ...” that imports what is known in criminal law as mens rea or some kind of intention. How is a judge, in issuing a warrant, to know whether or not he’s leaving Ontario for that particular purpose or for 100 other reasons, et cetera? How is it to be established that this is an attempt to evade? That can be strenuously argued by counsel seeking to resist the prevention of his leaving the province under that particular head.
My feeling about the matter, pending what the Attorney General has to say in reply, is that you should leave the clause alone just as it is. It simply says, as things stand, there is no intention that the respondent is about to leave Ontario. One of the impacts of his doing so is going to deprive a spouse in this province of a legitimate support obligation.
Hon. Mr. McMurtry: It may be that the person is about to leave Ontario for an entirely legitimate reason and it has nothing to do with respect to avoiding the obligation. I think in those circumstances it would be quite wrong to issue a warrant for a person’s arrest. Surely there can be other reasons for people leaving the province that are unrelated to a desire to avoid this obligation. I think this is the concern.
Mr. Lawlor: And the claim would be that those reasons were operative in each instance.
Mrs. Campbell: I must agree with my friend from Lakeshore. It seems to me that when you are discussing the issue on civil warrants, it is going to be difficult to ascertain basically why a person is leaving in any kind of material evidentiary terms. I am concerned about that, because I suppose if a court is aware of a course of conduct that would be clear cut --
Hon. Mr. McMurtry: Mr. Chairman, if it’s the request of the justice critics of the Liberal and NDP parties to withdraw the amendment, I will withdraw it. I didn’t mean to cut off the member for St. George, but I think the bar association has a legitimate area of concern. I am quite prepared to communicate to them that this proposed amendment was not acceptable to my distinguished colleagues, the justice critics of the other two parties. So be it.
Mr. Chairman: Do I take it that the hon. minister is withdrawing the amendment?
Hon. Mr. McMurtry: Yes.
Section 24 agreed to.
Sections 25 to 39, inclusive, agreed to.
On section 40:
Mr. Chairman: Ms. Bryden moves that section 40 be amended by the addition of a new subsection:
“3. Where premises are the matrimonial home of two spouses and only one of the spouses is registered as the owner of the premises, the other spouse is deemed to be and is entitled to be registered as a joint owner thereof.”
Hon. Mr. McMurtry: Do we have a copy of this?
Ms. Bryden: Mr. Chairman, I submitted copies to the House leaders of all the parties, as well as the --
Mr. Chairman: I would hope that the member could supply other copies to the parties concerned.
Ms. Bryden: The bill as it stands now provides that both spouses have possessory rights to the matrimonial home regardless of whose name it is registered in. On marriage breakup, either spouse can seek a court order for possession. The bill will also make it impossible for one spouse to sell or mortgage the family home without the written consent of the other spouse.
Mr. Roy: You can’t now under that section.
Ms. Bryden: Under the present law, I agree, under dower, you can’t. So in effect there is no advance in that. I am just summarizing what the bill does about the family home.
In addition, the matrimonial home under this bill will be subject to 50-50 sharing on marriage breakup under section 4.
These provisions, particularly the last one and the possessory rights one, are important additions to the rights of the spouses. But they confer only a deferred right, which happens on marriage break-up. Yet in most cases the acquisition of the home during marriage is the result of regular mortgage payments, in many cases made out of the earnings of both spouses and sometimes out of the earnings of one spouse who is enabled to go out and earn because the other undertakes the bulk of the responsibility for child care and household management.
Since they are purchasing the asset by their joint efforts during their marriage in many cases, either spouse should have the right to ask for immediate vesting in them of his or her right to co-ownership. This kind of provision was in the Manitoba Marital Property Act, which was passed by the previous Manitoba government and which has not yet been repealed, but has only been set in abeyance by the present government while they study the matter.
A considerable number of the briefs submitted to the justice committee asked that the bill follow the Manitoba pattern and establish immediate co-ownership of the matrimonial home for all couples. I would like to point out that the clause is not mandatory, it is permissive. It does not require the immediate vesting of the house in both names unless one or the other spouse requests it. It makes it possible, however.
The main arguments I have heard against this kind of an amendment is that it will prevent a spouse -- in most cases a husband in business -- from escaping his creditors by putting his home in his wife’s name. I submit this is a red herring. In the first place, the number of spouses who are in unincorporated businesses which are likely to go bankrupt are very few. For those who are, there is still the option of incorporation and there is also the permissive nature of this amendment. They can still leave the house in the name of one spouse or the other if they so wish as a joint decision.
If we accept this particular red herring as the main reason for rejecting this motion, we are legislating against the interests of the vast majority of spouses in the mistaken notion -- and it is mistaken, as I have just pointed out -- that we are protecting the tiny group of people operating unincorporated, risky businesses who may wish to have the house in one name only.
Mr. Roy: She is really up on business.
Mr. Martel: She really understands her law.
Ms. Bryden: By not establishing the right to immediate co-ownership of the matrimonial home, we are in effect denying hill recognition of the 50-50 sharing principle in the bill, which is written into section 4. The principal family asset for most families is the home. If we do not provide immediate co-ownership, we are not really giving the vast majority of the women of this province anything by this bill except a deferred right.
What is even more important is that we are denying this right to spouses who happen to have their marriage end because of the death of one of them. We have already rejected amendments which would extend the operation of this bill to marriages which end in the death of one spouse. Therefore, it is even more important that we make sure that the vesting of the co-ownership happen during the marriage, rather than just on marriage breakup. Otherwise, we are continuing what I have pointed out is a discrimination in the Act against two classes of spouses: those whose marriage ends on death and those whose marriage ends on breakup.
In addition, this amendment confers, in my opinion, a significant psychological advantage on the non-owning spouse. It means that if there are negotiations regarding the house -- placing a new mortgage on it or putting it up as collateral or something of that sort -- both spouses participate in those negotiations as equal owners. It’s true that the one spouse has a deferred ownership right, but I think the psychological situation of participating as equal owners makes them much more able to participate in any negotiations on an equal basis, and with both their voices heard.
Therefore, for those reasons, I think we should make this change in the Act. I point out it is only a permissive change, but it will greatly enhance the sense that the bill is going to give something to the vast majority of the women of this province in recognition of their rights.
Mr. Chairman: If there is no further discussion, all those in favour of this amendment will say “aye.”
All those opposed will say “nay.”
In my opinion, the nays have it.
Mr. Chairman: Are there any other sections on which anyone wishes to make comments?
Hon. Mr. McMurtry: Section 57.
Mr. Roy; Just before we get to section 57 I must make my usual diatribe; it’s in relation to section 50.
Sections 41 to 48, inclusive, agreed to.
On section 50:
Mr. Roy: I won’t move any amendments, because I’ve discussed this in justice committee. I did not receive sufficient support, and I’ll not take up the time of the committee on this. I would only say that in my view, in relation to section 50, we shouldn’t permit cohabitation agreements. I’ve made the argument fully in the justice committee and in my personal opinion this is going to be extremely misleading to the spouses in this province, in the sense that they feel that they’ll have a certain amount of security within a common-law relationship but in a sense they will not.
You know my views about giving any status or legislative approval to common-law relationships, especially when there are no children. The common-law spouses by and large are not interested in it; and I should express my views on that.
Mr. Chairman: With all the paper on my desk, I missed section 49. I believe there is an amendment to it.
On section 49:
Mr. Chairman: Hon. Mr. McMurtry moves that subsection 2 of section 49 of the bill be amended by striking out all after clause (b) and by adding thereto the following clause: a proceeding to determine the rights as between spouses in respect of property has been commenced or adjudicated before this part comes into force.”
Hon. Mr. McMurtry: This is to make the application of Part III of the legislation consistent with that of Part I under the new section 12(c), so it would apply to all matters whether adjudicated upon or not.
Mr. Roy: If I might just make this point and ask for the guidance of the Attorney General: as you recall, under section 12 we moved a similar amendment, but the part that bothers me again is the question of adjudication.
Mrs. Campbell: You can’t go back.
Mr. Roy: No, but I want to express my views on that.
Mr. Lawlor: There’s a limited time, you know.
Mr. Roy: Listen to who’s talking about time.
Mr. Cassidy: The women of this province are talking about time.
Mr. Chairman: Would the hon. member direct his comments to the amendment?
Mr. Roy: What bothers me is that in relation to the matrimonial home, let’s say there has been adjudication, would the prescription period apply, for instance, if the adjudication had taken place six years ago or something? I can see a situation where a disposal adjudication has been made to the matrimonial home where it’s been under, let’s say, the Partition Act, it’s been divided up five, six, 10 years ago, and in fact the spouses are not yet divorced; would it then be open to one or other spouse to come back after that period of time or would the prescription period then be a factor? I am talking about the general prescription period of six years under the Limitations Act? Would that be the only prescribing element when we are talking about this Act applying even to cases where there has been previous adjudication?
Hon. Mr. McMurtry: As I understand it we were providing a new cause of action in this Act, and all persons would have the right to take advantage, if that happens to be the case, of this new cause of action. So I don’t think you are really talking about adjudication on an old cause of action, you are talking about an entirely new cause of action.
Mr. Roy: Just to make the point clear. Theoretically, there could have been adjudication 10 years ago in relation to a property, in which the property disposed of is in the hands of somebody else. We are coming in with a new cause of action in which we are giving a new right. I just want to make sure we know exactly what we are getting into; I have a concern about going backwards, which may well cause real hardships in some cases.
Motion agreed to.
Section 49, as amended, agreed to.
Sections 51 to 56, inclusive, agreed to.
On section 57:
Mr. Chairman: Hon. Mr. McMurtry moved that clause (c) of section 57 of the bill be amended by inserting after “provision” in the first line “in a marriage contract or cohabitation agreement”.
Hon. Mr. McMurtry: Mr. Chairman, the proposed amendment is relating to the provision invalidating clause for custody or of access to children in foreign domestic contracts. We wish to amend this to confine its applications to marriage contracts or cohabitation agreements, as is the case with Ontario contracts. In other words, we would like to have clauses in Ontario separation agreements applicable outside the jurisdiction.
Mr. Bounsall: Very good.
Motion agreed to.
Section 57, as amended, agreed to.
Sections 58 and 59 agreed to.
On section 60:
Mr. Chairman: Hon. Mr. McMurtry moved that section 60 of the bill he amended by renumbering subsections (2) and (3) as (3) and (4), and by adding thereto the following subsection:
“(2) The damages recoverable in a claim under subsection (1) may include; (a) actual out of pocket expenses reasonably incurred for the benefit of the injured person; (b) a reasonable allowance for travel expenses actually incurred in visiting the injured person during his treatment or recovery; (c) where as a result of the injury the claimant provides nursing, housekeeping or other services for the person injured a reasonable allowance for loss of income or the value of services; (d) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the injured person if the injury had not occurred.”
Hon. Mr. McMurtry: Hopefully, the amendment is clear, to give the courts guidance as to the kinds of damages recoverable in a new action for a non-fatal injury. And also I want to emphasize that the list is not exclusive.
Mr. Roy: Might I just get this clarification from the Attorney General? Did you feel that the present guidelines that the courts are following, through jurisprudence and whatever in relation to property, general damages and this type of thing, was not adequate in dealing with this situation?
Hon. Mr. McMurtry: In discussions with members of the practising bar it was felt, because we really are creating a new course of action, it would be helpful to have these guidelines.
Mr. Chairman: Shall the amendment carry?
Motion agreed to.
Section 60, as amended, agreed to.
Sections 61 to 79, inclusive, agreed to.
On section 80:
Mr. Chairman: Hon. Mr. McMurtry moved that clause (a) of subsection 2 of section 80 of the bill be struck out and the following substituted therefore: “(a) section 16.”
Motion agreed to.
Hon. Mr. McMurtry: It was a typographical error.
Section 80, as amended, agreed to.
On section 81:
Mr. Chairman: Hon. Mr. McMurtry moved that section 81 of the bill be amended by adding thereto the following subsection:
“(3) Section 118 of the said bill as amended by the Statutes of Ontario 1975, Chapter 30, section 7 is amended by striking out alimony or for the maintenance or custody of children is joined with in the amendment of 1975 and inserting in lieu thereof other relief is joined in.’”
Motion agreed to.
Section 81, as amended, agreed to.
Section 82 agreed to.
On section 83:
Mr. Chairman: Hon. Mr. McMurtry moved that section 83 of the bill be amended by striking out “5 and 8” in the first line and inserting in lieu thereof “and 5, subsection 6 of section 6 and section 8.”
Motion agreed to.
Section 83, as amended, agreed to.
Mr. Chairman: Any further comments on any section?
Mr. Roy: I would like to speak to section 84.
On section 84:
Mr. Roy: Mr. Chairman, I just want to address these comments to the Attorney General.
If, of course, section 17 is retained in the hill, it would make sense that we agree with section 84. If, for instance, the amendment that has been proposed to section 17 was accepted would you retain section 84 and get rid of the Parents’ Maintenance Act completely?
Hon. Mr. McMurtry: I think if it is the will of the House to remove section 17 that we really should leave section 84 in the bill because it would reflect the mood either way.
Mrs. Campbell: Exactly.
Mr. Roy: Okay.
Sections 84 to 91, inclusive, agreed to.
On section 92:
Mr. Bounsall: I don’t really speak to the substance of section 92 at this point, Mr. Chairman, although there are some other names for this bill which do occur to me, in the form in which we still have it before us. I won’t here the House with the fantasies and the nightmares I have about this bill and what the test in that name should provide, except that I want to say at this point in the bill that a communication given to me by the Clerk of the House indicated that the proper place to discuss the preamble is, in fact, after all the clauses of the bill have been considered.
Because of the shortness of time I don’t intend to enter into a debate on the preamble. We covered that extensively in committee. I will say that if time permitted I would have been inclined to add an amendment to the preamble which would indicate what marriage should be while marriage is in progress. This is the very thing included and outlined in the marriage contracts common in the country of Sweden. It comprises the very statements which the member for Riverdale (Mr. Renwick) introduced into this House at the time of the debate on my private member’s bill back in 1975.
I will not introduce that amendment because of shortness of time, but what is lacking in this bill dealing with family law reform and matrimonial relationships and which should be, preferably, in the preamble, is an expression of the obligations of the spouses during marriage.
Hon. Mr. McMurtry: Mr. Chairman, I’d just like to express my appreciation to all members of the House, regardless of the outcome of the votes, with the very responsible manner in which they have gone about their task of shaping and bringing into being this very important legislation.
Mr. Chairman: Shall section 92 stand as part of the bill?
Section 92 agreed to.
Mr. Chairman: There are a number of amendments before the committee. It was agreed that they’d be stacked. I’d like to re min the members of the committee that there will be a 10-minute bell.
Mr. Chairman: Order. The first amendment before the committee:
Mr. Swart moved that section 3(b)(i) be deleted and the following substituted therefor:
“(i) Money held by one or both spouses in any account with a chartered bank, savings office, credit union, or trust company, if such money was acquired during marriage or as a result of appreciation during marriage of money held prior to marriage.”
The committee divided on Mr. Swart’s amendment to section 3(b)(i) which was negatived on the following vote:
Ayes 25; nays 54.
Mr. Chairman: The next amendment: moved by Mr. Swart that a new section 3(b) (ii) be substituted.
Mr. Renwick: We are very interested in the record and we would appreciate it, Mr. Chairman, if you would read each of the amendments as they’re called in full.
Mr. Nixon: They’re going to punish us for being right.
Mr. Chairman: Order. Mr. Swart moved that a new section 3(b)(ii) be substituted and the present subclause 2 and subsequent sub-clauses be renumbered accordingly:
“(ii) Shares in a corporation and bends owned by one or both spouses for investment purposes during marriage and the accrued appreciation during marriage of shares and bonds acquired by one or both spouses for investment purposes prior to the marriage.
The committee divided on Mr. Swart’s amendment to section 3(b)(ii), which was negatived on the same vote.
Mr. Chairman: Mr. Swart moved that a new section 3(b)(iii) be substituted, and the present subclause (iii) and subsequent sub-clauses be renumbered accordingly:
“(iii) Rights in a pension or retirement savings plan acquired during marriage by one or both spouses, and the accrued appreciation during marriage of rights in a pension or retirement savings plan acquired by one or both spouses and be accrued appreciation during marriage of rights in a pension or retirement savings plan acquired by one or both spouses prior to the marriage.”
The committee divided on Mr. Swart’s amendment which was negatived on the same vote.
Section 3 agreed to.
Mr. Chairman: Ms. Bryden moved that subsection 3 of the said section 4 be deleted and the following substituted therefor:
“(3) The rights under subsection 1 are personal as between the spouses but any application commenced under subsection 2 before or after the death of a spouse may be made or continued by or against the estate of the deceased spouse and, for the purposes of such an application, a reference to spouse in this part shall be deemed to be a reference to the estate of the spouse as the case requires.”
The committee divided on Ms. Bryden’s amendment which was negatived on the same vote.
Mr. Chairman: Mr. Lawlor moved 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 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 purposes of clause (a).
“11(2). The rules of law applying the resumption of advancement and resulting trust and questions of ownership of property as between husband and wife are abolished.”
The committee divided on Mr. Lawlor’s amendment, which was negatived on the same vote.
Section 11 agreed to.
Mr. Chairman: The next question is, shall section 17 stand as part of the bill?
The committee divided on the question, which was approved on the following vote:
Ayes 51; nays 29.
Section 17 agreed to.
Mr. Chairman: Ms. Bryden moved the addition of a new subsection, 3, to section 40:
“Where premises are the matrimonial home of two spouses and only one of the spouses is registered as the owner of the premises, the other spouse is deemed to be and is entitled to be registered as a joint owner thereof.”
The committee divided on Ms. Bryden’s amendment, which was negatived on the same vote as the first vote.
Section 40 agreed to.
Bill 59, as amended, reported.
On motion by Hon. Mr. Welch, the committee of the whole House reported one bill with amendments.
FAMILY LAW REFORM ACT
Hon. Mr. McMurtry moved third reading of Bill 59, An Act to reform the Law respecting Property Rights and Support Obligations between Married Persons and in other Family Relationships.
Mr. Philip: There’s no doubt that this bill has taken a major step forward. The sections concerning the matrimonial home, marriage, marriage contracts and support obligations are certainly desirable, enlightened and welcomed by all members of the House. As chairman of the committee that struggled with the bill, I have warm feelings of satisfaction over those sections in the bill.
I have listened closely to the arguments on all sections of this bill and I am disturbed by the conduct clause which is still being left in the bill. I am incensed by the injustice of the division of assets section of the bill. I feel so strongly about the need for a more equitable distribution of assets that for me to vote for the bill on third reading will be unconscionable. Therefore, it’s with great emotion and considerable regret that I and my colleagues will vote against the bill on third reading.
Mr. Reid: Better to die of thirst than to have one drink of water.
Mr. Roy: As one who had the honour of sitting on the justice committee for the two years that we have been working on the bill and listening to submissions, I would like to join with the Attorney General in saying that it was a worthwhile experience in the sense that we exchanged views. No matter what the differences were between various members, I think the intent of all members was to see we had a fair and balanced bill. We disagreed as to the method and the way we should achieve it, but by and large I think there was excellent cooperation. We received from the public a variety of briefs, and this bill is evidence of parties in minority government working together in arriving at what I consider to be excellent, progressive legislation.
We on this side have no hesitation in supporting the bill. I would only say to the chairman of the justice committee that if he felt so strongly about the conduct section it’s unfortunate that members of his party weren’t here to force a vote.
An hon. member: There were only four of them here.
Mr. Warner: The question is why did the member for Ottawa East support it? He should have had some conscience on it.
Mr. Roy: I am sorry to say to the member that the NDP caucus did not give support to the poor member for Carleton East in not supporting her proposition here.
Ms. Gigantes: On a point of personal privilege, Mr. Speaker.
Mr. Speaker: The hon. member for Carleton East on a point of privilege.
Ms. Gigasntes: Mr. Speaker, my point of personal privilege is this: I believe it to be an unfair slander on my colleagues in caucus.
Ms. Gigantes: I take on myself the complete responsibility for the unfortunate fact that we did not have a sufficient number of members present when that vote was called.
Mr. Speaker: That is not a point of privilege.
Ms. Gigantes: It was my responsibility that fell down, and not that of my colleagues.
Mr. Roy: Mr. Speaker, all I can say is that when the vote was called, all I could count over there was four.
Mr. Renwick: Don’t say anything, just sit down; you are out of order.
Mr. Martel: At least we are here five days a week.
Mr. Speaker: Order. Are you terminating your remarks?
Mr. Roy: I am completing my remarks.
Mr. Kerrio: Say you’re sorry.
Mr. Roy: All I can say is that this legislation is not perfect. But I say that in the circumstances it is a step forward and I, as a member of the committee, feel pretty proud to have participated in the deliberations.
Mr. Bounsall: He has his judgeship now.
The House divided on the motion for third reading of Bill 59, which was approved on the following votes:
Miller, G. I.
Miller, F. S.
Smith, G. E.
Taylor, J. A.
Ayes 60; nays 26.
The House recessed at 1:27 p.m.