31st Parliament, 4th Session

L084 - Tue 7 Oct 1980 / Mar 7 oct 1980

The House resumed at 8:04 p.m.


Hon. Mr. McMurtry moved second reading of Bill 140, An Act to amend the Children’s Law Reform Act, 1971.

Hon. Mr. McMurtry: Mr. Speaker, when this bill had first reading in December 1979 of the previous session and again in June of this session, I reviewed the highlights of the bill for the members. Therefore, I do not intend to make a lengthy statement this evening.

The bill deals generally with custody of children. Therefore, as we are now seeking approval in principle, I am pleased to have the opportunity to speak to the bill, for as stated in section 26, the principle we are talking about in this legislation is the best interests of the child.

I cannot believe there is anyone among us who would deny that the best interests of the child must be the focus of any private custody dispute, but the truth of the matter is that until the Family Law Reform Act, 1978, the phrase “the best interests of the child” did not appear in our legislation governing private custody disputes. However, the provisions of the Family Law Reform Act dealing with custody provided only the starting point in our program to protect the best interests of the child.

It has always been our intention to bring forward the extensive reforms contained in this bill, so I am pleased that Ontario will have at last a comprehensive statute based on the best interests of the child. While it is easy to subscribe to the best interests principle, it is not so easy to express it in statutory form. As I have mentioned on previous occasions, the best interest principles are reflected not only in the guidelines we have provided to assist in applying the best interests standard, but also in the many procedural and enforcement provisions throughout the bill. However, just as the law has always recognized that custody orders are never final, we have tried to avoid undue rigidity.

Law and practice in child custody cases have developed rapidly in recent years. It has been our task to give a statutory base for some of the most important developments to date, while leaving open the way for further developments in the future. Those who have taken the time to comment on the bill have generally been supportive of the principles we have adopted. Certainly we have no reason to believe there is any major concern about the principles of the bill.

Perhaps it would be appropriate for me to indicate to the members at this stage that the justice critic for the official opposition has indicated that the party would like this bill to go to committee. I want to indicate at this time that I am quite prepared to concur with that request.

I would like to take this opportunity, however, to clarify one or two matters. During the constitutional discussions over the summer on family law, it was sometimes stated that unlike most other provinces, Ontario does not have legislation for reciprocal enforcement of custody orders. In fact, no province in Canada has legislation respecting reciprocal enforcement of custody orders. Many provinces have acted unilaterally to adopt the Uniform Extraprovincial Enforcement of Custody Orders Act, under which the enacting province recognizes custody orders made in another province, regardless of the recognition given in the other province to orders of the enacting province.

Ontario has not adopted the uniform act for two reasons. First, Ontario courts have generally acted on the principles of the uniform act even though it is not in force here. Secondly the Uniform Law Conference of Canada, realizing the inadequacies of the uniform act, had asked Ontario to make recommendations for revising the uniform act. The provisions in our bill concerning children resident outside of Ontario are based on Ontario’s recommendations to the uniform law conference.

Accordingly, it is our hope that the provisions of our bill would become the model for all the provinces to follow. In this context I would like to mention that this week our Deputy Attorney General, Dr. Allan Leal, is attending the Hague conference on private international law where it is expected that a convention on the civil aspects of international child abduction will be completed. As head of the Canadian delegation, Dr. Leal has been authorized to ratify the convention on behalf of Canada. The provisions we have adopted in our bill will help to pave the way for Canada to accede to this treaty of historic importance.

Although we look forward to early passage of the bill, there will be some months before we request proclamation. It is anticipated that the rules committee of the Supreme Court and the provincial court, family division, will wish to amend their rules of practice to accord with the bill. Therefore, some time will be provided for them to complete their work.

8:10 p.m.

In addition, we are aware that in British Columbia a question has arisen concerning the jurisdiction of provincially appointed judges to deal with custody matters. An appeal will be heard by the Supreme Court of Canada this fall, and we intend to intervene. In our view, the jurisdiction of provincially appointed judges to deal with the person of a child was established in Ontario prior to Confederation and that jurisdiction continues to exist. Nevertheless, proclamation of the bill would not be sought until the Supreme Court of Canada renders its judgement.

As a result of our continuing review of the bill over the summer recess, I will be recommending a few minor amendments when the bill is in committee. The justice critics will be provided with particulars of those amendments as soon as possible, and I am afraid at this point I am not in a position to provide the justice critics with copies of the proposed amendments. We will be recommending that a $5,000 limit be placed on the amount that is payable from any one source directly to the parents of the child. We will also suggest that the appointment of the testamentary guardian or custodian be followed by a formal application for a court order within a reasonable time.

In conclusion, I hardly need remind the members that no legislation will ever be able to eradicate completely the traumatic consequences for the child when his family is disrupted. What we have sought to do in this bill is to ensure that in those irreconcilable cases where the parties feel they must come to court, the procedures and expectations are clearly set out in our laws so that the case can be decided in an orderly and expeditious fashion. We may even hope that our clear concern for the best interests of the child will encourage the parents to reconsider their decision to go to court and to renew their efforts to reach an agreement wherever feasible.

This bill represents the most comprehensive effort anywhere in Canada to come to grips with the problem of disputed custody. I look forward to the support of all members of the Legislature in furthering the best interests of children in Ontario.

Mrs. Campbell: Mr. Speaker, I would like to commend the Attorney General for introducing this bill. Obviously, there is no one in this House who would be opposed to its principle. There are difficulties, however, with the bill, and it was for this reason that I did ask that there be consent to the bill going to committee. I should be happy to move the bill to committee at a suitable time.

One of the sad things, of course, about a bill of this kind comes in the very interpretation section because it delineates the real problems in dealing with custody and access and so forth when you have to define a court as one of an infinite number of courts dealing in the same field. Unfortunately, no one can do much about that with this kind of a bill or at this time. But I do hope that as the Attorney General is discussing these matters abroad -- in Canada; abroad from the province -- some kind of resolution may come so that we have fewer courts dealing in the same area.

I am grateful, however, that in this bill the position of the provincial court, family division, is fairly well set out. There certainly was a great deal of concern in that court, for a period of time at least, as to their jurisdiction in custody matters, in view of all the other courts of superior jurisdiction dealing in the same field. I am delighted that at least is clarified.

There are very serious concerns expressed by those who have followed this matter for some time, and I am referring to the association known as Justice for Children.

There is a concern that we are referring orders in enforcement to both sheriff and police. It is perhaps a step forward from the battered wife situation, but as long as the sheriff is in this position it seems to me we may have problems with the police still in the enforcement of order, notwithstanding that the orders may be directed to the police. These are matters which I think would have to be thoroughly reviewed in committee.

The Attorney General has made reference to the Hague convention and I am a little puzzled about the terminology he used. I thought we were not speaking of a ratification but of a signing, and a signing by Canada on behalf of Ontario only. However, if it is ratification, so much the better. But I think the opportunity should be accorded the committee to review the proposed Hague convention in conjunction with this statute so that when that amending legislation is introduced by the Attorney General we will be sure it isn’t at odds in any point with the balance of this statute.

Just for the purposes of the record, the Liberal caucus has endorsed the position of the province in moving towards signing or ratifying, whatever it may be, the Hague convention on child abduction because it is serious and important in our eyes. While we have some regrets that we can’t go further with it, at least we know that steps are being taken in a very important field.

I would personally express some concerns about what seems to me to be the incorporation in this bill of the guardian ad litem type of procedure. I have not personally felt that has been too effective where it has been used in the past. That is not in any way to speak in denigration of those fine people who have served in that capacity in the courts. I think that type of intervention may not be strictly in the guardian ad litem definition but it is that type contemplated here that I think we have to investigate more closely.

There is also a great deal of concern as to the role of counsel as provided in this bill. So there are a number of areas that I feel can usefully be pursued in committee and it is helpful to me in shortening my discourse on this bill at this time.

Mr. McClellan: Mr. Speaker, I am pleased to indicate on behalf of our party support for the principle of the bill on second reading. I approach this debate with a certain amount of trepidation since it is not an area where I have any competence, particularly from a legal perspective and also because we are dealing with a matter that requires the wisdom of Solomon. It was, of course, a custody case that Solomon was involved in which gave him his reputation.

The purposes of the bill are purposes that we can heartily endorse -- that custody decisions be taken on the basis of the best interests of the child, that as much as possible we avoid the concurrent exercise of other jurisdictions, that we discourage the abduction or the kidnapping of children and we achieve a more effective enforcement of custody and access orders.

8:20 p.m.

I am pleased to have heard the Attorney General say he would be referring the bill outside to committee for hearings because I think that would be the way to address a number of concerns we have as to whether or not the purposes we heartily support can actually be achieved by the mechanics of the legislation. If I may just very quickly go through what some of those concerns might be, perhaps they will help the Attorney General to prepare his own response, when we get to the hearing stage, and alleviate some of these concerns.

Starting with the best interests test, I am particularly pleased to see the first best interests test is to be the love, affection and emotional ties between the child and whoever will be awarded custody. I think on the whole the rest of the interests test, as enumerated in the bill, stands up very well. I would raise a concern about 31(2)(d), having to do with the capacity and disposition of each person applying for custody of the child to provide the child with guidance and education, the necessities of life and any special needs of the child.

I would express the hope and the concern that that had nothing to do with the respective wealth of one or the other of the parties. I would hope we could have some discussion of that in hearings because, as it reads, I think it lends itself to the suggestion that the possession of wealth for the purpose of providing the things enumerated could be interpreted as a criterion. I would hope that is not the case.

We are also pleased with the provisions in the bill that end the delays that have plagued the disposition of custody and access matters before the courts.

Let me then just set out a couple of concerns. It is not clear to me what the role of children will be under the terms of Bill 140. Surely they are not full parties before the court as the contestants are. It is not as clear as it is in the Child Welfare Act, for example, what the precise role of the child will be in a custody or access hearing; neither is it clear what the entitlement for legal representation would be; neither is it clear what the role of the lawyer would be in a custody and access hearing.

Perhaps these are things that don’t have to be spelled out, but we have spelled them out with some degree of precision in other legislation that affects the rights and wellbeing of children. I would like some discussion of that matter.

When we look at the mediation process in Bill 140, again I ask myself what is the role of the child? It is clear what the roles of the parties are, but it isn’t clear to me, at least on reading the bill, whether the child has the opportunity to express his or her views and preferences during the mediation process or not or whether the mediation process is something that is limited to the points of view of the parties. I would like some clarification on that.

I would like some clarification as to the precise duties of the mediator. Again, I have no legal training and virtually no legal understanding of any kind whatsoever. It may be that a lawyer would understand, without having to have it explained or set forth in a statute, what the duties of a mediator in a mediation process of this kind might be, but I don’t get any clear sense from the statute what precisely the mediator is going to be doing during the mediation process.

The assessment report under section 37 gives rise to a concern because it is not clear in the statute what happens to the assessment report. It does not appear there are any provisions to safeguard against the possible misuse of confidential information. For example, the Child Welfare Act requires that records be sealed. There are no strictures as to the terms and conditions under which this privileged information can be released, and I think that needs to be discussed. These are, of course, relatively minor concerns.

I think the real question before us is: Will this bill end kidnapping or not? Will this bill be an effective way to stop the kidnapping of children? We can only hope it will. I understand the incidence of child abduction is really quite astronomical. I have no way of assessing the figures, but an estimate has been made of as many as 10,000 children a year in the country. I find that hard to believe. The estimate was made by a member of the federal Parliament. I do not know whether the Attorney General may have more reliable information. That figure does seem to be incredible, but I gather it is a problem of enormous extent.

The effectiveness, it seems to me, of the enforcement mechanism will depend on our ability to deal with the second purpose, which is to end concurrent and overlapping jurisdictions. Again, I would like when we get to hearings to have a clear discussion in layman’s terms, if I may, of the reasons Ontario has not signed the uniform enforcement act, and why there would continue to be under this statute a requirement of a court appearance in order to obtain an enforcement order for custody and access orders made in other Canadian courts in other provinces.

I am speaking from ignorance, but I find it quite mystifying that a Canadian court in Manitoba, British Columbia, Alberta or Newfoundland is regarded as a foreign jurisdiction for purposes of this act. As I understand it, such a court basically would continue to be regarded as a foreign jurisdiction. I understand there are some modifications and that the court appearance is not necessarily obligatory, but I do not understand the nuances involved, and I would like to have those made more clear. I confess to not having understood what the Attorney General was saying when he made his introductory remarks here this evening.

I would hope that it would be possible under this statute or in companion legislation to move to a position where at least within Canada all courts are accorded equal status, and all custody and access orders are enforceable on the basis of mutual agreement without the necessity of additional court appearances.

When we get to committee, I would also like to raise the question of the enforcement mechanism. I think many members have probably received a brief from a group called Abducted Children’s Rights of Canada. It has expressed some concern as to whether the enforcement mechanisms are sufficient, particularly in the kind of emergency situations which abductions often involve. The suggestion made by this group is that there be a special and particular enforcement mechanism within the office of the Ministry of the Attorney General.

First, there should be a simple registry of custody orders -- I assume on a Canadian basis -- enforceable by the Attorney General. Second, there should be a central bureau within the Attorney General’s ministry which would have the power under section 44 to enforce those orders quickly. Again, I raise that for purposes of discussion and look forward to being able to pursue that when we get into the hearings.

8:30 p.m.

Concern has been expressed to me about the penalty clause, as to whether a fine of $1,000 for kidnapping a child is really adequate and whether it really serves as a deterrent. Again, we will discuss that.

Finally, there is the question of the redefinition of guardianship. Traditionally, guardianship has been a concept much broader than it is in Bill 140. In Bill 140 the notion of guardianship is limited to property rights and to safeguarding the child’s estate. I do not understand why this is done. There are many instances when a guardian also has custody. I assume, therefore, it would be necessary for the guardian to take the additional step of obtaining a custody order. Again, I am simply raising this for purposes of discussion and clarification when we get to committee stage.

On the whole, we are pleased with the legislation. I believe it is genuinely progressive legislation. I think the best interests test is the best route to go. It follows initiatives we have taken in other legislation, particularly in the Child Welfare Act, and we look forward to pursuing these matters once we get to committee.

Mr. Sterling: Mr. Speaker, I am not going to speak for very long tonight because I expect to participate in committee when this bill goes out to the justice committee. I look forward to that time to go through some of the concerns that have been raised by the two members opposite, because in this area of law we are dealing with a very difficult problem. As we go through each section in committee, I think we should be most aware of the practical effects of the changes which we might propose or once we endorse the legislation as it now stands.

As a family lawyer who has had some experience in custody cases, I can say it is probably the hardest type of law to practise. It is perhaps the most emotionally exhausting kind of legal situation that you can be involved in. It is very difficult to be objective in terms of your client’s feelings and what is, in fact, decided by the court. Unfortunately, there is usually one loser and one winner in those cases.

I hope the spirit of the committee will be similar to that of the committee which dealt with the Family Law Reform Act. From my discussions with the Attorney General, I think he will have an open mind and listen to constructive suggestions from opposition members on ways to make this bill a good practical document so the public can work with it.

I would hope that once this becomes law, it will be included with the Family Law Reform Act in terms of the educational process that the Attorney General has gone through with that document. I believe the Attorney General has distributed more than one million copies of that red booklet, the Family Law Reform Act.

The member for Bellwoods pointed out the importance of trying to explain the act in layman’s language, which will be very necessary in addition to the booklet the Attorney General’s office produced on family law. I hope those two documents, perhaps in a future edition, can be combined so someone who is dealing with family law might have access to this document as well.

Of course I will support the bill, and look forward to the committee sittings when we will be discussing these issues more in depth.

Mr. Lawlor: Mr. Speaker, it is almost a pleasure to speak well of a piece of legislation. The last few pieces emanating from the Attorney General, as he well knows, I have found not altogether palatable. As a matter of fact, certain pieces of legislation of which he is aware would make an aborigine weep, and that stands today as well as any other time.

In 1977 the Legislature passed an act to reform the law respecting the status of children, which is chapter 41 of the statutes. This concerned the areas of illegitimacy, the establishment of parentage and presumptions as to paternity blood tests and that sort of thing. That was the first of a series of legislation directly related to children and oriented around the family circumstances, all of which legislation has been long awaited and, I am pleased to say, shows great humanity in its enunciation and in its penetration of the problems involved here.

In 1978, we passed the Family Law Reform Act and it had to do with support obligations for dependants and problems in division of property. Now we have before us a further step, and probably not the last step. I am thinking of a greater articulation of the rights of representation of the children in court. It is mentioned in this legislation tonight, but not, as I see it, spelled out. There isn’t sufficient clarity, as my colleague has indicated, as to precisely the role of the child in a courtroom and its rights and obligations.

It is a matter that has been thrashed over a great deal, particularly vis-à-vis the federal government on juvenile delinquency and the role in the criminal side, if you can call it that, or the role of the side of injuries as adjudicated through the federal legislation. That isn’t finally determined, so there remains a fair amount to do in this particular regard, but the job has now been substantially finished and it is highly commendable that it should be so.

I want to refer to the report on family law of the Ontario Law Reform Commission, part three, children, of 1973. At page 195 it says:

“In 1923, An Act to amend the Infants Act was passed and it was at this point that the statute law of guardianship and custody assumed substantially the form in which it appears today. First, the father was given a right to apply to the Supreme Court or surrogate court for the custody of or access to his child. Secondly, the power of a father or mother to make testamentary dispositions of guardianship was apparently removed. Thirdly, and more importantly, a declaratory provision was enacted to the effect that unless otherwise ordered by the court, that subject to the provisions of this act, the father and mother of an infant shall be joint guardians and shall be equally entitled to the custody, control and education of such infant. Fourthly, parents living apart were expressly empowered to enter into a written agreement as to which parent should have the custody, control and education of their children.”

That act has come down within the provisions of the Infants Act, et cetera, and it is the Infants Act that is being substantially or fairly radically replaced tonight in terms of the legislation before us.

The notes that have been provided by the Attorney General are quite helpful in regard to the legislation. I intend to spend a few moments making some comments on them.

8:40 p.m.

On page three of those notes it says: “To meet these problems, the proposed legislation bases the right to custody not only on the status of the parent but on the functions of a parent. Thus, the legislation provides that where the parents are living separate and apart the parent with whom the child resides may exercise the rights of custody free from interference by the other parent until there has been a formal resolution of custody issues. The rights of the other parent are not terminated, but only suspended, pending a formal resolution. A right of reasonable access continues.”

That is a new provision in the legislation and is highly beneficial because, as things stand, there is an indetermination as to who has the custody of the child. When one of the parents seizes the child, who is in the dreadful abduction situation that this legislation goes some distance in trying to obviate, there is not any reposed right but only an assumption of custody on the part of the parent with the child. The parents are in a state of complete equality. One parent who has not been particularly parental and has not been doing very much in terms of support or even attention to the child, nevertheless, under our present law continues to enjoy equal rights to that parent who has dedicated himself or herself to the child.

The law will now say that that parent’s de facto right becomes something higher than that and the right of the other party is placed in suspension until a determination by the court. That gives an added weight or gravamen to the party with the child. It says: “This provision will also deter kidnapping by the parent who does not have custody and will help to stabilize the child’s environment while his parents resolve their differences.”

On the business of applications in custody proceedings, it says: “Under the Family Law Reform Act, it appears that any person can apply for custody. Nevertheless, the best interests of the child must always be served. Legal barriers which arbitrarily limit the range of potential applicants would likely be detrimental to the best interest of the children. For example, a step-parent or relative, with whom the child has a strong bond of affection and respect, should be entitled to apply.” As things stand at present, that is not the case, except perhaps in the Supreme Court under a legal doctrine called parens patriae in which they may come in and be given some recognition and status.

Now we have drawn the gamut quite broad as to who may have eventual custody of the child. It need not be either of the parents. For the first time that is being given recognition. It says: “To the child, the fact that the person has fulfilled important parent functions may be more important than such factors as biological relationship or financial support. The biological relationship is more appropriately considered as a factor to be weighed in determining the welfare of the child than as a necessary condition for custody.”

Then we go into a whole series of guidelines. Again, one can’t help but give credit to those who drafted this legislation and to the law reform people who worked it over and made the initial presentation as to the eight or nine grounds or criteria that should be taken into consideration by a court in determining who shall get custody of the child and all the various circumstances therein.

The first one is the love, affection and emotional ties. The second is parenting ability. “Within this factor,” the report says, “the courts may consider the mental and physical fitness of the parties, their ages and their financial stability” and many others. “It should not be possible for one party to buy the custody of the child because of an ability to provide luxuries to the child. The standard of living of the child is more appropriately dealt with in support proceedings.”

The third one is continuity and stability of home relationships, that is, “a stable, satisfactory environment and the desirability of maintaining continuity. This is a very important factor. No matter how much love another person is willing to lavish or how much intellectual stimulation he will provide, the continuation of already established relationships is of the utmost importance to the child. The child who has formed a confident, close relationship with a parent tends to show a great overt upset when that bond is broken.” It goes on in that vein.

There are also the relationships to other members of the family. Sibling rivalry is mentioned. So be it. It says it is better for the child to remain in the context of a family relationship even if it is somewhat strained at times. That does contribute to human growth too, to have the odd strained relationship now and then. Half the maturity of this House is predicated upon our quarrelsomeness in this regard.

The fifth point is the competing parties’ plans for the child. The merits of any plans proposed for the future for the care and upbringing of the child should be considered. The whole range of future possibilities must be weighed in the balance and brought in as a definite consideration in reaching a conclusion as to what the best relationship is.

The notes do talk about natural parentage and the biological relationship and give it very considerable weight relevant to the best interests of the child for the long term. Although the blood ties of a child seem to be of little significance when the child is quite young, it is increasingly recognized that biological relationships are important in the late psychological development of the child. Shades of Piaget who, by the way, died just recently in the last few weeks. His whole idea of the multiple stages of growth through which children go and his demarcations of these numerous stages transformed child education and child psychology in our time. This legislation gives some cognizance to that, and again that is highly beneficial.

Another consideration is the views and preferences of the child itself. Perhaps that is not too well spelled out in the legislation as yet and we should consider making it somewhat clearer. The notes talk in this particular area about the presence of the child in the courtroom, the privacy to be afforded to the child, and, if the child can make any contribution at all, the advisability of a consultation with that child.

I think the tendency now is, if the child is under seven, not to consult with or speak to the child. Some judges have a deliberate policy of not doing so, which, as the legislation would indicate, is quite wrong. If a child is able to grasp the issue at all, then that child should be spoken to in privacy and without the embarrassment or the weight of a courtroom present. Then we get into this whole business of whether the child, should have representation at the same time and the conditions and terms upon which that may be done.

The conduct of the parties is an interesting thing which stems from critical moments we had in the Family Law Reform Act. I would make reference to the notes here:

“In the past, a single act of adultery was considered as evidence of parental unfitness, disentitling the parent to custody. In fact, the incident of adultery may have had little bearing on the marriage breakdown and even less effect on the parenting ability of the guilty spouse. Implicitly the court adopted the principle that conduct of the parent not directly bearing on the welfare of the child should not be considered in a custody determination.

“However, failure to recognize that principle in legislation may create uncertainty, particularly as to whether any form of parental conduct whatsoever should be considered. At the same time, inclusion of parental conduct into the legislation without qualification will, in reality, leave open the opportunity for spurious and irrelevant allegations of misconduct which contribute to the bitterness of disputes and prolong court proceedings.”

Again, this is a major contribution to the efficacy of this legislation and a contribution to society as a whole in terms of peace and in terms of accommodations that should be reached so that we do not live Kramer versus Kramer situations over and over again. The bitterness engendered and the artificialities of the legal profession in bringing about these acrimonies are completely unnecessary and run directly contrary to the intent of all involved in the thing.

8:50 p.m.

There are three elements and, as my colleague says, I am not quite sure if we are very clear on sorting them out. In divorce proceedings and in matters of this kind, the official guardian has played a major role. That is a very costly procedure, and their investigation is quite in-depth. As I see it, part of the intention of the legislation is to lift that a bit and not place such a burden on that office in this regard.

So independent assessors are brought into the picture. The remarks on that point say that under the present scheme, custody proceedings too often become a contest between the experts testifying on behalf of the opposing parties. The court-appointed expert could also assist the court in balancing the conflicting opinions of the parties’ experts and maybe even replace it. Maybe over a period there would be a general acceptance of this assessor having a quasi-official status, making it easier, speedier and infinitely less costly with respect to the determination of the custody or guardianship proceedings involved.

Mention is made of the time factor. The remarks are sensitive in this regard and worthy to be placed on the record for the future and for whoever may peruse this legislation through the auspices of this House. They say:

“A child’s sense of time differs vastly from an adult’s sense of time. A five-year-old child who has had to wait a year ... for the final determination of a custody dispute has spent 20 per cent of his life in a state of conflict and uncertainty. The psychological impact of such a disruption can have serious repercussions on the child’s emotional wellbeing. Accordingly, in legislation that focuses on the best interests of the child, every reasonable attempt must be made to ensure that a final determination of custody is made as quickly as possible.

“The primary source of delay is the parties themselves, who either become embroiled in tactical battles and legal manoeuvring or who wish to continue existing on interim orders. Accordingly, it is recommended that a final disposition of custody matters be made within six months of the commencement of proceedings, and where the case has not been heard the court will be empowered to call the parties before the court to explain the delay and to impose conditions for ensuring that the parties proceed with the case expeditiously, not only with this focus, the attention of the parties and the court in the interest of the child, but also it will discourage the parties commencing applications for custody until they are fully prepared to proceed.”

Then there is a section on joint custody. Rather than award custody outright to one or the other and give access to the other party, which puts the other party in an inferior position with a real, in terms of law, and psychological sense of being in a secondary position and not having the same range of rights, the use of the joint custody concept means the child need not necessarily be in the physical custody of both parents, and can be in the physical custody of either one or the other from time to time, but the other party enjoys substantial rights and continuing rights with respect to the determination of the physical welfare of the child, his religious education, his education generally, the whole role of the spiritual and the custodial life of that child, and does not lose it. So this legislation gives a wider ambit over the present law in this regard.

The third area is mediation -- to spell out, I suppose, times and places of access, the details of any dispute as to, say, education that arises between the parties. It is an attempt, in the first instance anyhow, outside the courtroom and the time consumed, to reach an agreement between the parties on a more or less informal basis.

An interesting feature in the legislation, and I wonder whether the Attorney General is going to get any dispute about this, is the use of government records as a tracing mechanism. This has arisen before under other legislation and, as I recall, there was a certain querulousness in the House about the use of what is usually considered confidential government information, except in order to obtain a redress, to find out where the guy is, if he is escaping his orders to pay alimony, or whatnot. I think that was the context.

Let me be quite frank: I certainly have no objection to it. It is submitted to the court, it is up to a judge to make the determination of the disclosure and the information. It would be very restricted, I would take it. It would simply locate somebody who has seized a child and is hiding the child somewhere in Ontario and you could trace him down through the government records.

Of course, under our constitution, the law won’t have access to the real source of such information -- the income tax is probably the best place to get the dope -- but the province has its own liaison with the federal government in this particular way and through the income tax imposed by the provincial government itself. So I suppose a good deal of the information in this regard, and the tracing mechanism, would be available.

The use of the police force. It is hoped that while there is a lot of recalcitrance these days on the part of police forces coming into these matters -- claiming that the orders they are operating under are not necessarily court orders, and even if they are, are unclear, and that thirdly, they are not acting and do not wish to act in civil capacities, et cetera -- the government’s investment of authority in them and reposing of responsibility in order to carry out these orders is a major step. Numerous people have appeared at the Attorney General’s offices with the member for St. George and myself in the past, in a different capacity again, having to do with assaults in that instance, but also in the response to the police in delivering documentation in case summonses, or in this case, some form of court notice in order to assist in bringing the custody matter before the courts.

I would wonder too about the restriction on passports, being a federal thing. Does the Attorney General feel he is justified in having a judge ask that the passport be surrendered? Anything that can accomplish a just end, but nevertheless, there seems to me some niggling difficulty in that particular context, on which he might run into some trouble if someone contested the validity at least of that section involved in his legislation.

As I said at the beginning, this goes a long way to winding up a whole vast area of legislation which has been coming for almost 10 years now. It is welcome and I congratulate the minister.

Mr. Renwick: Mr. Speaker, I don’t intend to go on at any great length this evening. My colleagues and others in the debate have undoubtedly dealt with the particular points that come readily to mind.

I may say in approaching this bill I have the sense it is a good lawyer’s bill in that it has tidied up from a lawyer’s concept of the world some of the problems in connection with enforcement of custody orders and a whole host of other problems. But I don’t think we should be under any illusion that it is other than a lawyer’s solution after a great deal of thought and cogitation about the fundamental problems involved.

9 p.m.

Indeed, one can quite readily see that the process as established by this bill will never be subject to the comparative test of whether it is better or worse than any other bill or the other procedures that are at present in force because there is no standard for making that kind of comparison. In a very real sense, one has to take on faith that the rationalizations set out in this bill will accomplish the purposes of the bill and will also overcome some of the obstacles that have existed for some considerable period of time.

With that caveat, I do want to say that I have some real concerns about two or three of the concepts involved in the bill, if they are to be considered as problem-solving concepts. I can well understand that lawyers, having perhaps got rid of, in some context, the concept of domicile, and in recognition of the number of hours that people have spent on the question of domicile, would not want to find in this bill some equivalent concept which will lead, I think, to very grave difficulties for the courts and that is the question of habitual residence.

The tests are set out, but everyone knows the question of jurisdiction will depend upon the decision of the court in the first instance as to whether or not the child is habitually resident within the jurisdiction. In the simple cases, of course, there are no problems. The problems arise only in those cases where there is a complex set of facts from which the legal decision or the legal inference can be drawn that the child is or is not habitually resident within the jurisdiction.

The problems won’t disappear because of the inclusion of that particular test in the bill. I had indicated earlier in another context to the Attorney General that a goodly number of these problems would be decided not on that kind of a test but on the capacity of the court that first made the order to have that order respected elsewhere in Canada in particular, without going abroad and determining the enforcement of orders elsewhere. At least in Canada, if the court that in good faith made the first decision would be entitled to have its decision respected by the courts in the other provinces and other jurisdictions in Canada, those problems would be decided. That, of course, is a pretty common provision. The language of the United States constitution which deals with it is the requirement of one jurisdiction to give full faith and credit to the orders of another jurisdiction.

One can never do that simply and totally in any sense but I would have thought that the court that made the original order in good faith and assumed jurisdiction with respect to custody matters is in a position where that order should be respected by other jurisdictions, unless it could be clearly shown that there had been a failure of due process or that the interests of the child were otherwise going to be seriously affected if there was compliance with that order.

I think that would have been a much simpler road and a much more readily understandable road to have been taken in the bill. Time may tell that the relatively complex tests of jurisdiction set out in this bill at some point may have to give way to what perhaps -- and I submit in all likelihood -- would have been a simpler and a much more effective method of dealing with a very fundamental problem.

The other matter that has always been of concern to me is that it is a historical anachronism in Ontario that our courts do not have jurisdiction to declare judicial separation as distinct from divorce, with the result that there has crept into our system of dealing with disputes of family matters the role of the separation agreement as such. I have always thought the accidental turn of events, by which the law of England was introduced into the province, deprived our courts of that kind of jurisdiction. I have spoken about this on other occasions. Jurisdiction was a vacuum that should have been filled directly by the legislation of this province, if necessary. If it required some kind of concomitant legislation from the federal government, I feel that could have been achieved.

The reason I say that is that I am always concerned when the rights of children are dependent upon negotiations of an agreement between two persons between whom there are intense feelings or many difficulties. To leave that entirely in the private field is, in my view, an unwise decision. I think that every situation in which the custody of children is in issue between those persons who share that custody should be decided in a court in accordance with the tests which are put forward. But the provision still remains that if two spouses separate and enter into a separation agreement, and the custody of the child is part of the bargaining process that goes on in there, there is no supervening intervention by the state to determine that the best interests of the child are served. if I have read the bill wrongly, I will be glad to have that corrected at the point when we go into committee. But it is my understanding that the best interests test for the child, the enumeration of those items in the bill, is not applicable in the case where the spouses enter into a separation agreement in the circumstances which, in so many cases, are the result of negotiations and discussions between opposing parties. Their interests are often tense, and certainly there is nothing to indicate the best interests of the child are paramount in the process of making that decision. It is perpetuated in many cases -- and I speak from a great deal of ignorance as a professional in this field -- to the extent that a separation agreement is ultimately part of a divorce proceeding. The question of custody is in many cases dealt with in a relatively more perfunctory way in the divorce jurisdiction courts in those circumstances where the spouses have agreed about the custody of the child, whether or not the tests are applied about the best interests of that child.

Why I said what I did at the beginning is that in a funny way this is a lawyer’s progression. In that sense it is a rationalization of many concepts of law that have been inherent in the care of children with respect to custody and other related matters. Nevertheless it still seems to me to be entrenched in an outmoded world of looking at the problems related to children in our society.

I think until the government, and I would urge the Attorney General at some point to consider this, is prepared to consider the kind of bill my colleague the member for Bellwoods put forward something over a year ago in this assembly with respect to the rights of children, until there is a concomitant recognition of the child as having, independently of the parents, the rights by which impose upon the parents the requirement to fulfil those rights by carrying out the duties that are implicit in it, then it does seem to me that in some way we are always going to treat the disability of minority as a significant and severe disability. That appears to me not to have any place any longer in a civilized society.

9:10 p.m.

I do not think we can go along very much longer without recognizing very clearly there are wrongs done to children in relationship with their parents and other custodians of the children that require the recognition of the rights to right the wrongs. Rights do not exist in a vacuum. They are always in response to the recognition by society of the wrongs. I think there is sufficient evidence of the wrongs to indicate quite clearly, even in a situation in which the custody is traditionally shared jointly with the parents, that children should have certain rights that can be brought to the attention of the court and enforced, if there is a failure on the part of the parents to carry out those rights or a failure on the part of anyone else to carry out these rights.

I am not going to try to elaborate again on the debate that took place on my colleague’s bill, the Children’s Rights Act, 1979. It is in Hansard. The arguments were put at that time, the rights were delineated and the bill is part of the record in the proceedings of the House. But there is no question whatsoever that we have to take that additional step to complete the work that has been done on the traditional problems in the relationship of children, the custody test of the parents and the rights of parents with respect to children under the traditional concepts.

I do think we have left a real vacuum. As a minor contribution to this debate, I would suggest to the Attorney General that he submit my colleague’s bill, the rights of children bill, to the Ontario Law Reform Commission. Perhaps there are also bills in other jurisdictions that have moved somewhere towards the recognition of the rights of children as delineated by my colleague. By the way, there were some 12 set out in the bill, all of them very eminently reasonable and all of them very valuable and very necessary parts of the wellbeing and the development of any child.

I would ask that the Attorney General consider the submission of that bill and any others from other comparable jurisdictions that have dealt with the problem to the Law Reform Commission and not for one moment necessarily to think that this is the end of a process which need never again be looked at.

I think it would be eminently wise for the Law Reform Commission, with whatever assistance from other agencies of social concern in the society that may want to make submissions to the Law Reform Commission, to determine whether or not the time has come to recognize this concomitant right of children so that when a child goes before a court as the subject of a custody proceeding in accordance with the bill which is before us this evening, there will be a very clear recognition by the judges who are called upon to make these difficult and sensitive decisions that they have before them in the court a person who has rights, despite the disability in our society of being a minor.

Perhaps I have gone on somewhat longer than I expected on that particular issue, but I believe it to be of fundamental importance in the remaining years of this century to get that concept into the laws of this province. If we have to break the way, if we have to front-run that particular recognition, so be it. I happen to believe there is probably significant assistance which can be obtained from other jurisdictions and certainly could be obtained from knowledgeable people about the interests concerned when a child is being dealt with before a judicial body in our courts.

I need not go on to say that at the present time in Ontario, both from federal and provincial default, the process by which children are dealt with in our courts in criminal matters and quasi-criminal matters under the Juvenile Offenders Act are, to say the least, less than adequate. I do not know what the causes of the delays are over the reintroduction at the federal level of an appropriate bill so that those matters can be dealt with.

We must not forget when we are passing this kind of law that the very people about whom we are passing the law are the very people who never have any access to expressing what the law should be with respect to them because we do not give any particular forum for children to express their views.

Our educational society is such that there are a large number of very sophisticated, adolescent children around in our society who I think, on a proper occasion, could make some very significant contribution to the way in which they believe the system should deal with them with respect to these matters which are so basic and fundamental to the values of the society we cherish. If we want to cherish and protect those values, then it is time that the objects of that care and attention which we value so much should have an opportunity to express their views about them.

One other very technical matter, not unimportant but somewhat technical, which I am not particularly certain is the correct approach, is the guardianship question. I am not talking about the $2,000 item at all. I am talking about the testamentary right of a person to appoint a guardian for his child in the custodial sense, as well as with respect to the property which that particular child might inherit. I still think there is a place for the court to decide, that the decision made by a parent in his will as to who should have custody of the child or who should be the guardian of the child should be not an automatic approval by the court. I still think there is an occasion on which the court must confirm or affirm that particular appointment.

The traditional view for a long time was that a person could, by will, appoint the person who was to have custody of the child and to be the guardian of his property. That went by the board and it was then good testamentary conveyancing procedure for the parent simply to name the person whom he wished to be the guardian or to have the custody of the child and leave it up to the application of that person, or of some interested person, to have it confirmed by the court. I still think, if I have read this bill correctly, that perhaps we could have some elucidation in committee about that procedure to decide whether or not some amendment may be useful or worthwhile in that area.

The other areas have been dealt with, but I did want to touch upon those three or four matters that I feel quite deeply about, and I am certain other members of the assembly share my feelings about them.

I end by asking again the Attorney General not to consider his work is done, but to consider my colleague’s bill and submit it to the Law Reform Commission for their study and report, and in due course we may be able to advance the cause of children in the province.

Hon. Mr. McMurtry: Mr. Speaker, I would like first of all to thank the members for their support of this legislation in principle. Furthermore, I would like to thank the members who have participated in this debate for their very thoughtful comments with respect to very important legislation. The member for Bellwoods I think is perhaps the only nonlawyer who participated and I would like to say to him that I appreciate particularly the careful thought he has given to many of the issues, many of the important concepts which are related to this legislation.

I look forward to discussing this legislation at length with the members in committee and I certainly appreciate the fact that they will be able to make a very useful contribution to legislation that we regard as very important and as a very important additional step with respect to our family law package.

I agree with the member for Riverdale that some of the issues that he raises will not be resolved in this legislation but will require the attention of lawyers, social scientists and law reformers probably for some years to come. In any event, Mr. Speaker, I certainly look forward to a very far ranging discussion in committee.

Motion agreed to.

Ordered for standing committee on administration of justice.

9:20 p.m.


Hon. Mr. Drea moved second reading of Bill 138, An Act to revise The Boundaries Act.

Hon. Mr. Drea: Mr. Speaker, I made a rather substantial statement when this bill was introduced in the spring. Quite frankly, it is an effort to streamline the administrative procedures without altering the basic concept for the confirmation of boundaries. You will notice in the act, for instance, that where there is no dispute, there is no longer the need for hearing and so forth. Notwithstanding the fact that it concerns a less than grandiose subject, it will have a remedial impact, particularly for municipalities.

Mr. Breithaupt: Mr. Speaker, I had the opportunity to review the comments made by the minister at the time of the introduction of this bill. From a review of the explanatory notes, the particular details with respect to changes and certain requirements for plans of survey and boundaries appear to be changes which are all for the better.

As the minister has said, certain notices of application of hearings will no longer be required where consent matters occur and, as a result, some time will no doubt be saved in completing a variety of procedures which will set boundaries, particularly as they define highways and other areas.

Certainly I have no other questions with respect to the bill. We are obviously quite prepared to support these positive changes and hope the bill can proceed as expeditiously as possible.

Mr. Lawlor: Possibly, Mr. Speaker, no banal or pedestrian subject could be spoken about at this time of the night, Nevertheless, I have to confess that the legislation stirs my blood. It seems to me we go into fairly deep waters. Listen to this, Mr. Speaker:

“The fabric of the original surveys in Ontario has eroded. Most of the monuments have disappeared. Even in modem subdivisions many of the iron bars carefully planted by surveyors are almost immediately removed by bulldozers. The process of division and subdivision during more than a century has produced jigsaw puzzles composed of parcels which may be divided with a degree of internal logic but which really fit together easily and without overlaps or gaps. The task of locating boundaries may be difficult and expensive and often does not reach a simple and certain result.” I am reading from a report on land legislation by the Ontario Law Reform Commission, which was written in 1971 and so far as I know nothing has been done about it. The minister brings forward a revision to the act and I wonder how it impinges upon or has any effect upon the numerous recommendations, nostrums, objections, castigations or any other “tions” that exist in this legislation.

I would like the minister to explain how co-ordinate control systems have been brought into being in the province and how they are operating. It is a system of monuments being set up. I suspect that none of them have been done. What is the point of a law reform commission bringing forward all the most benign, helpful suggestions with respect to how one reaches boundaries if nothing is done about it? I suspect he hasn’t even heard about it, let’s be frank, and that it is a new subject to him.

Hon. Mr. Drea: Oh, yes, I have.

Mr. Lawlor: Well, if the minister has heard about it, then I don’t see anything in the legislation tonight that addresses itself to the central issue involved here. It is an attempt to obviate on the part of a few, on the part of masters of titles, on the part of the surveyor general, a minister of the crown, and a few others of some benefit, in trying to locate the starting point or at least trying to determine where the meridian lines run and where the devil the property is so that it doesn’t impinge upon and overlap on another.

If one searches properties in this province -- take Haliburton, Minden, let me say -- when trying to find out and locate with any astuteness, one hopes they are within 1,000 yards of the particular piece of property that a client is seeking. One gets very little help in this particular regard from registered documents, surveys reposing in the registry office. John Graves Simcoe did an initial job and very little in Ontario has been done since that time.

Mr. M. N. Davison: Mr. Speaker, it is certainly a good thing you recognized the member for Lakeshore before you recognized me because until I had heard him I would have said that this was an uncontroversial piece of legislation.

It seems to me frankly that in regard to Bill 138, An Act to revise the Boundaries Act, it certainly is time for modernization. Any bill that was introduced and passed in the year that my father was elected to this august assembly is no doubt appropriately up for review. I have no great objection to the changes that have been made, although I understand my colleague’s concerns about some of the things we may have done that we have not yet done in terms of legislation.

It is my view that there is no need for the bill to go to committee for alteration unless my colleague has questions to ask in some continuing dialogue with the minister. I would point out, and my colleague from Lakeshore did not do so -- and I was surprised that he did not say that he was happy to find it out -- that in fact this bill is binding on the crown.

Hon. Mr. Drea: Just very briefly, Mr. Speaker, the whole question of surveys, and I am not going to get into it, really is being faced by the Ministry of Natural Resources. This is not an attempt in any way, shape or form to get at the recommendations of the Ontario Law Reform Commission. This is merely to streamline the existing procedure. As such, I will certainly pass on to my staff within the competence of the registry and the land titles system the comments the member for Lakeshore has made, but I really think the thrust of his argument should be to the Minister of Natural Resources (Mr. Auld).

Motion agreed to.

Ordered for third reading.

9:30 p.m.


Hon. Mr. Drea moved second reading of Bill 136, An Act to amend the Land Titles Act.

Hon. Mr. Drea: Mr. Speaker, just very briefly, because I dealt with this also in the spring, there is the request that we have from the federal government to change our legislation so that they no longer have to issue consents in connection with estate taxes. I am going to move an amendment in committee which also deals with this, but again we seem to have a bit of a gremlin concerning the statutory authority and the title of deputy land registrar. We want to clean it up in here once and for all.

The amendment is required later on because even with this attempt to clean up the status of the deputy land registrar, inadvertently there were some things left out, and that will be brought forward in committee. Finally, there is the question of the easement on the condominium properties where there is sequential development to occur. I think that is all I will say at this time.

Mr. Breithaupt: Mr. Speaker, as the minister has commented, this was one of the group of bills that was introduced on June 19, just before the Legislature rose for the summer break. Both in this act and in the Registry Act, there are changes with respect to easements in so far as condominium registration is concerned. As a result of the changes in condominium law and the further development of that mode of lifestyle, it is necessary that statutes that have been in existence, I suppose particularly under the Registry Act, for close to 150 years or perhaps even 200 years, have to be brought up to date and have some modification.

As the minister has acknowledged not only in his statement but also in the explanatory notes, this change with respect to the easement theme -- I will say this now and not repeat myself at the time of the Registry Act -- both of these changes have been meant to allow the creation of easements that benefit the overall condominium properties and to spell out somewhat more clearly and in detail the changes in verbiage that have developed as the whole condominium theme has developed.

As the minister has said, there have been a couple of other changes which result from changes in federal statutes. The one change I did find interesting, however, was the one with respect to section 14, and perhaps the minister might comment upon that. As I look at the explanatory note in section 14, the explanation of this amendment is as follows:

“The provision currently provides that when a sheriff is so directed he shall forward writs of execution to the land registrars.” The provision is reworded to clarify the intent. A substantive change is to provide that the execution does not bind land until it is recorded by the land registrar. Currently it binds land when it is received by the land registrar.

If the minister will look at that, it may strike him, as it did me, that the question of some delay might arise. Obviously, to someone searching a title, it would seem he is going to have to see something recorded in the daybook, if not at least under the lot and plan number in the ordinary case, before he can know whether it is binding.

I wonder, unless there are some particular provisions to the land registrars to ensure immediate recording of these particular documents, whether someone may be disadvantaged in not having a registration on a property until, in fact, it is recorded. I realize this may only be the matter of a few hours but, as we all know, the issuance of a certificate following a writ of execution can suddenly intervene between a first mortgage or a second mortgage. There could be a variety of problems.

I was just wondering whether this is a particular concern and, indeed, whether this fact of recording may be of some disadvantage if there are not clear expectations that such documents would be immediately dealt with, as I am sure most land registrars would want to do, to ensure that the best results would occur.

Beyond that particular point, the other amendments as I have reviewed them are somewhat mechanical and of a housekeeping nature and we would certainly support the bill.

Mr. M. N. Davison: Mr. Speaker, likewise my party has no objection to what is contained in the bill. The federal request on the issue of the estate tax and the discontinuance of issuing consents is perfectly reasonable and there is no reason to hesitate. I could not possibly in my wildest dreams imagine resisting the legitimization of the deputy land registrar. How frightful.

One area that causes me concern is the area dealing with condominiums. I do not think there is any need to spend a great deal of time on it, but it is important to realize condominiums seem to be a continuing problem in terms of a constant need to alter, modify and clarify existing legislation. It is not the first time we have had the Registry Act or, indeed, the Land Titles Act before us to clean up, make some alterations, in regard to condominiums.

In the 15 years we have been living with the reality of condominium life in the province, we still do not seem to have come to grips with all the varying issues. I would suggest to the minister the time is probably about right now to have staff commence a look-through and an examination of condominium legislation in its totality. I suspect after the fairly extensive revision of the legislation we went through two years ago with condominiums about the time the minister came into this portfolio, there are a number of other areas like this question of easements that could use, in the words of the ministry, some modification and clarification. I would recommend that course of action to the minister. I know that is not precisely on the principle of the bill.

As to the final two central provisions, the amendments to the Land Titles Act, I do not have great objection. The alterations proposed in section 15 of this bill and section 10 of the Registry Act in terms of the provisions for correcting errors are completely acceptable.

Hon. Mr. Drea: With the sound system it is very difficult to hear the member.

Mr. M. N. Davison: I am speaking as carefully as I can.

Hon. Mr. Drea: It is not your fault. It is the microphones.

Mr. M. N. Davison: Yes. The minister can read it tomorrow in Hansard, I suppose.

9:40 p.m.

The final item I want to comment on is the alterations in section 16 dealing with the Family Law Reform Act and the alterations that are now necessary to the Land Titles Act. Like my colleague from Kitchener (Mr. Breithaupt), I have no intention of running through the same things with the Registry Act. They are essentially the same amendments and these comments are applicable to both. I congratulate him. It is two years after the fact that we move to make those necessary amendments to the Land Titles Act and to the Registry Act in accordance with the Family Law Reform Act of 1978. Aside from the minister’s amendments to those two bills, which I support, I see no other need for them to be delayed in the committee stage.

Hon. Mr. Drea: There was one question of concern regarding section 14 that was brought forward by the member for Kitchener and I thought it might be better to answer it for the sake of the record at this time.

I am instructed that the amendment protects the purchaser or chargee -- that is, the mortgagee -- against writ of execution received from the sheriff by the land registry office but not yet recorded; that is, indexed. There, it goes without saying, the land registrar has an obligation to record promptly and his failure could result in his being sued for consequential loss by a judgement creditor. The court would no doubt determine what would amount to an unreasonable delay in a proceeding.

I would think on that basis there is the protection. The obligation with that amendment is upon the registrar or the master, depending upon which bill we are talking about, and the failure to do so then could be interpreted by the courts.

Mr. Breithaupt: And they will be aware of the need to be prompt.

Hon. Mr. Drea: Yes. In the land registry or the land titles, whichever you want to call it, there is constantly this obligation to be prompt, because there are instant remedial measures. This indeed is one of the reasons that we are going into complete computerization through the Polaris project. That will facilitate recording as rapidly as possible by virtue of the fact that the staff will not otherwise be occupied and that the documents for searchers and others will be almost instantly available rather than having lineups. Right now there could be a delay in the recording caused only by the fact that there were 10 people in front of the wicket. If we eliminate that, then there is really no excuse and it should be a very prompt recording.

Motion agreed to.

Ordered for committee of the whole House.


Hon. Mr. Drea moved second reading of Bill 137, An Act to amend the Registry Act.

Hon. Mr. Drea: Mr. Speaker, the amendments that constitute this act are almost identical, at least in intent, to those that have already been discussed in Bill 136.

Mr. Breithaupt: Mr. Speaker, the comments, as the minister has said, relate not only to the land titles system but also to the registry office system as they review the federal estate tax changes that we commented upon earlier. In addition, the matter of easement definition to attend to certain condominium developments is also similar to the previous act.

The minister has two amendments to this bill similar to those in the previous bill, which again follow along and correct some particular details in this circumstance.

I do not think there is any requirement for any further particular comments on the bill. The two of them are companions, and of course we will support them.

Mr. M. N. Davison: Mr. Speaker, perhaps I can rephrase the question or point I was making about condominiums under the Registry Act. I will try to speak up so that the minister can catch it.

The point I was making was that in the time since we rewrote condominium law in Ontario, this is not the first occasion on which legislation has come before the House because of something we either ignored at the time or because of subsequent ranges that had to be made to other pieces of legislation; in fact, among them was the Registry Act on another occasion back in the last session.

The point I was trying to make with the minister -- perhaps he will respond to it in his concluding remarks on second reading debate of this bill -- was, to what extent has his ministry undertaken an examination of the condominium legislation to see where improvements are required? For example, can we expect some alterations or amendments to the condominium law in the province to be forthcoming from the minister in the next six months?

The other concern that the minister might address himself to is that one of the things that was important when we rewrote the condominium legislation in the province was the desire to get as much of condominium law into one bill as was possible. To what extent has consideration been given to taking sections of the Registry Act and, for the purposes of the reading or consuming public, having as much as possible of that legislation in one bill? Has the minister and his staff given some thought to this and other sections of the Registry Act affecting condominium law that could be transferred over to the condominium legislation?

Hon. Mr. Drea: I do not think we can ever get to the point where we can assure this assembly that we have packaged together all of the improvements that are needed in the condominium field.

First of all, I would direct the honourable member’s attention to the fact that the very amendments to the last bill and to this bill regarding the easement question were considered prior to the introduction of the Condominium Act, which was passed two years ago. They were presumed not necessary because this was an existing practice that had not been challenged.

Notwithstanding the new Condominium Act or the one that is in existence now, the evolvement of law in the condominium field has made the amendments in these two bills tonight extremely necessary. I think we have to bear in mind that condominium law in this province is not yet a decade old or, if a decade old, just barely beyond that. It certainly took a great deal of time to get a coherent Condominium Act. I can recall, when first elected, having to sit on committees which considered, and changed rather drastically and substantially, the core Condominium Act.

9:50 p.m.

Naturally, within the ministry, and particularly within the land registry and land titles, there is an onus and very real thrust that, when these particular applications are addressed, it is not done on an ad hoc basis. But indeed, if there are sections or practices within the scope of the two acts, they should be brought up to the desired level all at the same time.

Because of the evolving nature of condominium law, I think the member does have a point, that there is a particular onus upon us not to be changing every six months because another situation has come up. To the best of the ability of the staff -- and they are very skilled in this area -- I can assure him that matter is being constantly looked at. On the other hand, there are evolvements or changes made necessary by court decisions or what have you and we must meet them.

When the honourable member talks about putting it all under one act, it is my view that since the purchase or the sale of a condominium property is almost identical to the purchase or sale of detached property, or what I call conventional property, it is best served under the Land Registry Act and the Land Titles Act. This is where the profession that is actually doing and arranging the transfer goes. These acts are their bible.

Mr. M. N. Davison: It is not the lawyers we have problems with.

Hon. Mr. Drea: The honourable member interjects that it is not the lawyers we have problems with. Let me tell him that it has taken a long time for the profession to become accustomed to condominium transfers. They are not identical to the sale or purchase of detached property. That has been one of the problems, and indeed the profession has had to address itself to that by drawing to the attention of solicitors that they are not exactly the same.

I must say we do not have the disputes or controversy now that we had even two years ago with the passage of the Condominium Act.

I think the customer is really best served in terms of protection by having the rather codified rules or law for the purchase and sale, for the delineation of the property and so forth, right in the place where it is done within those two acts, and the other things flowing in the Condominium Act, because there is far more to the protection of the consumer or to condominium life than the registration or the title on the property.

That is my view, and I think quite frankly it is the view of those in the profession. There may come a time when we will want to do this, but also bear in mind that it is an administrative problem.

Mr. M. N. Davison: Let us come back to this in committee.

Hon. Mr. Drea: I would be delighted to come to anything in committee, but the member asked me to speak upon it on second reading and I have tried to. Now I would like to finish.

Mr. M. N. Davison: I was seeking only a dialogue.

Hon. Mr. Drea: Second reading is not the time to seek a dialogue, if that is what the member wanted. The member asked me some rather pointed things and he drew to my attention the fact that I had not spoken on it the first time. I would like to wind up with a couple of sentences, and I do not care if the member wants to stay here all night in committee. I was asked my views; I was asked why we were not doing things and what direction we were going.

We have no immediate intent to alter the Condominium Act proper. I do not want to be held to account six months from now because there is a situation that has emerged as a result of a court case or so forth. But in terms of the content of which the honourable member was inquiring and was making his point, no, we do not. I think we have reached the point that, while the act is under constant review, it seems to be meeting the need as of October 7, 1980. A court case on a section that we considered in this Legislature to be well within the jurisdiction of this government could alter that, and I am not talking about anything before the courts now.

I think that should answer the questions that were asked and the concerns that were expressed on both Bill 138 and Bill 137 regarding the new easement provisions for condominiums.

Motion agreed to.

Ordered for committee of the whole House.


Hon. Mr. Drea moved second reading of Bill 85, An Act to revise the Limited Partnerships Act.

Hon. Mr. Drea: Mr. Speaker, I really do not think an opening comment is required. While this act is substantial and I am confident will be of great benefit to the investment community, it is a rather straightforward piece of legislation by intent. It is maybe somewhat more lengthy than one would expect, but there are a number of things that have to be brought up to date.

One thing that is of significance is that for some time there has been the concern that were we to move in this field, we would have to accept, almost on a reciprocal basis, firms operating under limited partnerships legislation in other provinces. The concern was raised -- I do not want to comment too much on it -- that in certain cases this would provide out-of-province limited partnerships with certain advantages over those that would choose to exercise this form of partnership in Ontario.

We have more than met that concern, because in this bill we provide that the status of a limited partnership formed outside of Ontario, but which carries on business here, must file the declaration here, where it operates, but the laws of the jurisdiction under which it was organized govern its internal affairs and the limited liability of its limited partners. I think that is a very significant and very common-sense approach, and one that will facilitate this type of partnership, which has been very successful in other jurisdictions for investors.

To a degree, it operates under federal jurisdiction, and is particularly advantageous to investors who have been looking at the film industry, which has been very successful in this country in providing jobs and so on.

10 p.m.

Mr. Breithaupt: Mr. Speaker, it is interesting that when this bill was first introduced, the minister in his comments referred to the year of 1849 as the date when this Limited Partnerships Act was first developed. I think that was probably part of the Baldwin reforms and the Municipal Act and all the other sorts of thing. But while the Municipal Act has certainly been patched up and changed, shaken down, shaken out and dealt with in a variety of ways, here is a rather curious statute that has not really required much change over the years.

In the original statute, section 3 sets out the whole concept of liability, and I think it is worthwhile to comment on that. The section reads: “General partners are jointly and separately responsible as general partners are by law but limited partners are not liable for the debts of the partnership beyond the amounts contributed by them to the capital.”

That is a very simple concept, but it is one that was quite a change to the traditional partnership responsibilities whereby anyone involved in a business was fully responsible for the debts and obligations if a partner with either apparent or ostensible authority had the right to bind that person in a certain transaction. Since 1849, there has not been much of a change in this kind of statute until now, when we have before us a statute that is virtually twice as long -- 37 sections instead of 20 -- as the one it is replacing.

I was interested in reading the press report that appeared in the Globe and Mail. I felt the headline was one of the more peculiar ones I have seen attached to articles. In dealing with the comments that the minister made in the House on May 27, the headline is, “Ontario Attempts to Change Laws on Partnerships.” I can assure the writer of that headline that it is not just an attempt. If the bill is introduced, it does change the law. There is no question about that, and I think it is a change for the better.

Particularly in the area of oil and gas exploration and in this film-making consortium theme, which is now quite a development in Metro Toronto as well as other parts of the country for various tax reasons and other opportunities to make capital gains -- and pay taxes if they are successful -- there have been comments that the law was simply insufficient for development of this new kind of relationship between individuals who would gather together for these projects.

As the minister has said, the numbers have virtually doubled over the last several years. It has been particularly important to make arrangements so that limited partnerships originating in other provinces would have certain responsibilities in Ontario and offices to be served for various documentation however their internal details and operation would be dealt with by the province in which they originated. As I recall, our statute now will follow particularly the development of themes in Alberta and Saskatchewan, as they have had some experience in this development.

The circumstances that limit responsibility are much more clearly set out, and the opportunities to change the memberships without an excessive amount of paperwork are certainly suggestions whose time has come. The basic comments within the act are quite clear and self-explanatory, and I certainly welcome this change in development in the ongoing reform of business law.

The minister has had a particular interest in this, a responsibility for it and has shown interest in obtaining legislative time to deal with this great variety of statutes that have to be brought up to date if we are to maintain the kinds of business development and practice that are important to Ontario.

Mr. M. N. Davison: Mr. Speaker, I am sorry the minister and I have not been getting along terribly well these past four or five months.

Hon. Mr. Drea: Four or five years.

Mr. M. N. Davison: Four or five years, has it been? Time passes so quickly.

Mr. Cunningham: It seems like nine or 10.

Mr. M. N. Davison: Yes. On the Limited Partnerships Act, I will try to be much less provocative with the minister than I was on the Land Titles Act.

In the New Democratic Party we support these changes to the Limited Partnerships Act. I think any law that was a law in this geographical area before we became a province is probably due for rewriting. It is nice to know that after almost four decades of straight Tory government they have finally got around to the 1849 statutes and decided to modernize them.

I was quite interested, as I suspect a lot of members were, when the member for Kitchener pointed out the increase in the number of registrations we have had of limited partnerships -- about double in the last year; I think 195 to 344. That still accounts against a figure of 50,000 businesses that are registered in Ontario in a year; so it is a relatively small, although growing, number of businesses.

As I say, we support the modernization of the statute. I have no great difficulty with any of it except the parts that deal with limited partnerships that are extraprovincial, from outside of the province; because I would like a dialogue rather than an answer to a question, I will hold my comments and questions on that until we reach committee stage of the legislation under section 25.

Motion agreed to.

Ordered for committee of the whole House.

House in committee of the whole.


Consideration of Bill 136, An Act to amend the Land Titles Act.

On section 1:

Hon. Mr. Drea: Mr. Chairman, there will be two amendments.

Mr. Chairman: Mr. Drea moves that section 1 of the act, as set out in section 1 of the bill, be amended by adding thereto the following subsection:

“Powers and duties of deputy land registrars:

“(5) A deputy land registrar appointed under the Public Service Act shall act under the direction of the land registrar and in so acting may exercise the powers and perform the duties of a land registrar.”

Hon. Mr. Drea: Mr. Chairman, as I mentioned in the second reading debate, it was through unfortunate drafting in 1919 and in 1980 that we neglected to reinstate the statutory authority of deputy land registrars. We apologize to the House for those oversights. I do not know what the particular difficulty is with deputy land registrars, but we hope that this clarifies it forever.

Mr. Breithaupt: Mr. Chairman, in effect, land registrars and deputy land registrars are of course different kinds of people from assistant deputy land registrars. There is a necessity to resolve this particular point, and the amendment is fine.

Motion agreed to.

Section 1, as amended, agreed to.

10:10 p.m.

On section 2:

Mr. Chairman: Mr. Drea moves that subsection 3 of section 43a of the act, as set out in section 2 of the bill, be amended by inserting after the word “easement” in the third line the word “expressly.”

Hon. Mr. Drea: Mr. Chairman, in the new section 43a of the Land Titles Act, the term “expressly” appears twice. It appears in subsection 1, and the term “expressed” appears twice in subsection 4. We feel it prudent not to have an apparent but unintentional difference in phrasing which might result in the intention being incorrectly construed by the courts.

Motion agreed to.

Mr. M. N. Davison: Mr. Chairman, I will expressly put the question I tried to put to the minister before. I wonder if the minister would consider as an appendix to the Condominium Act in Ontario a list of various pieces of legislative sections and subsections of various other statutes in the province that deal with condominiums, so that when somebody goes to the government bookstore and purchases something called the Condominium Act he would have included as a final page or two of that a list of every other piece of legislation in the province that affects or applies to condominiums.

The concern I was trying to raise was not the difficulties of lawyers.

Hon. Mr. Drea: Done.

Mr. M. N. Davison: I have sold it to the minister? Well done!

Hon. Mr. Drea: It is to be an office consolidation or something like that.

Mr. M. N. Davison: Who said we couldn’t get along together?

Hon. Mr. Drea: If the member asked questions like that all the time, I would do it for him.

Motion agreed to.

Section 2, as amended, agreed to.

Sections 3 to 18, inclusive, agreed to.

Bill 136, as amended, reported.


Bill 137, An Act to amend the Registry Act.

On section 1:

Mr. Chairman: Mr. Drea moves that section 8 of the act, as set out in section 1 of the bill, be amended by adding thereto the following subsection:

“Powers and duties of deputy land registrars:

“(5) A deputy land registrar appointed under the Public Service Act shall act under the direction of the land registrar and when so acting may exercise the powers and perform the duties of a land registrar.”

Hon. Mr. Drea: Mr. Chairman, the explanation is identical to that for section 1 of Bill 136.

Mr. Breithaupt: My comments are identical as well.

Motion agreed to.

Section 1, as amended, agreed to.

Sections 2 and 3 agreed to.

On section 4:

Mr. Chairman: Mr. Drea moves that subsection 1 of section 24a of the act, as set out in section 4 of the bill, be amended by striking out “transfer” in the ninth line and inserting in lieu thereof “deed” and further that subsection 3 of section 24a be amended by inserting, after “easement” In the third line, “expressly.”

Hon. Mr. Drea: Mr. Chairman, the first amendment to section 4, unfortunately, is necessary because the new section incorrectly referred to “transfer.” The term “deed” is much more appropriate in the context of the Registry Act, and that is the reason for the substitution.

The second amendment is to make it exactly the same as in Bill 136, for the sake of prudence in the courts.

Motion agreed to.

Section 4, as amended, agreed to.

Sections 5 to 15, inclusive, agreed to.

Bill 137, as amended, reported.


Consideration of Bill 85, An Act to revise the Limited Partnerships Act.

On section 1:

Mr. Chairman: Mr. Drea moves that section 1 be amended by adding thereto the following clause:

“(ba) ‘person’ includes an individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate and a natural person in his capacity as trustee, executor, administrator or other legal representative.”

Hon. Mr. Drea: Mr. Chairman, this amendment provides an expanded definition of the word “person” which is taken from the proposed revision of the Business Corporations Act.

As it is written, the bill would not permit one limited partnership to invest in another limited partnership. The ministry received comments on this after the introduction of the bill for first reading, and the amendment will permit greater participation in limited partnerships.

Mr. M. N. Davison: Mr. Chairman, I support this completely, as long as the minister does not try to slip this in as a definition of “person” under the Interpretation Act of Ontario.

Motion agreed to.

Section 1, as amended, agreed to.

Sections 2 to 4, inclusive, agreed to.

On section 5:

Mr. Chairman: Mr. Drea moves that subsection 3 of 5 of the bill be deleted and the following substituted therefor:

“(3) Notwithstanding any act, the word ‘limited’ may be used in the firm name but only in the expression ‘limited partnership’.”

Hon. Mr. Drea: Mr. Chairman, this amendment clarifies the intent of the section, because the existing wording is open to abuse; some person might register the XYZ Partnership Limited and leave the false impression that the partnership is a corporation rather than a limited partnership.

By eliminating the reference to section 10 of the Business Corporations Act, no further amendment will be necessary if the revised Business Corporations Act is introduced and becomes law.

Mr. Breithaupt: Mr. Chairman, this is certainly a prudent amendment. The example the minister used shows the kind of confusion that could result, and I think it is important that the two words “limited partnership” are clearly developed so that they become a term with which at least a discerning or interested member of the public in this particular kind of development would feel fully capable of knowing the details. The amendment certainly seems worthwhile.

Motion agreed to.

Section 5, as amended, agreed to.

10:20 p.m.

Sections 6 to 24, inclusive, agreed to.

On section 25:

Mr. Chairman: Mr. Drea moved that subsection 1 of section 25 of the bill be amended by striking out “transacts business” in the third and fourth lines and inserting in lieu thereof “carries on business.”

Hon. Mr. Drea: Mr. Chairman, the proposed amendment makes the wording of the section consistent with that contained in section 24. Concern was expressed that transacting business might have a different meaning from carrying on business and the proposed amendment meets this concern.

Mr. Breithaupt: Mr. Chairman, the phrase “carrying on business” is one that is used within corporate law and has a certain tradition of consistency. This amendment is certainly satisfactory.

Mr. M. N. Davison: Mr. Chairman, on section 25, but not the amendment, I would just point out that I agree with my colleague the member for Wentworth North (Mr. Cunningham) that we would be a lot more use to the House this evening if we were debating the Re-Mor and Astra swindles rather than these pieces of legislation. However, in regard to section 25, I have a concern. I do not know to what degree it is my lack of knowledge about the way limited partnerships might operate in certain circumstances and to what extent it is simply a query arising from the explanations of this alteration in the legislation. I am not sure I understand how it is that a citizen in Ontario who is involved in business in Ontario is not subject to Ontario laws simply because his involvement takes place through a limited partnership that is an extraprovincial partnership.

Does the minister understand the concern I am raising? Perhaps he could explain that to me.

Hon. Mr. Drea: This is what I referred to before. It is for internal purposes; that is, for purposes of a charter and its organization, it is where the corporation began. For its operations in the province, it must conform to this Limited Partnerships Act. That is exactly where the bottleneck was in the past. The argument was that, if you proceed into amending the 1849 statute, you are going to have to give reciprocity.

Regarding the Limited Partnerships Acts in other provinces -- and I do not want to go into the merits of it -- historically there was a concern that these were not up to Ontario standard. Therefore, you are creating a class of organization that could operate under an inferior law in Ontario and obviously there are some implications in that. At the same time, there was never the intent to dictate to other provinces what they should do.

In effect, this is the best of both worlds. If you originate in one province, you must operate your own affairs under their rules; we do not impose them on you, but your public dealings must conform to this bill in this province.

Mr. M. N. Davison: The Ontario citizen carrying on business within Ontario in a limited partnership from outside the province does not have limited liability in Ontario? Does he have complete liability or no liability?

Hon. Mr. Drea: He has limited liability under the amendments here.

Mr. M. N. Davison: And under the old legislation he had complete liability or no liability?

Hon. Mr. Drea: He had complete liability.

Mr. M. N. Davison: So we are moving from complete liability to limited liability. It does not matter then whether the Ontario citizen doing business in the province is doing it through a limited partnership from Ontario or a limited partnership from Manitoba; is that correct?

Hon. Mr. Drea: No, not in terms of his investment. But the question arose because if he were investing in a limited partnership or in effect had become part of it, under whose rules would he be operating? We are saying he operates under the corporate rules or within the internal affairs of a limited partnership, under the rules where it originated, but in terms of his investment and the limited liability and the scope he operates under this act in Ontario.

On the one hand we do not distort or restrict the ability of a limited partnership that originates in another province from doing business here, but by the same token we do not put up a double standard in the Ontario business community.

Motion agreed to.

Section 25, as amended, agreed to.

Sections 26 to 37, inclusive, agreed to.

Bill 136, as amended, reported.

On motion by Hon. Mr. Wells, the committee of the whole House reported three bills with amendments.

The House adjourned at 10:28 p.m.