The House resumed at 8 p.m.
FAMILY LAW REFORM ACT (CONTINUED)
Resumption of the adjourned debate in committee of the whole House on Bill 59, An Act to reform the Law respecting Property Rights, and Supporting Obligations between Married Persons and in other Family Relationships.
Mrs. Campbell: On a point of order, if I may, Mr. Chairman: My point of order is that this committee did engage in a procedure by which the votes were to be stacked. We are now informed that there has been an intrusion of change on that and that there will be a vote at 9 o’clock. If I am correct about that, my point of order is that the member for Carleton East (Ms. Gigantes) in moving the adjournment of the debate indicated that she would be speaking at some length on this particular amendment, and I would ask whether there is any provision for some division of time among the other parties in view of the limitation of debate tonight on this section.
Mr. Deputy Chairman: I would inform the member for St. George that the debate is not limited. The vote at 9 o’clock is only an estimate. As far as I am concerned, lacking any other instruction, the vote on this clause will not be taken until everyone who wishes to speak has spoken.
I would remind the hon. members that we are dealing with section 3, and particularly with the amendments by Mr. Bounsall.
On section 3:
Ms. Bryden: Mr. Chairman, I rise in support of the amendment moved by my colleague the member for Windsor-Sandwich (Mr. Bounsall), which says in effect that family assets which are to be shared should include all assets which are acquired after the marriage or the appreciation of any assets which were acquired before the marriage as well as the appreciation of those acquired after.
In my opinion section 3 is the key section in the bill, because it says what assets shall be shared on the 50-50 basis that comes in section 4.
It seems to me this amendment is the test of whether the members of this House are really going to recognize the equality of the spouses and that marriage is a partnership, which is set forth in the preamble as the objective of the bill. If we do not accept this amendment, we are not recognizing those objectives in the preamble. It is as simple as that.
I can understand to some extent the reluctance of some members to broaden the concept of assets, because they have lived for so many years with an unequal situation where one spouse, the spouse who stayed at home -- and usually it was the wife, of course -- was expected to contribute all her services for love and not to get any recognition for her contribution to the growth of family wealth. In fact, they used to try to dignify her role by saying that she filled many roles; that she was in effect a seamstress, a laundress, a cook, a child psychologist, a household economist and many other things.
But if you look at the way her contribution was recognized, she was just one thing: She was a philanthropist. She was a philanthropist in that she gave all of those services and performed all of those roles for nothing. There was no recognition that in performing those roles she was contributing to the opportunities of the other spouse to build up assets. Nor was there any recognition that in fulfilling all those roles she was denying herself career opportunities, education opportunities and experience opportunities.
Generally, she would not be in any sense an equal of the other spouse at the time of marriage breakup when they both were entering the employment market together, because over those years she had lost a great deal of the opportunities to develop herself for the employment market. Moreover, she would be entering an employment market which is biased against women, in which basically only the lower-paid jobs are open to women in any quantity. So if we are going to change that thinking and start to recognize the contribution that women have made by being the spouse, who stayed in the home and who forwent all those things, we must include all assets. Otherwise we are making a mockery of the preamble and of the objectives of the bill.
I find it difficult to understand the reason that the member for St. George does not appear to be supporting this concept.
Mr. Sterling: Because she understands the law, that’s why.
Mr. Bounsall: Oh, come on, Norman.
Mr. Swart: The whip’s been at work.
Mr. Bounsall: It is what the law should be.
Ms. Bryden: I find it rather strange that the only contribution to an attempt to improve the Act appears to be one amendment from the Liberal Party which would perhaps clarify section 4. It sets forth equal sharing, but it would clarify it only in the guidelines given to judges when one goes to court to settle whether there should be other assets included.
The one thing the member for St. George does not seem to understand is that women do not want to have to go to court to settle what assets they should be entitled to. They want it laid down in the law that they are entitled to a 50-50 sharing of all assets. If there are inequities, because of perhaps the shortness of the marriage, then there may be reason for judicial discretion, for going to court to have some different division of the assets. But to leave it all to judicial discretion is to leave women at the mercy of the court, to force them to the costs and the delays involved in courts, and also to leave them to the whims of judges.
I’m afraid there are still some judges who have 19th century ideas -- or perhaps Stone Age ideas. There are still some judges who think even that the testimony of women at certain periods of their lives is untrustworthy. There are some judges who still believe that the commercial assets should not be shared unless the woman has contributed work or money towards those assets, that have not yet recognized the contribution that women do make through enabling the other partner to build up a career.
So to leave the division of any other assets, except the paltry few that are covered under section 3 right now, to judicial discretion is to really leave women at the mercy of courts, and their past experience has not been too good in that field.
I point out also that the Ontario Law Reform Commission, in its recommendations, said on page 119: “that the committee recommends that all property acquired during marriage by either spouse should be subject to the equalizing claims between the spouses.” The Ontario Law Reform Commission recognized that any equal splitting of assets should include all property acquired during marriage. I submit that judicial discretion is not sufficient -- that judges need more than guidelines as they would be given under the Liberal amendment if that is adopted.
In fact, the judges already have that guideline under section 8 of the bill which is really a re-enacting of the 1975 family law reform bill. That was the first timid step by this government towards family law reform, but it did at least say that a judge should be guided by the contribution of the spouses, notwithstanding the fact that they were acting simply as a normal spouse, in other words, fulfilling the role of running the household.
What is suggested in the Liberal amendment is already in there. I don’t know that it needs very much more clarification to tell the judges that they should consider the wider contribution of the spouse who stayed in the home.
I would like to tell the House about a little incident that happened this week, I understand. A group of doctors in Toronto was meeting with one of their accountants who was giving them some instruction on the new family law bill. He was telling them that if this bill passes they would have to arrange their affairs thus and so if they wanted to keep their assets out of the hands of their wives. There happened to be one woman doctor in the group. She spoke up and asked was it not the objective of the law to share the assets between the two spouses. At that point, they decided to adjourn for coffee.
It seems to me that failure to adopt this amendment is a denial of the equal sharing and the recognition of partnership. I think if one could take the government to court, one could take them to court on a charge of fraud because without this amendment to section 3 we are not getting the objectives in the preamble. We are not getting half a loaf, though some people say let’s pass the bill because it’s got some good things in it and is getting rid of a lot of archaic laws. We are not even getting a quarter of a loaf for the women of Ontario.
What we are getting is a betrayal of the government’s tentative objectives of providing equality for the sexes and a recognition of the marriage partnership. I submit that any person who does not support this amendment is perpetrating a fraud on the women of Ontario.
Mr. Reed: That sums it up.
Mrs. Campbell: I am glad we have a new definition of the term fraud. Coming from one who is so knowledgeable of the law, I don’t suppose it is appropriate for me to go into the matter of what does and what does not constitute fraud. It interests me very much to have the kind of a threat held over this Legislature that if we don’t agree with the member for Beaches-Woodbine, then we are indeed a fraudulent bunch of people. I will tell you, Mr. Chairman, that I feel no sense of defrauding anybody. Rather I feel it is important that we view this legislation very seriously. When I think that the Manitoba legislation was lost because of posturing, I do not wish to be a party to posturing.
Mr. McClellan: That was because of the Conservatives.
Ms. Gigantes: The Liberals got wiped out.
Mrs. Campbell: Mr. Chairman, I have earnestly tried to look at this legislation, calling, as I must upon whatever small ability I have in the field of law, so that what we shall wind up with is legislation which will be workable and which will, indeed, recognize the equality of the partners in a marriage.
I do go this far, however, and say that as a member of the legal fraternity, I blush -- as every lawyer must blush -- that the women of this province have such suspicions of judges, and that suspicion is due to their very real bad experiences before the courts. I think we have lent ourselves in no small measure to the process by which women have justifiably formed these suspicions, and I, as a member of the profession, take responsibility for that.
I hope the Attorney General (Mr. McMurtry) joins with me in his concern that so many people could have this kind of suspicion with a piece of legislation which, in my view, is certainly not perfect. If I thought it were perfect, I would feel I had rocks in my head. But it is a step forward. I would like to say that it was the member for Beaches-Woodbine who dragged in that old red herring about dower; and I’m sure she doesn’t understand that. Yet I would have thought she might have consulted her very able colleagues, either from Riverdale (Mr. Renwick) or from Lakeshore (Mr. Lawlor), to acquaint herself with the meaning and the viability of dower.
So, I suppose, when I listen to debate, I am inclined to review what is said on the basis of what I perceive to be the knowledge of a person on the subject. I have given to my friends in the third party, as well as members of my own party, an amendment which I shall be moving. It is virtually the same amendment I had moved for section 8, but quite appropriately it is moved in section 4.
Ms. Gigantes: Wrong place, Margaret.
Mrs. Campbell: This section does indeed delineate, at the breakdown of the marriage, the functions of spouses in the marriage, and it does provide for joint functions in all of the aspects of the marriage.
People have -- I think, inadvertently -- misled some of the women in our community into believing that all we are doing is to recommend through this bill and this amendment that we incorporate the economic partnership; but because we do not incorporate the commercial assets we somehow or other are denigrating the woman in that process. I’m a little saddened by that because I think women must have a view to their own position, but also to that which is in the best interests of the total family where children are involved. It is this concern that I have, when one blithely, and I use the term advisedly, incorporates everything into that disposition, because there will be a court decision in that event, make no mistake about that
What we are saying is that the court may make a division of any property that is not a family asset, where the effect of the assumption by one spouse of any of the responsibilities is as set out in subsection 5 on the ability of the other spouse to acquire, manage, maintain, operate or improve property that is not a family asset.
We have had many representations that this should be included and that that should be included. I think we have to understand that if we resort to the sort of shopping list which is contemplated within the aegis of this, that we may desperately limit the ability of a spouse to establish a position.
Mr. Chairman, it is probably the easiest, most facile kind of emotion in the world to move that all of the assets just be lumped together and divided in half. It is desperately easy for me to want to support that, having fought as long as I have for equality of women before the law. But you know, we don’t want to make the same mistakes here that we made in passing Bill 60, because now we are beginning to see some of the problems which have been created in not using this matter globally.
I want to say that I very much appreciate the fact that the Attorney General is prepared to give this House an undertaking that we will sit down and review that portion of that bill.
It seems to me that if we really want to work on an equal partnership basis -- and I’m sorry that some of the members of the third party do not see the other side of the coin -- we do want to look at women whose roles are not the stereotype roles. So, if we want to deal with a balance, then I must state quite frankly that I cannot support this amendment and for the reasons given.
I wish those who are speaking on this subject would, indeed, be concerned enough with the bill that they should not be rushing around this country stirring up women, misleading them as to what the bill, in fact does say; and --
Ms. Bryden: Women are stirred up anyway.
Mrs. Campbell: They are, you know. When you start running around talking about this bill getting rid of dower --
Mr. Philip: If you had been present at the hearings you would realize they were already stirred up. Where were you when the hearings were on?
Mrs. Campbell: When you stand around talking about getting rid of dower and what a terrible thing that does for women --
Mr. Gregory: We know where you were. You were out stirring them up.
Mrs. Campbell: -- you have to be guilty of misleading the people.
Mr. Deputy Chairman: Order, please.
Ms. Gigantes: Is that parliamentary?
Mr. Lewis: What are you talking about, stirring people up?
Mr. Deputy Chairman: Order. The member for St. George has the floor.
Mrs. Campbell: I am aware of that fact from the letters I have received --
Mr. Philip: At least the Attorney General (Mr. McMurtry) was there.
Mrs. Campbell: -- and fortunately they are not from my riding; I am happy about that -- which say, “Under no circumstances shall you vote for Bill 59.” It takes us back to the dark ages. Who has been saying that? With all its faults and shortcomings it does not, with respect, take women back to the dark ages; but who has been telling them that?
Ms. Gigantes: That is a straw woman you are setting up, Margaret; that is a straw woman you are setting up.
Mr. Reid: They are in the dark ages anyway. They can’t --
Mrs. Campbell: Now wait a minute; don’t you talk like that either.
Mr. Reid: I meant the NDP were in the dark.
Mrs. Campbell: Mr. Chairman, under the amendment which I will be proposing, for the first time in the law we are recognizing the stereotype role of woman in the home as having an economic and financial effect on the marriage. We are recognizing it in economic and financial terms, and that is not done on the basis of this sweeping thing about looping all the assets together. Of course, I wonder what we do if we divide commercial property in half and how we provide for the wife assuming all of half the liabilities of the business -- out of what I wouldn’t know.
I think that’s something you have to think about, because if you truly believe, if those people who truly mouth these things believe in equality, they have to believe that a wife has to assume the liabilities of the assets that she gets in the proportion in which she gets them, but we don’t talk about that when we talk about this amendment. We don’t talk about the family either, and I think we are talking about a family law reform bill. We are not talking about a woman’s reform bill or a man’s reform bill, it’s a family law bill. So you have to look at the whole aspect of the family and the availability of the assets for the protection of the children as well.
It seems to me that the only way you can deal adequately with a fair division is to give to the judges the right, the opportunity and the guidelines to take into consideration these functions and the responsibilities adopted in the marriage.
As I say, the one place on which I am in absolute agreement with those who have spoken on behalf of the third party is a very real suspicion of women about the way in which the administration of justice functions. They have a right to that suspicion. I would expect, as with other new legislation, that there would be an opportunity for the Attorney General to meet with all of those administering this Act in whatever form it finally comes out to make the thinking abundantly clear.
Mr. Deputy Chairman: The member for Carleton East.
Mr. Sterling: On a point of order, Mr. Chairman, I believe I wasn’t given an opportunity to speak prior to the last speaker. I would appreciate a chance this time.
Mr. Deputy Chairman: I’m sorry. The member was not in his seat at that time, I believe. I have recognized the member for Carleton East. I will recognize you after this member.
Ms. Gigantes: Thank you, Mr. Chairman.
Mr. Lewis: You’ll get a chance. For the moment we will have a little enlightenment instead of pre-palaeolithic man.
Ms. Gigantes: It seems I am among the group that is now being called those people who, it is implied by the previous speaker from St. George, have been misleading women around this province about the nature of this law, the changes that it brings to family relationships in Ontario and the way in which 50 per cent of our population -- most women in this province get married -- acquire a right to property and an interest in property.
I find it hard to accept the kind of implication that when I support an amendment, such as this one, that I am among a group called those people who are misleading women and that I am among the group whom the hon. member for St. George chooses to term Johnny-come-latelies.
Some hon. members: Shame.
Mr. Kerrio: That’s not right.
Ms. Gigantes: We will leave that aside for the moment. I’d like to go back to the essence of this amendment, particularly for the benefit of those people who are joining us this evening for the first time in this debate. What we are talking about is a redefinition of what constitutes family assets in Bill 59. Family assets are those assets which are assumed to be shared until proven otherwise. Until contested in court, those assets are assumed to be shared on an equal partnership basis between the partners in a marriage.
It is true to say that this section has absolutely no application for a large proportion of the families who live in Ontario because there is a large proportion of Ontario families that have no assets whatsoever.
The principle involved in the definition here is one which is very important because it relates very directly to the essence of this bill or at least to the essence of this bill as it has been presented to us in the preamble. I will repeat it because I think that whenever we speak here in the third party -- us people, us Johnny-come-latelies -- to the clause in this bill, what we’re talking about are those principles which are laid out in the preamble to the bill. It states: “Whereas it is desirable to encourage and strengthen the role of the family in society and whereas for that purpose it is necessary to recognize the equal position of the spouses as individuals within marriage and to recognize marriage as a form of partnership” -- and the therefores follow.
It is those principles enunciated in the preamble to which we speak when we say that the family assets section of this bill must be redefined. When we talk about a redefinition, I think it’s very important for us to recognize that in subsequent sections, following section 3, family assets are defined as something which can be contested. The equal division of those things called family assets can be contested under this legislation. So it should be; no two cases are ever the same.
What we’re talking about is where we start -- the beginning of the question of sharing. What assumptions do we make about what financial interests are shared in a marriage? After that we discuss whether they should or should not be divided on a 50-50 basis.
What this amendment attempts to do is to establish a base line where equality is assumed. After that one discusses whether equality on this financial interest or that financial interest should in this particular case be implied.
When we try to persuade other members of this Legislature to redefine where the 50-50 begins, what the assumptions are about the basic 50-50 in section 3, we must not only consider section 3, we must turn to section 4 which says, “Each spouse is entitled to half the family assets divided in equal shares.” That is what family assets mean, that’s why the definition is important.
Then we go to section 4(2), and let me read from this section, this is what happens after we establish the base line. Section 4(2) says: “The court may make a division of family assets resulting in shares that are not equal where the court is of the opinion that a division of the family assets in equal shares would be inequitable, having regard to: (a) any agreement other than a domestic contract; (b) the duration of the period of cohabitation under the marriage; (c) the duration of the period during which the spouses have lived separate and apart; (d) the date when the property was acquired; (e) the extent to which property was acquired by one spouse by inheritance or by gift; or (f) any other circumstance relating to the acquisition, disposition, preservation, maintenance, improvement or use of property, rendering it inequitable for the division of family assets to be in equal shares.”
This is a section which follows immediately upon that section which we are now attempting to amend. We want to amend the definition of family assets in section 3 because that definition is subject to all the qualifications and all the applications that can be made under those qualifications outlined in section 4, which I have just read.
Obviously section 4, which enables a judge to decide that there shall not be in a particular case a 50-50 sharing, having regard to all the items which are contained in section 4(2), allows a wide amount of judicial discretion. Any reasonable judge -- even any unreasonable judge -- has plenty of room to decide that in a particular case, for any particular reason, family assets shall he inequitably divided.
All this amendment is asking for is that where we start our very definition of what we may vary, and what a judge may vary according to a particular case, the definition be wide enough to make the ultimate disposition of those interests reasonable. We ask only that that definition be wide enough to be reasonable to begin with.
The member for St. George has suggested that what we are doing is throwing in commercial assets; somehow it seems some kind of ultimate indiscretion to the member for St. George that we should be talking about commercial assets. But I put to you that given all the reasons for which a judge can decide that the division of family assets -- perhaps including commercial assets, if our amendment carries -- can be varied, I can’t see why it should be such a horror to the member for St. George. How else are we to begin to talk of a base line of sharing between marriage partners? A base line of sharing of only those financial interests built up -- as the amendment suggests -- during the period of the marriage or the partnership.
The member for St. George has proposed first one amendment to section 8, and now a second amendment, which I assume she will mean to replace the previous amendment to section 8 and which would be an amendment to section 4. In both amendments what is being proposed is an enablement clause. I would like to give you my understanding of what those amendments might mean.
I have had several looks at those amendments because I have had a personal request from the member for St. George that I look at the amendment again and try to increase my understanding of what it would mean; and I have honestly tried to do that. I have gone back again, with goodwill, to look first at the proposed amendment to section 8 and now the proposed amendment to section 4. What has been suggested in these amendments is that somehow it is good enough to leave family assets as they are narrowly defined in the bill before us and to suggest in one section or another that the judge shall find that a woman or a man, a spouse, has enabled another spouse to acquire financial interests.
The problem with that proposal is this: To say to a judge he should assume that one partner may have enabled another to acquire a financial interest, and therefore may have a claim on those interests, is in a sense to ask the partner, who may have done the enabling for the financial benefit of the other partner, to prove that that enablement did in fact occur. It puts the shoe on one foot as opposed to the other. It requires the supplicant partner in whose name the financial interests are not held to prove to the judge that that partner has enabled the other in whose name the financial interests are held to acquire those financial interests.
I think that puts the onus in the wrong place. I don’t think it is adequate.
As I have conscientiously met the request of the member for St. George, to rethink the significance of the amendment that she has put forward, I would ask her to rethink the significance of what we have proposed in this amendment. It is a very simple question of broadening the assumption of sharing, the assumption of those financial interests that are shared between partners. So whatever judgement a judge may make in his discretion on a particular case -- about whether there may be an unequal division of those financial interests -- that is where the discussion begins. I think it’s most important that when the discussion begins, that’s where it begins -- with everything.
It’s been suggested by the member for St. George that the amendments proposed by her, first to section 8 and now to section 4, are amendments which, for example, would mean that one partner had a right, as a matter of right, to share on a 50-50 basis on a pension plan acquired by another. I don’t believe that is true. I am not a lawyer, but it seems to me that if you are talking about enablement, that one partner enables another to acquire a pension plan, and the partner who did the enabling is going to go and have to prove it, I don’t think that is where the onus should be. I don’t think these amendments meet that as a matter of right, as a matter of first point for discussion.
It certainly would not cover registered retirement savings plans -- and that is a very big asset held in partnership in Ontario -- to which supplicant partners, upon the break-up of a marriage or a partnership, would have no given assumption of a right to a share. Under existing legislation that partner would have to prove that he or she had enabled the other partner to acquire a registered retirement savings plan before having a right to share in that plan under these amendments proposed by the member for St. George.
I would also like to touch on some comments that have been made by the member for Simcoe Centre (Mr. G. Taylor). The member for Simcoe Centre talked a good deal about the meaning and reality of business partnership and the financial intricacies and obligations involved in business partnership. I won’t go into the legalities of what he was talking about, because I expect that my colleague from Riverdale (Mr. Renwick), who has drawn up many partnership agreements during the course of his work as a corporate lawyer in his previous existences, will speak to that point in legal terms. I am no expert on the law, but there has got to be something wrong in a society which says that the business life of our economy is going to be upset if women have some kind of share in it.
Mr. McClellan: That’s exactly the point.
Mr. Warner: That’s the point.
Mr. Lewis: An amazing view of society.
Ms. Gigantes: It reminds me very much of a recent brief presented by the Ontario chamber of commerce to the Minister of Labour of Ontario. She had asked for comments on the possibility of bringing into legislation in the province of Ontario law which would implement that principle which says that one gets paid equal pay for work of equal value. The response of the chamber of commerce to that concept was to say our economy can’t afford it.
Mrs. Campbell: And the Steelworkers.
Ms. Gigantes: Mr. Chairman, there has got to be something drastically wrong with a society which says that it has an economy which can only chug along if it chugs along on the backs of women, either because they are paid low wage rates or because they have no right to shares in the financial interests built up in business partnerships in this province.
The member for St. George spoke the other night about her vision of a future in which men and women in our society would operate individually and in partnerships in a kind of new world. She spoke of her idea of the new woman who has not been bound by tradition, who perhaps has had greater opportunity than most women in society are permitted, who has gone to university or inherited a bit of money and managed somehow to struggle to that cream level in our society where she is a professional. And she talked with feeling in her voice about how she did not want to see this new woman crippled, at the moment when she had got to the top of the heap, crippled by the need to share those financial interests she had acquired.
Mrs. Campbell: I didn’t say that.
Ms. Gigantes: I think I’m correct in quoting the member for St. George when I say this amendment which is before us tonight “would knock women down,” because presumably once they had got to the top of the heap, they would be asked to share.
Mrs. Campbell: No, that wasn’t it.
Ms. Gigantes: The member for St. George has a dream of a new world, a dream of a new woman; and I guess a dream of a new man in that new world. I appreciate that vision. I appreciate the imagination and the experience and the understanding that drives her to say that she sees this new world. I admire her for that. But I too have this vision. I too dream of a new world in terms of the relationship between men and women operating and living in partnership in our society. My vision differs from the vision of the member for St. George, and I say it regretfully. I would like to be in accord with her in this vision.
My vision of the new world and the new woman in the new world, operating and living in partnership with the new man in the new world that we can dream of and work for, is not to see the new woman take on the same characteristics as the old man. The new woman in the new world that I dream about not only has rights but responsibilities. In my own inadequate way, when I raised my daughter and I tried to teach her about the rights I feel she should have -- and I think she’s learned some of that I also want her to know what I consider to be the duties that go with those rights. They’re not the old duties in the old marriage vows, “to cherish, honour and obey.” But I want her to know also as one human being involved in an intimate, honourable and honest relationship with another that she needs to be committed to sharing.
Here I will go back to the old marriage vows. These are parts of the vows that I really like and that I still see in the new world: “For richer, for poorer, in sickness or in health.” Now that’s sharing. That part of the old world is what I want to preserve for the new world. I want to see it grow and flourish and I want to see it work 50-50. I don’t want to see the new woman take on the characteristics of the old man.
If there’s going to be sharing in this new world, then it should be sharing not only in emotional terms or physical terms but also in terms of those things one owns, in worldly terms, that very often determine what one’s individual opportunity for independence and growth will be.
This bill gives us a chance to provide basically for women. Women have been the supplicants, women have been the dependants, women have been the people in whose name the financial interests were not held. This bill gives them an opportunity to take a very big step towards the creation of a new world.
What we are discussing in the amendment is the very principle of the bill. What we are proposing with this amendment is a redefinition of where we start the process of sharing. The limitations will follow. The cases are particular, judicial discretion will remain; but when we talk about sharing family assets, let’s begin with a concept of family assets which is real. Let us begin talking about family assets as being all those assets acquired during the time of a partnership. Let us make them as broad as possible so that we can begin reasonable discussion of how they shall be shared on a reasonable basis.
This amendment says very simply that family assets mean all property and assets, including commercial assets, acquired during the marriage or in contemplation of the marriage, and the accrued appreciation of all property and assets owned by the spouses prior to the marriage. It does not include any damage award, insurance claim, insurance benefit, gift, inheritance or trust benefit conferred upon a spouse with the express or implied intention of benefiting that spouse exclusively or the accrued appreciation of the same.
I feel it is a very reasonable definition of family assets and that it is vital to the creation of an important step towards the new world spoken of by the member for St. George and the new woman spoken of by the member for St. George that we have such a definition of family assets.
Mr. Sterling: First of all, I would like to comment on the specific amendment proposed by the member for Windsor-Sandwich (Mr. Bounsall). I believe that it not only widens the terms of the number of assets that would be included in family assets but it also lengthens the time for which assets would be included within the definition. I bring to the attention of the hon. member that he has included also assets that would be acquired after a separation of the spouses. I don’t know whether he had intended to include those.
When this was going through the committee stage, the member for Windsor-Sandwich and myself appeared on a radio talk show. One of the people on the radio show had separated some period of years before and had acquired assets subsequently. This particular woman therefore felt that she alone should be entitled to those assets which were acquired after the separation.
The definition which is in the bill at this time includes family assets acquired only during the period of time the spouses are residing together. In other words, they would have to use the home, that’s a technical part of this amendment.
Ms. Gigantes: Very technical and very wrong.
Mr. Sterling: I don’t know --
Mr. Swart: You don’t know; that’s right.
Mr. Sterling: -- whether the member for Windsor-Sandwich meant that or if he was trying to widen it to include assets acquired by a spouse after they separate.
Mr. Swart: You just don’t know.
Mr. Sterling: I don’t know what his intention was and I was just trying to find out.
Mr. Chairman: Order please; will the hon. member please disregard the interjection.
Mr. Sterling: I have no difficulty myself with the concept of dividing equally down the middle all the assets of the marriage. I don’t think that the member for St. George has any difficulty with that concept either. I think we must look to the practical effects of what a deferred community of property regime really means. What it means to me, having had some experience as a practising lawyer, is that it virtually forces every married couple, through a lawyer, to enter into a marriage contract.
In the province of Quebec where they have a deferred property regime, 60 per cent of married couples enter into a marriage contract and contract out of the Act. If for no other reason than that, I could not support the deferred community property concept. Basically we would be defeating the purpose of the Act. The problem is in a lawyer drawing a contract, which is equitable at the time of the marriage, to take into account the circumstances which have arisen since that marriage has taken place. Quite often at the time people are entering into marriage, they cannot foresee what wealth or what lack of wealth the marriage may turn out on the date of separation.
There are serious practical problems with a community of property regime in law in dealing with business assets, as the member for Simcoe Centre pointed out. It is all very nice to say to this Legislature the principle must not stand in the way of the other, but my experience tells me that it is a hornet’s nest that just cannot be untangled as easily as that.
Mr. Lewis: You have too much experience. Experience is the destroyer of good legislation.
Mr. Sterling: I don’t think, Mr. Chairman, that I would like to enter into a marriage contract with my wife. If we had a deferred community of property regime, I would be forced to.
Mr. Foulds: Don’t bare your personal problems in front of the legislature.
Mr. Lewis: Heaven forfend.
Mr. Sterling: The fact is that if I did enter into a marriage contract with my wife, she would probably be done out of much more than I would have been. But at any rate --
Mr. Lewis: That’s a nice view of contractual equality.
Mr. Foulds: What a mean little person you are.
An hon. member: You probably have her for a client.
Mr. McClellan: I would ask to change lawyers if I were her.
Mr. Makarchuk: Or husbands.
Mr. Chairman: Order; the member for Carleton-Grenville has the floor.
Mr. Sterling: I see a real practical problem in drawing a marriage contract when you cannot foresee what the real circumstances are when the day comes when they are separated. It is almost impossible. What practically will happen is that people will contract out of all of the rights under the Act --
Mr. Bounsall: That is all right; eyes wide open.
Mr. Warner: The way Darcy did with the Edmonton commitment.
Mr. Sterling: -- and in doing that, it is not going to happen as frequently if we stick to the family assets as defined in this Act. In fact you are wiping out discretionary sections later on in the Act; therefore you are not giving the court the right, as in the Murdoch case, to look at the wife’s contribution to that farm. So therefore you are defeating, in a great sense --
Mr. Bounsall: They wouldn’t have had to.
Mr. Sterling: -- what we are trying to remedy in this bill.
Mr. Lewis: Listening to you I begin to believe that Trudeau was right in what he said about property -- which I won’t repeat.
Mr. Sterling: I am sorry, Mr. Chairman, but I have no problem in the concept, as do the member for St. George and the member for Carleton East.
Mr. Warner: Then support the legislation.
Mr. Sterling: -- that things should be divided equally. But the problem is with the mechanics of it.
Mr. Makarchuk: Except I want to hang on to what I have got and more.
Mr. Sterling: Therefore, I cannot support this amendment.
Mr. Warner: That is sad; a fiscal weasel.
Mr. Bolan: Before speaking about the proposed amendment of the hon. member for Carleton East, I would like to make some reference to the Dower Act. This word has been bandied about somewhat by, I believe it was the member for Beaches-Woodbine (Ms. Bryden).
Mr. Chairman: I would like to suggest to the hon. member that he keep his comments to the amendment before him.
Mr. Bolan: Yes, I will do that.
Mr. Warner: Address the chair.
Mr. Bolan: Mr. Chairman this was also commented upon by the member for St. George. There is reference to the fact that the dower rights of women would be lost by this particular Act.
Perhaps we should examine what will be lost.
Mr. Foulds: By this amendment?
Mr. Bolan: The Dower Act is a very interesting Act. It is a bit ancient.
Mr. Warner: Older than the Attorney General.
Mr. Bolan: I’d just like to read some sections if I may, so that you can see what the women of this province will be losing.
I’d first of all like to read parts of section 1: “A widow, on the death of her husband, may tarry in his chief house for forty days after his death, within which time her dower shall be assigned her ... ” Is this what you want to keep? Is this the kind of legislation that you want to keep?
Let’s look at another section, a very interesting one, section 8.
Mr. Foulds: Not a bad idea either.
Mr. Bolan: The side note says: “Dower forfeited by elopement with adulterer.” And it goes on to say: “Where a wife willingly leaves her husband and goes away and continues with her adulterer ... ” Is this the kind of legislation you want to keep? Surely, that is not the kind of legislation that we are trying to keep.
Mr. Foulds: What are you talking about?
Mr. Bolan: A further explanation of the Dower Act, and to try to explain to some members how it works, it works something like this, Mr. Chairman: The husband has property in his name.
Mr. Swart: What section are we on, Mr. Chairman?
Mr. Bolan: The wife does not appear on title to the property. This is the matrimonial home. The husband and the wife separate. What the wife has, through her dower rights, is one-third life interest in that piece of property.
The husband wants to sell the property. He does not require the wife’s signature to sell that piece of property if he applies to a court which determines the life interest of that particular woman. That life interest is then paid into the court and the wife can only get the life interest when the husband dies; so in the meantime, she has been done out of the house, the moneys have been paid into court and she can only get them when he dies.
That’s the kind of legislation you want to keep on the books in the province of Ontario. This should have disappeared a long time ago. If anything will be accomplished by Bill 59, it’s at least to remove this antiquated and ancient piece of legislation from our books.
Mr. Warner: Speak to the amendment.
Mr. Bolan: I wish that the hon. member for Carleton East were present now.
Mr. Warner: She is listening.
Mr. Bolan: I’m very pleased to hear that she is, because she delivered a wonderful speech, a speech that was well thought out; she had lots of feeling in it.
One can appreciate the sense of frustration which has built up in women over the years; but I can only say that the proposed amendment which will be introduced by the member for St. George really reflects the way the court has been dealing with the question of alimony orders and lump sum payments. Because what a court will do today --
Mr. Lewis: That is exactly what is wrong with it.
Mr. Bolan: -- in spite of the remarks of the member for Carleton East about this fear that women have for judges and sometimes they are well founded.
Mr. Lewis: If the fears are well founded, why don’t you give them the opportunity?
Mr. Bolan: When judges are making an order under the Divorce Act they will consider exactly the types of things which are in the amendment by the member for St. George. They will consider the contribution which the woman has made to the matrimonial home.
They will consider the contribution which she has made by babysitting the children, by looking after the home while the husband is out earning or running the family business. A court considers that today, and the court today constantly makes lump sum awards of money to compensate the wife for some of the many duties and work which she has done over a period of time. And that is justified.
Mr. Swart: As long as the considerations start from a 50-50 split.
Mr. Bolan: Then, on top of that, there is ample money supplied to the wife for the maintenance of herself and of her children.
So, I say that the amendment which will be proposed by the member for St. George fully covers the situation. As for the amendment made by the third party under section 3, in my opinion, and in the opinion of the majority of members of this House really, where would we be in the business world in the province of Ontario if their amendment were accepted?
Mr. Warner: Equality so long as it is not equal.
Mr. Bolan: They know exactly where we would be. Where would the husband go to borrow money to start up a business? He wouldn’t be able to get it if it means that five years down the line or 10 years down the line the wife is going to run to the partner and say: “Oh just a minute now, I want a one-half interest in that business.”
Mr. Lewis: Oh, boy; am I glad it is in Hansard. More, more.
Mr. Bolan: That’s in the kind of legislation they propose.
Mr. Kerrio: That is going all the way. That is the way they want it.
Mr. Bolan: I say with the greatest of respect that kind of legislation is not proper and is not the type of legislation with which this House should be dealing at this time.
Mr. Warner: Sheer nonsense.
Mr. Bolan: I say that the amendments proposed by the member for Carleton East (Ms. Gigantes), or by the third party, to me do not deal with the real problem. What we are trying to do is to deal with it in an equitable fashion. The amendments to be proposed by the member for St. George will fully take into consideration the assets of the family and the position of a wife.
Mr. Foulds: The problem is lawyers like you becoming judges.
Mr. Warner: That’s sad.
Mr. McClellan: I always think when a Liberal lawyer is speaking on matters pertaining to the law, he is once again applying to be a judge; that’s what it sounded like.
Mr. Bolan: Not provincial court anyway.
Mr. McClellan: I have never heard such twaddle in my whole life as I have heard from the other two parties --
Mr. Lewis: And that dignifies it.
Mr. McClellan: -- on the subject of this bill. I have never heard such a plethora of male chauvinist piggery. I have never heard so many blatant sexist arguments as have been pouring forth from the members across and the members to my right.
The issue is whether or not commercial assets shall be excluded from this bill. The arguments that have been put forward by the Conservatives and the Liberals for the exclusion of commercial assets are based solely on sexist arguments. They are arguing from the sheerest chauvinist piggery that commerce is men’s business. It is something that ought to be preserved for men. The assumption somehow is that if it is included in the bill --
Hon. Mr. McMurtry: Keep that up and you are going to be the fourth party.
Mr. Kerrio: Don’t tell us women are not free.
Mr. Bolan: You want to bankrupt commerce and industry.
Mr. Lewis: Since when is commerce the right of the male? What kind of nonsense is that?
Mr. Chairman: Order.
Mr. McClellan: The interjection proves my point. The assumption that commerce is the preserve of the male was uttered again in the heckling interjections. The assumption is that if commercial assets were included in the bill, the economic apocalypse would descend on us. There would be chaos and catastrophe, the roof would fall in. They just said it would; the member from North Bay just said it would, the member for Simcoe Centre (Mr. G. Taylor) said it would; the member for Carleton-Grenville (Mr. Sterling) implied some kind of economic catastrophe if we ever dared to bring in full equality in the family assets bill. What a lot of bunk, what a lot of rubbish; what a sleazy world view it is --
Mr. Warner: Stop being subtle.
Mr. McClellan: -- that the very notion of equality can be associated with economic catastrophe. What kind of people are they, what kind of puny little vision do they have? It really is a lousy debate from the other two.
Mr. Kerrio: You’re not adding anything to it.
Mr. Sterling: You’re not adding a damn thing to it either.
Mr. Warner: You abandon the women in this province.
Mr. McClellan: I had hopped for some serious discussion of that issue --
Mr. Kerrio: When are you going to start?
Mr. McClellan: -- not this kind of economic rubbish, this kind of free enterprise ideology that seems to need sexism to prop it up.
The issue, I think, is relatively simple. Those women who are in need of the protection of our amendment are women who find themselves trapped in the traditional stereotype of today. Women who have managed to emerge from the bonds of traditional stereotyping are not particularly in need of our amendment; it is women who have failed to escape from those bonds who do need the protection of this amendment, because they are the ones who are victimized economically; they are the ones who will not have redress unless the bill is amended according to the amendment before us.
The issue before us is very simple; whether we go with the kind of partial equality that an unamended bill would give us, or whether we go all the way into the modern world, all the way towards full equality with this amendment. Thank you.
Mr. Kerrio: Mr. Chairman I have a couple of points that I would like to make. I’ve talked to this amendment before. I would suggest that, as far as the laws of the land go, those of you over there who are concerned always have the option of entering into an agreement; in this way the two partners know from the start what they are going into.
I can’t agree that what the previous speaker has suggested was all that meaningful, because I would like to bring into this debate another aspect that hasn’t been discussed to any great degree. When we talk about families, certainly we don’t talk about just the two spouses; we must, in fact, talk about the siblings, the children of that relationship. I would suggest to those assembled here that we should address ourselves to the responsibility of that particular part of a family relationship. I draw to your attention that if, in fact, there is a breakdown of a relationship, and that we talk in terms of the amendment for a 50-50 arrangement, put forth by the socialists, I would suggest that the family isn’t being thought of at all. In my particular circumstances, I would like to think that if there were some kind of a breakdown the children of that original relationship had some rights in the family picture and structure; that when people get a little older and for want of companionship come to a convenience arrangement, we wouldn’t lose the complete family structure; that we would be able to pass on to the children some of the worthwhile things that were attained by the original marriage and the children of that marriage. I think those aspects of it, as it applies to the family relationship, certainly move beyond the immediate husband and wife relationship.
I say with respect that many of the laws of the nation are made by people who sit here and relate them to their own circumstances. I don’t have to stand here and say that my wife happens to be very pleased about the type of relationship that we have and that we built together for our family. Under the rules as they exist, under the rules we’re going to change to make a better relationship maybe it was inadequate before, maybe we’re going to be able to carry that responsibility on. I think that’s very important in my relationship, and maybe to many more people in this Legislature.
Hon. Mr. McMurtry: Mr. Chairman, I’d like to respond briefly if I might at this point in respect to the proposed amendment. I suppose it’s more in sorrow than in anger, as someone said, that I have to state that I am very distressed by some of the remarks that have been made about this legislation, both inside and outside the House -- remarks to the effect that this is going to put women back into the dark ages; remarks such as those made only a few moments ago that this is sexist legislation.
Mr. Foulds: No, a sexist debate.
Hon. Mr. McMurtry: The truth of the matter is that a number of us in this Legislature, I know, have responsibilities that take us about the province, and women about the province have been consulted in this legislation in a very significant and comprehensive way. As a matter of fact, there are a number of women who have been very involved in the creation of this legislation. I think some of the remarks are just silly and depreciate the efforts of many people who have spent many months in bringing to this Legislature what is, quite frankly, very good legislation.
No one would be presumptuous enough to suggest that any legislation is going to be the last word, but it’s a remarkable and very important reform of the family law of this province and a very major step forward.
As I keep hearing this red herring about women being excluded from sharing in commercial assets, I would like to make two or three comments. First of all, women are not excluded from sharing commercial assets. We have debated this in committee, and members who continue to repeat that statement for some reason known best to themselves simply don’t seem to want the public to be properly informed about the effects of this legislation.
The truth of the matter, of course, is that a judge in any particular case can attach any asset -- commercial, family or otherwise.
Mr. Chairman, I’ve travelled about this province and, I expect, consulted with far more women’s groups than some of the members opposite who are speaking so knowledgeably on this bill. I can tell you, I’ve spoken to many women who are very active in commerce of one kind and another and who don’t want to be placed in the sort of strait-jacket that the member of the third party would seek to accomplish by this amendment.
Mr. Foulds: What strait-jacket?
Mr. McClellan: Equality is his strait-jacket.
Hon. Mr. McMurtry: We hear about allegations that the women of this province are not going to be well served by this legislation. That certainly has not been my experience in consulting women of this province and in the thousands of letters, literally, that have come into my ministry over the past two years.
Mr. Foulds: With the legislation not in place, how do you know how they’re going to be served?
Hon. Mr. McMurtry: Maybe it’s about time the members opposite listened to the irresponsible fringe on the other side. I think all of us in this Legislature were the recipients of an open letter to the MPPs of Ontario, dated March 6 of this year, from a gentleman in Oakville.
Mr. Lewis: Please, spare us.
Hon. Mr. McMurtry: No, I would like to put this quote in Hansard from the irresponsible fringe.
Ms. Gigantes: You’re desperate. You’re grasping at straws.
Mr. Foulds: What other irresponsible fringe?
Hon. Mr. McMurtry: This is one male viewpoint of the legislation, but it has been echoed in a lot of other letters. I think it should be put in Hansard.
Ms. Gigantes: Put it on the record.
Hon. Mr. McMurtry: It states as follows: “Look, you males, have you not got the guts to say no to women? It has always been the men who in the end have had to bring the country through war, economic depression -- ”
Mr. Mackenzie: What are you accomplishing with this?
Ms. Gigantes: Shame on you.
Hon. Mr. McMurtry: “ -- or catastrophic acts of God. Nothing has changed in that respect in your lifetime. Bill 59 ought to have been completely rewritten or thrown out by the standing administration of justice committee.”
Mr. Lewis: You suddenly have added the ramblings of a lunatic to your side to make a case. You can do better than that.
Mr. Chairman: Order.
Hon. Mr McMurtry: Just listen to this.
Hon. Mr. McMurtry: Mr. Chairman, I don’t expect any courtesy from that direction.
Mr. Mackenzie: With that you don’t deserve it.
Mr. Chairman: Order.
Mr. Lewis: Don’t use that arsenal.
Hon. Mr. McMurtry: The letter to all of us goes on: “Were your committee members afraid of McMurtry or did Karen Weiler flutter her eyelashes at you, and you all go limp in fawning agreement?”
Ms. Gigantes: Shame.
Hon. Mr. McMurtry: “For God’s sake, you men, buck up.”
Mr. Lewis: Of whom was that representative?
Hon. Mr. McMurtry: Sure, that is a very irresponsible letter. But I am just going to say that some of the nonsense I have heard on the other side of the fence is no more ridiculous than this letter.
Mr. Foulds: No more.
Mr. Mackenzie: You have sunk pretty low.
Hon. Mr. McMurtry: The truth is you are not going to satisfy irresponsible people on either side of the fence who simply choose not to understand this legislation and what it did attempt to accomplish.
Mr. Swart: Deal with the principle.
Hon. Mr. McMurtry: I really wonder, judging by some of the remarks that I have heard -- not so much in this House but by people who should know better in the press --
Mr. Foulds: Let’s pay attention to this debate.
Hon. Mr. McMurtry: -- whether or not some of the commentators on this legislation have even chosen to read it.
As this legislation proceeded through committee I detected a willingness on all sides to create legislation that would serve the best interests of the community.
Ms. Gigantes: As defined by whom?
Mr. Mackenzie: What do you feel so guilty about?
Hon. Mr. McMurtry: And I regret, in that context, some of the silly allegations that have been made during this particular debate. It is true our friends in the New Democratic Party would like to provide a very rigid framework --
Mr. Foulds: Nonsense.
Hon. Mr. McMurtry: -- rather than recognizing the fact that each family has its own special needs and its own special problems.
Mr. Foulds: No one could be more rigid than you.
Ms. Gigantes: Read section 4.
Hon. Mr McMurtry: I know that to recognize people as individuals, or families as individual families, is very difficult for a party that seems to be completely sold on a very rigid approach to society as a whole.
Mr. Foulds: That’s a pile of crap and you know it.
Hon. Mr. McMurtry: What we have attempted to do in this legislation --
Mr. Foulds: That’s a complete distortion and fabrication and you know it. The Attorney General should serve this House better than to create distortions like that.
Mr. Chairman: Order.
Hon. Mr. McMurtry: -- is create a framework whereby the individual judge --
Mr. Makarchuk: Read section 4.
Hon. Mr. McMurtry: -- in the individual case will have an opportunity to reach a just result.
Mr. Kerrio: I bet you don’t have a contract.
Mr. Lewis: Have you read the bill?
Hon. Mr. McMurtry: The judicial discretion is obviously very wide in this legislation --
Ms. Gigantes: Read section 4.
Mr. Foulds: Is there any amendment to delete section 4?
Hon. Mr. McMurtry: I know the member for St. George and I don’t entirely agree on the role of the judiciary in this province, but I can say that having had some many years of experience in the courts of this province that for every complaint following a matrimonial case from women we have had an equal number, if not a greater number, of complaints by men who believe that they have not been fairly treated.
Mr. Lewis: Where have you been practising law?
Hon. Mr. McMurtry: The simple truth of the matter is that lawsuits, particularly in family matters, are not very friendly matters.
Mr. Foulds: Lawsuits generally aren’t.
Hon. Mr. McMurtry: All the efforts that have been poured into this bill were with a view to assisting people to know what their responsibilities are, to know what their rights and obligations are, to be encouraged to resolve their disputes outside the courtroom. Certainly that has been the thrust of all our family law proposals during the past two years.
To suggest that this party or that party is unhappy with the result of a particular lawsuit, in my respectful opinion, should not he interpreted as some inability on the part of the judiciary to arrive at just results in the individual case; it simply is a very difficult matter for any judge in resolving a family dispute to make both sides content. With the legislation as it is framed and with amendments that we are going to consider -- and we have heard about the amendment that is going to be proposed by the member for St. George, which I am prepared to accept as a good, well-thought-out amendment --
Hon. Mr. McMurtry: -- the simple truth is that this legislation gives the judiciary -- and I am satisfied that the judiciary in this province is totally committed to arriving at just results in the individual case --
Mr. Foulds: Give them just laws to work from. It’s our job to give them just laws to work from.
Hon. Mr. McMurtry: This legislation provides the judges with guidance, with the tools to provide for more just results than they have been able to accomplish in the past, on some occasions hamstrung by some of the old fault-finding concepts in the common law. As legislators it is up to us, by legislation, to overrule some of the outworn and unfair concepts of the common law.
Mr. Foulds: Only some of the outworn and unfair concepts?
Hon. Mr. McMurtry: This is what this legislation is going to accomplish. Members from all three parties in this Legislature have made a significant contribution to the development of this very important legislation. For that reason I should like to think that there could be perhaps a greater degree of pride shared by all members of the Legislature with respect to the legislation, Bill 59, and without so much emphasis on what are considered to be the negative aspects of the bill.
I realize there are areas which reasonable people will disagree on reasonably, but let us not lose sight of the fact that this is good legislation --
Mr. Foulds: Let’s make it better.
Hon. Mr. McMurtry: -- no legislation is perfect legislation -- and very major reform legislation and much more, it’s fair legislation.
Mr. Foulds: What about the amendments?
Mr. Bounsall: Mr. Chairman, I hadn’t intended to enter this debate again, but let me say this is one member in this House who will not feel any pride about the passage of the assets section of this bill. This is where it is flawed. It is flawed seriously and makes no advance in the equality between spouses in this province. Neither myself nor my colleagues in the New Democratic Party will ever feel any pride as long as this type of division remains in this bill. We need that 50-50 split, ensuring that equality takes place, before one can talk about marriage being in any way, shape or form a partnership.
I voted against this bill on second reading on its introduction because of this family assets split and I am tempted to do so again on third reading. That’s how strongly I feel about it and I will never take any pride in this section of this bill. The Attorney General has shown his true colours and his true feelings by not just having in hand but deliberately bringing into this House to read into Hansard that piece of garbage which he read. Those are the Attorney General’s true feelings and his true colours.
The member for St. George tonight, and the member for Ottawa East (Mr. Roy) on Tuesday afternoon, both accused the mover of this motion and this party of posturing by moving this 50-50 amendment -- there is some excuse for the member for St. George, because she was not a member of the committee that sat most recently on this bill -- because the further sections of the assets did not make entirely clear several concepts which should be made clear.
Let me make it very clear. Perhaps the member for St. George will think back to the private member’s bill debate in which she participated in the spring of 1975, in which this was the basic thrust. I went further in that bill and outlined several of the points which the member for St. George mentioned, one of them being that if it’s fair to split property and assets, it’s fair to split liability. That was in the private member’s bill.
I will confess to the member for St. George that I had the feeling -- perhaps not quite true in her case; one would always hope that the member for St. George would join us on this if her other colleagues in that party couldn’t -- but I had the really strong feeling in my mind, based in their performance in the committe in the month of January, that there would not be any likelihood of their accepting this general concept. This is the reason I did not go to all the trouble of making further amendments to the asset section of the bill and making deletions to make it clear that liability would also be shared.
In addition, I did not go on to make it clear -- again for those very same reasons -- that the reason that I would leave judicial discretion to the judges would be if it were argued the equalizing payment in one lump sum required to be made in that 50-50 split would endanger the ongoing success of the business or the farm, the judge in his discretion could make that payment take place over some period of years. If you’ll recall, my private member’s bill had up to three years. The member for St. George spoke to me privately afterwards and said, “Five years,” and I was quite prepared to put “up to five years” into that section.
I’m sorry that the member for St. George didn’t quite recall that debate. However, there is no excuse -- and I wish he were here tonight -- for the member for Ottawa East saying we were posturing in terms of this amendment and mentioning other portions which were left out, because he at least was present at the early stages of the committee meetings in January outside this House with respect to the same amendment moved under this section in which the attitude of our party was made clear on both the equalizing payment and when it could be made. We also made clear the concept that liability would also be shared, as provided for in the Manitoba legislation.
This may well be the appropriate time to call to the attention of this House that the province of Nova Scotia has just introduced their family law reform legislation -- no doubt the Attorney General has seen it. It follows exactly the recommendations of the Ontario Law Reform Commission with respect to the asset split. It therefore follows exactly the principle and intent of this asset split section I have moved. I must say, as in various other things such as employment standards and minimum wage, this is yet again another example of the province of Nova Scotia being much more progressive than the province of Ontario.
Mr. Mancini: Liberal government in Nova Scotia.
Mr. Bounsall: Yes.
I might just make two comments on the comments of other members who have spoken. The member for Niagara Falls (Mr. Kerrio) didn’t have the advantage of being a member of the committee, but his remarks dwelt heavily upon the theme. “Why weren’t the children included in this amendment?”
I would just point out that that was the whole purpose of the support section of this Act. They are covered fully under and provision is made entirely for them in the support section, a later part of this particular bill. They are not, and will not need to be considered -- and the Attorney General would agree with me on this -- nor would it be appropriate to consider them, under this asset split section in this part of the Act. It’s covered entirely later in this same Act, if the member would take the time to read it.
I might say that I am rather sympathetic to virtually all of the speech except with maybe a remark or two, maybe by the member for Carleton-Grenville. I would say to the House that I think the member for Carleton-Grenville (Mr. Sterling) did a more than adequate job as the acting parliamentary assistant to the Attorney General in the last week of the committee stages of this bill.
Ms. Gigantes: We’d never catch you reading that kind of letter into the record, would we?
Mr. Bounsall: I hope it doesn’t prejudice his future when I say he should have a bright future in this House. I, therefore, in that regard thank him for pointing out a way in which perhaps my amendment could have been improved. I thank him for it and say quite seriously to him, would he care to move it I would quite gladly accept this as part of my amendment.
I heard on the speaker outside -- I was temporarily absent at that time in his remarks -- I heard clearly that he indicated the wording in this section of mine, where it says “family assets means all property and assets including commercial assets acquired during the marriage or in contemplation of the marriage and the accrued appreciation of property owned before marriage,” may create a loophole there in that it may mean that after the separation has occurred but before the divorce takes place there may be a period of time in which assets acquired by either during that period may well be required to be shared as well.
I thought that “during the marriage” took care of that, but his suggestion that after “during the marriage” we should add the words “while the spouses are residing together” certainly does close that loophole. I say to him, follow your good intentions, follow your impulses, follow the good feelings of your heart and move that amendment of ours and we will gladly incorporate it.
I know the member for Carleton-Grenville’s major argument against this whole concept of ensuring equality of family assets splits is because he fears the expansion across Ontario of marriage contracts. I say to him that I don’t fear that. Being a lawyer, he may well fear the costs that might fall to the people of Ontario to have marriage contracts. He would have more experience, of course, in the costs that would befall a couple in the drawing up of a marriage contract than I would, so perhaps my lack of experience in this regard does not lead me to have that same fear which he has.
However, let me tell him this, that within a few weeks of the passage of this bill if this section is not amended, I will most certainly have in my constituency office in Windsor and in my office here in Toronto a standard marriage contract -- which, of course, can have appendices to it to vary it -- for use by all married couples, and in my capacity as an MPP I am able to notarize that document. Therefore, at no cost at all to my constituents, I will have a marriage contract which stipulates as a reasonable agreement between couples in a marriage the 50-50 asset split which I feel should be in law across this province, and there certainly will be marriage contracts in the city of Windsor if I have anything to do with it which, in fact, create this split.
Mr. G. Taylor: Don’t tell the Law Society.
Mr. Bounsall: We’ll deal with the Law Society. Let them do something. I will serve notice now that this is what I am doing.
Mr. G. Taylor: They might deal with you.
Mr. Bounsall: In fact, provide them with standard copies for their offices for free. I won’t even charge them for the paper.
Mr. Lewis: If there is a little problem about notarizing we’ll solve that.
Mr. Bounsall: There will be no problem with the notarizing.
I still continue to feel exceedingly strongly about this section and I think you, Mr. Chairman, with your great experience in public service and meeting many people coming to see you over the years in your municipal experience, will realize -- you can comment if you wish; I might invite you to -- that is not a posturing position on the part of myself or my colleagues in this party but a very heartfelt position, that anything else is unfair and unequal; and I will say what my colleagues may not say, or say in the same way -- I do not want any discretion, wherever it can be reduced, left to the judiciary in the province of Ontario with respect to asset splits between a husband and a wife in marriage.
I said before, and I will say it again, I would accept it if half of them were women and all of them were children of the fifties, but I won’t accept it in the present situation of the judiciary in the province of Ontario.
Mr. Swart: Mr. Chairman, I had not intended to speak again on this bill, until about 10 or 15 minutes ago when the member for Niagara Falls (Mr. Kerrio) spoke on it --
Mr. Lewis: He stooped to politics.
Mr. Swart: -- and then the Attorney General made certain additional comments, and he confirmed that I must say something further on this bill.
Mr. Lewis: Even I’m getting agitated by what the Attorney General did.
Mr. Chairman: Order.
Mr. Swart: I think I have to say to the member for Windsor-Sandwich that perhaps he misread or did an injustice to the member for Niagara Falls. I suspect the member for Niagara Falls had read the support sections of this bill. That would be right, would it not?
Mr. Kerrio: Yes, but it doesn’t guarantee if the children are being --
Mr. Swart: I thought he had read the support sections and therefore it confirms my interpretation of what he really said. What he really said -- and I think the member for St. George (Mrs. Campbell) had inferred this -- was that the children are not really looked after in this section of the bill, because if you divide the assets up equally then there won’t be enough left to the man to be able to support the children, and I suggest --
Ms. Gigantes: The eldest son.
Mr. Swart: -- that here is male chauvinism almost to the extreme when you --
Mrs. Campbell: On a point of privilege.
Mr. Deputy Chairman: There is a point of privilege to be raised. The member for St. George.
Mrs. Campbell: When I discussed the matter of children, I did not refer to enough assets left to the man. It was not the inference and I certainly ask that if I am to be quoted, I be quoted accurately. Thank you.
Mr. Deputy Chairman: The member for Welland-Thorold may continue.
Mr. Lewis: That is a presumptuous request of this House -- to be quoted accurately.
Mr. Swart: I think there can be different interpretations put on that and of course the member for Niagara Falls did confirm using his interpretation of that.
Mr. Ruston: Take care of the front row.
Mr. Deputy Chairman: Order.
Mr. Swart: It is my view that the female spouse is just as able and exercises just as much responsibility in the financial care of the children as does the male spouse and sometimes more.
Mr. Kerrio: Have you got a marriage contract, Mel?
Mr. Swart: And a real bearing on this issue is that if we divide the assets equally, the bill specifically provides under section 16 that every parent has an obligation, to the extent that the parent is capable, to provide education and support in accordance with need for his or her child who is unmarried and under the age of 18 years. I just say to you, Mr. Chairman, and through you to the Attorney General, that the children will be as well looked after if there is an equal division of assets as if the male partner gets a lot more.
Mr. Kerrio: Well, there’s no dispute about that, Mel.
Mr. Swart: The second point I want to raise is something I recall being raised in the committee -- and I’m sure our Attorney General wasn’t there at that time. We were discussing the preamble to the bill and discussing some of the other sections in principle -- and that’s what we were talking about in this amendment: the principle of the division of the assets on an equal basis between spouses. And as stressed over and over by my colleagues here, it can be varied in almost any way by the judge; but we’re discussing a principle.
I remember the member for Ottawa West (Mr. Baetz), who now is the Minister of Energy saying that the preamble is important because a judge will always refer back to that to get the principle of the bill. That was agreed to. I think our colleagues on the right, any of them in the committee meetings -- and too many of them weren’t there too much of the time -- would agree that the member for Ottawa East (Mr. Roy) also agreed with the importance of the preamble, the importance of principle.
Mr. Bounsall: That was the only time he was right.
Mr. Swart: I say that this amendment is important, therefore, because it establishes the principle of equal division.
The third point I want to make -- and I guess I’ll say it very bluntly to the Attorney General after his comment -- is that I can understand now how the province of Ontario lost the court case relative to putting its employees under the AIB.
Mr. Kerrio: Oh, that’s not fair.
Mr. Swart: I think it’s fair. A few moments ago -- and I would be glad to have the Attorney General’s attention -- he stated twice that our amendment would put the division of assets more in a strait-jacket. He used the word twice. It would make it more rigid, put it more in a strait-jacket, he said.
I don’t know how the Attorney General, as a lawyer, can make a statement like that. All the qualifications and all the variations from that are in sections 4 to 13. We’re not proposing to change those sections. The bill has a rigid section 3 now which includes a limited amount of assets. We will have a rigid section 3 which will say the assets should be divided on a 50-50 basis, but all the qualifications of changing that in any way still remain in the bill. There’s no more of a strait-jacket in our amendment than there is in the bill at this time. It simply establishes the principle of a 50-50 split.
One other thing that hasn’t been said during this debate, to the best of my knowledge -- and I think it should be said -- is that section 3 as it exists is going to create, by the very nature of it, tremendous inequalities.
Our amendment says there shall be in principle a 50-50 split between the spouses. In some cases, under section 3 as it exists, there will be a 50-50 split because that’s all the assets they will have. In other cases, where they may not have a matrimonial home -- 40 or 50 per cent of our people now live in apartments, and they have all kinds of other assets -- the split may be 10-90. This section as it exists provides no basis in equality at all; it is our amendment which provides that equality.
Even if the government doesn’t want to give as much to the female spouse, even if it only said it should be divided on one- third, that would be more equitable than the present section, because in some instances it’s going to mean that one spouse -- usually the wife -- will be entitled to nothing or very little.
After listening to the Attorney General and after listening to members on my right, who will not even deal with the issue of the 50-50 split -- they say they agree with it in principle but they turn right around and say they can’t vote for it; all it is, is a statement in principle -- I say to you, Mr. Chairman, that the posturing here is being done by those people over there and those on my right.
Mr. Renwick: Mr. Chairman, I am rather concerned that the rhetoric of the debate has escalated since the intervention by the Attorney General. Perhaps we’re engaged in driving each other further apart than is necessary. I think it’s quite possible for reasonable people to reasonably agree as well. I think the point that has been made about this particular amendment is one on which I would like to have a few minutes to try to see whether or not I could persuade the Attorney General that it is essential that the amendment be accepted. In order to persuade the Attorney General I must obviously persuade the member for St. George. My remarks really are addressed to her and I trust that wherever she may be, she can hear the sound of my voice, because --
Mr. Eakins: You’re coming through fine.
Mr. Mancini: I am sure she can. Clear as day.
Mr. Renwick: -- the Attorney General and the member for St. George have agreed upon a subsequent amendment to section 4, I take it from what the Attorney General has said. I do want to therefore for all practical purposes address myself to the place in the assembly where the power on this matter resides. That’s the member for St. George.
Mrs. Campbell: Thank you.
Mr. Renwick: If I can persuade her to take that small step to recognize that there is no inherent flaw in the amendment by the member for Windsor-Sandwich, that the amendment is quite consistent with the purposes that the member for St. George for many years has espoused. Whatever this insurmountable block which prevents the member for St. George from coming that small step closer to us, I would like to search it out and I would like to see if we cannot dissolve it during the course of this debate.
Incidentally, I would also like to persuade the member for Simcoe Centre (Mr. G. Taylor) and the member for Carleton-Grenville (Mr. Sterling) -- I have some chance with them; I have little, if any, with the member for Ottawa East (Mr. Roy) who unfortunately is not here tonight. I gather that for practical purposes the member for Nipissing (Mr. Bolan) falls in the same general category and I do sympathize with the member for St. George. She has this terrible burden of being surrounded by men in that caucus who have been upset from the day the family law bill was first introduced into the assembly.
Mr. Lewis: That’s right.
Mr. Renwick: I think it’s fair to say that the member for Ottawa East thinks it was the work of the devil and he doesn’t want it. He doesn’t want to have anything to do with it. He becomes extremely irritated if anybody -- all he wants to do now is to get it passed and get it over with.
I can understand that feeling. I fortunately come back to the task somewhat refreshed. I had a relief from the family law bill for a short period of time. That was one of the few minor blessings of being away at my own home for the 100 days, so I didn’t have to go through the anguish of the debate.
I say to the Attorney General the reason why I want to try his patience -- and I particularly want to persuade the member for St. George about the merit of this -- is that I happen to believe that when this bill is passed, we can’t monkey with it. We can’t tinker with it. We can’t start bringing in amendments the way we do to the Municipal Act every session in order to clear up some abstruse point. It has to be laid to rest along with the other group of family law statutes and let the jurisprudence take its course.
It’s for that reason that I think we are quite justified in trying, again and again, to see if we could perhaps dissolve the small hurdle that permits the member for St. George to say that she really agrees with it but she can’t agree with it, and permits the member for Carleton-Grenville to say he really wants to agree with it but he can’t. I have listened as attentively as I can to the discussion to see whether or not it is possible in some way or other to dissolve that kind of problem and I want to speak very, very simply, if I may, to the member for St. George with whom I have always been able to find a basis of agreement.
I think the member for St. George would agree with me 100 per cent that in our society at the present time a support obligation is not the equivalent of the ownership of property; that if you want security in our society, the way to have security is to have property, not to have somebody’s obligation to pay support. Therefore to the extent that we can shift from the support obligations to property interests for the spouses who have terminated their relationship, then we have strengthened the independence of each one of them and not made them dependent upon the other. To the extent that one can do that, one has achieved a remarkable step forward in the relationships between people because secure people and people who know that they are going to be secure, even if they have the misfortune to come to the termination of their relationship, are much more likely to be able to deal with each other in a very civilized manner. There won’t be the necessity for the application to the court and the long drawn-out discussions.
I say very carefully and clearly to the member for St. George, and through her to the Attorney General, that sharing as I do the sense that the judges in the province of Ontario are dedicated to doing the very best they can in interpreting what we in this Legislature pass, we have created -- and it has nothing to do with the amendment made by my colleague, the member for Windsor-Sandwich -- a labyrinth through which the judges are going to have to plod their way in order to try to arrive at what this assembly was saying. What was it saying? What was it saying in a clear way so that the courts will understand it? That labyrinth, in my view, puts the historic maze on the island of Crete to shame.
It is an impossible task that you are asking the judges to do, namely, to read the basic section which we are now dealing with and then try to apply all of the factors which are set out in subsequent clauses and proceedings in the bill. Regardless of the amendments of my colleagues, the labyrinth is an extremely difficult one. My friend, the member for St. George, will understand that part of it better than anybody else because she sat in that court. She has had some experience with the existing law and she knows what the problems are.
I think it is essential that we do what we can to clearly indicate and signal in a way which is unmistakably clear what the intention of this assembly was. The moment we start fooling around with the definition of family assets which is presently in the bill and which my colleague is trying to amend, we immediately create very shaky ground. The very words which the bill uses calls upon a judge to engage in the minutiae of determining the pieces of tangible property scattered around the family home and scattered around the family cottage or out in the trailer or in some other camperette or item which is used, and create a problem which I don’t think we should be asking judges to start right in to have to make that kind of decision.
I think you would agree with me when I say that the language which is: “the property owned by one spouse or both spouses and ordinarily used or enjoyed by both spouses or one or more of their children while the spouses are residing together for shelter or transportation, for household, educational, recreational, social or aesthetic purposes,” et cetera, means that for practical purposes you are asking the judges to do what Ward-Price do, to make an inventory. Are these things for the social, recreational or aesthetic use of the members of the family? It is very easy for somebody whom you can call in to inventory the contents of a house or summer cottage. But that’s not what we are asking judges to do. We are asking judges to do equity and justice between two people in a situation which is extremely difficult.
It is extremely important, and I go back to my fundamental point, that the independence of people in our society is based upon their property. That’s where you get your independence. What we should be saying to the courts is what the preamble says. So far as the property acquired by people during their marriage while they are residing together -- and I thank the member for Carleton-Grenville for raising the question of the minor amendment which should be made to the bill in order to preclude the point of draughtsmanship which was overlooked in it and which I have discussed with my colleague the member for Windsor-Sandwich and which can be cleared up -- it seems to me we’ve got to be able to say to the courts that our intention was that the starting point should be all property acquired during marriage. That would be subject to the exception of language about gifts, inheritances, trust benefits and all of that, but that is not difficult for judges to deal with, because they are used to dealing with that kind of language and those kinds of legal concepts. We’re saying to them: “That’s the place where you start from, and you take everything in. You take everything in and you say to the people that are involved, All right, that’s the way you start.”
I want to emphasize the point that has been made and perhaps has been overlooked, and certainly appeared to have been overlooked by the Attorney General in his comments; that is, we are not proposing any amendments to section 4. We are not altering it, as I understand it, in any way --
Mrs. Campbell: Yes, you have.
Mr. Renwick: -- except for the one point, which is an entirely different issue and which is included in an amendment to be proposed by my colleague the member for Beaches-Woodbine (Ms. Bryden).
Mr. Nixon: Two parts.
Mr. Renwick: We say that the discretions in the court are all still left there, but what we have tried to say is: Let’s give the judges a judicial start -- not a household inventorying start -- in order to solve this problem. Let’s give them a place where they can clearly start. If they feel there are valid arguments made before them under which some of the discretions and balancing and judgemental factors should be taken in under section 4, fine; we can do that, there’s no problem.
I think it is important that we signal to the judges called upon to look at this Act that we have clearly understood what we want to accomplish. I can see that with our amendment accepted as the signal, and in a difficult situation, the very conclusions that could be come to by a court would be acceptable to the member for Carleton-Grenville, as I think they would be to the member for Nipissing. I don’t see that the starting point is other than for the sake of clarity and for the sake of principle. Then you let all of the discretions which the judges can balance work from that point.
I draw your attention to what was said by the former Chief Justice of Ontario, who is now Mr. Justice Estey, sitting on the Supreme Court of Canada. When he was Chief Justice of Ontario, if I recall correctly, he drew the attention of this assembly to the immense problem that we are creating for judges by not being clear about what we’re saying, by leaving them to make the interpretations about what we supposedly in- tended to do because we haven’t got clear, unmistakably principled legislation from which they can, as a starting point, begin to make the decisions as to what we intended and, in cases such as this, begin to deal, as we say in the Workmen’s Compensation Act, on the justice and merit of the cases and not on intricate rules about which piece of furniture falls on which side of the line so far as family assets are concerned.
That is my main and principal point and that’s why I say to my friend the member for St. George to see, in the course of the time which is available -- and the importance of it would mean that if I’m finished before 10:30 and nobody else wishes to speak on it, I’m quite certain that we could get agreement to stand it down until tomorrow morning -- whether we cannot bridge this very narrow gap.
I think what was bothering me -- and I say with the greatest respect that my colleague the member for Bellwoods (Mr. McClellan) threw the lighted faggot into the fire -- was that from that point on I think everybody was about to give up and beginning to be driven by a rhetoric into opposing positions. The Attorney General was carving out for himself on the extreme right and on the extreme left, he was carving out for himself the middle road.
Mr. Reid: The extreme middle. The radical middle.
Hon. B. Stephenson: The radical centre.
Mr. Renwick: Yes, the radical middle, right down the centre. He was trying to say that people were decrying his legislation and casting aspersions upon the bill, and being rather unclear as to just who was doing it, but somebody called “they” was engaged in destroying this remarkable piece of legislation which has come before the assembly.
Mr. Reid: They are always very bandy to have around.
Mr. Lewis: The faces in the crowd.
Mr. Renwick: Speaking again to my friend, the member for St. George, the point of departure of the member for St. George which appeared to raise this unsurmountable block was the words “commercial property.” It was almost as if she was saying -- and I know it isn’t so -- “If you take those words out I’ll go along with it.” I know it wasn’t and I quite understand that, but the red flag on which the argument was hung was this question of commercial property. I think that triggered off the member for Simcoe Centre and led the member for Carleton-Grenville to get in. They all got terribly up- set about this business of one of the spouses being involved in commercial property which they had no business to become involved in. It would almost be like Mrs. McKeough daring to enter into the plumbing business in Chatham.
Hon. Mr. McKeough: Never, never.
Mr. Renwick: Never. No. You couldn’t possibly do that.
Mr. Reid: She may need a job after the next election.
Mr. Lewis: It is enough that she has disavowed the budget, never mind the plumbing.
Mr. Renwick: I sometimes think she would make a better Treasurer.
Mr. Lewis: Believe me.
Mr. Renwick: I want to talk a little bit about commercial property and commercial interests, because there are very few people in the province of Ontario who have that kind of problem. Sure, there are a lot of law partnerships and a lot of medical practice partnerships of one kind or another. There are all sorts of family companies of one kind or another. There are all sorts of partnerships disguised as corporations and so on.
We all must understand -- and it has nothing to do with the amendment proposed by my colleague the member for Windsor-Sandwich about the entrance into the province of Ontario of this domestic contract -- there are going to be a lot of those domestic contracts regardless of whether we change one word in the existing provision of the bill, because we introduced that into the bill, and there are going to be domestic contracts entered into by all partners in marriage relationships where there are any substantial property interests, “shares in private companies,” “interests in partnerships” whatever they are.
That will exist to a greater extent because of the introduction of this legislation, but we have accepted that as a necessary corollary to trying to even out the relationship that yes, you have to permit people to contract out. There may be people who don’t think that the contracting out provisions should be quite as wide, but they are extremely wide. As I read the bill, they can contract out on everything except the matrimonial home should they choose to do so.
Therefore, it seems to me that all propertied people -- it is a significant number of people, but it is not a large number in the province of Ontario who have that kind of problem -- will in any event, if they haven’t already done it, go to a lawyer in order to have agreements drawn about it.
My friend, the member for St. George, has as much knowledge about commercial practice matters as I do, and you know as well as I do that every time a partnership is entered into there is always provision about what to do for the widow of the deceased partner. There is always that provision, always an arrangement made by which, regardless of the fact that the widow is not a member of the profession which might be involved, such as a law partnership, the partnership is drawn in such a way that the partners try to say: “We are going to find a way, without dissolving this partnership, of paying to the spouse of the deceased partner X number of dollars.” Whether they do it by buying reciprocal life insurance on each other’s lives in order to have the funds actually available within the partnership in order to make the payments, those are very common, dime-a-dozen arrangements.
You know as well as I do that it is for tax or other convenient reasons if, instead of a partnership arrangement they incorporate a private company and two partners own 50 per cent of the shares or four partners own 25 per cent of the shares. Just a normal, everyday concomitant of that kind of legal transaction means that you also enter into -- if I could use the jargon of the trade -- a buy/sell agreement with respect of the share interests of the four persons, so that the same problems -- that is the death of one of the persons or a desire on the part of one of the persons to get out -- can be covered.
There are any number of variations on that theme. There are so many variations that in some partnerships you come to the other way where they want to create the fiction that the widow of the deceased partner is in fact a partner for all purposes except having anything to say about the business. Because it may be for tax reasons that that’s a wise arrangement of the affairs. They bring the widow in as a partner and carefully exclude her from having anything to do with the business which is being run. It seems to fool the tax department and make everybody happy.
So there are those kinds of arrangements today -- nothing to do with this legislation, nothing whatsoever to do with it. There are all sorts of agreements that are entered into in which the spouse, usually the wife of the participant in that commercial venture, is something called a silent partner, a silent person who has an interest. She may not sign any documents but her interest has been recognized because of the commercial pressures of exactly what has to happen in any event They’ve got to find the money in the continuing organization to pay the interest of the deceased partner or the deceased shareholder, whoever he may be. They’ve got to do all those things. Whether it’s for love of each other or whether it’s normal business practice they’ve got to settle those matters.
So I’m saying that there are lots of agreements now designed to protect the deceased spouse, usually the widow in our kind of a world, and those will continue to exist. I am inclined to agree that for other reasons there are going to be more of these so-called domestic contracts.
So I don’t think that there is any particular magic in trying as I am to dissolve this barrier that prevents the member for St. George and myself reaching agreement on this matter. I don’t really think there is a very great deal of validity in the hysterical response made in an escalating sense by the member for Simcoe Centre and the member for Carleton-Grenville that everything was going to fall apart -- that the whole fabric of the commercial society and Bay Street was going to suddenly collapse and just disintegrate as the Canadian dollar is disintegrating now on the foreign exchange markets of the world.
So I say that that kind of situation can be dealt with and dealt with quite adequately, simply because it has had to be dealt with in any event in most commercial transactions of any significance in commercial ventures which are undertaken.
Secondly, they will be able to be dealt with much more clearly by contracting out under the domestic contracts provision in any event, and there are going to be more of those. So you say to me why shouldn’t we start with an omnibus provision bringing everything in and recognizing what the preamble to the Act says; that it is in fact a partnership and the property aspect of it which has bedevilled the marriage institution for so long. Let’s try to make it right once and for all.
Then I think you get the kind of situation into which the great bulk of the families in the province of Ontario fall -- they don’t have any commercial properties in the sense that is intended to be meant by the amendment proposed by my colleague. But they do have things far over and above the so-called narrow definition of family assets. It’s all of those matters which should be brought together and brought into play.
In my riding, for example, my guess is that most situations are ones where they will not be consulting lawyers and, even if they could afford it, they won’t be terribly interested in entering into domestic contracts. All they would like to have, I think, is a law which permitted them to say: “What we in our marriage put together is to be divided in half.” If that’s fine and that’s the way it works out at the termination of the marriage, well and good. It’s very simple and very straightforward and there is no need for anybody to go and make an application to the court. If there’s a dispute about it, then section 4 is still available.
It does seem to me that we are likely to remove the burden from the courts of a large number of cases, if we go the principal route of having a clear signal to the courts that that’s the starting point because there’s no point in going to a court if the total mass of assets which are to be divided are clearly defined and you get half. You can then only go to the court because you’re asking for more than half, or someone is objecting that the person should not get half.
I think in a funny way that creates a barrier to misusing the courts because you start right out at that 50-50 point. You’re not into a mad scramble about whether or not you can get more under section 4. There’s a kind of a clear starting point. Because there’s such a clear starting point I think we will probably relieve the burden on the courts. I think because of the real cases where the equitable provisions of section 4 and other provisions come into play, you’re likely to get jurisprudence of much higher quality and much more important jurisprudence about exactly what these divisions of family properties can or should mean.
I would ask my friend, the member for St. George, to respond either tonight or tomorrow to what I’ve said, to reflect upon it and to think upon it because, as I said at the beginning, never have I in the time I’ve been in the House seen so much power reside in one place in this assembly. If she comes, I assume her colleagues will come, and if she and her colleagues come, the Attorney General, who has suffered one defeat at her hands and won’t want to suffer another one, will also come along. We will then have an opportunity to have a bill of which we can all be proud and one in which we have resolved this vexed problem. This has bedevilled the discussion of this bill from dam one because of the failure to accept the Law Reform Commission’s recommendation which led to the kind of amendments proposed by my colleague. For reasons which I have never understood, the Attorney General and his drafting advisers chose to introduce this ridiculously limited definition of family assets.
From any number of points of view, which I hope I’ve been reasonably clear about, I can say to the member for St. George, please see if we can’t dissolve what to me appears to be a tough but minor obstacle and, finally, in a reasonable way, reach a reasonable agreement on a matter of such fundamental importance. Then I know that the Attorney General will fall into place and we will have a bill on which the whole of this assembly can complete the long and arduous work on which all parties have worked for so long.
Mr. Chairman: The member for Lakeshore.
Hon. W. Newman: There is the evening shot.
Mr. Lawlor: Mr. Chairman, in the very brief time that we have before we adjourn this evening, I wish to tell you in very personal and intimate terms that I’ve changed my mind. Throughout the evening I was not in the House but I was listening to every word of the debate and have done so. I am now convinced by my colleagues that their position is quite right. If that should add any strength to the member for St. George, so be it, because I think she knew my basic disposition with respect to this bill from its inception.
My basic position with respect to all legislation, just let me say, is that legislation can be approached from two directions. Either it can be approached wholly -- you want a complete and global acceptance of a particular proposition -- or you take the half loaf or quarter, whatever people want to talk about; you take what you can get. The government proposes -- they used to dispose, too, like Almighty God but up to a point these days we do a little disposing too; and with that in mind, over many years here, I think of it as part of the responsibility of a member of the Legislature to amend, twist and turn; you try to improve what you’ve got and you save the rest for the glorious day when you may be able to bring it into being.
This particular piece of legislation is quite unique. It is not the common run of the mill stuff and probably has a kind of permanency and, certainly, in terms of human destinies and human lives it has a far more searching and reaching effect than the ordinary piece of legislation that comes before us. The Law Reform Commission of Ontario has proposed a virtual community property concept albeit deferred and while I disagree with my colleague as to the particular mathematics involved in that, the weird business of the balancing claims and equalization claims wouldn’t be very much disposed to accept that methodology or particular disposition of the matter. It’s all right if you happen to be an engineer and live your whole life with stresses, measuring the peculiar dimensions of bridges, but in human affairs it is not.
But I have argued with him enough. I concede many things to him tonight, many more than I have ever dreamed of doing, and I do it with a certain amount of grace. The only thing I see arising out of this that causes me pause, and has caused me substantial pause is the pragmatic difficulties. We can be frank about it. The proposals made by my colleagues, and with which I now agree, are a fairly searching revamping of the basic principle of the bill.
Mr. Chairman: I wonder if the hon. member could take a glance at the clock.
Mr. Lawlor: All right, I’ll tell you about the basic principle tomorrow.
On motion by Hon. Mr. McMurtry, the committee of the whole reported progress.
On motion by Hon. B. Stephenson, the House adjourned at 10:30 p.m.