Manitoba Committee Hansard — Statutory Regulations and Orders Committee, Sitting 7 (31st Legislature, 2nd Session)

31-2-sro7

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Chairman Mr. Warren Steen Constituency of Crescentwood Wednesday, July 12, 1978 2:30 p.m. Printed by P.N. Crosbie- Queen's Printer for the Province of Manitoba

"ime: 2:30 p.m. Hearing Of The Standing Committee On Statutory Regulations and Orders Wednesday, July 12, 1978 :HAIRMAN: Mr. Warren Steen. IIR. CHAIRMAN: Mem bers of the Comm ittee we have a quorum. Shall we come to order. We can .tart where we left off yesterday or this morning. Is there a person present by the name of Kay larland? I'll ask again - a person by the name of Kay Harla nd? Not hearing or seeing anyone 1nswering to that name ... Mr . Kenneth Emberley. IIR. EMBERLEY: My name is Kenneth Em berley, 387 Truro Str eet in St. James in Winnipeg. Mr .

Chairman, ladies and gentlemen, I request special permission to read a ten sentence, Jur-minute introduction to partly explain the reasons for my brief and the attitude you detect in o many of the briefs. But this will be a little bit out of the line of the terms of reference and I rant to know in advance whether I am going to be told to sit down and stop talking. IR. CHAIRMAN: Yes, it is agreed. Would you carry on please? IR. EMBERLEY: Thank you kindly, Sir.

The gover nment's total failure to provide any enth usiastic inspir ed leadership into the new energy hortage with cheerful support and greatly expanded funding for four more years of the Legislative uilding's solar energy experimental project, is one of many sources of disappointment.

(2) The gov ernment's continued tinkering with the City of Winnipeg Act weakening citizenship articipation through RAG and community comm ittees, reducing citizen rights on zoning appeals, here they have a right to oppose bad planning.

(3) The continued government policy of refu sing to grant powers to allo w us a mayor with some ower for stronger leaderhship is clear, and refusal to consider the transfer of 10 or 15 percent f provi ncial tax revenues to the cities and municipalities as the first priority of any Constitution !form in Canada. The refusal to attempt any correction of the cruel manipu lation of the city into technocrat designed jminis trative units of 60, 000 to 90,000. IR. CHAIRMAN: Mr . Em berley, can I stop you for a moment? R. EMBERLEY: Yes, Sir. R.

CHAIRMAN: You have myself and I think most members of the committee somewhat puzzled. 1is particular commit tee on Statutory Regulations and Orders are hearing presentations on >proximately four bills, the main two are The Marital Property Act and The Family Mai ntenance �t. Is tha t what your presentation is going to be about or are you going to talk on the City of innipeg and other. .. R. EMBERLEY: Yes, Sir. I just have a two-page, ten-minute presenta tion. I am through with the traduction now. R. CHAIRMAN: 1 see.

And you will be discussing The Marital Property Act or The Family Property :t. �-EMBERLEY: Strictly and only The Family Property Act. t CHAIRMAN: All rig ht, would you carry on then please. 21 9

Statutory Regulations and Orders Wednesday, July 12, 1978 MR. EMBERLEY: Re family law bills on Marital Property and Family Mai ntenance. One does no have to have special legal trai ning or superior educational background to recognize what many peoplE consider a bad pie ce of legislation. For more than 20 years Manitobans have watched anxiously and with disappointment for smoothe1 progress into the second half of the 20th century. Anxiety and disappointment we have had ir generous amounts and prog ress in small amounts.

Everyone in this room is contributing in his or her own special way to the liberalizations anc prog ress which many feel is an irresistable long term tren d. May I please quote briefly from 1 profes sional analysis of the growth of democratic government? The development of our im mensely successful system of government we enjoy did not hc:.pper quickly or easily. lt took place over 1, 200 years in five or six countries in Western Europe. lt wa: almost never deli berately legislated, but gr ew through slow evolution as the results of sometime : very ordina ry and sometimes quite unique forces.

"Almost none of the participants knew the work in which they were involved. Sometimes peoph doing bad things for the worst reasons brought the best results through causing a positive reactior to the very harmful things they did. In tha t way we all have an opportunity to contribute to prog res: in govern ment. In the last few years we have heard of famous court cases, involving small fortunes in lawyers fees, which have recorded women who worked like slaves to help their husbands build a famil· fortu ne, and were dealt with legally, but without any justice, when it came to sharing in this joinU created for tune.

In recent years there has been inc reasing pressure to treat women, as well as other racial group s Negroes and Indians, as if they were all decent hu man beings with full rights of citizen ship, an1 to fairly equal treatment, not only in the courts, but in the city, town and the country in our dail life. The libr ary is full of the slow stuling buling progress to real equality, and after this bill is deal with there will be another record.

To use the technical legal terms we are all so familiar with, I understand your proposed legislatio will gu arantee women full rights to their natural fields of skill and tradition, in bed, in the kitcher and a legal right to pin money for permanents and hair ribb ons. The right to financial support for a woman will depend on her good moral character and he willingness to continue to care for her childr en skillfully and devotedly, while behaving in a chast manner.

Financial support for women with children will continue to depend on an inept and clums system designed, some say, by men to benefit many men, who wish to punish their spouses, t punish their offspr ing, who are shiftless, who want to use their money for business or for new sexw adventures. Within the past month I saw a report in the Winnipeg Free Press on research in the matter c busine ss executives families. The key items reported were under a double title.

As I remember i first it said that many very successful business and profess ional men reach their peak in their chose careers because of very hard work for long hours and a single minded pursuit of success that allow no distractions. Many of these men have little time to think about or care for their families, especial! childr en. Many very successful busi ness people look upon their business as a personal creatior that is quite uii que and could not easily be dup licated.

Part of the pub lic relations image of many very successful men is to be able to, convenient an at intervals, display a very beautiful wife, well educated, well adjusted happy chil dren , cared fo heading for success in the accepted patterns. The second part of the title described a special kind of woman who made a career of bein the spouse of a very successful busi ness and profes sional person, profes sional man, naturally.

HE chosen career, which required considerable intelligence, lots of hard work and a rare com binatio of beauty, personality and ch aracter, was to be the household head, and besides her own natun duties, to assume many of the husband's and the father's duties towards her childr en so they coul be happy and successful as people. 1 think this research was trying to tell us some thing, and I ask you to try and help me fig ur out the message and transla te it into good law.

I understand that your legislation, as presently s1 out, is to clarify tha t money, stocks and bonds, life insurance, and business assets, are "man thin gs. lt will also clarif y the Victorian ideal that the mattress, and the pots and pans, and the house 1 dust and clean, are "women things." I humbl y suggest tha t your legislation is a little bit less tha the best we should expect from a group of representatives of the people of Manitoba. lt is true, judging by past Acts tha t have come through the Legislature, we don't always kno if we should hope for fairly decent legislation; once in a while we should not have to be dis appointe' To say it in basic English, you sho uld consider the radical concept of the 1970s that began to appe to progressive and imagi native people with a conscience more than eight years ago.

Women a1 people and should be cla ssed as decent human beings. True, they are beautiful and sexy, natural! 220

Statutory Regulations and Orders Wednesday, July 12, 1978 ut they are also intelligent, valuable, helpful partners and friends in a marriage and should be treated s such. We even have busine sswomen in the Law Amendments Comm ittee, they tell me. The master-servant relationship of authoritarian male-dependent female is this legislation's mdamental concept and is in keeping with the best ideas of the 19 00-1910 period. A woman should ave some rights to all the assets created dur ing the marriage. Maybe if 50 percent is too high figure for you to accept, you could begin with 27-% or 19 percent.

I had to cross out from my rief 11 -1/4 percent because I found out from reading the Free Press last night that the average 'Omen in all the lawsuits in Canada end up with 12 percent of the family assets, and so I didn't 'ant to make the legislation worse. Forgive me for crossing it out. lt is obvious your generously expanded day care program to help children grow into worthwh ile ·ouble -free assets will reduce women's dependence on separation allowances, and this should be source of pride.

What allowances most women do receive today are a source of almost constant ·orry, fear, insecurity, crippling dependence and forced continued com mun ication, with what mounts usually to a disliked and unpleasant person, in their view. I have known and had dealings 'ith women who are trying to collect separation allowance, and if you ever knew of an inefficient, ustra ting, humili ating experience this is a perfect example.

To say it in basic English, a government epartment should pay separation allowances and then use the usual RC MP and Unemplo yment 1surance Commission files to keep track of the ones who are supposed to pay, and collect it from 1em. I thank you for the cou rtesy you have extended in allowing us to present briefs. Bel ieve me, am sincerely grateful. These briefs are in effect, really two devices rolled into one, an Environment npact Study and a cost-benefit study of your proposed legislation on marriage.

I don't suppose nyone here has thought way back to the similar hearings in the middle 1970s when the im pact nd costs of certain legislation were qui te often accurately predicted by briefs, even though those resenting the briefs had little information or resources for their studies. Isn't it about time that 1e government began preparing broadly based environment im pact studies and cost-benefit studies n all major proposed legislation tha t is supposed to improve our lives.

So often your new laws lfect tens of thousands of people when instead of real im provements they only hassle us in a different ay and the same people go on making money out of the changes, for thems elves and their ives. Respectfu lly submitted, Kenneth Em berley. IR. CHAIRMAN: Mr. Em berley, would you permit questions from members of the comm ittee? R. EMBERLEV: I beg your pardon, Sir? R. CHAIRMAN: Would you permit questions from members of the comm ittee? R. EMBERLEV: Naturally, Sir . I'll try to answer them. R. CHAIRMAN: Are there any members of the comm ittee that wish to ask a question? Mr. 'lrasi uk. R.

PARASIUK: Yes, Mr . Em berley, are you aware that 75 percent of the Mai ntenance Orders ]ht now aren't enforced? That's the general estimate that we've received . Are you aware of that hen you made your rec ommendation that the court pay out maintenance and then use the means at the court or the state has at its dis posal to pursue the enforcement of these Maint enance Orders )m individuals? Were you aware that the problem was as gr eat when you made your proposal, 1ich I agree with? R.

EMBERLEY: I'm aware that the present system is much more than inadequa te and I'm sure ere are many people here qua lified to rec ommend im provements. You've surely heard many commenda tions from women who have gone through the ordeal, and possibly men who have gone rough the ordeal of being dependent on a successful woman. I appr eciate you mentioning those lrcentages, thank you. R. CHAIRMAN: Any further que stions? Seeing none, thank you, Sir. �-EMBERLEY: You will notice several supple mentary items which are self-ex planatory.

I do not sh to waste the committee's time. lt just concerns demo cracy and freed om. Thank you ldly. �-CHAIRMAN: Thank you, Sir . 221

Rosalyn Golfman. Statutory Regulations and Orders Wednesday, July 12, 1978 MS. ROSALYN GOLFMAN: Shall I wait until they're passed out? MR. CHAIRMAN: No, you can start. They'll catch up with you. MS. GOLFMAN: Mr. Chairman and members of the Legislature. I am here today for the first tirr because I have concerns reg arding the proposed family law legislation. You will be pleased to kno tha t I have shortened my original brief because many of my concerns have already been expressE in the past few days.

I will limit my comments regarding family law to the area of judicial dis cretio My brief is echoing the concerns of previous speakers. I would like to express my gratitude to th government for allowing the pub lic to come and express ideas and concerns. I would like to belie' that a government tha t is committed to demo cracy will also be com mit ted to the principle democracy and equality between spouses. I feel tha t marriage should be an economic and social partnership of total equality betweE spouses. Each spouse contributes differently but equally in order to maintain the family unit.

ThE chosen roles are viewed with equal responsibility and equal rights. The right is theirs by virtue being a partner in the marriage. The resp onsibility is that both of the spouses should mutually ar constructively decide areas of responsibility for each. The contribution of a spouse working in tl home, though dif ferent than the wage earner, is of equal value to the marriage partnership as tl spouse who works outside the home and should be thusly reward ed.

The non-wage earning spou: sets an emotional and secure clima te to allow the other spouse the freedom to pursue a careE I support the concept of im mediate equal sharing between spouses of family assets during the cour: of a marriage and of commercial assets at the termination of a marriage. However, I am con cerm about the scope of judi cial dis cretion allowed for in the proposal in this legislation regarding tl equal sharing of commercial assets upon marriage breakdown. Our government has repeatedly stated that they are committed to the principle of equality betwe1 spouses.

The new bill, instead of commitment, proposed an assumption of equal sharing with su1 broad, vague and irrelevant scope for judicial dis cretion that it repudia tes and abandons any equ shari ng. The clauses adm itted in

Section 13 (1) and (2) in Bill 38 lists 10 circums tances which admit ju about every possible argument why the ju dge should vary from 50-50 sharing of commercial asse1 I feel that this wide di scret ion will destroy the assumption of equal shari ng. Such broad judi c' dis cretion will prompt the stronger spouse into court in every case and incr ease litigation. HowevE it will do little for equal sharing. I would like to quote Mr.

Mercier when he said, "An arbi trary, inflexible system of judic decision-making is not a basic part of our legal system , nor should it begin to play tha t role no Flexibility within the bounds of equity is the cornerstone of our judicial system and so it shou re main." I believe that jud icial dis cretion has a place in our legal system but not when it appea to be so undefined and vague. I don't belie ve that limited judicial dis cretion on equal sharing VI lead us down the slippery slope and ignore particular circums tances of individual cases.

I feel th marriage should be an equal union to be one, and tha t one is not the man, but both spouse I would like to see Sections 13 (1) and 13 (2) deleted from Bill 38 and limit dis cretion to ra hardships or grossly unfair ci rcumstances. If 50-50 sharing is written into the law and the dis creti1 to vary is limited, the judge must apply the law as the legislatur e has written it. In the past fE months 1 have dis covered , by speaking to lawyers and judges, tha t many of the clauses represent1 in the bill are open to vastly dif ferent conclusions.

One of the original criticisms of the original law reform by the present government was that t bill would incr ease the use of accountants and lawyers. Now any consciencious lawyer should ' to court to properly represent their client under the proposed legisla tion. Bill 38 is regressive comparison to last year's law reform. lt is vague, confused, unde fined instead of clarified and defeats the aims of the original law refo rm. Mr. Mercier wants to assert the fact that the new I is fairer with the possibility of certain women gaining more than 50 percent.

If 13 (2) or any oth clause would be inter preted to mean that discretion will favour the dependent spouse, why is1 tha t stated openly and clearly? Women are not striving to get all they can . Women are content with equal sharing. I feel appeal to women that they will get more under the present bill creates a false impr ession. lt more likely that women who have no economic interest in the commercial assets would receive le under this legislation because the law is confusing and unde fined . Guidelines have not been � to assure any guar antee of equal sharing.

Also, judicial decisions in the past have not consid ered the non-monetary contribution in t marriage equal to the monetary contribution. An assumption of equal sharing is not a guarant and this still leaves the non-earning spouse in the same precarious position as in the pa 222

Statutory Regulations and Orders Wednesday, Jul y 12 , 1978 :e trend has been to award property to the title holder or to the spouse who purchased the pro perty . 1e money earned in the marriage has been considered to be money of the wage earner and not oney of both marriage partners. Women have no reason to believe that the new bill will assure �r of equal sharing of commercial assets. I urge our government to guar antee women equal ity by niting judicial discretion. My skepticism as to the intent of this proposal stems from some of the wide, re du ndant, irrelevant 1d confusing clauses of Bill 38,

Section 13 (2). For example, clause (

j) provides power for the court , deal with any circums tances relating to the acquisition, disposition, preserva tion, maintenance, 1pr ovement or use of any asset, allowing the judge to deem any circums tance relevant when �ciding to share any commercial assets. And you wonder why we are upset. What constitutes grossly 1fair and unconscionable? What does the nature of an asset have to do with equa l sharing and hat length of time is a marriage required to qualif y for equal sharing? Any circumstances the court �ems relevant, including 10 other clauses.

I can't accept these clauses, and the government's sistance that they are committed to the principle of equal shar ing, as being consistent.These and her catch-all clauses only verify tha t the government is not taking equal sharing seriously and akes their assumption of equal sharing highl y mislead ing. With the existence of many of the vague, mfused loopholes, the intent of the bill is me aningless. I again urge our government to seriously amend Bill 38 to limit judi cial dis cretion to rare hardship · grossly unfair circums tances.

The refusal to reform family law would be a blatant repudiation the equal sharing principle. Thank you. R. CHAIRMAN: Would you permit questions? S. GOLFMAN: Yes. R. CHAIRMAN: Are there mem bers wishing to que stion the delega te? If not, I thank you. Oh, r. Chernia ck. R. CHERNIACK: Yes, Mr . Chairman. Ms. Golfman, you are one of the signatories to the open tter which I referred to last night when I was talking with Ms. Corne.

I want to again refer to the atement "ma ny women feel deceived ." Since I'm a member of this comm ittee and have been volved in this problem on legislation for some time, I would like clarification from you as to what 1u meant. Deceived by whom? Deceived how? S. GOLFMAN: We felt that this law would be clarified and not changed and we feel "by wide dicial discretion" the law is mean ingless, according to equal sharing principles. R. CHERNIACK: Deceived by whom? S. GOLFMAN: Deceived by the commit tee that changed the law. R. CHERNIACK: Well, let's spell it out, Ms. Golfman.

I'm a member of the committee, that's why ·eally want to find out. Deceived by whom? I mean, how were you deceived? Who gave you an pression that there would not be any appreciable change and who made the change? You realize 1at I'm trying to get you to say. Name names and ... S. GOLFMAN: Would you like to say it for yourself, I don't have to ... =t. CHERNIACK: Wel l, I know what I believe is so, but I want to know whether you S. GOLFMAN: No, I don't know.

Bill 38 doesn't read the way we thought it might read, acc ording the original law refo rm, and the commit tee that dr afted that, I assume. �-CHERNIACK: You realize that there is no committee, no formal commit tee, that has dr afted 1 38. lt was presented by the Attorney -General, moved by the Attorne y-General, presented by n and voted by the Conservative caucus. That's what happened. There's no commit tee of any ·mal or legisla tive nature that has presented this bill. This bill carries in certain princi ples which u don't seem to approve of and this bill also repeals legislation passed last year.

So therefore :ome back to the question, when were you deceived? Because the question of family property v impr ovement has been in the public eye for a numb er of years-now, starting with the Law Reform 1mmi ssion, and working its way through the period of the NDP government and finally being Jislated in June of 1977. And tha t was passed by the Legislature with five members of the 1nservative Party voting in favour of the property law bill and the balance voting against it. Then, 223

Statutory Regulations and Orders Wednesday, July 12, 1978 in last Dec ember, there was legislation brought in by the Conservative Government suspending tht operation of that legislation. So, I really want to know, when women feel deceived do they feE deceived on the basis of what has happened from the time of the Law Reform Commission or i1 relation to last year's law or in relation to this proposal? MS. GOLFMAN: We feel deceived by the present bill. MR. CHERNIACK: Thank you. And when you say they feel deceived, how were they misled?

Becaus I was never misled, I always knew what the Conser vatives would do with this legislation. MS. GOLFMAN: Well, we thought that they would just make some changes, acco rding to th litigation, or some clarification of the bill, but we feel ... as I said, my issue is with the judicii di screti on, that it's too wide. MR. CHEIACK: My suggestion to you is that you were misled because it was not a campaign issuE the law had been passed last year before the elec tion , and dur ing the election it was not a campaig issue.

Your elected MLA was, I bel ieve a Conservative was elected, and I don't know whether i his campaign he led you to understand tha t he was going to prom ote a change in the law th� was passed last Ju ne. Are you aware that he made any such promises? MS. GOLFMAN: No, I'm not. I wasn't involved in it at the time. MR. CHERNIACK: So you don't know tha t he ever made the promise tha t he would make th change. MS. GOLFMAN: No, I don't. MR. CHERNIACK: In your paper, you have said that you do recognize a lim ited dis cre tion. MS. GOLFMAN: Yes, I do. MR.

CHERNIACK: And there are some who would say to you that this bill provides only limite discret ion. MS. GOLFMAN: No, I would di sagree with that because of the ten clauses I have stated, and tt way they are worded. MR. CHEIACK: Yes, what you are saying, you'd like to see Sections 13 (1) and 13 (2) deleted, an dis cretion limited to - and these are your words - "rare hardship or grossly unfa circums tance s.'' MS. GOLFMAN: Yes. MR. CHERNIACK: And to tha t extent you would lea ve it to a judge to determine. MS. GOLFMAN: Yes, I would. I think that would give him wide enough scope. MR.

CHERNIACK: We ll, you know the scope he now has, when it comes to marital assets, is th it could be grossly unfair, or unconscionable, having regard to any extraordin ary financial or oth circumstances of the spouses, or the extraord inary nature or value of any of their assets. Wou you say that that

part is too broad? We are only talking about family assets, or would that t acceptable to you? MS. GOLFMAIN: Would you repeat tha t please? Which one is that? MR. CHERNIACK: Repeat it? 13 (1) on Page 7, at the bottom. lt deals with family assets, the fam home, the car that is used by the family, the furniture, the summer home, and there they are sayir - "grossly unfair, or unconscionable, having regard to any extraordinary financial or oth circumstances." I should tell you tha t this wording is the same wording as we New Democrats p in last year as applying to commercial.

We did not leave any dis cretion as far as family assets we concerned. We said that this should apply to comme rcial assets - the Attorney-General lifted tho words from the previous Act dealing with commercial and applied them pretty closely to family asse· and then went into 13 (2) dealing with commercial. 224

Statutory Regulations and Orders Wednesday, July 12, 1978 But coming back to family assets, do you feel that the wording of 13 (1) , if applied to commercial, muld take care of your concerns where you speak of rare hardship, or grossly unfair :ircums tances. �S. GOLFMAN: Yes. �R. CHERNIACK: We ll, then looking at 13 (2), and you're not a lawyer so you're reading this from 1e standpoint of what is reaso nable to you, what they say there is that it shall be equal , except rhen a court is satisfied that a division would be inequi table, having regard to any circu mstances t all, including all those ten .

Now you used the words "rare hardship or grossly unfair ircumstances". Are you suggesting that this

section should read someth ing to the effect that it hould be equal, but other than equal as the court may di rect if it is satisfied tha t an equal division rould create rare hardship or grossly unfair circumstances?! •s. GOLFN: Yes, I would be. IR. CHERNIACK: I've been much easier than you have, and now I'm going to get firmer, because have been sort of suggesting that, if the Minister would change it to read that equal division would e clearly inequitable, that that would be a big impr ovement over all these others.

But I think you're aying that's not qui te enough, that it should be "grossly unfair" or "grossly and unfairly inequitable", think that tha t is your point. IS. GOLFMAN: Yes, I might be a little strong there. I don't unde rstand "u nconscio nable", and 'hat that might mean. IR. CHERNIACK: Oh, now we come back to unconscionable as in 7, and you don't want to get 1volved in your opinion, because you don't know what it means. IS. GOLFMAN: Right. IR. CHERNIACK: You make a very good point. I suppose unconscionable would be in the )nscience of the judge or either of the parties, and you don't what their ... IS.

GOLFMAN: Yes, I don't know what that could mean, or where that could be taken, so R. CHERNIACK: Would you think from your view of society's standards, that

an act of adu ltery >uld be interpr eted as being a course of conduct that would invite a court to say, "This is not 1uitable." S. GOLFN: Yes, I think that could happen. R. CHERNIACK: You hav en't dealt with The Maintenance Act, where really conduct is volved? S. GOLFN: No I hav en't, because I feel it's been dealt with already. R. CHERNIACK: Thank you. R. CHAIRMAN: Any further que stions? Seeing none, thank you very kindly. Perry Schulman. I might point out to Mr . Sch ulman, you are aware of our 30 minu te time lit. �-PERRY SCHULMAN: I'll try to keep it in mind, Mr. Chairman. t.

CHAIRMAN: The Clerk said you are a lawyer, that's the reason I mentioned it to you. We ve permitted a few persons in the past to go slightly over. t. SCHULMAN: Mr. Chairman and members of the comm ittee. I appear before you today as :>ractising member of the bar to speak on behalf of myself, and of my brother Mark Schulman, 10 I think is No. 39, and will not be appearing today. I appear to speak with you about Bill 38 d to urge you to adopt Bill 38. A year ago, when the Law Amendments Commit tee was considering the former Bi11 61, my brother 225

Statutory Regulations and Orders Wednesday, July 12, 1978 and I appeared before the commit tee at a time that the proposed bill contained no provision ft jud icial di scretion. My brother proposed a series of amendments to Bill 61 showing a need for judi ci dis cretion, giving as an example anomalies which can be created and which give rise to a nee for judicial dis cretion to alter in unusual cases, a provision for equal division of assets.

And at th, ti me, my brother submi tted to the commi ttee, as follows: "The court should be given di scretionary power to make adjustments in the acc ounting proc el to relie ve against anomalies and unjust results in the strict application of the Act, so that the 1 will be an equitable equalization of the net worths of the spouses that has accumulated dur ir marriage in the accou nting process ," and he gave examples to show the need for judici dis cret ion.

Su bsequent ly, Bill 61 was amended to provide for some measure of judi cial discretion, and urge you today that there is a need, and a very real one, for greater dis cretion than was allowe for in Bill 61, but 1 urge you too, that Bill 38 does not give as broad a dis cretion as the opponen of Bill 38 claim that it does. Now, let me say first about Bill 38, and it's Point 1. of the outline of my subm ission, I rega1 Bill 38 as shorter than Bill 61, easier to understand, and to contain much simpler concepts. lt my subm ission tha t the dis cretion

section contained in Bill 38 is not nearly as dif ferent from th contained in Bill 61 , as the opponents of Bill 38 wish to say. Now, as you know, and as has been mentioned several time s,

Section 12 of Bill 38 contain what I regard as, a very clear and im portant presu mption. Spous es each have the right to ha1 their assets di vided equally between them in any of the following events or circumstan ces: creatt clear enactment of a presumption entitling each spouse to an equal division of family assets ar of commercial assets. Now you know that

Section 13 (1) in connection with family assets, shifts the onus to t1 non-earning or the non-produc tiv e, commercial or ... the non-earning spouse, to show tha t t1 presumption should be rebutted, and in order to do that, the onus shifts to that person to satis the court that a division of those assets in equal shares would be grossly unfair or unconscionabl having regard to any extraordin ary financial or other circums tances of the spouses, or tl extrao rdin ary nature or value of any of their assets. And you know that in connection with commercial assets, the onus shifts as well.

In order rebut the presumption of an equal division of commercial assets, the onus shifts to satisfy the cm that a di vision of those assets in equal shares would be inequ itab le, having regard to a1 circums tances the court deems relevant, including their paragraphs (

a) to (

j) dealing with that. Now I want to stress that it's my view that the distrust of judic ial dis cretion which is containl in these sections and which is inherent in the position of the opponents of Bill 38, is entirely unjustifie and point out that there is nothing new in the field of domestic relations law about creating presu mption and having it rigorously enforced by the courts, in the absence of clear eviden' justifying it bei ng rebutted.

You will note from the outline of my su bm ission tha t I am dir ecting your attention to thn principles which arise - th ree of many - but th ree principles in domestic relations law, in whi1 a presumption is created and in which , as I review the case law with you, I think it will be cle to you tha t the courts have rigorously enforced the presu mption in the absence of clear eviden' justifying it being rebutted. And with that in mind, I stress my second point, that the dis trust judi cial di scretion, which you have heard about these past few days, is simply entirE unjustified.

Deal ing with the first point that I deal with in paragraph 3(a), the presu mption of advanceme1 I am sure tha t most of you know that there is a presumption which arises in the law of domes' relations , that when any husband buys a property and puts title to the property in his wife's nam there is a presumption tha t he intends to make a gift to his wife, there is a presumption that i· hers, the presu mption is against her holding the property in trust for him.

So that if he finds hims' in the position the next day, that she ousts him from the hous e, he has no realistic chance of succe in a claim to get the title back. The situation most commonly arises in Manitoba at the pr ese time, where a house will be bought, and say the husband puts up the proceeds of the purcha pric e, and the title will be placed in the name of the husband and wife as joint tenants. The le� presu mption is that he intends an outright gift to the wife, and tha t presu mption is against her holdil title to the house in trust for the husband.

Now, in the face of this presumption, many hus ban have, after having made that advancement or put title in the wife's name, or title to half in t ' wife's name, have attempted to go to court and rebut the presumption and they say, really, I rea put title in her name in trust for me, or really , I only did it to confer a benefit in the event of deal she would get the title as surviving joint tenant. I didn't intend to benefit her. The hig hways a strewn with the claims of husbands trying to rebut the presumption of advancement, the clair nearly always fail. The presumption is rigorously enforced by the courts.

The Supr eme Court of Canada in the case of Hyman vs Hyman, has said that it would ta 226

Statutory Regulations and Orders Wednesday, July 12, 1978 lear, dis tinc t, and precise testimony in order to establish that a trust was intended all along. The ases are rare that the courts have permitted the presumption of a resulting trust, presumption f a gift to be rebutted. That's one example. The way in which the courts have listed a lot of the ases there - In the Klemkowich case, Chief Justice Freedman, while in the Court of Queen's Bench, tressed the cogent evidence that would be needed to rebut the presu mption of advancement.

The upreme Court of Canada, in the Jackman case, stressed it again in the case of Fetterly versus etterly. Mr . Justice Wilson, speaking about an attempt to displa ce the presumption of advancement aid, "A very heavy burden rests upon a husband to rebut the presu mption of advancement and J show that the conveyance in favour of the wife, although absolute in form, was not intended J operate as a gift to her but rather the wife is a tru stee for the husband of the interests so conv eyed J her." The second aspect of domestic relations law to which I refer you is the presumption which arises om

Section 20 of The Law of Property Act. Now this is a principle which the courts have applied, rising from a statute which, in many respects, creates a situation such as will be before the courts nder Bill 38 when it is passed. As you know,

Section 19 (1) of The Law of Property Act says, "All >i nt tenants may be compelled to make or suffer parti tion ," - that's physical division - "partition r a sale of the land or any part thereof."

Section 20, subsection (1) , says: "Any person inter ested 1 land in Manitoba may bring action for the partition of the land, or for the sale ther eof, under 1e dir ections of the cou rt if the sale is considered by the court to be more advantageous to the arties interested ." The word "ma y", "ma y be compelled ", a dis cretion, you would think, the pponents of Bill 38 ould say, "Aha, the court has a broad dis cretion here. Not even a declared resu mption spelled out there. The court can make seat-of- the-pants decisions; results are not redic table," opponents of Bill 38 would say.

That, of course, is not the way the courts have interpr eted the provision of The Law of Property et. Courts have interp reted that

Section to create a presu mption which is described in the case tw as follows: I refer again to the case of Fetterly versus Fetterly. The decision of Mr . Jus tice Wilson. Theprima 1cie: "One of two joint tenants is entitled as of right to an order dir ecting the partition or sale f the property so owned ." You have two owners, the husband and wife, owners as joint tenants. here is a pr esu mption that one or other of them, the one who applies, is entitled to an order artitioning or an order for sale of the property. "True," Mr.

Justice Wilson said, "the fate of the Jplication in every case lies in the dis cretion of the court, which dis cretion here, as elsewher e, 1ust be exercised in a judicial manner." As was pointed out by the learned Chief Ju stice of this Jurt, Chief Jus tice Williams, in Klaus versus Klause, there may be cases where the order will be !fused. Further down, "pr ecise rules which would govern or restrict the exercise of the court's dis cretion such cases" have not been laid down. At best ," and to adopt the language of Mr.

Justice Fre edman, ; he then was in the Klemkowich case, "the principles in accordance with which that dis cretion wuld be exercised have not been adum brated with finality. Granted the prima facie right of the Jplicant to the relief asked, however, the onus is cast upon the respondent , in this case the husband, ' satisfy the court that it would be impr oper to make the order dir ecting partition or sale, as the 1se may be.

The respondent may do this by evidence to dem onstrate that the applicant has failed ' enter court with clean hands or that the claim cannot be enforced without vexation or oppression, hich latter does not extend to mere inc onvenience which may be suffered by the respondent as result of the order." And Hi s Lordship goes on to stress several court decisions showing that despite the broad scret ion which the opponents of Bill 38 would say exists in The Law of Property Act Section, "Fault wholly irrelevant to the exercise of the cou rt's dis cretion in a Law of Property Act >plic ation . .' In the Fritz case, Mr.

Jus tice Coyne says at Page 453, "That why they are not living together irrelevant upon this application. lt is sufficient that they are joint tenants and one desi res sale, 1rtition being impr actic al.'' In Whimm er versus Whim mer, the question of who was to blame for the unsati sfactory marital lationship is not a factor which affects the real que stion of whether the appellant was entitled an order for a petition or not.

In the Roblin case, the court stated at Page 15 8: "If a court permits its personal feel ings to >vern the exercise of such dis cretion it fails to act jud icially." The principle is that in an application 1der

Section 20 of The Law of Property Act, the court raises a presu mption that on application ' one of the joint tenants the property is to be partitioned or is to be sold. The onus then shifts the other side to show oppr essive conduct or oppr essive conduct which is inter preted to be onomic oppr essive conduct before the application will be refused. The presumption is rigorously ,forced. lt is only in a clearly ine qui table case that the court displaces the presumption and refuses e order. These orders are granted routinely in the Court of Queen 's Bench and in order to reverse 227

Statutory Regulations and Orders Wednesday, July 12, 1978 that presumption you have to show an extreme case such as the wife living in the house with th chil dren having nowhere to move. A case where we all would agree that it would be clearly inequitabl to cause the house to be sold. The kind of case, a clear inequi ty which it would take before a cou 1 would find the presu mption under Bill 38 in connection with commercial assets to be rebutted Again, the case of a presu mption arising in an application under

Section 20 of The Law of Proper1 Act, presu mption which is rigorously enforced by the courts. The third presu mption that I refer to is the presu mption of legitima cy. An important principl in the field of dome stic relations law, in the Wikstrom vs Childr en's Aid Society case, Mr.

Ju stic Schultz said, "The presu mption of legitima cy in the case of a child born to a married woman of course one of the strongest presumptions known to the law. lt can only be rebutted by evidenc that is unque stionably decisive to the contrary." This is a presu mption which many an attempt h� been made by a husband in domestic litigation to rebut, one which is rarely allowed to be rebutte and practically speaking, it takes an extreme case like Welstead and Brown, where the blood ty� evidence shows that it's impossible tha t the husband is the father of the child. lt takes very stron evidence to rebut this very im portant presu mption which arises qui te often in the field of dome st relations law.

Now I won't go through all of the cases, but in Comeau vs Gauth ier, a judge in Ontario h� recently said, "The presumption of legiti macy of a child is not one that is or should be easily dis place r nor can it be di splaced by a mere balance of probabilit ies," and there are a large numb er of casE stressing the point. Now in light of these th ree examples tha t I have referred to from Domestic Relations Law, I ur� you that there is no reason to think that the courts will not rigorously enforce the presu mption ' equal division which arises under

Section 2 of Bill 38. I think it 's obvious from the decision of tt Supreme Court of Canada in Rathwell, tha t in the face of legislation of this kind, the court will SE to an equal division except in a case in which it would be clearly inequitable to do so, and alr eac the case law from Ontario under the newly passed statute, makes clear what the courts intend · do, the way the courts intend to rigorously enforce the presu mption under a

section like Sectic 12.

Now I won't take the time to read it; I think it's been referred to before, I belie ve that referenc has been made to quotations by the Attorney-General in debate to certain aspects of the judgme r but this couple of senten ces, it appears to me that a court may only depart from the prima fac right of a spouse to equal division of family assets if it is satisfied that one or more of the criter set out in paragraphs A to F are established, that there would be inequi ty in equal division unsatisfied or unconvinced. lt says that the Legislature did not intend the court to be entitled exercise any broad jurisdiction to divide family assets in accordance with what an individual jud! may think is fair and equitable in a particular case. lt is nothing surprising in what his Lordship said.

I have shown you from three different fiel' of Domestic Relations Law tha t that is the way with which courts deal with presu mptions in fiel' like this one. The Prop erty Law in this province is of vital imp ortance to married persons, and in my viE that law not only should be, but is in fact now clear and precise. The rule of law now is that the is equal sharing of family assets. lt is my opinion tha t a court should be loathe to depart from th basic rule, and should exercise its power to depart from tha t rule only in clear cases where inequ would result.

So, the concerns articula ted by speakers for the past few days, and the criticisms levelled agair the use of judicial discretion, I think I have shown them to be unjustified and the courts are startir to show the same thing in interpreting legislation, which is like Bill 38. Now, the other day I inter preted Miss Stein bart to sugge st that the rules of construction whi have been developed by the judges for hundreds of years' require tha t family assets be treat differently from commercial assets. Therefore, she said, family assets must be shared equally a commercial assets, she says, must be shared unequally.

Those are the principles of constructi which she says haven't been developed for hundreds of years. There is of cou rse, no rule construction of the kind, and I know of no authority but one to support her

interpretation of t secti on. In ref erring to Lord Atkins judgment in Liversidge vs Anderson, I know of only one author which might justify the suggested method of construc tion. "When I use a word Hump ty-Dumpty s1 in rather a scornful tone, it means just what I choose it to mean, neither more nor less." "T que stion is," said Alice, "whether you can make words mean different things." "The question i: said Hump ty-Dum pty, "which is to be master?" That's all. You probably will recognize tha t as bei an excerpt from "Aiice Through The Looking Glass", and that is the only authorit y which I h� been able to find to justify the

interpretation which has been placed upon the bill in the earl submission. it's my respectful subm ission, that the rule which is applica ble, the rule is that you look for 1 object of the legislation, and I think it 's clear from

Section 12 of Bill 38 that the intention of I 38 is to recog nize the wife's contribution in the home, and on the breakdown of the marria ge, 228

Statutory Regulations and Orders Wednesday, July 12, 1978 livide all assets, family assets, commercial assets in an equal way except where clear inequities vill result. Now that

Section 13, subsections 1 and 2, set up dif ferent criteria or requirements in Qrder to ebut the presu mption created by

Section 12 , will not prevent the court from making an equal division >f all assets in nearly all cases. Reference has been made to unconscionable, grossly unconscionable, nequitable, clearly inequitable. The fact that dif ferent criteria are established in the two dif ferent :ubsect ions in order to rebut the presumption of equal sharing under

Section 12 doesn't in any vay prevent the court from nearly always saying that every thing will be divided equally. Let me refer to two matters in this regard. Now the lawyers here have all handled automobile tccident cases, and will be acting for the passenger in one car who will feel that he has a claim tgainst his driver and against the driver of the other car. As you know, there are dif ferent standards :et up in law to establish a claim against each of the two dr ivers. Against his own driver he has o meet a standard approving gross neglig ence in order to succeed.

In suing the other driver, it's 1 dif ferent standard, ordina ry negligence. There is no reason why, in the one case, both standards :an't be met. There's no reason why, in the same lawsuit, the passenger cannot recover damages tgainst his driver and against the other dri ver. Both criteria are met in the same case. He wins >oth sides of the case.

There is no reason why, a wife cannot, in nearly every case except the 1xcepti on, except the clearly inequitable, why she cannot, and why it isn't predictable, that she is 10ing to obtain an order that will see that she gets one-half of the family assets, and one-half of he commercial assets. I dir ect your attention to Bill 61 for a moment, of the last session. IIR. CHAIRMAN: Mr . Schulman, can I interrupt you for a moment and tell you that your 30 minutes s up? Have you much further to go? Do you think you could wind up in five minu tes? IIR. SCHULMAN: Well, perhaps ten, if I might have your indulgence. IIR.

CHAIRMAN: What's the general consensus of the Commi ttee? Agreed? Would you try and lo it in ten , please? IIR. SCHULMAN: Okay, I will. I want to just di rect your attention to

Section 37 of Bill 61, because 1e former bill did the same thing. The former bill set up dif ferent criteria in order to rebut the resumption in the case of commercial assets as opposed to the rebutting the presumption in the ase of family assets.

Section 37( 1) , tha t's subsection (1) , dealing with the rebutting of the resu mption which I might add isn't as clearly spelled out ther e as

Section 12 spells it out in Bill 8, but in rebutting it in connection with family assets and commercial assets, in the first subsection ou have the criteria by reason of the extraord inar y financial or other circums tances of the spouses r the extraordin ary nature or value of their property. In connection with commercial assets, subsection (2) sets up a second criteria. The second criteria 1 connection with commercial assets, but it applies to commercial assets only, is, by reason of 1e extraordinary im balance in the relative contributions of the spouses to the marriage.

So the >rmer bill sets up separate criteria for commercial assets, for rebutting the presu mption, and there's othing wrong - nothing unusual - about

Section 13 of Bill 38, doing the same thing -

Section 3 simply inserted to deal again with the unusual cases of clear inequi ties. 1 should say that last year, before the Law Amendments Commit tee, a nuer of ladies appeared nd stressed the personal difficulties that they had . They were the breadwinners, they had looked fter the family, they had looked after the accumulation of assets, and the no-good husband was oing to benefit under the Act.

While I hav en't seen any of those people here in the last couple f days, I have heard it argued by a numb er of speakers, "Let's have a principle which applies > everyone, let's not worry about the extreme cases, let's have a principle that applies to every one." is my submis sion that there is no reason why a statute cannot be enacted which does justice > everyone, not just for most of the people, and leave the exceptions to suffer the hardships.

My respectful submis sion is that Bill 38 makes such provision, that it's a neat provision to do stice for everyone, and justice on a basis that will satisfy everyone who has been making Jbmi ssions before you, and everyone seated at this table ir respective of the party !presented. Now, 1 want to say - I'll move quickly - it's my subm ission that under

Section 13 Su b-Section ), the dis cretion which is invested in a court is not nearly as broad as claimed by opponents of '11 38. lt's my submis sion that Paragraphs (

a) to (

j) restrict the dis cretion set out in the !Ction. Now many people have been stressing in

Section 13 (2), the words "ha ving regard to any rcumstances the court deems relevant" and it has been sugg ested that anything goes, but that 1ction ends including, and it lists Paragraphs (

a) to (j), and I di rect your attention to the residuary 229

Statutory Regulations and Orders Wednesday, July 12, 1978 circums tance set out in Paragraph (j). "Any other circumstance relating to the acquisition, dispositio preserva tion, maintenance, im provement, or use of any asset ." Now, it's my submis sion that th• residuary paragraph, Paragraph (j), on real principles of construction, limi ts the dis cretion veste in Su bsect ion (2), and the word 'including' is to be given a restrictive definition. In that regard, refer you to the Court of Appeal decision in the Reg ina vs. Loblaw Groceteria's case; and I ref1 you to the decision of Mr. Jus tice Schultz.

With respect, I do not think these cases justify the inclusic he draws as far as the use of the word 'includes' in

Section 3(22)(

b) is concerned. The word 'include is susce ptible of di fferent shades of mean ing, sometimes of enlargement, sometimes of restrictio In some instanc es it is used to express the idea that the thing in que stion constitutes a part on of some other thing, or as implying that something else has been given beyond the general langua� which precedes it. In other instances, it is used to express the idea that tha t which is enum erate or effected is the only thin g included, and to this use applies the maxim 'inclusio uniu s est exclus alterius,' meaning the inclusion of one thing is the excl usion of another.

And expressio unius e exclusio alterius, meaning the expression of one thing is the exclusion of another. And from RE vs.

Beru, quoting from the Dilworth case, "B ut the word 'include' is susceptible of anoth1 construc tion, which may become im perative if the context of the Act is sufficient to show tha t was not merely emplo yed for the purpose of adding to the natural significance of the words 1 expressions defined. lt may be equivalent to mean and include, and in that case it may afford � exhaustive explanation of the meaning which, for the pur poses of the Act, must invariably be attache to these words or expres sions." So, it's my submis sion to you, that the residuary and the restrictive word ing of (j), "any oth1 circums tance relating to," and so on, indicates a restrictive meaning to includes, and Paragrapl (

a) to (

j) restrict the exercise of dis cretion under 13 (2), and it isn't an unlimited dis cre tion. Condu th erefore is not, as I heard suggested, a part of (

a) to (

j) and it is not within the court's judici dis cretion to take into accou nt, and you saw from the cases I cited earlier under The Law of Proper Act, that even if the cou rt could look at conduct, it wouldn't, because it doesn't in The Law , Property Act applications, where you're seek ing to petition or divide property, just like here on tt breakdown of the marriage. You are seeking to divide the assets accumu lated dur ing the marriag The criticism of the courts and of the way in which the courts have exercised their dis cretion ju is entirely unr eas onable and totally unjustified.

Now, in light of all these factors, it's my subm ission to you tha t when and if Bill 38 is passe· the case will be rare where the presumption of equal division of family assets and commercial asse will be over turned .

There will be cases where it's necessary, for example 13 (2)(a), "the unr easonab im pover ishment by either spouse of the family asse ts." The husband borrows money in the busine 1 - well, okay, the husband borrows money on the security or in relation to a family asset ar squanders it gambling. lt may well be appropria te for the court to say that this is a case of cle• inequit y, if the re's an equal division. The wife should have more.

And look at the situation under Paragraph (g), where "either spouse has assets to which th Act does not apply by reason of their having been acquired by way of gift or inheritance, and tt value of th ose assets." So you have a couple, the husband runs the business and the wife, dur ir the course of the marriage, inhe rits a substantial amount of money. it's a one-man busine ss, ar considering that she has inherited a substantial amount of money, it may well be clearly inequitab to require that that she keep the $250,000 or the $1 million inheritance, and he be forced to di spo1 of the business so that his wife can receive half of the equity in the business.

There will be case but they will be rare, when the presu mption of equal division will be over turned, but it's n submission, tha t with a clear presumption as in contained in

Section 12 of Bill 38, that the outcon of litigation will be predictable. We will be able to advise our clients with considerable certain as to what their rights are, and what is likely to happen court, and with the situation where tt outcome of litigation is predictable, the likelihood of settlement has to be increased, and the amou of litigation has to be substantially decreased. That's my submission, and I would just like to say one thing in closing.

This period of 18 montl of deba te on the family legislation has been unique in my experience, and I know in the experienc of many members of the bar. lt has provided us with a rare opportunity to get involved in dis cussior about laws that affect a fair numb er of people, and certainly for my part, and I know that mar other lawyers have greatly enjoyed the opportunity to take

part in the debate and the dis cussior of this here before the Law Amendments Committee and just the ongoing discussions that ha' taken place. That's my submission. I'm sorry, Mr . Chairman, that I went on so long. MR. CHAIRMAN: Mr. Schulma n, will you permit que stions? Mr. Mercier. MR. MERCIER: Mr . Schulman, I thank you for your brief, as I thank all others who have appe 230

Statutory Regulations and Orders Wednesday, July 12, 1978 )efore the commit tee. I take it you would subscribe to the principle that the objective of the legislation should be that here should be equal sharing of all assets acquired du ring the marriage between spouses with the Jxception of lim ited rare cases? III R. SCHULMAN: Yes. III R. MERCIER: And that is your interpr etation of the legislation? III R. SCHU LMAN: Very definitely. III R. MERCIER: One other question.

In the last few days there has been raised by a number of >eople, and I di sagree with their interpreta tion, but would you give me your opinion as to whether >r not the provisions of The Marital Act, and particularly the definition of 'marital home' takes away my rights of a person under The Dower Act? III R. SCHULMAN: Not at all. The definition of homestead under The Dower Act is not changed tt all.

The rights under The Marital Property Act will be in addition to the rights that exist under ·he Dower Act, and there's no change - I must say I've heard it sugge sted on the radio by one nember of the comm ittee tha t the inference was there tha t the position was altered. But no, the tefinition of 'homestead' in The Dower Act is not being changed at all. What's happening here is, here are additional rights being created .. IIR. MERCIER: Thank you very much, Mr. Schulman. IIR. CHAIRMAN: Mr. Cherniack . IIR. CHERNIACK: Thank you, Mr . Chairman . Mr.

Schulman, you will agree that The Dower Act loes not give to the spouse that doesn't have any ownership in the land, doesn't give any ownership o that spouse. IIR. SCHULMAN: No, it's inter preted as being an inchoate right, the right to prevent sale or 1ortgag ing of the property and the right to live there for the rest of their life and the right to one-third ,f the estate. I think it's increased under the IIR. CHERNIACK: lt will be to one-half. IIR. SCHULMAN: Yes. IIR. CHERNIACK: But it does not pass title? IIR. SCHULMAN: Dower rights do not pass title. IR. CHERNIACK: All right. Now, Mr.

Schulman, you spoke of the rare opportunity that one has ) participate. I guess one has to thank the democratic process in Manitoba, which doesn't exist t other provinces, for people such as you to come and speak to a committee of legisla tors before 1ey pass the legisla tion, and I think that we can pay tribute to that tradition that has been established 1 this province. IR. SCHULMAN: We ll, I have certainly found it very re ward ing personally, to be able to express 1y views in this matter. IR.

CHERNIACK: I want to extend an invitation to make it even more rewa rding for you, because felt that you had given us an extremely learned and academic lecture. Academic in the sense that 1e law has not been passed, and you have not been called upon to exercise your legal knowledge, :;e your legal knowledge to interpret the law, but you still have an opportunity to indicate to us )W to clar ify the law to remove any semblance of doub t so tha t there need not even be the stification tha t you have given for dealing with a case of presu mption. R.

SCHULMAN: Okay, but it is more than academic because .I have been practicing for about �-% years and I have tried to give you the benefit of my experience, so it is more than academic. am trying to be practical in my

interpretation of Bill 38. 231

Statutory Regulations and Orders Wednesday, July 12, 1978 MR.CHERNIACK: You misun derstood my use of the word "academic," because I said that the la� has not yet been passed, so we are dealing with it in a theor etical vein and I invite you to hel l us impr ove the law so that we can make it more practical based on your experience and knowledge and tha t is what I meant in terms of "academic." So it is not a pejorative term at all, it was descriptive The refore I would like to deal with your brief. Firstly, the very first point you make is that the bill is shorter, as if to im ply that the shorte the better, and I will later deal with

Section 13 (2) and I will probably ask you then, as I do nov. if that

Section 13 were shorter, would that make it better. MR. SCHULMAN: Wel l, I have heard these suggestions tha t you have made as to ways that Sectio1 13(2) would be imp roved and my recollection of them is tha t by cutting out (

a) to (j), you wouli simply truly expand the area of jud icial dis cre tion. I think

Section 13 (2), (

a) to (j), di rects the court' attention to impo rtant points and those are the points that the court ought to zero in on in interpretin the Sec tion. MR. CHERNIACK: Good, then we will come back to 13 (2) as we go along. But I am ta lking abOL shorter and I am wondering whether you wouldn't recognize tha t one reason tha t this bill is shorte than the other is that the imm edia te vest ing has been removed completely and ther efore a numbe of sect ions become redundant. MR. SCHULMAN: Well, it is shorter because - yes, that

part is gone but one complic ated conce� which creates im practical problems has been elimina ted. Therefore it is shorter, simpler to unde rstan and simpler to apply. MR. CHERNIACK: But you talk about people who oppose Bill 38 and I think you will agree th� Bill 38 is dif ferent from the past legislation in several very meaningful ways and this is one of thetT the immed iate vest ing aspect. MR. SCHULMAN: My opinion is tha t Bill 38 is not very dif ferent at all from Bill 61. MR. CHERNIACK: Well, then what about imme diate ves ting? MR.

SCHULMAIN: Wel l, there is no provision for immedia te vest ing but there are two things. Fin of all, it seems to me that in view of The Dower Act provisions there is no real need for immedia t ves ting, and secondly; on that, it is true that Bill 61 seemed, well it makes provision for imm edia t ves ting, but that which is given is taken away in

Section 37( 1) , because did you realize that th dis cretion which Bill 61 vested in the court allowed the court to take away the instant ves ting. S 1 wonder whether practically speaking Bill 61 really had an effective or a meaningful kind of instar ves ting. You give it one day and some day down the road there is a dis cretion to take away. MR. CHERNIACK: That is very inter es ting, Mr . Schulman. You have just told us that similar wordin in Bill 38 will make it extremely unlikely for the court to disturb the principle of equal sharing an then you are saying that the imm edia te ves ting in last year's legislation can be taken away by court under

Section 37, which has similar word ing. Now let me go further, Mr. Schulman. You said The Dower Act provision is there. You have agree already that the The Dower Act is only a preventative, a veto power, in the main and doesn't corn into effect until death. MR. SCHULMAN: Well, it is in force while they are living together. The place can 't be sold or th place can 't be mortgaged. MR. CHERNIACK: Veto power is what I said. I don't know the difference. MR. SCHULMAN: Yes, okay. lt is an inchoate right. MR. CHERNIACK: All right. Now The Dower Act applies only to the home. MR. SCHULMAN: As defined. MR. CHEANIACK: As defined. lt does not cover the family car ... MR. SCHULMAN: No, no, no. 232

Statutory Regulations and Orders Wednesday, July 12, 1978 MR. CHERNIACK: . . it does not cover the furniture. lt does not cover the summer home,

whereas the legislation which is now on The Statute Book does, doesn't it? For imm edia te vest ing ... MR. SCHULMAN: You mean Bill 61? MR. CHERNIACK: Yes. The Act, the. VIR. SCH ULMAN: We ll, yes, there was, subject to the discretion being exercised at a later date o undo it, there was immedia te vest ing of the other family assets, yes. III R. CHERNIACK: You will agree that the wording of

Section 37 in the old Act is such as to make t extremely unlikely that that would be taken away. III R. SCHULMAN: Well, there would have to be the unconscionable, yes. III R. CHERNIACK: I mean as unlikely at least as in this present bill. III R. SCHULMAN: Okay, yes. III R. CHERNIACK: And more so, and we'll come to that too, Mr. Schulman. You speak about these xesumptions and I am not going to deba te that with you. When you dealt with the presumption m joint tenancy you quoted the statement that fault was not to be in volved or to be considered n I forget which of these decisions. III R.

SCHULMAN: Well it's the Law of Property Act cases. Yes. III R. CHERNIACK: Yes, that is right. I want you to state again, which I think you stated before, hat you do not consider any possiblility tha t fault would be considered at all under 13 (2). You did ;ay that. .. III R. SCHULMAN: In my opinion fault is not a relevant consideration under

Section 13 (2). III R. CHERNIACK: Do you rec ognize that a court may not agree with you in that and find that ault is. t'IR. SCHULMAN: Well, 1 think based on the case law the word "including" has a restrictive lefinition. IIR. CHERNIACK: And because "including" does not mean broaden ing, then you are saying that ·ou can't conceive of a court using the que stion of fault or conduct - I have extended the term o conduct - to be a factor in making a decision under 13 (2) to vary the presu mption of equal .haring. IIR. SCHULMAN: I don't expect a court to find fault. IIR.

CHERNIACK: You don't expect a court to find fault. That is the reason why I invited you to 1elp us im prove it. If it is clear that it is not intended that a court shou ld, can we imp rove the tording to make sure that a court will not even consider for a moment whether or not your xpectat ions will be realized or not? �R. SCHULMAN: Wel l, you know, arguments will be made on many matters, but I am saying based ·n the case law that I have read, the proper construction of includ ing is a restrictive one and fault ; not relevant, just like it isn't under The Law of Property Act. IR. CHERNIACK: All right.

On the presu mption, would you remind me of the rule of Russell and :ussell. Was there a presumption in Statute Law as to the legitima cy of a child or was it a presumption 1at was built up over the years, that a child should not be bastardized? Isn't that the Russell ase? IR. SCHULMAN: Well a presumption was in relation to the bastardization of a child, yes. IR. CHERNIACK: Yes, which was common law, I believe. I don't think it was Statute Law. 233

Statutory Regulations and Orders Wednesday, July 12, 1978 MR. SCHULMAN: I think it was common law and The Evidence Act was amended afterwards tc try and get around Russell and Russel l, and despite the amendment the courts rigorously have appliec the pres ump tion. MR. CHERNIACK: I was looking for that sect ion and now I think it must be in The Canada EvidencE Act, because I didn't find it in our own Evidence Act. MR. SCHULMANl: Well, which

section are you looking for? MR. CHERNIACK: The Russell and Russell rule. lt is not important, but you said The EvidencE Act tried to get around the rule of Russell and Russell, and I didn't find it in the Manitob� Act. mr. SCHULMAN: Oh, I think it is there. MR. CHERNIACK: You think it is in the Manitoba Act. So you are saying that in spite of the fac The Evidence Act tried to get around it, it didn't succeed? Because the presu mption was se overpow ering . MR. SCHULMAN: That was the court's

interpretation, yes. MR. CHERNIACK: Yes. Which seems to imply that the court has imp osed its own standards or the ques t ion of Russell and Russell. MR. SCHULMAN: No, no. MR. CHERNIACK: Let me just finish the thought. Which may be a reflection of the moral standard1 accepted by the court to determine that it would be wrong, unfair - much stronger words thar tha t - for a parent to declare tha t his or her child is not legitima te. MR. SCHULMAN: I don't think that is what the court was doing. MR. CHERNIACK: Wel l, would you clarify? MR.

SCHULMAN: The court just said tha t the amendment was not clear enough to acc omplis! what it was said was trying to be accom plished. MR. CHERNIACK: But I am trying to establish with you that the rule itself came about in commor law by a court applying a standard on the que stion of legitima cy. lt wasn't

an act of any Legislatur e of any jurisdiction, that said that. lt was maybe the Bible or at least the common law. MR. SCHULMAN: Yes. MR. CHERNIACK: And tha t is where I am suggesting that we do have jud icial standards that mad1 a rule and then became very rigid about it. And when you say there was a change in The Evidenc1 Act, which I remember but I haven 't located it, the court said it wasn't clear eno ugh, that that': not clear that tha t is really what was intended. MR. SCHULMAN: I agree. I don't think it was clear enough either. MR. CHERNIACK: I see. All right.

You mentioned in 4, the Si lverstein case, the Rathwell case, you do not refer to - is it th' Fedon case? MR. SCHULMAN: Well, I know of the case. MR. CHERNI ACK: But that was the most recent case of our own Court of Appeal. MR. SCHULMAN: But tha t was under the law prior to the enactment of Bill 38. I was trying t' interpr et for you Bill 38. MR. CHERNIACK: So the Si lverstein case does not have a presumption of equal sharing. 234

Statutory Regulations and Orders Wednesday, July 12, 1978 MR. SCHULMAN: lt cer tainly does in the case of family assets. MR. CHERNIACK: I know, but they were dealing with commercial, weren't they? The court Nas? VIR. SCHU LMAN: No, the court was at that point dealing with family assets. VIR. CHERNIACK: All right, it is not that important as to whether you and I are right. I think it Nas dealing with commercial, but. . . VIR. SCHULMAN: No, tha t judgm ent had two different aspects and the

interpretation that I referred 1ou to was with respect to family assets. VIR. CHERNIACK: Now, your point 5. Subs ections (1) and (2) of

Section 13 set up dif ferent ·equirements, but you assure us that this will not prevent a court from making an equal division. (ou are answering Miss Steinbart, are you? I mean I never had any doubt that the court had a ight to make an equal division. I am concerned as to whether or not the court was being invited o make a di fference as between its standards under (1) and (2). But you are just saying what is ight in the legislation, the court shall find equal division unless it is satisfied to the contrary. �R. SCHULMAN: Yes. �R. CHERNIACK: Yes. So that is self-evi dent really. �R.

SCHULMAN: lt wasn't self-e vident to earlier speakers. ,R. CHERNIACK: Yes, but it is to you and it is to me. But you then did point out

Section 37 •f the former legislation or the existing legislation and 13 here, and you said that there was a listinction there between family and commercial assets. I agree. I think that under family assets here was no discretion. ,R. SCHULMAN: Certainly there was under 37( 1) . ,R. CHERNIACK: Except in the se very extraordinary cases. Under 37(2) you said tha t there is 10t much difference, I think you said. But 37(2), which deals with commercial only - doesn't it - only deals with assets ac quir ed before May 6th. lt does not deal with what comes on. lt is elf-apparent on the face of it, isn't it? �R.

SCHULMAN: Well my point was tha t it sets up an additional standard in dealing with ommercial assets. You are right, commercial assets acquired before May 6th, 19 77. IR. CHERNIACK: You recog nize what tha t date represents? IR. SCHULMAN: Oh yes. IR. CHERNIACK: And it represents what people may have done not in contemplation of this �gislation, and I tell you, although I think it is self-e vident, self-apparent, that it was brought in ' counter the arguments in favour of unilateral opting-out. Otherwise, if there was unilateral pting-out, there would have been no need for 37(2).

I mean isn't that the only reason why the 1gislation would have involved itself with dealing with a subsection that affected nothing after an cquistion ... IR. SCHULMAN: Wel l, actually there had been some debate a year ago on whether it should be lay 6th or whether it should go back a numb er of years, and there's been considerable dis cussion n that. R. CHERNIACK: Right. And the argument against retroactivity was the same arg um ent in favour unilateral opting out. R. SCHULMAN: I don't remember there being a connection. R. CHERNIACK: All right. You will agree that 37(2) is lim ited 235

MR. SCHULMAN: Oh, yes. Statutory Regulations and Orders Wednesday, July 12, 1978 MR. CHERNIACK: ... to assets acquired before a certain date. MR. SCHULMANI: Commercial assets -acq uired before May 6th , yes. - MR. CHERNIACK: So that the imba lance sugge sted there had to relate to a factor prior to Ma 6th and could not relate to the future. MR. SCHULMANI: No, it concerned assets acquired before, the factors might have taken place a any time. MR.

CHERNIACK: By reason of the extraordinary im balance and the relative contributions of th, spouses to the marriage, you would say then that that would continue but relate only - but w agree - relate only to assets acquired before it was contemp lated that this legislation would b passed. MR. SCHULMAN: Yes. MR. CHERNIACIK: Yes. Now you gave us, Mr. Justice Schult z's opinion and your opinion and th fact tha t "including" means "limi ted to". Would you distinguish pl ease the dif ference in effec between this

Section 13 (2) which says, "All taken into considerat ion," - I'm trying to remembe it before, I hav en't found it yet - "All the factors that the court thinks should be considered includin the following." You're saying that lim its it "to the following," that's your inter preta tion. MR. SCHULMAN: Yes. MR. CHERNIACK: How does that differ from the sect ion we used in our legislation which saic "Shall take into account the other factors and no others." That's in, I believe, The Maintenanc Act. MR. SCHULMAN: The Family Maint enance Act? MR. CHERNIACK: Yes. I belie ve it's in The Maintenance Act rather than the ... Wel l, the existin Maintenance Act.

Section 5(1) . "In deter mining what is reason able a judge shall consider the followin factors and no others." What would you say is the difference in

interpretation between using th� wording, "the following and no others," and the wording which you support as saying, "having regar to any circu mstances includ ing." What is the dif ference in ... ? MR. SCHULMAN: Well, I think they mean the same thing. Let me point out the

section does ne say, as we very often see, "including, without rest ricting the generality of the ." fore going," whic shows an expanse intention. MR. CHERNIACK: Now you say they really mean the same thing. MR. SCHULMAN: Yes. MR. CHERNIACK: And I assume you accept the fact that it is desirable that they should mea the same thing. MR. SCHULMAN: Yes. MR. CHERNIACK: Well then , would it satisfy my concern and not in any way adversely influenc your concern if we said, "Shall consider the following and no other circumstances," in th 13 (2). MR.

SCHULMAN: Well, I'm satisfied that my clients' rights are protected as it reads now, if th1 will satisfy you, well that will be your point. MR. CHERNIACK: But since you're not here on behalf of any client, I assume, other than tt int erests of justice . . . 236

MR. SCHULMAN: Yes. Statutory Regulations and Orders Wednesday, July 12, 1978 MR. CHERNIACK: ... then you've heard, there have been many presentations here in the last lew days where there is gr ave concern about the interpr etation of this Section. You are reassu ring, �ould you not be more reas suring by agreeing that since it's the same effect that it would satisfy :he concerns of many if it said, "Ha ving regard to the following circumstances, or any of the following ;ircums tances and no others." VIR. SCHULMAN: Well, I think the point is made already. VIR.

CHERNIACK: But you do agree that my wording will not change the intent, as you read if, )f 13 (2). VIR. SCHULMAN: I don't think your word ing would change it. VIR. CHERNIACK: All right. And you also argue that conduct, you don't see how conduct could )e a factor. VIR. SCHULMAN: No. VIR. CHERNIACK: Would it be helpful to those who have concerns to say that in consideration, n considering the factors of 13 (2), "conduct of the parties shall not be considered ." VIR. SCHULMAN: I don't see any need to put that in. I mean, it's simply not a part of the )ection. VIR.

CHERNIACK: No, but if that is the case and if that is the way it should be, do you see any lamage to your point of view if we say, we lay feeople who are not such learned lawyers as you tre. IIR. SCHULMAN: Well, you're a very well respected member of the Bar so ... IIR. CHERNIACK: Wel l, I say we lay people, we're in this capacity here as legislators, if we say hat we insist that it ought to say that, to make it absolutely clear beyond any shado w of a doubt, vould that damage the

section as you see it? IIR. SCHULMAN: I think that would be less relevant than the other one, or less necessary than he other one that you suggested. I don't even think there's any room for ... IIR. CHERNIACK: Then the other is more necessary than this. We're playing with words, aren't te, Mr. Schulman. IIR. SCHULMAN: slevant. . . I don't think there is any room for doubts on the subject of fault being IR.

CHERNIACK: So that you would insist that your point of view should influence the wording 1 this legislation and that th erefore anyone who has any point counter to yours, but agrees with ou as to intent, should not be recog nized in the legislation, as being irrelevant. IR. SCHULMAN: I'm sorry, I didn't understand what you said. IR. CHERNIACK: All right, I will repeat it. I will say that since you and other people appear to ant this

section to mean the same thing, and the other people don't quite see the inter pretation s you see it, but want the same thing, and they would like to see in it that no other factor should e considered and that conduct, for sure, should not be considered, would you deny them the pportunity to say so in the legislation just to doubly and triply ensure the fact tha t their concern met? R. SCHULMAN: I don't think they've been denied an opportunity to say anything. They've had Jite a full opportunity. R. CHERNIACK: We ll, Mr. Schulman, now we are playing with each other because I told you irlier that we here, around this table, have an opportunity to actually change the word ing. 237

MR. SCHULMAN: Yes. Statutory Regulations and Orders Wednesday, July 12, 1978 MR. CHERNIACK: Wel l, then we are the ones MR. SCHULMAN: I don't think that provision is necessary at all. MR. CHERNIACK: Would you please answer me precisely. Do you see any harm to the point c view if it does say that? Would it damage in any way the intent as you expressed it to sa that? MR. SCHULMAN: Wel l, the rules of construction in effect teach us that you don't th row in word tha t really don't add anything to the Section. MR. CHERNIACK: Can you explain the extent to which it will hurt the intent? MR.

SCHULMAN: Wel l, look, I'v e told you I feel it's not necessary and I really don't see tha t there' anything to be added to that. MR. CHERNIACK: All right. Now, Mr. Schulman, I want to ask you about 13 (2)(g). Now we're ne talking law. I think you've been talking law up to now. But now you got involved in a policy que stior Do you believe that in the principle, the presu mption of equality in division of assets acquired durin a marriage based on - I assume you accept the concept tha t both spouses to a marriage contribut equally to the marriage are entitled to equal distribution. MR. SCHULMAN: Yes. MR.

CHERNIACK: That whether or not one of the spouses inherited any vast sums of money shoul have any effect on tha t spouse's right to share equally in the assets acquired and earned and brougl together du ring the marriage. Now that's not a legal que stion I'm asking you. MR. SCHULMAN: Okay, well what's the question? MR. CHERNI ACK: My que stion is: Do you justify the thought in (

g) tha t an inheritance should nega1 the right of one of the spouses to share equally in the assets acquired dur ing the marriage presu mab because the y each contributed equally to the acquisition of that asset? MR. SCHULMAN: Given a one-man busine ss, an incorp orated business, one man, I think that might be a clearly inequitable case for a wife who has inherited a lot of money to receive, in a early payment, one-half of the equity in the busine ss. I think (

g) is a very proper inclusion. MR. CHERNI ACK: Mr. Schulman, I don't know in this room whether it's very popular to hear ye say "one-man" business, but I think people unde rstan d. I think people understand you to indi ca a one-person business and th erefore are you not negating the presu mption tha t they are each entitle to share equally in commercial assets, and suddenly you're saying a one-person busi ness whe inde ed it is in the concept of the entire legislation a family-owned business. MR. SCHULMAN: I think it might be clearly inequitable to just ignore the inheritance and mal an equal division in that case. MR. CHERNIACK: If you thought otherwise, then you would not include (

g) would you? If you thoug that an inheritance should have no effect on the equal distribution of these assets, you would n include (

g) would you? MR. SCHULMAN: If I thought there was something in the

Section I either wouldn't be here or would be making a dif ferent submission. MR. CHERNIACK: Wel l, let me reword my question. The only reason that you see for (

g) is create tha t possibility tha t an inheritance, inhe rited from someone outside of the marriage cour: altogether, should have an effect on the presu mption of equal distribution. MR. SCHULMAN: And prevent a clear inequ ity, yes. 238

Statutory Regulations and Orders Wednesday, July 12, 1978 MR. CHERNIACK: Thanks, Mr. Chairman . MR. CHAIRMAN: Mr. Pawley. '-IIR. PAWLEY: Mr. Schulman, first I would like to go back to your answer to Mr. Mercier, and i belie ve that the comm ittee member that you made reference to was probably myself on the radio, 3.nd I want to indic ate to you, if you were referring to my comments on the radio you must have 11isunder stood those comments. I would like to pursue a line of questioning relating to my concern n respect to The Marital Property Act.

Traditionally, The Dower Act provision has been for the homestead to be 320 acres, �orrect? '-IIR. SCHULMAN: believe so. '-IIR. PAWLEY: And that Dower provision, the homestead, does not give any right of ownersh ip to a spouse? '-IIR. SCHULMAN: it's an inc hoate right. MR. PAWLEY: Now insofar as The Planning Act of Manitoba is concerned, are you familiar with the terms of The Planning Act of Manitoba? '-IIR. SCHULMAN: I know parts of it but I'm not familiar with all of it. '-IIR. PAWLEY: Are you aware, Mr.

Schulma n , tha t anywhere outside of the City of Winnipeg, in :>rder for a split of title to take place, a transfer of property, in a sum total of less than 80 acres, that approval is required of the Planning Authority? '-IIR. SCHULMAN: Well, I know there are provisions for obtai ning approval, yes. '-IIR. PAWLEY: So tha t must come from either the mu nici pality and from the provincial planning :>ffice of the Department of Mu nicipal Affairs. Are you aware of that? '-IIR. SCHULMAN: Wel l, I don't remember the exact provisions, no. '-I!R.

PAWLEY: Now, would you be prepared to concur if I indicate to you that is ... '-IIR. SCHULMAN: Well, I agree there is an authority tha t you have to get an approval from. '-I!R. PAWLEY: Now if I could refer you then to the legislation before us. The definition of marital Jroperty, 1( e), is property - and I'm abbrevia ting this for you - property that may reason ably Je regarded as necessary to the use and enjoyment of the residents.

In other words, as I unde rstand :he new definition that has been dis covered for marital property, now, as com pared to last year, hat the marital property in a farmstead situation is no longer 320 acres, as it was in last year's \llarital Property Act, but is now the house plus an acre or two surrounding tha t house. Would that Je a reason able assumption on my part? '-IIR. SCHULMAN: The definition is changed, yes. VIR. PAWLEY: Yes, so that there is much less acreage, an acre or two or thr ee, just what can Je consider ed as necessary to use and enjoyment of the property.

I would interpret that to include he lawn and the garden only imm ediately surrounding the ... VIR. SCHULMAN: Well, on the other hand, given a proper case, it might be a lot more. I don't mow if it will be 320 acres but it migh t be. VIR. PAWLEY: But not 320 acres. VIR. SCHULMAN: it might be. VIR. PAWLEY: Well then, are you suggesting then tha t we are not simply dealing with an acre >r two around the house? 239

Statutory Regulations and Orders Wednesday, July 12, 1978 MR. SCHULMAN: Not necessar ily. MR. PAWLEY: Are you interpreting this to be much wider and broader, that it could include u to 320 acres, up to a qu arter

section of land? I'm asking you that because 1 belie ve that's not th government's intention to have such a broad

interpretation of marital property here. MR. SCHULMAN: What is reaso nably necessary will depend on the indi vidual confronted with th situation. MR. PAWLEY: Well, so tha t you're saying it depends upon the judge's dis cretion in each individw case? MR. SCHULMAIN: No, no, it depends on the facts of the case.$ MR. PAWLEY: Well now, Mr . Schulman, you would agree with me that an

interpretation of min that this would include only the house and an acre or two surrounding the house would not b an unr easonable interpr eta tion. You might argue against that inter pretation but it would not be a unr easonable

interpretation for me to have placed on this definition . Is that right? MR. SCHULMAN: Okay, yes. MR. PAWLEY: Now, Mr. Schulman, we heard last night a farm wife advise us that in her indiv iduc case the farm home was placed right in the centre of the qu arter secti on. We also have, as I indicate earlier, the problem of having to obtain approval to split out title. Now, Mr. Sc hulman, would yo be prepared to agree with me tha t the value of a farm house which by location or by prohibitio of law cannot be trans ferred would be worth very very little? MR. SCHULMAN: I really can 't comment on values at all. MR.

PAWLEY: Well, you would be prepared to agree with me that the value of such would b only a small fraction of what 320 acres would be. MR. SCHULMAN: Well, there are many factors that go into value and I don't think that just fror the factors there . . MR. PAWLEY: But, Mr. Schulman, I'm only asking you to apply some common sense knowledg of what the situation would be and sur ely you would agree with me that what is happening her in relating to a house and an acre or two around that house, a farmstead, would be reducing th value very very substantially from 320 acres includin g the house. MR.

SCHULMAN: I'm sorry, Mr. Pawley ' in each case where I am confronted with values, I wi consult an appr aiser or someone with some expertise in the field. I simply can't comment 01 that. MR. PAWLEY: Well, Mr. Schulman, you'd agree that it is commonly understood that farm acreag, is worth money, would you not? MR. SCHULMAN: Land is worth money, yes. MR. PAWLEY: Yes, and th erefore there's been a reduction in value ... MR. SCHULMAN: We ll, that may be ... MR. PAWLEY: ... by reducing the family asset to only the house and immed iate propert surrounding that house. MR.

SCHULMAN: If that's your experience, that's fine, but I really can 't comment on that. MR. PAWLEY: Mr. Schulman, would it not be much more reason able to provide for the marit� home to represent 320 acres, the same area that is defined in The Dower Act and has been th traditional definition of homestead, rather than for us to be getting into all this uncertainty as t1 how much is included and whether property can be sold or not sold, or that some might be sol1 much easier than other because of location . Would it not be much easier to define the amoun of acreage that we mean by the term marital home? 240

Statutory Regulations and Orders Wednesday, July 12, 1978 III R. SCHULMAN: I don't think that's necessary especially since we're creating new rights in addition to The Dower Act. III R. PAWLEY: Well then who is going to define exactly what we mean by this marital home. You ieel- this is quite clear and easily interpreted, the definition of marital home -iR the- legislation before JS. lt req uir es no change, is that what you're saying, Mr. Schulman? III R. SCHULMAN: Yes, that's right. III R. PAWLEY: And you don't see any injustice or inequity in this situation at all? III R.

SCHULMAN: I think the bill is qui te fair. III R. PAWLEY: But you acknowledged to me that you're not familiar with The Planning Act and rou 'r e not familiar with the value of farm lands and farm homes and their rela tionship one to the Jther. III R. SCHULMAN: That's right, I'm not. III R. PAWLEY: So how can you then say that this is qu ite proper, this definition without being aware Jf that basic background? III R. SCHULMAN: I act for people who live in the city and I act for people who live outside of he city and I'm satisfied that their rights are well protected. III R.

PAWLEY: But you've never had to deal with this definition, Mr. Schulman , in the past. We 1aven 't passed this legislation yet. So how can you be so sure when you're not familiar with the erms of The Planning Act and you're not familiar with farm values, that there wouldn't be some nherent problems in this clause. III R. SCHULMAN: I don't see an inherent problem but given a spouse and the facts concerning he needs in relation to the house and given access to an appraiser, I'll have no problem interpreting his sec tion. III R.

PAWLEY: And even if the law said that the farmstead could not be sold, you see no >roblem. III R. SCHULMAN: No problem. III R. CHAIRMAN: Mr . Pawley, cou ld I ask you if you could ask questions to the person who has 1ppeared as a delegate rather than trying to debate with him? Or cross-exam ine the person? III R. PAWLEY: Wel l, Mr . Chairman , I wasn't aware that I was debating with Mr. Schulman. III R. CHAIRMAN: lt appears to me that you're trying to deba te the

definitions with him. w'IR. PAWLEY: I don't feel Mr. Schulman requi res any suppor t from you, Mr. Chairman. He's doing •ery well. IIR. CHAIRMAN: I don't think he needs any support. I'm thinking of time more than anything. He 1as given you answers to questions and you keep thr owing the same type of que stion back at him loping he'll change his answer. IIR. PAWLEY: Well, Mr . Schulman, we may return to that because I think that the area is even nore uncl ear. I would like to deal with the Si lverstein case.

You make reference to the Silv erstein case and 1ou ld you agree that in the Si lverste in case the presumption of gi ft was in fact over-r idden, the ery presumption of gift that you made reference to was over-ridden in the Silverstein case. �R. SCHULMAN: If you can di rect me to tha t particular part of the judgment. �R. PAWLEY: I would di rect you to Page 37. I don't know whether you have the same report 241

Statutory Regulations and Orders Wednesday, July 12, 1978 of the judgment as I have. Possibly then I could deal with the wording of the judgment. The wordin of gift, by the way, in the Ontario legislation is somewhat similar to ours under R(

g) and the cou1 in the Silv erstein case stated: "lt seems to me that the Legislatur e in using the word gift obvious! intended that it was a gift from someone other than the other spouse. If gift in that

Section is t be considered as including a gift from the other spouse, then the Legislature would have perpetrate the artificial exercise of atte mpting many years later to det ermine the intention of a happily marrie couple who were not contemplating a subsequent marriage breakdown when they bought their tamil home. I'm convinced that the Legislature intended to end that artificial exercise, not perpetrate i Accordingly, it is my interpr etation of that clause that the word "gift" means a gift from someon other than the other spouse." MR.

SCHULMAIN: I agree the judge said that but I thought he said "perpetuate" rather tha "perpetra te." MR. PAWLEY: Well, Mr. Schulman, would you, taking this wording of R(g), would you be of th view tha t in the proposed legislation before us, that gift would not include a gift from the husban to the wife, as the judge found same to be the case in the Silv erstein case? MR. SCHULMAN: From someone other than the spouse, yes, I think so. MR. PAWLEY: So would you sugge st that we ought to amend (

g) if in tact we wish to make clear that gift could include a gift from a spouse? MR. SCHULMAN: I really don't think an amendment of that kind is necessary. That's how I rea it. MR. PAWLEY: You don't feel that it should include a gift then from a spouse. MR. SCHULMAN: I beg your pardon? MR. PAWLEY: You don't feel from a policy point of view that it should include a gift from spouse. MR. SCHULMANI: Oh, I'm sorry. All I was saying is tha t I int erpret (

g) to be someone other tha a spouse. MR. PAWLEY: Mr. Schulman, if you are correct in your statement that you see no reason wh a wife cannot, in nearly every case under this legislation receive one-half of the family assets, one-ha of the commerical assets - you indicated that you felt it would be very predictable the outcomE that exceptions would be rare - then could you advise me why we could not in tact use the sam word ing in 13 (1) that is used tor family assets as we do in 13 (2) tor commercial assets? Why d we have to utilize ten dif ferent factors in 13 (2)? MR.

SCHULMAN: From the very nature of some commercial assets, I think it becomes desirabl to have separate provisions. What I have in mind is the inherent problems in valuing some kind of commercial assets. MR. PAWLEY: I understand these factors though to go to the determ ination, not so much c ev aluating, but assisting the court in ascert aining whether an equal division would h inequitable. MR. SCHULMAN: Yes. MR. PAWLEY: So why could we not content ourselves with the word ing in

Section 13 (1) and there are some factors tha t should be utili zed in assisting us in eval uating the assets, simply relat those factors in a separate

section dealing with evaluation rather than including them in 13 (2) whe we list factors that are supposed to assist us in determining whether to vary the equ� sharing? MR. SCHULMAN: 1 suppose the reverse might be done and (1) might be blended with (2) by th same reason ing. Again, Bill 61 made a distinction between commercial assets acquired before Ma 6th, 19 77 and family assets acq uir ed before May 6th, 19 77. 242

Statutory Regulations and Orders Wednesday, July 12, 1978 R. PAWLEY: But the dis cretion was very very limi ted in those instances, you must ;knowledge. R. SCHULMAN: I must say I don't think it went far enough. R. PAWLEY: Mr. Schulman, did you say it should be more limi ted? R. SCHULMAN: No, tha t's not what I said. I think that

Section 37 leaves room for injustice being ·eated and that there is room for increasing the judi cial discretion. R. PAWLEY: Mr . Schulman, if I could return us to the farm situation again, the farmer and his ife in dealing with 13 (2) and the farmer has the farm machi nery in his name. The farm lands have 3en handed down from generation to generation; the livestock is in the husba nd's name. Do you el it would be unr easonable for the court to examine the assets acc or ding to factor (h), the nature the assets, and make a determination which would vary the equal division? R.

SCHULMAN: I'm sorry, the nature of the assets is one of the factors but I don't under stand >ur point in relation to the farm situation. R. PAWLEY: Well, how do you define "nature of the asse ts"? What does "nature of the assets" ean to you? How would it be used in your view, the word ing, "the nature of the asse ts"? R SCHULMAN: Wel l, the farm situation tha t you outlined, to me would be one kind of natur e ' assets. R. PAWLEY: Yes. Well, would that concern you then, Mr.

Schulman, if ... and I would want 1 point out to you that if we could again return to the Si lverste in case and the Ontario legislation, 1at the wording tha t is used in 13 (2) is practically the same in the Ontario legislation as it is here <cept that here we have added (a), (b), (h), and (i), and I think the important factor that has been jded here tha t is not in existence in Ontario, in the Siverstein determ inatio n, accord ing to their atute, is this very item, the nature of the assets.

So you would agree then that the court could Jry well examine the fact that the farm had been handed down from generation to generation, ·andfather to son and then on to the grandson, as a factor that could weigh in the determination ; to equal division? IR. SCHULMAN: Actually, I thought you were speaking of the farm asset in terms of the physical .rm and the contribution that farm wives make to the operation of the farm. R PAWLEY: I'm ref erring to clause (h), the nature of the asset, that they could examine the ;sets. R. SCHULMAN: Yes, okay, that's right. The nature of the asset, yes. R.

PAWLEY: Whether it was, say farm machi nery or farm lands handed down generation to 3neration and determ ine tha t by the very nature of the assets, that they could examine the assets, hether it was say, farm machin ery, or farmlands handed down generation to generation, and 3termine that by the very nature of the assets tha t they were of a nature that would warrant a vision other than equal. R. SCHULMAN: My problem in dealing with your que stion is tha t your example, wouldn't that volve some assets . . .

I get the im pression the assets would have been acquired before the arriage, and we're not dealing with ... The facts of your case do not fit the ... R. PAWLEY: Wel l, not necessarily the farm machine ry. If I could take the farm machi nery, they Juld have very well been purchased dur ing the course of the marriage, or the livestock, and even e property could have been sold from the father to the son at a very cheap price, certainly not heritance, but it's not unusual in farm situations for farmlands to be sold at less than market value 1 father to his son. R. SCHULMAN: Okay. So what's your que stion now? R.

PAWLEY: My que stion to you is, do you see the nature of the assets, tha t factor being util ized r legal counsel in determ ining whether assets of tha t nature should be divided equally or a variation 243

of same? Statutory Regulations and Orders Wednesday, July 12, 1978 MR. SCHULMAN: We ll, I agree that's a factor to be taken into account by the court, but that ver factor might well lead the court to conclude that there ought to be an equal division as oppose to rebutting the presu mption. But it's a factor which is there and it's something properly to 1:: considered. MR. PAWLEY: Well, have you any idea why this particular factor would be added when it's ne in the Ontario legislation? I don't know where, the Attorney-General will have to enlighten us, wher each came from.

But it's not in the Ontario case and it certainly wasn't a factor that was considere in the Si lverstein case insofar as the division of the family assets there. Have you any idea wt the nature of the assets should be added to our legislation in Manitoba? MR. SCHULMAN: Well, I think the example that you have given shows perhaps why it's a fact< properly to be taken into account.

But where exactly, you know, I cer tainly can't account for i having not drawn the Act how can one say where it came from. lt would be nice to think that t� Legislature of Manitoba is going to' and I bel ieve that it's in the process of enacting legislatic which is better than the legislation which is in Ontario. Perhaps the Ontario Legislature will ne; year amend their Act to draw upon Bill 38, I don't know. MR. PAWLEY: Mr.

Schulman , I don't want to be unfair with what you've told me, but you seer to be confirming what really are my fears, that that particular factor will be used by a court i determ ining equal division, insofar as farm assets are concerned because of their very nature. MR. SCHULMAN: Well, it will be looked to, and it may very well provide the reason why the cou won't reverse the presu mption, but it's relevan t, certainly. MR. PAWLEY: So if we deleted (h), the nature of assets would not be there for the court to consid1 and thus it would be less likely that the presu mption would be overri dden.

Would that t: correct? MR. SCHULMAN: Well, where I di sagree with you, with respect, is that I think that the nature c the assets is a factor which will have a reverse effect, the reverse of what you are sugges ting. think the nature of the assets may well lead the court to say, no, this is not a case of clear inequit: there should be an equal division. So, you see it as ... MR. PAWLEY: Mr. Schulman, we're starting out from an equal presu mption. These factors ar utili zed in order to override that presumption, are they not? MR. SCHULMAN: To override or decide not to override. MR. PAWLEY: Mr.

Sch ulman, I won't pursue that further because you have your opinion and have mine, and I can only see it very clearly as a factor to be utilized, to assist the court in decidin whether or not the equal sharing presu mption should be ove rriden or not. MR. SCHULMAN: Well, okay, I don't agree with you, I'm sorry. MR. CHAIRMAN: Mr. Parasiuk. MR. PARASIUK: Mr.

Schulman, you raised some points re gar ding The Dower Act, and I don't ha' Hansard, I don't have your statements here in front of me, but I think you said that the matt1 of im media te sharing is dealt with in part, or at least the spouse's share is protected in The Dow1 Act, and you've made reference to The Dower Act. MR. SCHULMAN: Yes. MR. PARASIUK: Is that correct? Is my understan ding correct? MR. SCHULMAN: Spouses have rights at present under The Dower Act. Yes. MR.

PARASIUK: So you are indicating that since there isn't imme diate sharing in Bill 38, that tha t no great problem, because The Dower Act does provide spouses with rights. 244

Statutory Regulations and Orders Wednesday, July 12, 1978 III R. SCHULMAN: Yes, that's correct, yes. 111 R. PARASIUK: Okay, thank you. Now, would you agree with these statements, " that The Dower \et is a poor substitute tor The Marital Property Act because it doesn't apply to all the assets that "he Marital Property Act does, and because there are easy ways to get out of it." Also, there's mother statement, "There are many loopholes under The Dower Act which are not present in The Jlarital Property Ac t." Do you agree with th ose statements? IIR.

SCHULMAN: Well, you read them rather quickly, but I don't think ... No, I don't agree with he impr ession that I got from you read ing ... III R. PARASIUK: Wel l, I'll read them more slowly then. "I submi t tha t The Dower Act is a poor ;ubstitute tor The Marital Property Act, because it doesn't apply to all the assets that The Marital >roperty Act does, and because there are easy ways to get out of it." That's one quo te. III R. SCHULMAN: The easy ways to get out of what? III R. PARASIUK: The Dower Act. III R. SCHULMAN: How do. . . III R.

PARASIUK: Well, can I read the other quote and then I'll come back to that? III R. SCHULMAN: Okay. III R. PARASIUK: Secondly, "There are many loopholes under The Dower Act which are not present n The Marital Property Ac t," and then first of all under

Section 16 (1) , in the case of a marriage nade before 19 64, if the spouse leaves a lifetime income of $6,000 a year to his other spouse, 1e does not have to leave 50 percent of his estate. III R. SCHULMAN: I think that $6,000 is being increased to $1 5,000 under the new bill. III R. PARASIUK: Okay. Still it's $6,000 to $1 5,000.

The reason why I read you those quotes, Mr. khulman, is tha 5 they are made by Mark Schulman, your brother, who made those same statements o this Commit tee, Statutory Regulations and Orders, on Wednesday, Jun e 4th of 19 77, and when 1e made those statements, he said he was making them on behalf of you and hi mself. Now I mderstand that today you have come before us, and I'm no lawyer, but you have come before JS and you have said you are making statements on behalf of Mark Schulman and yourself. III R. SCHULMAN: Yes. III R. PARASIUK: Maybe I misunder stood you.

Could you explain this contradiction in statements hat you have made a year ago, with statements and assurances that you are giving us today? There ;eems to be a complete 18 0 deg ree reversal . III R. SCHULMAN: Well, I don't think so. Mark was speaking about a proposed bill which provided or 50-50 division with no judicial dis cretion at all. That form of the bill was substantially changed >ecause of the hard work of the Law Amendments Comm ittee and many people, and I'm speaking oday about a dif ferent piece of legisla tion. Now if you show me a contradiction, I'll try to fix hat. IIR.

PARASIUK: Wel l, it's somewhat contradictory when you assure the members of this Commi ttee hat imm edia te sharing is not really a problem, although it's omitted in Bill 38. it's not really a problem >ecause in fact, spouses are protected under The Dower Act. That's what I asked you before and ou said tha t understanding is correct.

I then take a look at this statement made by your brother m behalf of yourself, and it says that The Dower Act is a poor substitute for The Marital Property \et because it doesn't apply to all the assets that The Marital Property Act does and because there 1re easy ways to get out of The Dower Act, and there are examples of how one can get out of "he Dower Act. So, a year ago you said that The Dower Act doesn't provide that type of protec tion; oday, you say that The Dower Act does provide protection and does allay the concerns tha t people 1ave, that imm ediate sharing has been om itted from Bill 38. IIR.

SCHULMAN: Wel l, 1 said earlier tha t it's not necessary in relation to real property and I have 245

Statutory Regulations and Orders Wednesday, July 12, 1978 acknowledged that there's no instant ves ting in connection with personal property family asse1 So to that extent it goes, you know, there's nothing cov ering that aspect in The Dower Act, certain! The Dower Act just concerns the realty. MR. PARASIUK: In your estimation, that since The Dower Act is inadequa te, and since it's a po substitute for The Marital Property Act, do you think that there should be immedia te sharing family assets in Bill 38? MR. SCHULMAN: Oh, you hav en't referred me to any examples to show that it's a po substitute. MR.

PARASIUK: Well, I am quoting the exact words verbatim of your brother, who has present1 this on behalf of yourself. I'm not in a position to document his particular argument I quoted you. Presumably you and he jointly prepared this presentation a year ago, so you would have tl justification to make that type of a statement a year ago. As I said, I'm not a lawyer.

What I ar I do understand contradictions and it seems to me tha t this a glaring contradiction, and I am ju trying to understand how the fears tha t people have, that 50-50 vest ing immedia tely has been takt out of Bill 38, how those will be allayed by references to The Dower Act on the part of yourse when a year ago. . . MR. SCHULMAN: You would have to refer me to the examples that were given before I wou agree there was any incon sistency. MR.

PARASIUK: Well, I would ask you then to take another look at the presentation of your broth to this Comm ittee last June 1s t, and take a look at it in the light of your statements which \1\ be recorded in Hansard, and I certainly would hope to have that opportunity as well when the writtt text comes out of your statements. I will look at them and I will compare them to the statemen that were made a year ago. MR. SCHULMAN: Did you find any inco nsistency with respect ho a broadening of jud ici dis cretion? MR. PARASIUK: No, you argued for the broadening of judi cial discretion then. MR SCHULMA� Okay. MR.

PARASIUK: And I'm not particularly raising that. I have just raised this particular one in th you brought in the reference to The Dower Act yourself. I really wasn't tha t well acquainted wi The Dower Act and that's why I thought it would be pertinent for me to raise that point. MR. SCHULMAN: Actually, my comments were made in response to question from a member the Comm ittee. MR. PARAS IUK: Do you think that dis cretion, the judi cial discretion, allowed in 13 (1) is the san as the judicial dis cretion allowed in 13 (2) of Bill 38? MR.

SCHULMAN: 1 think the standards are slightly dif ferent, if that's what you mean. MR. PARASIUK: Yes. Well, the reason why I say that, is that I think that Mr .

Mercier asked yt if you basically agreed that this Act provides for the 50-50 sharing of assets acqui red dur ing marriage, and 1 think your answer was, "Yes, I do." And now, my difficulty with that is, that I thir there is a dif ference; ther e is a di fference in the way this law applies to family assets and the W< it applies to commercial assets, and I have yet been able to get a clear enough reason as to wl this distinction should exist, if in fact the principle is 50-50 sharing of assets. And it would stril me that if that principle is truly pursued, that you would have the same word ing for both.

No\/\ am just speaking as a layman when I raise that and you'v e made a legal presenta tion. Can ye give me any indication why you would want dif ferent wording for these categories of assets, especia since some people place some items in one category, and other people place the same items the other category, like pension or insurance? MR. SCHULMAN: Well, as I see it in either instance, the occasion will be rare when the presumptit is displaced. There is no practical difference between them, although I agree that the wo "i nequitable" means something slightly different from the word "unconscionable." 246

Statutory Regulations and Orders Wednesday, July 12, 1978 IIR. PARASIUK: Do you think it would make a great deal of dif ference to this Act if one used he same word ing for the judicial dis cretion allowed for family assets and that for commercial assets? Vould it make any dif ference if the exact same wording was utili zed? IIR. SCHULMAN: I think tha t the Act is quite fair as it is. IIR. PARASIUK: Wel l, I'm sorry, I was just asking for your opinion as to whether in fact it would nake any dif ference.

We've had a lot of contradic tory statements as to what the Act presently says .nd I was just asking whether, in your estimation , in your learned opinion, the Act would be dif ferent in fact the same wording was given to judicial dis cretion for family assets and for commercial ssets? �R. SCHULMAN: We ll, I've agreed that the word "i nequitable" is slightly different from the word unc onsci onable" , so if a change like that was made there'd be a slight difference. �R.

PARASIUK: Also, I wasn't around here last Jun e 1 to hear the various comments on Bill 61, ut I notice that there were some statements here - most of the statements were for corrections 1 the Act - and you've prov ided, I think, a detailed analysis of the Act from your particular erspective. I had to leave the room for a few minu tes and I was wondering if there are any parts 1 the Act that you feel could be strengthened? For example, we've had groups come forward saying 1at

Section 11 of Bill 38 should be changed, and that is tha t the value of an asset situa ted outside f Manitoba "sha ll" be taken into consideration, and an accounting and division under

Part 11, instead f "may" be taken into consideration. Those are suggestions that have come from lay people who ave come before this comm ittee. Again, in your learned opinion, do you think that that change •ould be a good change? IR. SCHULMAN: I don't think the change is necessary. IR. PARASIUK: Okay. You don't have to provide any reas oning for that. IR. SCHULMAN: I'm sorry. I thought you caught the point that Mr . Cherniack made. -(Interjection)- IR. CHERNIACK: I will refer to it Mr. Schulman. IR. PARASIUK: I find tha t you hav en't made any suggestions with respect to Bill 39, The Family laintenance Act.

Would you be prepared to answer any questions on that particular piece of gislation? R. SCHULMAN: If you allow me one mi nute to get the Act I'll try. R. PARASIUK: Okay. Agai n, the former bill, or the bill tha t's on the Statute Books right now, Jt the proclamation has been suspended, didn't, I'm told by people on both sides of the House, �al properly with the whole que stion of enforcement of maintenance.

I look at this bill and I find at Bill 39 doesn't properly deal with the que stion of enforcement of maintenance, and since I take tha t you have had some experience in this particular legal area, do you agree with that? Do you ink that the problem of enforcement of maintenance orders is not dealt with by this legislation 1d still remains a void? R.

SCHULN: We ll, my experience is, that since the Que en's Bench has been referring the aintenance orders to the Family Court Enforcement Office, that the collection process is sig nificantly 1pr oved , and I don't agree with you as to the extent of the need for a provision. R. PARASIUK: Okay. The reason why I raise tha t is that people have come forward over and er again indi cating tha t 75 percent of mai ntenance orders aren't enforced.

One of the government nisters says it's with deep regret tha t this legislation doesn't deal with enforcement of maintenance ders, and I look at that type of evidence and I wonder whether, in fact, it's not possible to imp rove il 39 so that possibly the enforcement of mai ntenance orders incr eases from 25 percent to say percent, or 60 percent, or 75 percent And I'm wondering whet -her, in fact, there's any legal way which tha t might be done. We've had rec ommendations for example from various people presenting iefs that

Section 25, Su bsection (1) be changed, and the change would be substituting "sha ll" · "m ay" require the person against whom it is made to deposit a specific amount in court, or 247

Statutory Regulations and Orders Wednesday, July 12, 1978 to enter into a bond. Now, that case I think has been made quite well by a nuer of people repres enti r dif ferent groups, and from di fferent parts of Manitoba, and I'm wondering again, in your learne opinion, whether that would be an im provement? MR. SCHULMAN: No, I think that would be a step backward. Why would you assume that a husbar is not going to pay? Why wouldn't you give him an opportunity first and if he doesn't pay lea\ an element of dis cretion there, because if he pays why tie up an unnecessary amount of monE or a bond?

At the present time, even under The Wives and Childr en's Maintenance Act, there provision for a putting up of security, and it's ... MR. PARASIUK: Well, Mr . Schulman, maybe it does come down to a di fference in presumptic MR. SCHULMAN: Are you saying that the husbands who have su bstantial assets in Manitoba a1 not paying and are getting away without paying? I don't think those are the situations which gh rise to the statistics, whatever they are. Sur ely the husbands who are not paying are people wt don't have the assets, and requiring a bond isn't going to imp rove the situation at all. MR. PARASIUK: Mr.

Schulman, we had a very moving presentation by someonen, who was tt child in a separatio where she claimed, and I had no reason to disbelie ve her, tha t her father d have sufficient assets to pay maintenance but that he didn't, and tha t her mother didn't have tt wherewithal really to pur sue the collection of maintenance. When you hear a specific case like th1 come forward, and when you hear the statistical evidence this brought ... MR. SCHULMAN: What do you mean by wher ew ithal? If the man has assets there is provisic under the laws that now stands to realize the maintenance. MR.

PASIUK: Well, she apparently never had her maintenance realized . MR. SCHULMAN: Well, did she go to a lawyer? Did she go to the Enforcement Office, did st do anything at all to enforce it? MR. PARASIUK: I don't know whether in fact she had the financial means to go to a lawyer an get legal assistance. MR. SCHULMAN: Did she apply for legal aid? MR. PARASIUK: I don't think legal aid existed when tha t case happened. MR. SCHULN: Well, even in those days members of the bar were assisting people who couldn afford to pay. MR.

PARASIUK: Well, you had asked me, "Why would I presume tha t someone wouldn't p� maintenance?" I said tuat the statistical evidence is such tha t I have the ind ication that 75 perce1 of maintena nce orders aren't paid. I presume tha t 75 percent of these cases will not be paid unle! there's something on the horizon that would change that.$ MR. SCHULMAN: Are there means in all tho se cases? MR. PASIUK: I'm not sure now, you see ... MR. SCHULMAN: Are the husbands in the province? MR.

PARASIUK: Well, the reason why I raise tha t is that I'm asking if there's any way in whic this can be enforced? lt seems to be a problem. I perceive it as a problem, Mr. Sherman perceivE it as a problem, just about everyone else who has come before us has perceived it as a proble1 . I'm asking you if you perceive it as a problem? MR. SCHULMAN: Yes, there's a problem in that a nuer of people don't have assets, and the wi' isn't able to realize the order against them. MR. PARASIUK: So you can see no way in which tha t problem can be dealt with legislation. 248

Statutory Regulations and Orders Wednesday, July 12, 1978 �R. SCHULMAN: But legislating isn't going to provide them with the assets and is not going to 1elp the spouses to collect. IIR. PARASIUK: I don't have any statistical information on this matter to determ ine whether in act those people who aren 't paying the maintenance orders have assets or not IIR. SCHULMAN: We ll, isn't that kind of a material ... IIR. PARASIUK: No, I'm saying that that is an im portant point.

I understand that the \ttorney-General has an in-House Task Force that is looking into this matter, and I'm pretty sure hat by the time we finish with Law Amendments, and with clause by clause review, he'll be in a 1osition to give us that information, because as I said, I'm not a lawyer and I don't have that 1forma tion, it's difficult to get. I was just wondering if you had any further informat ion, seeing as 10w so many other people had presented this as a problem that should be dealt wit h, and conceivably :ould be dealt with only in part - only in

part I recognize - by strengthening this legislation with espect to enforcement of orders? IIR. SCHULMAN: Wel l, in what way? Making the word "m ay" into "sha ll" is not going to advance he wives who don't colle ct one cent. IIR. PARASIUK: What it won't do, I gather, is advance the maintenance if, in fact, there is no unds to pay the maintenance, but I do gather that, in some cases, people have had the assets md have not paid mainten ance, and I gu ess that is the factual piece of information that will have o awa

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Collection	Manitoba — Debates (Hansard)
Citation	31-2-sro7
Type	hansard
Volume / chapter	31st 2nd hansardpdf sro7.pdf
Language	en
Format	pdf
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