Manitoba Committee Hansard — 21 July 1983 (Statutory Regulations and Orders Committee, Sitting 2, 32nd Legislature, 2nd Session)

32-2-sro2

Manitoba — Debates (Hansard)

ISSN 0542-5492 Second Session - Thirty-Second Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on STATUTORY REGULATIONS and ORDERS 31-32 Elizabeth 11 Chairman Mr. Peter Fox Constituency of Concordia VOL. XXXI No. 2 - 10:00 a.m., THURSDAY, 21 JULY, 19 83. Printed by the Office of the Queens Printer. Provtnce ot Manitoba

MANITOBA LEGISLATIVE ASSEMBLY Thirty-Second Legislature Members, Constituencies and Political Affiliation Name ADAM, Hon. A.R. (Pete) ANSTETT, Andy ASHTON, Sieve BANMAN, Robert (Bob) BLAKE, David R. (Dave) BROWN, Arnold BUCKLASCHUK, Hon. John M. CARROLL , Q.C., Henry N. CORRIN, Brian COWAN, Hon. Jay DESJARDINS, Hon. Laurent DODICK, Doreen DOERN, Russell DOLIN, Hon. Mary Beth DOWNE V, James E. DRIEDGER, Albert ENNS, Harry EVANS, Hon. Leonard S. EYLER, Phil FILMON, Gary FOX, Peter GOURLAV, D.M. (Doug) GRAHAM, Harry HAMMOND, Gerrie HARAPIAK, Harry M. HARPER, Elijah HEMPHILL , Hon. Maureen HYDE, Lloyd JOHNS TON, J.

Frank KOSTYRA, Hon. Eugene KOVNATS, Abe LECUYER, Gerard LYON, Q.C., Hon. Sterling MACKLING, Q.C., Hon. AI MALINO WSKI , Donald M. MANN ESS, Clayton McKENZIE, J. Wally MERCIER, Q.C., G.W.J. (Gerry) NORDMAN, Rurik (Ric) OLESON, Charlotte ORCHAR D, Donald PAWLEV, Q.C., Hon. Howard R. PARASIUK, Hon. Wilson PENNER, Q.C., Hon. Roland PHILLIPS, Myrna A. PLOHMAN, Hon. John RANSOM, A. Brian SANTOS, Conrad SCHROEDER , Hon. Vie SCO TT, Don SHERMAN, L.R. (Bud) SMITH, Hon. Muriel STEEN, Warren STORIE, Hon. Jerry T. URUSKI, Hon. Bill USKIW, Hon. Samuel WALDING, Hon. D. James Constituency Ste.

Rose Springfield Thompson La Verendrye Minnedosa Rhineland Gimli Brandon West Ell ice Churchill St. Boniface Riel Elm wood Kildonan Arthur Emerson Lakeside Brandon East River East Tuxedo Concordia Swan River Vir den Kirkfield Park The Pas Rupertsland Logan Portage la Prairie Sturgeon Creek Seven Oaks Niakwa Radisson Charleswood St. James St. Johns Morris Roblin-Russell St. Norbert Assiniboia Gladstone Pembina Selkirk Transcona Fort Rouge Wolseley Dauphin Turtle r.:, .lU ntai n Burrows Rossrnere lnkster Fort Garry Os borne River Heights Flin Flon lnterlake Lac du Bonnet St.

Vital Party NDP NDP NDP PC PC PC NDP IND NDP NDP NDP NDP NDP NDP PC PC PC NDP NDP PC NDP PC PC PC NDP NDP NDP PC PC ND P PC NDP PC NDP ND P PC PC PC PC PC PC NDP NDP NDP NDP NDP PC NDP NDP NDP PC NDP PC NDP NDP NDP NDP

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMI TTEE ON STATUTORY REGULATIONS AND ORDERS Thursday, 21 July, 1983 TIME - 10:00 a.m. LOCATION - Legislative Building, Winnipeg CHAIRMAN - Mr. Peter Fox (Concordia) ATTENDANCE - QUORUM - 6 Members of the committee present: Hon. Mr. Penner; Me ssrs. Ashton, Fox, Kovnats, Mercier and McKenzie; Mrs. Oleson; Ms. Phillips. WITNESSES: Representations were made to the committee as follows: Ms. Anne Riley, Manitoba Association for Rights and Li berties, spoke on Bill Nos. 65 and 66 Written subm ission was made by Mr. Jerry D'Avignon, Private Citizen, on Bill No. 65 Ms.

Myrna Bowman, Private Citizen, spoke on Bill Nos. 64, 65 and 66 Ms. Carole Zoerbe, Mothers Without Custody, spoke on Bill Nos. 65 and 66 Written subm ission was made by Mr. Paul V. Walsh, Q.C., Solicitor for The Children's Aid Society of Winnipeg, on Bill No. 66 Ms. Maxine Hamilton, NDP Status of Women, spoke on Bill Nos. 64, 65 Mr. Donald Lugtig, Manitoba Association of Social Workers, spoke on Bill Nos. 65, 66 Mr. Mu rray Smith, Manitoba Teac hers' Society, spoke on Bill No. 66 MATTERS UNDER DISCUSSION: Bill No. 64 -

An Act to amend The Marital Property Act Bill No. 65 -

An Act to amend The Family Maintenance Act Bill No. 66 -

An Act to amend The Child Welfare Act MR. CHAIRMAN: We have a quorum, ladies and gentleman. The first representation is Anne Riley. MS. A. RI LEY: Mr. Chairman, mem bers of the comm ittee, I will speak on Bills 65 and 66. The Manitoba Association for Rights and Liberties is in basic agreement with a num ber of the principles incorporated into Bills 65 and 66. In particular, MARL supports the best interest test in proceedings under The Family Maintenance Act and The Child Welfare Act 33 involving applications for guardianship custody and access.

MARL also applauds statutory support for allowing child's views with the respect to alternatives of child care to be known to the presiding judge. MARL has long advocated "children's rights," including the right to counsel and the right of the child to make representations to the court on his own behalf. Wherever practical, we are of the view that the child's position should be brought to the court's attention, either through counsel or on his own behalf.

Although MARL is pleased with those provisions of Bills 65 and 66 which could lead to more equitable and efficient legal services in the area of family relations in Manitoba, MARL is particularly concerned about other sections of the bills which appear to infringe significantly on basic civil rights of Manitobans. Opinion in MARL was divided on this one, but, in particular, MARL wishes to express concern about 1.3(1), the

section that allows a judge to order psychological, psychiatric, social, medical, or other examinations of the child. MARL takes the view that in certain situations such reports would be beneficial to the judge in determining important matters, such as custody and access. MARL has to, however, recognize the possible infringement upon individual rights, and these must be balanced by the benefit to be derived from such examinations.

The only criterion stated in the legislation to warrant the ordering of such reports is that of the best interests of the child, a test likely to be determined differently by different members of the bench. We'd like to restate also a proposal made by MARL on previous occasions that the courts should be required to choose the least detrimental alternative, rather than the best interests test. MARL is opposed to allowing a judge to draw a nega tive inference -

Section 1.3(3) - from the unwillingness of any part to the proceed ings to submit to a psychiatric or psychological examination. We already have home study reports and people refuse to take those on occasion. There are many reasons, and I think the judge is the best to determine the reasons for their refusal rather than building into the statute. If I have the permission of the committee, I'd like to elaborate a little bit upon this point of the possible infringement of individual rights. What we really have here, I think, is parents' rights vis-a-vis children's.

In MARL we try to represent everyone's rights; it's not always possible. In many instances, the lawmakers and the courts have decided that there is more benefit to be gained by having certain infringements of individual rights, and in MARL we wouldn't disagree with that, but always we would caution that when you do so, do so carefully and be aware of the intrusion. We already have home study reports which give the physical envir onment to a large extent of what's happening in the home, whether there's food in the refrigerator and whether there is clothing on the children

Thursday, 21 July, 1983 and whether the mother is an alcoholic or there are beer bottles about or evidence of this sort and we get the opinion of the social worker. I presume that is meant by social, under social, where it says social report. In neglect and physical abuse cases it's oftentimes the case that you've got a home study report, you've got the medical report because, of course, we have the

section in The Child Welfare Act that insists that doctors must report suspected cases of child abuse and you have in addition to that the testimony of witnesses such as neighbours and by this time the judge often has enough information to make a disposition. To have a psychiatric or psychological report in such a situation would be overkill, you don't need it.

There are other situations, however, where the judge does not have enough information to make the choices of the least detrimental alternative and in these cases - and I'm referring particularly to sexual abuse and emotional abuse cases - the psychiatric report is essential. lt is essential, and without it the judge cannot get the information that he needs to make the best determination. However, I think that when we're trying to choose the best and the most nurturing environment for children we have to try to obtain the information we need without unnecessary intrusion. Going on then,

Section 2(3) of Bill 65. Although MARL recognizes the obligation of mutual support on the breakup of long-term common- law relationships MARL is concerned that the provision as worded may lead to unfair results. For example, where one of the parties has suppor ted his or her common-la w spouse for the major part of their relationship without major financial contribution by the second party, it may be quite unjust that upon dissolution of the relationship the dependent spouse can apply for maintenance while the contributing spouse cannot.

An instance of this was, I'll give an example, by Women and the Law Tuesday night. lt would appear on the face of it that the spouse who received the benefit of being supported during the relationship is the only one who can now benefit upon separation of the parties. MARL is of the view that there's nothing determinative about five years as opposed to a shorter period of cohabitation and that a provision which provides for mutual support upon the dissolution of a common-law relationship should be as flexible as possible, to allow the presiding judge in his discretion to review all of the circumstances.

Section 7(4), dum casta, MARL is in support of

Section 7(4) which provides that the dum casta clauseis invalid and unenforceable without affecting the validity of the remaining provisions of an agreement. MARL is also in strong support of the abolition of the distinction which exists between the rights of legitimate and illegitimate children. Particularly, MA"!L has advocated the abolition of the terms themselves, as all children in this society are legitimate and should not have their human rights jeopard ized because of choices made by their parents. In respect to

Section 11. 7( 1 ), relating to the obtaining of blood tests, MARL is of the view that this provision is an improvement over compu lsory blood tests, as recommended in the Carr Report. Opinion is divided as to the effect of the provision which allows the presiding judge to draw a negative inference from the failure to take

part in such a test. 11 may be also that 34 other evidence relating to parentage will be available to the court, and sufficient. Therefore, a blood test obta ined in a situation of compulsion may be unnecessary; thus an intrusion into the civil rights of the putative father may be avoided. Once again, watch out when you're stepping on people's rights and you're intruding into their privacy. Arising out of

Section 14, MARL continues to support the presumption of joint custody of a child on a breakdown of the relationship between the child's parents. lt is hoped that such a presumption wou!d take the children out of the unfavourable position of being fought over like other family assets, and it would improve the cha nces of healthy negotiation and conciliation. Those are my comments on Bill 65, if there are any questions. MR. CHAIRMAN: Mr. Penner. HON. R. PENNER: Thank you very much for those comments, Ms. Riley.

With respect to 1. 3, I think your s is the third subm ission that we've heard that has raised concerns about these sections. I can state here, perhaps, for the benefit of other delegations and briefs, that changes will be brought in with respect to 1. 3. I just make that comment. There are permissive sections in both the B.C. and the Ontario statutes, which I think probably meets the second point you made in this connection that there should be something, but less invasive of privacy and other rights; but there must be some power in the court to order reports in certain special circumstances.

Would you agree with that? MS. A. RILEV: Yes, we would. HON. R. PENNER: But this, as it's presently worded, appears to be too invasive? MS. A. RILEV: Too invasive. HON. R. PENNER: Ok ay. I won't engage you into discussion, nor indeed would it be proper on the appropr iate word ing, but if we're moving in that direction, subject to what we come up with, that would meet the concerns of MARL and others in that area? MS. A. RILEY: Yes. HON. R.

PENNER: Would you just advise me, and you may not be able to, because I know others were associated with your brief, as it's indicated on page 4, whether or not there is a body of a case law on this "!east detrimental alternative"? We know that there is "'· .h respect to "best interest," but how would the courts Jeal with "least detrimental alternative," and how would MARL define "least detrimental alternative" if it's to be based on a statutory definition? MS. A.

RILEY: As I understand it, this is the wording which is used in some places in the States and has been used with better effect, or this is the idea, the implication. The case law and the references I would have to get for you; I have them at home.

Thursday, 21 July, 1983 HON. R. PENNER: But they are American? MS. A. RILEY: They are American. HON. R. PENNER: To the best of your knowledge, there's no Canadian case law on "least detrimental alternative"? MS. A. RILEY: No. HON. R. PENNER: There was a proposal brought on behalf of the Dakota-Ojibway Tribal Council that the "best interest test" as we are proposing, it might be better if there were some definition, for example, including, without restricting the generality, keeping the child within its family and paying attention to culture and linguistic concerns.

If those were there, would that, in your view, improve the efficacy of "best interest test"? MS. A. RILEY: Opinion is divided. In my opinion, guidelines should be there; but in our group we have others who feel that the judge should be able to take into account anything he wishes. For myself, and I would say probably a majority of my group, we would favour guidelines. HON. R. PENNER: Those are my questions. Thank you very much. MS. A. RILEY: Thank you. MR. CHAIRMAN: Mr. McKenzie. MR. W. McKENZIE: Thank you, Mr. Chairman. Ms. Riley, on the examinations of the party in

Section 1. 3( 1) , one of the witnesses, I think Mr. Fishman, suggested that the psychiatric reports and othe rs should be confidential. Do you support that opinion? MS. A. RILEY: Confidential to whom? MR. W. McKENZIE: Yes, that's the . . . okay, go ahead. MS. A. RILEY: We have a lot of this confidentiality of medical records, and the question is: Confidential to whom? Often, everybody else can get the report but the patient. That's another issue. I think that what we have, anyway, is we do have psychiatric evidence coming in, but it's done in an underhanded fashion that we don't like.

That is, when there is, for example, a custody battle, both sides will begin to sleuth around and see if either party has been seen by a psychiatrist. Now they can determine that, and I won't tell you by what nefarious means. Then the next thing is to get the report. If a lawyer can get his hands on the report and it's favourable to his client, he'll put it in; if it's not favourable to his client, he'll bury it and just hope to heaven the other side doesn't find out about this.

In our view, this is not necessarily helpful to the child, because this may be a very important issue that would be of great help to the judge. So that is why we have, in the past, taken the position that when such assessments are being made, that perhaps a child's advocate should be appointed to 35 handle the submission of all this evidence, and it shouldn't have to be coming from one side or the other. MR. W. McKENZIE: Thank you very much. MS. A. RILEY: Thank you, Mr. McKenzie. MR. CHAIRMAN: Thank you, Ms. Ril ey. MS. A. RILEY: Can I go on then with Bill 66?

Section 17(1) is our major problem here, and I imagine you might have suspected it from us. We disagree with the extension of "police powers" to a family court worker or to a child care agency, allowing workers to enter a person's premises. Once again, this a right-to privacy issue and we feel it's an unwarranted intrusion into someone's home. For another reaso n, the protections are already there. This is, of course, going in without a search warrant I'm talking about. MARL is of the view that a peace officer already has the power to enter premises without a search warrant.

In those situations where a child's life or safety are endangered, a police officer already has these powers. Now, to extend this right of entry without the use of a warrant to a family court worker or a child care worker would, in our view, constitute a serious contravention of one's right to privacy and civil property rights. MARL is extremely concerned about the care and safety of our children but it does not view this

section as being a positive one in light of the general issue of the public interest. We would suggest that the existing powers of peace officers as well as the effect of a supervisory order imposed by the court is sufficient to protect the interests of our children while preserving rights of privacy and security of the person.

Section 24(3), where the parents or guardian do not consent to the provisions for access. This allows for an application for access by parents or guardian in the course of child welfare proceed ings and in particular favours placing the burden of proof upon the child care agency to justify any limitation of access. In connection with this provision, however, MARL would stress the importance of providing independent counsel to the parents or guardian of an apprehended child in order to advise them of their rights regardless of whether or not they wish to contest the apprehension by the child care agency.

Obviously it is of no benefit to a parent or guardian to have the right to bring the matter of access before the court if they have no knowledge of such a right. In light of the serious consequences of any proceeding under The Child Welfare Act, MARL would empha size the importance of independent counsel to assist all parties involved including the child where appropriate. Those are my remarks on Bill 66. HON. R. PENNER: Just one question, Ms.

Riley, with respect to 17(1) you have previously made the general comment, I think you made it two or three times appr opriately and I, in fact, agree with it that, for whatever that's worth, where rights are being invaded in a sense one has to do so only in exceptional cases and very cautiously. You also made the point that peace officers presently have the power that is set out in 17 (1) , so what is new is the power then being granted

Thursday, 21 July, 1983 to an officer of the family court who may not in law be a peace officer or of a child caring agency officer and since this by definition is only a power to be exercised where a child is in immediate danger, would not that really meet the criteria you set out in general? MS. A. RILEY: If the child is in imme diate danger, a peace officer can enter. HON. R.

PENNER: But supposing that - and it may be a remote example but it's one we have to be concerned about because there's routine visits from child caring agencies or an officer of the Family Court comes to a home and at that moment the child is in immediate danger, should they not have the legal power to enter in the best interests of the child? MS. A. RILEY: Well, we are concerned about the invasion of privacy and feel that a simple phone call to a peace officer would bring him to the scene. HON. R. PENNER: Perhaps too late. MS. A. RiLEY: I see your point. MR. CHAIRMAN: Mr. Evans. HON. L.

EVANS: Yes, following along on that question, Mr. Chairman, I would like to ask Ms. Riley for her opinion on the other portion, the Attorney-General referred to immediate dang er, but it says or (

b) for the child who is unable to look after and care for hims elf has been left without any responsibile person to care for him. MS. A. RILEY: All that is required is a phone call to get a policeman down there to pick up that child. HON. L EVANS: Well, I'm not talking necessarily- I'm more concerned with the Children's Aid Society, the child caring agency aspect of it. MS. A.

RILEY: I know that this is a power that the Children's Aid workers would really like to have because they feel very strongly that they should have the right to do this but we are concerned about people who are not authorized peace officers being able to walk in and just take children as they see fit. HON. L. EV ANS: So you're saying that you have no problem with 17 (1) (

b) even though a child may be left alone. You're not concerned that we authorize a child caring agency . . . MS. A. RILEY: Well now we're getting into . HON. L EVANS: . . . with the right to walk in and look after that child. MS. A. RILEY: Well, we're getting into an area where I think that the Native people who spoke on Tuesday night would probably say this better than I do. But that there's a difference in values sometimes between the social worker and the people they're serving and what happens is the social worker may feel that this child 36 is in immediate dan ger, as Mr.

Penner has said, or that the child is alone without care. There may be an aunt nearby or next door looking in. There may be some other provision and so on, not that this is necessarily justifiable and not that we would ever support abuse of any kind or neglect. But we're concerned that some over-solicitous and well-meaning social worker will step in and use this clause. I think it just provides one extra bit of caution if she has to phone the policeman to come down from the police station to apprehend the child. HON.

L EVANS: Well, just as a matter - I'm supp osed to only ask you questions and not enter into debate, so I would have to put it in a rhetorical way. Are you familiar with the existing act,

Section 17(1) which in effect gives us this power now, or gives the agency the power now to enter if a child is in immediate danger MS. A. RILEY: In immediate danger, that's right. HON. L. EVANS: . . . or is left without any responsible person to care tor him? Are you aware that it's already existing? MS. A. RILEY: I am aware that h's there. I am aware that it's there. MR. CHAIRMAN: Mr. Mercier. MR. G. MERCIER: Thank you, Mr. Chairman. I apologize for being a little late and not hearing during all of your submission. I've read it though and if you've covered this ground in answer to a question, just let me know. On Page 2 of your brief you talk about

Section 2(3) of Bill 65, the common-law section. MS. A. RILEY: Yes, the common law section. MR. G. MERCIER: Are you suggesting there should be some amendments to that particular section? MS. A. RILEY: I think what we're suggesting is that it should be left to the discretion of the judge and that there are too many individual situations that you can't outline them all.

To have one blanket provision like this is going to do a disservice to too many people. it's well-meaning, the intention is very good, but there was a point raised by Women and the Law on Tuesday night to illustrate this very well, where the young woman puts her husband through Medicine and at the end of it, he chucks her. Now, is he entitled then to more support after she's put him through medicine? Maybe a far fetched one, but not so far-fetched. I! you are planning to implement this section, I would V8ry much like to see some kind of alteration in the 'JOrding at least, at the very least. MR. G.

MERCIER: And are you suggesting there should not be a specific time period set out in that section? MS. A. RILEY: That's what we're suggesting. MR. CHAIRMAN: Ms. Phillips. I

Thursday, 21 July, 1983 MS. M. PHilLIPS: Yes, Ms. Riley, on that one, in the example that you used, would you not think a judge would look at that and say this person is no longer substantially dependent? The wording that you have in there ... MS. A. AllEY: Well, if he wants to do a specially, Ms. Phillips, after his medical degree, and he says, "I need more support to continue." What I am saying is that there are many individual circumstances and that the judge should take some cognizance of commo n-law relationships and that they do bind people in some respect.

To make a blanket provision with this wording, particularly, is of concern to us. MS. M. PHilLIPS: Do you have any suggestions on how to narrow that from the word "substantially." To me, the word "substantially" is fairly narrow. A judge would have to have a lot of proof that they were substantially dependent. MS. A. AllEY: Yes, that's one thing, but they prove this kind of thing all the time. The word "substantially" doesn't upset me so much as the fact that the other side doesn't have the equal opportunity to apply for support for themselves. MR. CHAIRMAN: Anyone else? Thank you, Ms. Riley. MS. A.

AllEY: Thank you. MR. CHAIRMAN: Myrna Bowman. MS. M. BOWMAN: Good morning. I appear as a private person and not on behalf of any group. I would like, however, to commence by admitting that I am, indeed, a member of the Family Law

Section of the Bar Association who presented a brief and, in general, I support the brief that they presented. I have, however, some specific sections that I wish to comment on. I'd like to begin, if I may, with The Child Welfare Act and with

Section 1. 5, which is the

section providing for application for access by a non parent,

whereas the parents are separated. I'm speaking in opposition to that proposal, which I think is one capable of generating a considerable amount of mischief. I work a good deal with parents who are separated, and some of them are custodial parents, some of them are non-custodial parents; but one of the things that is borne in upon anyone who is engaged in that type of work is the enormous difficulties that are faced by a person who is a single parent. They have usually considerable financial difficulties.

They have the responsi bility of working in almost all cases, as well as looking after the home and the child or children. They have to worry about day care and other child care problems. They have the stress of coping alone with their own emotional difficulties arising out of the separa tion, as well as that of their children, and the additional and often very difficult problem of trying to deal in an appropriate way with the rights and the relationship of the other natural parent who will probably have access.

These are enormous stresses for any single parent, and it's enough, I suggest, for them to cope with without 37 the Legislature imposing upon them this added potential burden of applications by other parties. The amendment does not restrict the nature of the people who may make these applications. They can be other relatives; they may be neighbours; they may be almost anybody who thinks they ought to have a relationship with the child. The most common source of such applications, presum ably, would be other relatives.

Now, when parents live together, they have the right to exclude from their family circle and from association with their childr en anybody whom they consider unsuitable for whatever reason, either because of personal animosity between the parents and the other relatives, or for no reason at all. it's entirely within the discretion of those people as long as they live together. When people have separated , the courts have either determined on a contested basis that one party is the most appropriate custodial parent, or the other parent has agreed that that is the case.

I am submitting to you that it is an unwarranted interference with the authority and the discretion of that custodial parent to permit other people to intrude into that family circle by way of access to the child if the custodial parent sees fit to refuse that type of access for whatever reasons he or she may have, and those reasons may be very subtle reasons but nevertheless important.

The common situations that I have seen where other relatives are excluded have been where they have had the poor judgment to interfere in the situation at the time of separation in a way that was perceived to be either detrimental to the child or destructive of the relationship between the child and the custodial parent, and they are things that are often difficult to establish in court; but the kinds of things that the custodial parent knows, which may be difficult to prove and which originate often through the child himself or herself, are, for example, a grandparent or an aunt who is putting down the custodial parent, who is pumping the child for information, who is using the access as a means by which a parent who has been specifically denied access by the court may have the opportunity that the court has said "was not in the child's interest to visit with him." There are many, many other kinds of ways in which relatives can interfere in a situation which is already very difficult, and it's my belief tha t it would be destructive and unwise for the Legislature to afford other people the opportunity to interfere in a situation where the custodial parent already has more to handle than most of us could manage.

I suggest that people who deny their relatives the opportunity to see children generally do so for good reasons; and if they are fit to have custody of the child, they should be fit to determine with which of their family and friends the child will associate, just as you and I are free to do. The next

section I wanted to comment upon was

Section 12 .(5), which is the sec tion permitting maintenance beyond the age of 18. I agree with the submis sion that was made on behalf of the Family Law

Section by Mr. Fish man that altrough no one who deals in this area would, I think, be opposed to the provision of maintenance beyond the age of 18, the tests which are proposed are unrealistic and, I think, unworkable. The test proposed is that the court may provide the maintenance order if, in effect, the parent would have

Thursday, 21 July, 1983 provided that maintenance had the parties remained together. How, I ask you, is a court going to know; and what reasonable standard is it, where parties have separated perhaps when a child is four years old, if 14 years later an application is made to continue the maintenance, whether that father, because it's usually the father who's paying, would have supported the child had they remained together? The whole circumstance is different now. Had they remained together, there probably would have been quite a different relationship between the father and child than there presently is.

Perhaps the mother would not - certainly, the mother would not have had the opportunity to remarry a millionair e; the father would not have ha d the opportunity to marry someone else and have three or four more children whom he's supporting. The whole test is an unreasonable one. In fact, I have a matter that I've been dealing with recently, which I think is a demonstra tion, though an unusual one, of just how unrealistic it is. I act in a case where there is a father who is probably the rottenest parent I've ever had the misfortune to encou nter.

He has never done anything for his children that he could possibly have avoided doing, and indeed he's done a lot of things that he shouldn't have done including abuse them. Had they remained in his custody and care as a joint parent to the age of 18, he would never have done a thing for them. Is that some reason why, having abused them and mistreated them during the rest of their life, he should not be able to be compelled, if he's got the means, to support them while they complete their education after 18? The standard is simply, I'm suggesting to you, not a reasonable one and that the proposal made by Mr.

Fishman on behalf of the

section is by far preferable both from the point of view of consistency and realism, that the standard should be adapted from the wording in The Divorce Act which permits the court to order maintenance if the child is over the given age but unable, by reason of illness, disability or other factors, in which the cou rts have included educ ationa l reaso ns, to withdraw himself from the support of the custodial parent. 1 also believe, as I think do most lawyers, that the child must be resident with one of the parents in order iu obtain this type of relief.

We do not wish to see a situation develop where a child can compel a parent to maintain him in a separate establishment away from any of his family. So that is my point in respect of that particular section. I want to speak on

Section 1.1 of The Child Welfare Act and also of The Family Maintenance Act which is identical, and that is on the best interest tests. I, of course, do not quarrel with the best interest test per se. My criticism of this particular v£>rsion of it is the restriction added to the end of that section, "Regardless of the wishes or interests of any other party to the proceedings." The best interest test, I think, is one that has stood the test of time. lt's well understood in the legal community and, I think, to a very large extent in the rest of the interested community at large.

There is a saying which I think legislators should bear in mind: "If it ain't broke, don't fix it." This test works well and I think does not need to be fixed at all. The more you tinker with something like this, the more trouble that you will make. I see nothing 38 beneficial to be gained by adding on the phrases that I've quoted and, in fact, I see mischief to be made in that way. When I look through these amendments and through the acts in general, I see that everybody's got rights and everybody wants more rights but parents.

The Director of Child Welfare's got rights; the child's got rights; third parties are apparently to have rights to come in and have visiting and whatnot, and the courts going to have the right to have you examined against your will by a psychiatrist; child-care agencies have rights; and I understood Mr. Beaulieu and Mr. Savino to be suggesting that the community may have rights in a child by reason of its ethnic or racial origins; everybody but us parents. Well I think we do have rights. I'm a parent and I think I've got rights, and I would not thank you to diminish them in any respect.

I think that is the way that this

section is almost certain to be interpr eted if it is seen to be, as it is, a restriction or a caveat upon the general best interest test. Parents' rights, of course, are subordinate to the interests of the child, but that doesn't mean they don't exist, and I do not think there is any reason to be diminishing those rights, whatever they may be. lt is difficult enough to raise children these days without getting a gratuitous poke in the eye from the legislation. Those are my comments on The Child Welfare Act. I don't know whether you wish to ask me anything about that or not. MR. CHAIRMAN: Any questions? Mr.

Penne r. HON. R. PENNER: With respect to The Child Welfare Act and the point that you made with respect to 1. 5, am I wrong in my assumption that the power which is statutorily defined is now an inherent power of the Superior Court, Court of Queen's Bench? MS. M. BOWMAN: Some of the judges think that is within their jurisdiction. lt is very very rarely exercised and some of them don't feel that way. I certainly would not want to encou rage it, in any event. HON. R. PENNER: Do you know, Ms.

Bowman, whether or not decisions of trial judges exercising or purporting to exercise that inherent power have ever gone to an appeal decision in Manitoba? MS. M. BOWMAN: Not to my knowledge, but that, of course, is not exhaustive. HON. R. PENNER: In any event, your second point is that you don't want to encourage it. M'c .• M. BOWMAN: That's right. BON. R. PENNER: I agree, incidentally, with your obiter remark that that is not exhaustive of the matter, but has gone to the Court of Appeal.

With respect to your comment on best interests and the words "regardless of the wishes or interests of any other party to the proceedings," there are in fact similar words in the uniform Child Custody Enforcement and that, in effect, is where they were taken from. But having

Thursday, 21 July, 1983 said that, and that's why they're there, I can simply say, we are prepared to look at the removal of those words. I'm not so sure that they necessarily add anything, and they may perhaps detract from the best interest test. Those are the only comments that I have. MS. M. PHILLIPS: Thank you, Mr. Chairperson. Ms. Bowman, firstly your litany of single parenthood at the beginning sounded like the story of my life and was quite familiar to me.

When you were talking about access, I was a bit confused on whether you were talking about 1.5 in 66 or whether that extended to 14(4) in 65, in The Family Maintenance Act, about access of the non-custodial parent to certain records, etc., etc. MS. M. BOWMAN: Oh no, I have no quarrel with the access of the non-custodial parent either to the child himself or to any information about the child. I think that's a good thing and that was, of course, something that the

section did endorse. MS. M. PHILLIPS: So you're mostly concerned about other relatives, not the non-custodial parent? MS. M. BOWMAN: That's correct. MS. M. PHILLIPS: . . . or other individuals. But under 66, that's in a situation where the child has been apprehended? MS. M. BOWMAN: lt would apply to any situation, as far as I can make out, whether the child was in the custody of one parent or whether it had been apprehended by an agency.

Where there has been an apprehension by an agency, there are par ticular provisions for access by the natural parents which I, like the rest of the people who have presented, certainly agree with. MS. M. PHILLIPS: Ok ay. I think that's clarified for me. Thank you. MS. M. BOWMAN: You referred me particularly to the

section in The Family Maintenance Act, and I do share the concern that Mr. Fishman was expressing that the wording might be well tightened up so that it will not be interpr eted that the right to obtain existing information about a child would also permit a parent who did not have custody to go and take the child to the psychiatrist and then get the report. lt may be that some minor adjustment in the wording could overcome that problem. Shall I proceed then with The Family Maintenance Act? MR. CHA IRMAN: Yes, please. One moment, Mr. Mercier. MR . G. MERC IER: Jus t one br ief ques tion, Ms. Bowman, with respect to

Section 1. 5, do you support the inclusion of that

section with the amendment that Mr. Fishman suggested, to change the word "or" to "and" in the third line? MS. M. BOWMAN: No, I don't, and indeed, that would make it perhaps less objectionable but, nevertheless, 39 it would still be offensive, and I think that Mr. Fishman was making the same point, that the whole thing ought to be abandoned although that would make it slightly less offensive. MR. G. MERCIER: I got the impression from Mr. Fishman that he was suggesting it was okay with that one change from "or" to "and ," but also to add some wording that would indic ate that it would be an exceptional situation.

MS. M. BOWMAN: Well, I've been practising in this area for about 20 years now, and I can't think of any situation that's so exceptional that I would have thought that was an appropriate

section to have in the act, but as I said, that's only one person's opinion, and I just don't find that an acceptable restriction to place upon the raising of a child by a person who's already got enough difficulties raising a child alone. MR. G. MERCIER: The case that is raised by many people is the case of the grandparent who has had access to a grandchild - considerable access - and de veloped a real rela tionship with a grandchild.

Assuming that it's not the kind of case that you were talking about before where there has been interference in the separation and that sort of thing, would you not be of the view that a grandparent who has developed a real relationship with grandchildren and who, after a separation is denied access, should be allowed to apply under some type of section? MS. M. BOWMAN: No, I don't, because I bear in mind that a grandparent is also a mother-in-law or a father in-law, and it's almost inevitably the case that if access is denied after the separation there is good reason for it.

The parents when they live together could deny that access if they saw fit, for no reason. Why should the person who's got all the responsibility on her own shoulders or his own shoulders now have the court interfering in a very personal family relationship?

They may know a lot more, and they almost inevitably know a whole lot more about the effect of the access on the child, what kind of input that person is going to have into the child, whether they are going to be blaming the other parent for the separa tion, whether they're going to be inciting the child to think that the parties will reconcile when they won't, whether they're going to be telling the child that the other party is going to be applying for custody. All kinds of these things go on and they're almost impossible for the custodial parent to prove in court.

Now, this person has already had to deal with his or her spouse in ironing out the separa tion. If the father or mother who doesn't have custody has access, they've got every right to take that child if they so desire to visit with their family members, and that's adequate in my opinion. MR. G. MERCIER: I don't want to extend this too long and get into a debate, but sometimes, it may well be the custodial parents who are denied access. Those situations occur. You seem to be making the argument that the custodial parent is entirely without fault and will make faultless decisions.

Now, I have a great deal of respect for anybody who has custody of children,

Thursday, 21 July, 1983 but sometimes they don't always make all of the right decisions too. MS. M. BOWMAN: Of course they don't always make the right decisions, nor do judges, nor the rest of us, but they've got the responsibility. They've been found to be a proper person to look after this child and they should have the same authority that they would have had. had the parties remained together, that's all I'm saying. Proceed ing then to The Family Maintenance Act, I wanted to deal with

Section 2(3), the extension of the right to maintenance after a period of cohabitation. I may be spitting in the wind on this, but I'm speaking in opposition to that

section as well. And being an elderly person now, I can recall the kind of situations - you see these gray hairs - the situation that prevailed prior to 1968 when parties would live common law sometimes till they had grandchildren, because they had no other choice. There was no divorce available to them, but since 1968 that has not been the case and anybody who wishes to be divorced and free to marry can do so within a period of about five years, maximum, and mostly within about three to four years.

Indeed, if the newspapers are to be believed, that period will shortly be decreased to about one year of separation before a party is entitled to obtain a divorce. That being the case, it seems to me, that we have to look again at the ju stification for grant ing maintenance to parties who have chosen not to be married, because if they are not married now and live together, it is through choice if they are living together for a substantial period of time.

I think people should have the freedom to make choices, whether they are wise or unwise choices, and they also have the obligation to accept the consequences of making those choices. One of the things that is very widely known in our community about the legal system is that people who are married have obligations of support and people who are not, don't.

The institution of marriage has always had a special status in our society and one of the things that I do not like about the type of amendment they are having now is that they are in effect reducing choices to people by saying that whether you want to be married or not you're going to be, even though you don't accept this obligation freely. In order to get the obligations and responsibilities that go with marriage visited upon you, you have to freely undertake and formally signify your willingness to accept those obligations,

whereas the commo n-law relationship develops in an informal way and very frequently these days amongst people who specifically reject the idea of legal ties and legal obligations between them. They don't want that and that's why they don't get married. They should have the right to make that choice.

If a woman is foolish enough to put herself in the position of living with someone to whom she is not married and making herself financially dependent upon him, then as a free person, as an adult person, she should accept the responsibility for that choice if it turns out to be an unwise one. it seems to me that this amendment, in effect, demeans women in that it seems to further the concept tha t they are dependent, that they shouldn't be expected to be responsible for themselves and for the decisions that they make; yet demeans the men who are usually the ones called upon to pay by forcing them • to take upon themselves an obligation that they didn't usually realize that they were going to have and that they would specifically have rejected had they had anyone ask them, and it demeans the institution of marriage by blurring the distinction that has always existed between that status and the status of people who have chosen another way of life. 40 There is a justification which remains, I think, for the provision that we've had in our law for many years, and we were a very progressive province for having it 40 years ago, whereby where there is a child involved, the maintenance obligation arises, and I certainly don't suggest that should be interfered with.

I think it is an unnecessary interference in people's personal affairs and almost an insult to the adult responsibility of women to suggest that they should be treated in the way contemplated in this act. I recognize that it is so worded as to apply to both men and women, but we all know who is most likely to be financially dependent in any such relationship. I certainly do not agree with the suggestions of others who wish to do away with the time limit and who suggest that it should be available almost at any time and to both parties.

I not€ - .:�nd this is, I think, an example of what I was saying as to blurring the distinctions - each of the people who spoke on that vein spoke of these people as spouses. Well they're not. That's the whole thing. They chose not to be, and I'm not faulting them for that, I just think they should have the right to make that choice. I wanted to speak also very briefly on

Section 8(6), becaus e it was dis cussed du ring Mr. Fishman's presentation and one other - maintenance ceasing upon marriage. I agree with the submis sion that this

section should not be enacted because there are circumstances wherein it would work an injustice and, it seems to me, far too arbitrary a thing to do. There is case law and, indeed, the Manitoba Court of Appeal in an obiter comment recently, indicated they accepted that view where maintenance would continue after remarriage.

Now, of course, if the parties are both within the jurisdiction and fight it out at the time, there's no problem, but I have certainly seen instances where, for example, a woman may have a maintenance order in Manitoba under The Family Maintenance Act; the husband in British Columbia may ask for a divorce. If she is not a sufficiently sophisticated person or doesn't act in time, the divorce will probably proceed in British Columbia and result in a decree of divorce which does not contain any maintenance.

In that situation, the case law indic ates the maintenance obligation under the provincial legislation will continue in force. That is all very well, but if you enact this section, she'll be cut off automatically if there's a remarriage. I think that is certainly not what ought to happen automatically. There's also the situation where, of course, the maintenance arrangement is more generous than it otherwise would be, to take account of a property consideration, and it's paid over a particular period of time.

Again, it ought not to be cut off by reason of a subsequent marriage, where that wasn't the intent of the parties. I think that it's possible, by use of the court rules, to simplify the procedure by which, in the majority

I Thursday, 21 July, 1983 of cases, the maintenance order can and should be terminated upon remarriage. Those are all the things that I wanted to speak to you about in respect of The Family Maintenance Act. MS. M. PHILLIPS: Yes, thank you, Mr. Chairperson. Ms. Bowman, in your comments on those two sections, 2(3) and 8(6), in one instance, in 2(3), you are suggesting that there would not be circumstances where the maintenance should be continued because these people are free adults and they've made a free choice and they must accept that responsibility.

On 8(6), you're saying, and if I can quote, "If she is not a sufficiently soph isticated person," I think were your words, that there are some circumstances where, even upon remarriage, that main tenanc e should continue. To me, that seems a bit contradictory that there should be flexibility in the one, where a free adult makes a free choice to remarry and looks at the financial circumstances, etc., etc.; but in the other, because you say it would blur the distinction between making a decision to marry and not to marry, that under no circumstances should that maintenance continue. I'm a bit confused about that.

What if, in the first case, the person was not a sufficiently soph isticated person and say, for instance, as an example, halfway through that comm on-law relationship, circumstances changed in that she was invalided or was ill and not able to go to out to work and, a year later, after living together seven or eight or ten years or wh atever, the fellow left and she was substantially dependent? lt seems to me your argument is a bit unfair in those circumstances, and a bit overly generous in the other. MS. M. BOWMAN: Well, I obviously don't agree with that.

I certainly can't say to you that without 2(3), there will never be a case where you and I might not say, gee, that's really not fair that this poor lady got abandoned after a certain length of time. There are hard choices to be made in life, and when people make a choice, sometimes the results are worse than they expected; but what you are doing here is imposing an obligation on someone who did not freely undertake it.

In terms of lack of sophistication, I think one of things that is almost universally understood in the commun ity is that husbands and wives have a maintenance obligation, and that's one of the things that often, in fact, induces people not to marry is because they don't want that. Now, in the other case, you've got a person who made the choice to marry, who has a legal right, and what this

section is doing is abolishing it entirely without giving her a hearing or an opportunity to offer the reason why her legal rights should not be terminated. The case law has indicated that there are circumstances in which that right will continue. So I see a distinction there and if I haven't made it clear to you, I'm sorry; but I see it. MR. G. MERCIER: Ms. Bowman, I appreciate everything you and others have said with respect to

Section 2(3). There's only one concern I have. If a person becomes substantially dependent upon another person in a common-law relationship, and the relationship they have 41 termina tes and the person who is su bstantially dependent goes on social assistance, that is throwing upon the taxpayers that financial responsibility rather than upon the other partner to the relationship. Would you not agree that, in those circumstances, the person to whom one has become substantially financially dep endent should have some financial responsi bility in that area rather than the taxpayers? MS. M.

BOWMAN: Well, the taxpayers, of course, might well have been responsible for that person throughout the whole period had they not lived in a comm on-law relationship. MR. G. MERCIER: Yes, that's possible. MS. M. BOW MAN: I don 't think that we should predicate the creation of this kind of liability upon a need to save a few tax dollars. I think that no one can predict why, or for what reason, a person may become dependent on social assistance.

That, to me, does not justify the imposition of an enormous and long-term liability on a person who has specifically said, hey, I don't want any of that legal stuff; and the other party may also have said the same thing at the time, but then changed his or mind as time went by. MR. CHAIRMAN: Thank you, Ms. Bowman. MS. M. BOWMAN: The Martial Property Act then - I wanted to speak to

Section 13(2) of that act. A MEMBER: Sorry, what sections? MS. M. BOWMAN: 13(2) - the amendment to 13(2) - to reword it, and I take it that the rewording was intended as a housekeeping amendment, which would tidy up the references to values being divided as opposed to assets being divided. When I read it, I felt very unhappy about it and it took me a while to formulate why I didn't like it, and I think I know now. The former

section talked of the division in equal shares, or such other sharers as the court might determine on a consideration given. The new one talks about amounts being altered rather than shares being altered.

I think the reason that I feel very unhappy about this wording is this: That when you are altering a proportion, whether it be from 50-50 to 70-30, or some other amount, you are almost obliged to develop a logical principle, based on the considerations in the statute, as to why you are making that variation; but that it may be a subtle distinction. lt seems to me altogether too easy to allow the court simply to tinker with actual dollar amounts.

I would much prefer to see the present wording retained, or some variation of it that did not encourage or invite the court to tinker with amounts, but to deal with proportions and with principles upon which a division should be equal or unequal. Then, as I looked at it again, still not liking it, I saw something else that I think must be an oversight in the wording; because the amendment says, the amount shown by the accounting to be payable by one to the other may be reduced if the court is satisfied that a

Thursday, 21 July, 1983 complete equalization would be inequitable, and what not. Well, surely to goodness, you didn't mean only to have it reduced. Su rely, there should be the option also to have it increased. I suggest that you look again and see whether there cannot be a method of changing the wording so that it is not an amount, but a proportion or a share that is being altered so as to discourage tinkering. The other

section that I wanted to speak to is the amendment to

Section 13(3), and this is probably the worst amendment that is in this package, in my view, in terms of its potential for accomplishing mischief. I take it that the purpose of the

section was to reduce the element of conduct to the bare minimum in terms of property considerations, and that has been the thrust of the legislation and of the whole reform of family law over the last number of years. Unfortuna tely, I a m absolutely sure in my mind that the result will be precisely the opposite of what is intended.

The latter portion of the section, the portion saying, "or has otherwise been substantially detrimental to the financial standing of one or both spouses" is an invitation to any resourceful lawyer and any hostile litigant - and goodness knows, we have lots of both - to drag into the courtroom the whole issue of conduct. No w, the courts are having difficulty restraining them from doing that as it is.

Most of the judges are now tending to accept the principle of the legislation and saying, I don't want to know about conduct; although, if it has a direct bearing on the financial circumstances, I think that the other sections of 13(2) are more than sufficient to allow the court to do that if it's genuinely a financial issue.

This, however, will allow people to come along with the argument that, well, if my wife hadn't been such a miserable nagging you-know-what, I would have been able to earn a whole lot more money; or if my husband wasn't out fooling around with his secretary all the time, I would have been able to go back to school and I wouldn't have had so much on my mind and I would now be a neurosurgeon or whatever. There's just an endless possibility created by this

section for parties HON. R. PENNER: Or a member of the Legislature. MS. M. BOWMAN: Pardon? HON. R. PENNER: Or a member of the Legislature. MS. M. BOWMAN: Well, I don't think I have to elaborate on the possibilities, but they are literally endless for people to get in by the back door which you thought you had closed the front door upon, and I suggest that you delete that and stop at dissipation. If you're not prepared to do that, I suggest you forget the whole section. There were two additional proposals that the Family Law

Section formulated and to which Mr. Fishman referred , and I don't know whether he had given you copies of those proposals or not. I have a copy of the actual wording that was approved by the

section if you'd like to have it. I'm wanting to speak in support of those and explain to you a little further why I endorsed them. 42 The first one is to add 19(3) to direct that the court shall direct interest to be paid upon all or part of the amount shown by an accounting, to be owing from the date of valuation to the date of payment at such rate as the court deems reasonable, unless the court finds that such payment would be clearly inequitable, having regard to the circumstances. The present

section only permits the court to order inter est where there' s been un reaso nable dela y. Unfortunately, in marital proper ty and other domestic litigation, even if people are not doing anything in particular to delay it, it can be two years and more before a case comes on for trial in the normal course of events. If a large or a substantial sum is payable by one to the other, the one on the receiving end has lost interest for all of that period of time; and the one who retains the asset, of course, has the benefit of that interest for the whole period of time.

That is also, of course, a factor which encou rages those who forsee they're going to be the paying party to certainly not do anything to advance the litigation more rapidly. There are cases where, of course, it wouldn't be fair to order the interest, but the proposal provides that the court would have that option not to order it if it wasn't fair.

The other proposal is that where there has been an application under T:--e Marital Property Act, a party could file a Certificate of Lis Pendens in the Land Titles Office, which would prevent the disp osal of, or mortgaging of a real property asset without the written consent of the other party or an order of the court.

The purpose of doing that is to deal with the situation which has arisen in some cases where a party disposes of assets following the commencement of litigation, and either uses the funds, and, of course, by that time he may not be subject to the dissipation business or, in any event, has them in a place where they cannot be located. I can give you a very specific example that occured in a case of which I have knowledge, where a farmer disposed of three-quarters of a

section of land during the course of litigation; the wife had no means of knowing that he was going to do it and thereby couldn't apply for any order that would prevent him doing it, and he simply doesn't know what happened to the mon ey, it's just all gone. Well, of course, he wanted to have his judgment reduced because he didn't have it anymore, and the court wouldn't hear that. He's got the judgment all right. The wife has got the judgment for the full amount she should have had, but there's nothing there to collect against. That's the problem.

I'm submitting that once there is litigation in progress, that there is an obligation upon one party not to dispose of assets in an unreasonable fashion. Indeed, in a recent judgement, Mr. Justice Scollin went so far as to say that after the husband becomes aware that there's a claim by the wife, or vice versa, F•at he's under a fiduciary duty to protect and preserve the assets to the extent of her potential claim.

So I do not think that the proposal would unduly fetter the activities of people who were conducting their affairs in an ordinary and businesslike manner , and I submit that they would be of considerable assistance to those of us who, from time to time, encounter a rounder who is trying to beat the system, dispose of his assets and avoid having to pay what the court finds ultimately to be due and owing to the other spouse. !�

Thursday, 21 July, 1983 Those are my comments on this statute, if anyone has any questions for me. HON. R. PENNER: With respect to 13 (3), you've reinforced a point made by Mr. Fishman. I may say, this is not gratuitous that the concern has come across somewhat clearer in your presentation than I perceived it when first made; and I simply say that I'm inclined to agree that something perhaps has to be done there with respect to those last words, because it was not the intention, obviously, to reintroduce conduct through the back door.

If, as you argue, those words might have that effect, then it is a matter of some concern. So we'll be looking at that from the point of view of amendment. With respect to the last point that you've made, I haven't yet had an advantage of seeing the actual wording. There is a problem of bringing in something totally new at comm ittee stage, and would have to have normally the concurrence of all concerned; but I can tell you that we have been looking at a proposal from the Law Reform Comm ission with respect to prejudgment interest.

There may be legislation on that in the next Session, and I see no reason why, in principle, it shouldn't apply to this kind of a judgment as to any other kind of judgment. If we're not able to deal with that proposal in this Session, then it certainly will be given very serious consideration for the next. MS. S. BOWMAN: Thank you. MS. ""'· PHILUPS: Thank you, Mr. Chairperson. Ms. Bowman, I don't know if this is in order, but I feel that I am still not clear on the situation about the five-year common law substantially dependent business.

I would just like to ask your opinion of another kind of situation. it seemed from your case that, I think, you were talking about where this adult allows herself to become dependent.

My experience in the real world points out a lot of cases where that person is almost demanded to be dependent in that the common-la w spouse says as long as I am supporting you, you will not go out to work, I make enough money to look after us - that whole usual argument that a lot of people in society fall into. it also seems to me that there are a lot of other emotional reasons why a couple would choose a common-law relationship, apart from whether they don't want to assume the financial obligations or they are not free to marry; that there are a lot of emotional reasons why people choose a commo n-law relationship that don't make any sense, in fact, on those two circumstances. lt just seems to me that there are enou gh circumstances there that where someone is, whether it's their own free choice or whether it's the choice of staying in that relationship and being dependent, that would warrant a judge to look at that and say, this person is substantially dependent and maintenant and should be awarded some maintenance.

MS. M. BOWMAN: lt seems to me that you're getting onto a very slippery slope when you do that, because there is no logical justification then for saying that should apply only to a situation of a man and a woman. What 43 about two men or two women who live together for many years and one of them becomes financially dependent? Will you impose a lifelong obligation of maintenance upon one of them if that relation ends?

What about two sisters, or two brothers, or a sister and brother who live together? lt seems to me that you're going very far afield if you start using that as the justification for imposing a kind of obligation which, to this point, really has only devolved upon someone who said, yes, I'll accept that obligation. Now, I agree with you that there are very foolish people who go out and make a dumb decision to live with someb ody, let them tell them how to live their life and become financially dependent upon them.

As long as the Legislature says, never mind, lady, we're going to look after you no matter what kind of a stupid choice you make, you're not ever going to have to take the consequences of what you do - then I think that is encouraging that type of thinking. I don't think there are very many women who get themselves into that position who don't know at the time that there is not a legal obligation upon that man to look after them if, in fact, the relationship falls apart. MR. CHAIRMAN: Thank you, Ms. Bowman. Mr. Mercier, please. MR. G. MERCIER: Ms. Bowman, on

Section 13(3), is it your position and that of the Family Law Subsection that a preferable course of action would simply be to leave this

section as it is? MS. M. BOWMAN: My own preference, and I think this

section would agree, my first choice would be to stop it after "dissipa tion ." Alterna tively, if that is not acceptable, we would prefer to see nothing at all, but I think it would be useful to have it deleting everything after the word "dissipation." MR. G. MERCIER: Just to clarify this, Ms. Bowman, do you see any necessity to add Subsection (3) at all? MS. M. BOWMAN: I think that it would be useful, yes, because there is still an unfortunate tendency on the part of many litigants to try and drag conduct in.

While the courts may try and restrict them, I think it would be useful to have a specific restriction in the legislation. May I say one thing further before I leave which is not directed to this but to the amendments to The Pension Benefits Act? Ms. Phillips referred us to them on Tuesday evening and I just saw someone else's copy, so I can't comment on it. it wouldn't be in order, but I have some concerns as to how these changes are going to be accomplished.

They are very complex matters, and I would earnestly urge the government to defer enacting those until there has been opportunity for comment from not only the legal profession, but from unions and emp loyers and whomever else who may, whether they agree with the app roach or not, have a lot of useful things to say as to how to do it and things that may have been overlooked. it's not an easy thing to come to grips with, and most organizations have difficulty in doing that through the summer months. I certainly had some concerns with the little bit that I saw, and I would sure like the

Thursday, 21 July, 1983 opportunity to come back here at a later date in the fall when we've discussed it thoroughly and have . A MEMBER: lt's all right. We'll be here. MS. M. BOWMAN: Still? Thank you very much. I'm sorry, I took so long. MR. CHAIRMAN: You're welcome. Thank you. Carol Zoerb ey. MS. C. ZOERBE: My name is Carol Zoerbe, not Zoerbey. MR. CHAIRMAN: Sorry. MS. C. ZOERBE: That's fine. I am here as one of these people you are arguing about. I am a mother without custody. Well, not exactly, I have joint custody, but it's not working out very well, so I would like to addr ess Bill 65 and Bill 66. Under

Section 11 .2 that states that the person is the child of the natural parents, we support that. Under Bill 66,

Section 11 .2(2), it talks about the effect of adoption , and we are opposed to adoption because it gives preference to adoptive versus natural parents in all matters. lt also is used to terminate natural, kindred relationships by vindictive spouses and/or guardians of the child. I have experienced that personally and so have other women who belong to our association. We have had custody of our children for anywhere from four to five to 10 to 15 years. In the event of a divorce when we were no longer useful to our spouses, we lose custody of our children for economic or health or physical reasons.

The court sees fit to take away custody at that time. Then if we happen to have $1 0,000 or $1 5,000 to go for legal access, we may get it. We may not. I am feeling very nervous right now, because I am the only person so far who has come to say what it feels like to be on the other side of it all. A MEMBER: Maybe a glass of water would help. MS. C. ZOERBE: No, that's fine. Thank you, I'll be all right. We also ap pr eciate under

Section 11 .2 (4), the abolition of distinction between illegitimate and legitimate children to the right of support and to the right of kindred relationships. But again I would feel that adoption is in opposition to this. Some of the members of our group were very young at the time of the birth of their child, and they consented to adoption without the maturity that they now have and without the ability they would have at this time to parent to their child. They have lost forever that right. We feel that is an injustice. lt's pun itive towards the child; it's punitive towards the parent. Also under

Section 11 .4(

a) and (b), it says that this act will not affect an instrument that's in force or any disposition of property.

While the disposition of property is important to us, our primary concern is the right to be with our children and the right to know our children. 1t would help to have some of the property settlements so that we could do that, but that's by the by. 44 Anyway, we are oppo sed to that because without some retroactive action through these legislations, it leaves our children and ourselves to continue to be the victims of the injustices that have occurred in the past and it also leaves children condemned to former attitudes and penalties imposed by less informed and less thoughtful judiciaries.

I think that we have now looked at what adoption does to children. We've have groups of parents who are adoptive parents, who are asking for help. How do we deal with these children we've adopted who resent us and reject us, because they want to know who their natural parent is and they want to know something about their natural parents. So it has not been helpful to the adoptive parent either, that access has been severed to the natural parent. lt's been seen as the thing to do and the right thing to do to provide for the child, because once a child is adopted, society has no longer an obligation, financially.

But in the long run the child and the parents have all been hurt, both the adoptive parent and the natural parent. Under

Section 11 .6(2) it speaks that the Director of Child Welfare may bring application on for hearing where, and it goes on to say, the mother of the child has sought the aid and is considering surrendering the child for adoption. We already stated our oppositbn to adoption, but I'd like to add here, that were duress is evident, it would appear that justice and compassion for the future of the child presupposes the eventual ability of the natural parent to assume, at least, some care for that child. Foster homes or agents, educ ational programs, employment opportunities, are all important aspects of any person's ability to offer support to the children of the commun ity. Under Bill 65,

Part 11,

Section 11. 2( 1) and (4), there is evidence that this comm ittee seeks to bring greater awareness of the commu nity of the respo nsibility inherent in bearing a child to both men and women, regardless of their marital status at the birth of the child. lt would seem then, that if someone bears a child at the age of 12 or 13 or 14, while we recognize they cannot care for that child in a full care, why can they not have access to the child with the aid of the foster parent? They could babysit the child, just as they would the neighbour's child. They could mow the lawn.

They could do things in the home where the child lives to be suppor tive of the child. There are practical ways that this could be done. lt has never been exercised or practised. We've just simply severed the child forever.

I think that to give even a youthful, an extremely youthful parent of 12 or 13, some kind of responsibility for this child that they have borne, whether it's babysitting or running a paper route to buy the pablum - who cares? - and allow them to continue contact; it not only gives them the sense !hat they are res ponsible for a child, it might cut down un repetitive pregnancies during teenage years and it could become like a Big Sister association between that immature person and their child and likewise for the father of that child.

There's no reason why - this notion that we can't be responsible for ourself is silly. I looked after my own brothers and sisters when I was 10 and 12 years old. If I had given birth, as some people do at that age, there's no reason why they can't assume

Thursday, 21 July, 1983 some responsibility for that child, not to interfere with their education, not to interfere with their own social dev elopment, but some res ponsibili ty and some recognition that they're an okay person, that they aren't bad and they have to lose their child forever. Under

Section 14.1, it speaks of the joint rights of parents and I would refer that back to

Section 11. 2( 1) and

Section 11 .2(4) again, which delineates that the responsibility is to be shared, regardless of the marital status at the time of birth. Therefore, I feel that the right for input in custody and control of the child is dependent upon the support of the child, not the habitation arrangements of the parents, either before, during, or after the birth of the child.

If an unma rried couple choose to not live together, but both choose to support the child that they bear, or are ordered to do so by the court under these provisions, then it seems to me that the person who gives support should have the same right, whether they're living with one another or not, to have some say as to what happens to the child. Now, I have heard a great deal of argument against this, that the so-called custody parent is going to be harassed and troubled and everything by the person who isn't living there full-time.

The only time that the custody parent might be harassed - as they choose to see it - is when they act to sever the relationship between the child and its other parent or relationships, or they might be harassed when they take action against the non-resident parent and their view of harassment is anything from asking a question such as, well, how are the kids doing in school this week - like that's harassing them, believe me - I've experienced it. I've been told I'm harassing because I want to know how my kids are doing at school.

I've been told that I'm harassing because I finally went into court and said, look, I want to see my children and I want to know what's happening to them. I'm harassing because I'm asking questions about the welfare of my children and he comes into court and says you're harassing me. All I want to know is what's happening to my kids, where are they, what are they doing, as any normal caring parent would. Having had full control and custody of my children for the first ten years of their lives, I feel entitled now to know what they're doing.

The fact that he no longer lives with me is fine, but I have a right to know, and so do other parents who are being denied these rights and fathers are included in that, because primarily they don't get custody . Basically under the subsections of 14, we're really pleased to see those steps that are being taken, that grant the parent who has been denied custody the right to know what's happening to their children by asking for school reports, physical, medical reports, these kinds of things. We see that as a very positive step towards allowing parents to know what's happening.

That's all I have to say on that one and then under Bill 66, some things are related to the things I've already said. But under

Section 1. 5(1) where it says that the application for access - now I've heard that argued against too, because it might be used as a harassment and I would make the same argument - it would not be an harassment where the people are concerned for the children and allow them access.

But I think grandpa rents - my own parents are some of those grandpar ents - ha ve a right to access to the 45 grandchildren and to see that the order is not effective while the child is living with both parents, I object to that, because where the parent is an adoptive parent, again, we are faced with the same kind of thing, or where the parent is opposed to the child's relationship with kindred relationships, it could be that the child has had a very good relationship with kindred relations.

Then 10 years down the road they get angry at a parent or an aunt and or an uncle and say you're never going to see the kids again. Why should the child pay for the parent's inability to get along with a kindred relationship, either currently or from a former marriage, or common law relationship. That's that parent's problem. They shouldn't impose it on the child. Under

Section 15, again it talks about the voluntary surrender of guardianship and we've already outlined our concerns about just how voluntary it is when you're under economic or physical duress at the time that you surrender your child. Anyone who has adequate resources does not surrender their child. Anyone who does surrender their child, we can assume they do not have adequate resources and are therefore penalized by their lack of resources.

They are also penalized by society's unwillingness to look at other ways for the child to give at least some practical support as outlined earlier, where the child could become a Big Sister or Big Brother, do some babysitting or whatever to continue it. I think also that there has been a lot of social pressure to do the right thing and give up the child to a good home. lt is our feeling that a genuinely good home would not seek adoption for the child's best interests when it means severance of the child from all further contact with natural kindred relationships.

We feel it is unfair to expect a child to fulfil! adult expectations that are evidenced in attempts by adoptive parents to save a child from its natural parent's misfortune, be tha t pov erty, ill healt h, poor parental skills or youthfulness of the parent. I guess I can only look at my own example again where for a period of time I have been attending university and during that time the children have been in their father's household this primary time. You have never seen such a martyr in all your life as someone who finally accepts responsibility for a couple of years.

We do accept that the availability of practical options in foster care, education and employment opportunities for the natural parent are paramount for the best interests of the child and society in general. We make no age restrictions on the woman who needs that kind of support; whether you're 12 or you're 20 or you're 40, it's the same thing. The reason you can't care for your child is a lack of resources, not a lack of willingness or lack of love or lack of concern for the child.

For fathers, they're not here - usually they aren't - but I'm sure that for fathers who also lost the right to custody rights of their child through separation or divorce, we are not coming here asking that women be given these rights. We are asking here that parents be given these rights to continue, where there is a willingness to care for the child and support the child or whether there's an order to. Under

Section 101(1) (a)(

i) and (ii), we are opposed to adoption of the child where that action serves to favour the resident parent and successive spouse or spouses. The notion that if your former spouse has the

Thursday, 21 July, 1983 child in resident and does so for a period of time and remarries that person can apply to adopt your child; and then three or four years down the road they could divorce and remarry again and that person could apply to adopt your child, to me it seems that giving all power to the resident custody parent against and oppo sed to the other parent. We all know the child can only live in one home. If I could clone them, I would. I'd love to have them with me every day; that's not possible.

I accept that it's not possible, but I do not accept that I am a bad parent because they live somewhere else most of the time. I do not accept that I should have no right to say how my children are raised or what happens to them because I don't live with them every day at this point in time. Were the shoe on the other foot, I would have to accept the responsibility to share with the other parent knowledge of what the children are doing and share with that parent the respon sibility tor how the child will be raised. We give up our rights as spouses. We do not give up our right- we don't divorce our children.

We divorce the person we were married to; we don't divorce our children. With the adoption of orphan children, weil, it seems to me that since adoption serves to legalize responsibility for the child and grant ownership of the child, it is apparent that ownership is the issue for the orphan child. Respons ibility for that child could be separately designated under Orders of Guardianship. Granting the child the right to claim the family as his or her own at a mature age might at least allow the child the same right as the parent in owning within the adoptive framework.

Granting the child the right to claim the family versus the family's right to own the child following adoption at an immature age might also serve to protect the child's right to expect suppor t from his or her guardians in searching for the identity of his or her natural kindred relationships. it might also serve to reduce the hostility that adoptive parents face when confronted by an adolescent adoptee who is feeling betrayed by the loss of his or her right to community with the natural parents and the extended kinwork of the natural parent. Thank you. MR. CHAIRMAN: Are there any questions? Mr. Penner. HON. R.

PENNER: I just wanted to thank Ms. Zoerbe, if I'm pronouncing it right I hope .. MS. C. ZOERBE: Yes, that's right. HON . R. PENNER : ... for a very, thoughtful presen tation. There are concerns that you have raised that present some difficulties in the adoption ared, not so much where there is an adoption following divorce and remarriage where there is already a situation where the children are aware of the two sets of (parents) ac it were. 1 put parents in brackets. There the visiting questions, one can agree in principle and indeed with full visiting privileges and contact.

Problems arise in adoption where the child has been given up for adoption right at birth. MS. C. ZOERBE: I recognize that, sir. 48 HON. R. PENNER: Were you suggesting some provision for access in those situations? MS. C. ZOERBE: Yes, I am. I feel that adoption occurs in those instances mostly because of the immaturity of the individual giving birth, or the lack of some kind of economic base under which to raise the child, or it would result in some kind of social consequence later to the mother or the parent.

I know that it means practical difficulties to change our attitudes and to implement a different system, but it does seem to me that when one looks at the feelings that are expressed by persons who are adults now who've been adopted, and they will say, well, gee, I really wish I knew who my parents were. I really wish I knew who I was, where I belong.

My own children now at this point are 12 and 14 years old, and are suddenly being told that I am no longer their mother; that this woman who has moved in in the last year to take my place in the home is their mother. it's a ridiculous situation, to put it mildly, but it does occur, and it occurs in reverse when it's the father. lt is an unfair imposition, and it occurs because we have taken this position that whoever lives ihere will have primary rights. The parent who lives out of the home will have no rights, except maybe to visit on Saturday if they're lucky.

If we do away with the right to adopt on the basis of where the child lives - I mean there has to be some other kind of criteria, I think. If you remarried and the person wishes to adopt your child so they can complete the family, they call it - the child has a comp lete family, the child has two parents. The parents may be in conflict. They may not both live in the home, but the child does have two parents. lt seems that the new spous?. wants to usurp or take over or whatever, and the'l the child is left in conflict - who is my parent? The law says, well, the one who lives with you will be your parent.

That doesn't fit the emotional or the psychological needs of the child or of the parent who has been told you're no longer a parent. You no longer can expect to be in association with your child as you were. MR. G. MERCIER: Are you aware that the amendments to The Child Welfare Act will repeal existing

Section 11 6( 1) of The Child Welfare Act and, speaking on behalf of the opposition, we amended this

section and I brought forward the bill in 1980, whereby under the existing

Section 11 6( 1) where there is this situation in a new marriage where the person who has custody with their new spouse apply for adoption of the children, prior to our amendment in 1980, the effect of that adoption was to cancel all rights to the other natural parents, all rights of visitation, all rights as a parent.

We amended tha' "ection to allow the judge at the time of tile adoption by the custodial spouse and ilis or her new spouse ·,-;hen they applied for adoption, that the other natural parent who didn't have custody would have the right to apply for access, so that even though the person who had custody of the children and his or her new spous e adopted the children, the other natural parent :·;::;i ;., right to apply for access t0 the children. '3llc ::; act that we have before us will repeal that sect! "

Thursday, 21 July, 19 83 MS. C. ZOERBE: In what way? I'm not a legal person, so I haven't ... MR. G. MERCIER: Yes, we are trying to - I'm getting an explanation of what the government is doing at the time ... MS. C. ZOERBE: Ok ay. MR. G. MERCIER: . . . but the repealing of one

section and then saying that

Section 1. 5( 1) will be the subsitute clause for that. Unfortuna tely, we've heard a lot of objections to this Clause 1. 5( 1) , but I suppose, to put it in a nutshell then, you are in favour of continuing the right as it is under the existing Child Welfare Act provisions of where there is an adoption take place, that the other natural parent should retain the right of access to the child? MS. C.

ZOERBE: I would be opposed to adoption where both natural parents are alive, and that a guardianship order be granted to a resident spouse to take care of matters like seeking medical aid, or whatever it is they hope to do under the custody of the child. it doesn't seem to me that when someone marrries and moves in, that they need to become the parent. They can become a guardian.

There must be some other way to delineate responsibility or ways to offer that person that they can seek medical aid or whatever it is that's required for the child, and have the right to do that without taking away the natural parents' rights. The fact that you lose your rights as a parent on divorce by these sole custody orders is bad enough; then to have your child taken away in adoption is like a double whammy, for what? MR. CHAIRMAN: Thank you, Ms. Zoerbe. MS. C. ZOERBE: You're welcome. MR. CHAIRMAN: Maxine Hamilton. MS. M. HAMILTON: I'm appearing on behalf of the NDP Status of Women Committee.

However, I'm going to be restricting my comments to only parts of the bill. We haven't discussed the entirety of the bills as a comm ittee. We have in fact, in the past, though, discussed many principles of law, and I'll be restricting my comments to those principles of law that apply to things that we have previously discussed in principle. Under Bill 65, I would like to indicate that there are areas that we see as very positive; the extended removal of fault in

Section 2(2) of the act, for example; and, second ly, that's in

Section 5, the protection for the long-term non-marital relation of partners, I see that in soci ety the law is - people who are well knowledgeable can always protect themselves. lt seems to me tha t it's exactly tho se people who are unsophis ticated who do not follow the usual patterns of society ... HON. R. PENNER: Excuse me, you're considering Bill 65? MS. M. HAMIL TON: I believe so. 47 HON. R. PENNER: And what section? MS. M. HAM ILTON:

Section 5. HON. R. PENNER: Oh yes, yes. Thank you. MS. M. HAMILTON: The most vulnerable of our citizens are those who are, in fact, in the mo st need of protection. Under

Section 8, and I don't know whether I'm pronouncing this correctly because I've never seen the term before, but I believe I understand it, the "dum costa clauses"? HON. R. PENNER: I think "dum casta" is better than "dum costa." MS. M. HAM IL TON: Oka y. Well, they're certainly dumb in any case. In

Section 11 .2(4), the very important matter of the abolition of a legal distinction between the legitimate and the illegitimate child. In

Section 12.15 , child support beyond 18 where appropriate - it may be that the definition needs to be clarified further. However, the principle is important. In

Section 14.1, I believe (4), the right of the non custodial parent to access to a child's records, it's again an important continuing link between a parent and child. We have not discussed, although I was certainly interested in the concerns that were raised about the automatic cessation of maintenance on remarriage. Again, I can't comment on the committee's feel ings. lt seems to me that in mo st instances, maintenance would cease, and I believe that applies to only

Section 8 of the act. I would be concerned if it were to apply also to child maintenance. However, with spousal maintenance, it would normally cease. lt may be that there may be need for some amendment to allow for exceptional circumstances. What is not there, I'd like to refer to, and it applies to

Section 5( 1) of the act, and again, this does not apply itself to the wording of the act, but rather on an observation that has been made of the settlements that have been made in the past. In this section, what is reasonable appears to be being interpreted in a manner that is not necessarily what the legislation intended when it was introduced, and either a new definition of reasonable needs to be made, or a more specific direction given on how maintenance awards should be made.

There was a study done of all court settlements between the coming into force of the act in the spring of 1981 done by the Coalition of Family Law, Alice Steinbart, I believe, and it demo nstrated that, for the most part, this sec tion app ears that it's being interpreted as meaning tha t the husband almost invariably has the bulk of the total family income and the wife much less. This was despite the fact that in most instances the former wife was left with children to care for.

Is it reasonable that one spouse, with no children to support, should have 60 to 80 percent of the total family income; and that the other spouse, with children to support, somewhere between 20 percent and 40 percent? Now, again, I'm not going to suggest wordings to the act, but rather a hope that we're going to have a

Thursday, 21 July, 1983 continuing review. and that the continuing review would include. I think, an attempt perhaps by the Attorney General's Department to take a long-view look at a statistical sample of what is actually happening with the court settlements. I don't know of any means by which any observation can be made of the out-of-court settlements, but in any case that should be under continued review. The sample that went from the coming into force of the act in the spring of 1981 was adm ittedly a small sample; yet, with the exception of one case, it appears that the judicial

interpretation is almost invariably putting a large proportion of the settlements in the husband's favour in terms of how much money he is ultimatley left with vis-a-vis how much money the wife and children together are left with for support. The other observation I have is not a personal ob servat ion but rather a reportage of some converations that I've had with lawyers who seem to indicate to me that the enforcement

section is not necessarily working as smoothly as we had hoped, that there are apparently some long delays. Again since I am not a practising lawyer that's simply to draw those observations to your attention so that can be looked into. I can't comment on personal experience in that respect. That ends my comments on those particular bills. HON. R. PENNER: Very briefly I can assure you that the provision that concerned you 8(6) does not apply to maintenance. it specifically refers to Clause 8. 1(

a) of the original . . . MS. M. HAM ILTON: I assumed that was probably the case but not being a lawyer I'm always certain of how to interpret the bills. HON. R. PENNER: Most lawyers aren't either. With respect to the continuing review, yes, certainly there's a second stage of the Carr recommendations dealing with the consoli dation of these various bills in a somewhat more comprehensible way is being looked at.

But in any event with the coming into existence of the Unified family court, the Family Division of the Court of Queen's Bench, there certainly will be the much increased possibility of monitoring, collecting statistics, reviewing and providing a new dimension to family law ma tters that beg ins to add ress wha t is actually happening through a system of that kind. There will be, in a sense, continuing evaluation. MS. M. HAM ILTON: I really have very few comments on the other bills, and again rather than addressing the detail of them I wanted to speak to one or two main principles.

Again I'm looking at the possi bility of continued review. The Carr Report did not really look at the wholE' area of instant sharing, and I know that the bills in 19 77, for example, had instant sharing at least in the area of family assets, and I hope that we have not closed the door entirely to the whole concept of an instant and immediate sharing, or community proper ty with joint management. Other than that, that was my only comment on that bill. 48 HON. R. PENNER: The door is never closed entirely. MS. M. HAM ILTON: Any other comment? Thank you. MR. CHAIRMAN: Thank you, Maxine Hamilton. Donald Lugtig. MR. D.

LUGTIG: Go od mor ning, Mr. Chairman, members of the committee. I appear here on behalf of the Manitoba Association of Social Workers, and our comments are related to mainly Bill 65, although we'd like to draw in a couple of points on Bill 65 that are not in our written brief.

Our points, to be as brief as possible, relate mainly to the title of The Family Maintenance Act, the matter of mediation counselling as distinct from reconciliation counselling, the expansion of the best interest of the child provisions in The Family Maintenance Act, the principle of some kind of mechanism for child advocacy to be placed in the Family Maintenance Act, and perhaps the taking out in certain sections of The Family Maintenance Act of a possible negative, or adversarial tone.

Back in the 1977, representatives of our association add ressed a similar Law Amendments Comm ittee on The Family Maintenance Act. At that time, we suggested that the name of the statute be "The Family Relations Act." lt was felt that such a title more accurately reflects the content of the legislation. In September 1982, we subm itted a brief to the Attorney-General in response to the Carr Report on Family Law in which we once again suppor ted a change of the name of the statute.

At this time, we again request your committee to give serious consideration to this matter of giving the statute a more appropriate title. I just want to mention in that connection that Judge Carr's Report did refer to The Family Relations Act as a possible title and some of the changes that have been suggested for this act are matters of family relationships which we generally support. Of more importance than that however, we are concerned about the whole matter of looking at the act with a view of taking out as much as possible adversarial kinds of connotations.

Judge Carr's Report, and our previous submission to the Attorney-General, encou raged the recognition of mediation services attached to the Family Court. The current Family Maintenance Act in

Section 9(1) states that a judge may adjourn proceedings and direct parties for counselling with a view to reconciliation. From the outset, we have regarded this

section as inappropriate because of the timing, and of little real use to the courts or families in conflict. it has been quite inadequate in encouraging the use of social services for separation counselling or mediation around issues of child custody and access. This

section of the statute should be changed in our view, and expanded to allow for the dir ection of parties by the judge for mediation counselling. Examples of such provisions in provincial statutes are contained in the 1980 statute of New Brunswick,

Section 131 of The Child and Family Relations Act. Simi lar provisions are also contained in parallel legislation in British Columbia, Saskatche wan and Ontario. We note however, that in the recently released

Thursday, 21 July, 1983 Bill 97 of Manitoba,

an Act to amend The Court of Queen's Bench Act, provisions have been included there for referral to conciliation officers and to investigators. We feel that this is a very positive move. We are wondering if we can assume that by defining the duties of a conciliation office and family investigator in The Queen's Bench Act that such social service personnel may be called upon to intervene in cases not only under The Family Maintenance Act, but also under other legislation such as The Child Welfare Act, and Divorce Act.

If this is indeed the intention of the legislators then perhaps it is not too serious a shortcoming on the part of Bill 65 that such provisions are not spelled out in The Family Maintenance Act We are pleased that the proposed changes expand upon the concept of ensuring that in decision making about children, the "best interests" test is paramount. The proposed amendments, in our judgment, do not go far enough however. lt is not enough to say that the best interests of the child shall be the paramount consideration.

There should be some spelling out in the legislation of that intent, some factors or criteria for judging best interests need to be articulated. I would note in The Child Welfare Act that there is such an articulation and spelling out of those, however, these would not in our judgment be the same as could be used in The Family Maintenance Act.

There are questions of custody between marital partners and so on that ma y not be really fully addressed by the best interest spelling out, as it exists in The Child Welfare Act I'm assuming that you all have this before you and I don't want to bore you with reading through those, unless you'd want me to, but just to note that those are on record and we'd like to see, if at all possible, that kind of an extension be placed in The Family Maintenance Act, as it now is in The Child Welfare Act.

Going on then, regarding other points, one of the issues we though t would be addr essed in the amendments to The Family Maintenance Act, and I'm not sure about The Court of Queen's Bench Act, is that of legal representation for children who are subjects of a custody dispute.

Section 25(7) of the current Child Welfare Act provides that in proceed ings under the child protection section, the judge may order that the legal counsel be provided to represent the best interests of the child.

We feel that some similar form of parellel provision be included in The Family Maintenance Act. lt would be appropria tely situa ted in the sect ion following that on defining the "best interests." Sometimes the matters of dispute are so difficult and sometimes the way that affects the child may be so difficult that, in fact, the child really does need represe ntations to make sur e that his views and interests are known. I'm sure that they would be considered by a court, but I think they should be put forward sometimes by the child and the judge may, in fact, want that to take place.

We are generally happy with effort to remove the distinction between children of married and unmarried parents and our main concern in our brief on this matter was that this did not interfere with the long-term best interests of the child or hinder permanent planning for the child. I think on the whole, the two bills before you do that 49 There is a concern that I find there. While The Family Maintenance Act,

Section 11 .6( 1) and The Child Welfare, 15 .5, I think it is, and 83.5 of The Child Welfare Act all dovetail to give the father the right to apply for a declaration of paternity, as it were, and also limit the proceed ings for adoption in those instances, it does state there that the child cannot be placed for adoption, where the man is delared to be - where the court - in the situation the child can't be placed for adoption until the dism issal of the man's application is appealed, as far as it can be appealed.

That seems to be, in our judgment, a placing of an unnecessary burden on the child and I'm sure that we don't want to recommend restricting an applicant's rights. On the other hand, it could be possible that a person could have applied and that a court made a dismissal of that and then he appealed this dismissal and it went all the way to the Supreme Court and it eventually was dism issed.

In the meantime the child sits in limbo and cannot be placed for adoption and that could take quite a considerable length of time and the child might be two or three years old by the time that whole proceeding takes place for an action, which in the end, may resolve in the person not being declared the father. I'm wondering if that is the intent of the drafters of the bill and I'm wondering if that might be reconsidered and perhaps reworded to limit the matter of appeals of dismissal. Moving on then to the current

Part 11 of The Family Maintenance Act, Sections 12 to 15 deal with child support. If the proposed amendments are passed, this part will also include the sections of the act that deal with custody orders. This is merely a question of wording or the tone of wording. The proposed new

Section 14 is quite good, in our judgment, except for one flaw. Bill 65 suggests in 14. 1(2)(d) "the parent who is not given custody of the child has access ," and in 14.1 .(4) "the parent who is denied custody of a child retains rights to records," and so on. We strongly suggest that the wording be changed to read in both clauses "the non-custodial parent." This takes away from the blatant adversarial tone of the section. The spirit of custody provisions should be to convey a conciliatory tone of co-operation, not conflict.

In such instances, proper wording means a lot to people and we want to get away from thinking about decisions affecting families in terms of "winners" or "losers." This will be more consistent with the intent of the drafters of the amendments where they correctly define joint rights of pa rents in the pr eced ing su bsection. The tone of the statute ought to be consistent, so this

section on custody provisions needs considerable refining before it becomes law. Also we suggest that the new

Section 14.1( 3) "evidence re conduct of parent" could go in the

section on best interests of the child as it does in the Ontario legislation quoted earlier. Just to conclude, our main points are that we would like to see you consider changing the name of the act We would like, if possible, to see a

section regarding mediation counselling or conciliation in this act if The Court of Queen's Bench Act doesn't, in effect, direct this act or supersede it or control it We'd also like to see the definite guidelines on the best interests of the child placed in the act and we suggest the Ontario law as a possible model. We'd like

Thursday, 21 July, 1983 to see some provision for child advocacy in the bill, and finally, we would like to see those parts of the bill that might have an adversarial tone, be reworded so that those are removed. I think, Mr. Chairman, that was all the comments that I had on this. MR. CHAIRMAN: Thank you. Mr. Penn er. HON. R. PENNER: Just very briefly. Yes, the proposed Family Division of the Court of Queen's Bench, Bill 97, Sections 52(4)(5) are wide enough, in fact, do cover all statutes including the FMA.

With respect to the best interests criteria, there have been a numb er of submissions, mostly, of course, in support of the question of best interests, but suggesting criteria. I believe, however, that a submis sion was made that perha ps this ought to be left until after the Kimelman Report is something that commends itself to us and we'll look at that. I may say in general, probably positively, but we think Judge Kimelman should report before we seek to see what criteria we'd want to set out if we do that.

With respect to your concern that there could be a father's action to contest an adoption placement that would leave the child in limbo for a considerable period of time, I am advised that - and I think that is right - on Page 7 of the FMA Bill 65, the power that is given to the Director of Child Welfare to expedite a hearing is designed to deal with that possi bility. But we'll take a look at the wording to make sure that it meets the concern. MR. D. LUGTIG: Ok ay, thank you very much. Could I just comment then a bit on The Child Welfare Act, a small concern? I don't know if I am at liberty to do that.

Am I at liberty to make . MR. CHAIRMAN: Proceed. MR. D. LUGTIG: Just a small point that was raised earlier on

Section 17 , and I just do that out of concern of a person that's had some experience in child welfare and not to suggest giving social workers who are the main ones who do child welfare work more power than they should have. But just to comment that there are situations where it isn't really practical, even if it were desirable, to have peace officers apprehend children. I ha ve been in a numb er of those situations, particularly in rural areas in the bush where a social worker comes on a situation that there wouldn't be a police officer in 200 miles or 50 miles. it would be totally impractical and unwise to limit this

section to that in my judgment. it's not a question of trying to get more power. it's a question of being able to do the job that the act - that was the only part. MR. CHAIRMAN: Thank you, Mr. Lugtig. MR. D. LUGTIG: Thank you very much. MR. CHAIRMAN: Joel Morasutti. Teachers' Society, Murray Smith, Dave Lerner and Donna Lucas. MR. M. SMITH: Mr. Chairperson, in the absence of Dr. Linda Asper, our President, I am appearing on behalf 50 of the Manitoba Teachers' Society. I am Murray Smith, a teacher in the Winnipeg School Division and first Vice-President of the society.

My colleagues are David Lerner, who teaches in the Assiniboine South School Division and is a member of our provincial executive; and Donna Lucas, who has been a teacher in the Winnipeg School Division and is currently a staff officer with the soci ety. The Ma nitoba Teachers' Society welcomes this opportunity to appear before this committee of the Legislature to present its opinions regarding Bill 66. The Report on the State of Family Law in Manitoba prepared by Judge Robert Carr for the Attorney-General in 1982 stated, "Children are Manitoba's most valuable resource.

They are an investment upon which our future depe nds." The Teachers' Society strongly endorses these observations. Teachers have the resp onsibil ity to pr ovide educational services of the highest quality to the young people of our province. Teachers also share with the community at large a concern for the well-being of children and youth. it is therefore the policy of the society that: 1. The fundamental aim of education is the physical, intellectual, emotional, social, aesthetic and moral development of individuals into people who realize self respect, self-fulfillment and their relevance in society. 2.

All children or students have the right to an education which is appropriate to their specific needs. 3. All children or students have the right to adequate health care, nutrition, adult support and protection. 4. Edu cators have a respo nsibility to estab lish mutually supportive relationships with parents and the community to promote the education of children.

I should add that our society has also been much involved with the interdepartmental, interorganizational committee on juvenile justice, and David Lerner has been the society's representative on this committee. it is from this perspective that the Manitoba Teachers' Society offers the following comments regarding the amendments of The Child Welfare Act of Manitoba in sections identified as follows: First, The Protection of the Educational Rights of Young People taken into Care; then The Need to Co- ord inate the Delivery of Community Child Care Services and Public Educational Services, with the sub-heads, Integration of Planning and Program Delivery, Notification of Apprehension, Needs Assess ment, The Age of Majority Dichotomy; then The Right of the Young Person to be heard and represented; then The Implementation of The Young Offenders' Act in Manitoba; and finally The Proposed Child and Family Services Act of Manitoba.

Under the first heading, Bill 66 in its first

section will amend The Child Welfare Act to ensur e, "In all proceed ings under this act, other than proceedings under

Part Ill to determine whether a chi!d is in need of protec tion, the best interests of the child shall be the paramount consideration of the court regardless of the wishes or interests of any other party to the proceed ings." We notice that there is a somewhat parallel wording in the amendments to The Family Maintenance Act, and we support both of these. A series of

definitions providing elaboration of the phrase, "best interests of the child" were previously entered into

Section 1 of the act in '79. Among other 1

Thursday, 21 July, 1983

interpretations, the phrase is to mean the consideration of: the mental, emotional and physical needs of the child and the appropriate care of treatment to meet such needs; the child's mental, emotional and physical stages of development; the effect upon the child of any disruption of the child's sense of continuity and needs for permanenc y. The Manitoba Teachers' Society notes that Bill 66 clearly establishes the best interests of the child to be the paramount consideration in any decision by the courts.

Under the provisions of The Child Welfare Act, care is to be taken to serve the psychological needs as well as the physical needs of the young person. However, accord ing to these associated

definitions, the best interests of the child do not involve the protection of the educational rights of the young person taken into care. The society suggests that the references in

Article (iv) to the effect upon the child of any disruption in the child's sense of continuity should be regarded as applying not only to the environment of the family but equally to one of the focal points in the lives of young persons, namely, the continuing attendance of school. Yet The Child Welfare Act as amended by this bill will remain silent regarding the responsibility to provide for the educational needs of children and youth taken into care.

Perhaps I should pause to stress that we are well aware that sections of The Public Schools Act require that the parent or other adult in charge of the child shall ensure that the child attend school. We are not talking about mere attendance in school, we're talking about respo nsibili ty for an educational program appropriate to the child's needs. By contrast with the situation in Manitoba, The Children's Law Reform Act of 1981 in the Province of Ontario designated the following

Section 27: "A person entitled to custody of a child has the rights and responsibilities in respect of the child to direct the education in the best interests of the child." This Ontario legislation recognizes the best interests of the child to bear an association with access to education. Similarly, The Child and Family Services Act of the Province of New Brunswick states as follows under

Section 45: "Where the child is in care under a guardianship agreement, the Minister shall provide care for the child that will meet his educational needs." Once again, there is a recognition of the need to protect the educational rights of young persons while they are under the care of an agency or the courts. The Teachers' Society is concerne d about any situation which could arise to interfere with the access of the young person to educational services and interrupt valuable instructional time.

Teachers are aware of cases in which the education of young people has been severely disrup ted thr ough apprehension. Circum stances involving the breakdown of family relations and the placing of children under care are traumatic for these children. The future of the young person can be placed in further jeopardy if access to education is not sustained. Wardship should not represent a state of limbo for the young person in which the supportive and nurturing condi tions necessary to encou rage educational development are absent.

There is need for flexibility in the placement of young persons under care in order 51 to foster an environment which is condu cive to the educational growth of each particular young person. lt is essential that every possible effort be made to ensure that the entitlement to educational services appropriate for the child be protected while the child is under the care of a child care agency or the court. Second point: The Review of Child Welfare Policies, Programs and Services in Manitoba - A Report to the Minister of Health and Social Devel opment, mo re generally known as the Ryant Report, after Dr.

Ryant, of July, 1975, drew attention to the need for closer integration of child care services and public school services in Manitoba. This is an area with which the Juvenile Justice Comm ittee dealt in detail. "The relationships between the child welfare system and the educational system are not uniformly well developed. Consequent ly, there are expectations held by each of the other which are frequently disappointed. Children often are left with needs unattended because each system is expecting the other will take action.

The fragmented ju risdictions between them, the separate funding base, and the differences in philosophy make for difficulties _in mobilizing two separate, but related, sets of resources on behalf of the children. "There is need for closer co-operation between the child caring agencies making the placements and the school divisions which must provide the education." That report presented two specific recommendations calling for the enhanced co-ordination of community child care services and public educational services.

First: "Better relationships should be built between child caring agencies and the school divisions within their catchment area, with special reference to serving special needs children and those who are in receipt of child welfare services.

"The Department of Education should implement the manda tory legislation for special needs children in a fashion that provides co-ordination and linkage to the child and family service system." Despite these recommenda tions, child care services and public education services, while sharing the best intentions for the well-being of the child, often continue to operate remote from one another. The lines of commu nication regarding planning and development of programming appropriate to the needs of the young person are not well co-ordinated between child care agencies and public schools.

The circumstances being encou ntered by the young person are often unknown to school personnel. For example, as young persons are transferred from one school to another and then perhaps transferred once again during the school year, records indicating educational needs at that point in time are not readily made available to teachers, and the educ ational program of the student becomes disjoint. In some instances, even the whereabouts of young persons taken into care or apprehended are unknown to educational personnel for periods of time.

The Teachers' Society believes that there is an obligation on the part of all public service sectors to provide linkages in the life of the young person. While adults can assume personal responsibility for integrating the public services they require, and indeed they often find that difficult enough, children cannot. Integration of programs and services must be unde rtaken on their behalf. Social, family and economic problems bese tting you ng persons can create educ ational problems.

Thursday, 21 July, 1983 Divergent efforts to resolve these problems separately can lead to the increasingly expensive duplication of some services while other needs remain unaddressed. it is the belief of our society that many services for children and youth are best delivered in common to avoid overlapping jurisdictions between various public service sectors. Enhanced integration of community child care services with public school services could work to minimize disruption in the education of young persons.

There is need for planning and program linkages involving the Department of Communi ty Services and child care agencies with the Child Care and Development Branch of the Department of Education and the special education co-ordinators of each school division and district. There should be a closer working relationship among the special education teachers, the resource teachers, and the social workers employed by school divisions and the child care workers and social workers of child care agencies, in order to provide a continuum of service delivery for young people.

There is a need to co-ordinate school-based teams involving parents and guardians with public school personnel and child care workers to plan and to provide meaningful packages of services for young children in need.

Section 24 of the bill, Parents to be notified of apprehension, requires: "A child caring agency, upon notification that a child has been apprehended and brought to a place of safety, shall forthwith, if possible, notify the parents or guardian of the apprehension of the child . . . " The Teachers' Society notes that in the amended Child Welfare Act there will be no requirement for the public school at which the young person is enrolled to be notified of the young person having been taken into care or custo

Document details

Collection	Manitoba — Debates (Hansard)
Citation	32-2-sro2
Type	hansard
Volume / chapter	32nd 2nd hansardpdf sro2.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	25eb156b4dc650ed689eaaa769f55374d1d5a25d

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