Manitoba Committee Hansard — 23 November 1976 (Statutory Regulations and Orders Committee, Sitting 5, 30th Legislature, 4th Session)

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Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba HEARING OF THE STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Chairman Mr. D. James Walding Constituency of St. Vital TUESDAY, November 23, 1976. 8:00 p.m. Printed by P.N. Crosbie- Queen's Printer for the Province of Manitoba

TIME: 8:00 p.m. Statutory Regulations and Orders Tuesday, November 23, 1976 MR. CHAIRMAN (Mr. D.J. Walding): Order please. We have a quorum, gentlemen, the Committee will come to order. In front of you you will find copies of two briefs, one from the Family Services of Winnipeg; the persons who were to present them were not able to be here. They've been circulated to you- is it your wish that they be printed in the record? The other one, by the way, headed, "Widows and Widowers Group", that was simply left this morning, we have no name to go with it but it is a brief to the Committee. MR. JEN KINS: Mr.

Chairman, I would move, that the two briefs circulated be included in the proceedings. MR. CHERNIACK: Well Mr. Chairman, I don't suppose it's important I did think from the cost standpoint that if we all have it that that should suffice but I suppose if they had come they would have read it and the only thing we're missing is the opportunity to discuss their brief with them so I suppose it's just as well to leave it in. MR.

CHAIRMAN: Is it agreed then that these two briefs form part of t he printed record of the committee? (Agreed) Are there any members of the public present this evening wishing to speak to the Committee who have not indicated in advance that they wish to do so? If so, would you come up to the microphone, please, and give me your name. MS. WINNIFRED HAVELOCK: My name is Winnifred Havelock. I agree in principle with the ... MR. CHAIRMAN: One moment please. I just want to get your name so that I can call you in turn. MS. HAVELOCK: Oh I'm sorry. MR. CHAIRMAN: What was the last name again? MS. HAVELOCK: HAVE L 0 C K.

MR. CHAIRMAN: Thank you. I'll put you on the list. Is there anyone else present wishing to speak to the Committee? MS. SHIRLEY MUNRO: If time permits, Shirley Munro. JANET BERKOWSKI: B E R K 0 W S K I thank you. MR. RALPH RAPHAEL : Ralph Raphael. A fellow over thererecogniized that I wanted to speak to the Committee. MR. CHAIRMAN: Is there anyone else wishing to address the Committee this evening? Is the representative of the Winnipeg Council of Self-Help here this evening? Would you come forward, please. MS. FRA NCES RO SKEVICH: My name is Frances Roskevich.

I intended to present this brief as a private citizen, however, I am a member of the Winnipeg Council of Self -Help and in varying degrees, we all wear the same moccasins there. I feel I am very fortunate to be standing here presenting this brief tonight, fortunate because on any one of a number of occasions due to violence that develops within a marriage, I could have ended up six feet under. My marriage was just one example of how badly some turn out. It took place in 1955 but there still are vows being exchanged today that will not make it to the "till death do us part".

My personal life experience as that of a Jot of others relates to the other side of the tracks, married at one level then progressively decline to a lower level . I speak for the countless dewy eyed "head over heels in love" brides, past, present and future who, like myself, have not given thought beyond the "and they lived happily ever after", like the many of us who do not know what our rights are or what they hold for us, a fact I have knowledge of because I have lived it and which can also be attested by one parent families.

I am also speaking on behalf of those still out there in the various pockets of the cities and towns and especially in the rural areas who are silent at the moment, silent because this is a life society has been handing down from one generation to the next generation. The beginnings of a marriage are under a misconception. We are quite confident that a marriage contract will cause equal shares and equal rights to be carried out by each other with the supporting comfort of a spouse. The feeling however, is very short-lived. For me it started dying fairly soon.

Before the arrival of our first wedding anniversary I had reason to question the negative outcome of a lot of decisions that had been made jointly but instead were carried out according to his own immediate desires. And what became shockingly clear to me was quite "what's mine is mine and what's yours is mine". Because I acquired most of our furniture prior to marriage when suddenly, without my knowledge, the rent became extensively in arrears and I lost it through a confiscation by the bailiff. I was not allowed to protest as I silently watched everything go except the bare necessities.

After all I was supposed to be satisfied my personal wardrobe wasn't touched. There might have been someone I could have gone to for assistance at this time but my husband's word was Jaw, I had no say in the matter, whatever conditions he created I would have to live under. Three years of marriage and three children later, responsibilities should have increased, however they declined. At this point it was necessary to resort to welfare assistance and the situation continued for approximately twelve years.

Conditions became intolerable and I had to seek a separation but had to stay on public assistance now that I was alone to bring up six children. Could there not have been a better system to provide a more humane behaviour in decision-making on maintainers . If there was a better provision from the courts to enforce the Page 95

Statutory Regulations and Orders Tuesday, November 23, 1976 court order of maintenance to be carried out there would be no "why are there so many on welfare assistance?" Let me quote a portion of a former brief pertaining to maintenance presented by the Winnipeg Co uncil of Self-Help Help on another occasion. "The parent who has the responsibility for the children must be entitled to make the final decision on the question of the family's need, for that parent to remain at home full time.

Therefore we believe that a sole support parent should also be entitled to maintenance as long as the children require this adult supervision on a basis that the other parent should pay part of the time spent to provision of" his or her family." I was successful in becoming a self-supporting parent within three years of separation and I felt quite lucky, but that took care only of the financial side of life. Harassment often becomes a daily part of that life too when the other spouse refuses to recognize separation under existence of it.

And when you live on the other side of the tracks, police assistance is so often quite lacking. As a member of the Winnipeg Council of Self-Help , I hereby state our endorsement and support to the conditions being presented by the Coalition here today. MR. CHAIRMAN: Thank you. Are there any questions? He aring none, thank you. Is the representative here of the Canadian Council of Women? So would you come forward, please. MRS. ANN JACKSON: Did you say the Canadian Council or Co ngress? MR. CHAIRMAN: The Canadian Council of Women. Mr s. Thorn is listed as the person concerned. No takers?

Is Prof essor Sokol off here? MRS. ANN JACKSON: Excuse me, you named our secretary instead of myself. I am Mr s. Ann Jackson representing the Congress of Canadian Women. Can you hear me? MR. CHAIRMAN: Yes, I ca·n hear you all right, ma'am. One moment, please. I have two organizations here wishing to speak to us, one is the Ca nadian Congress of Women, Winnipeg Chapter, Mr s. Jackson, and the other a Canadian Council of Women, a Mr s. Thorn. Can you tell me if they are in fact two separate organizations? MRS. JACKSON: There is just one because Mr s.

Thorn is the secretary of the Congress of Canadian Women which is the correct title of our organization and I am the Chairperson, Mr s. Jackson. MR. CHAIRMAN: Would you continue, please. MRS. JACKSON: I am presenting this brief on behalf of the Winnipeg Chapter, Congress of Canadian Wom en and its affiliates, the women's branches of the Association of the United Ukrainian Canadians, the Federation of Russian Canadians and the United Jewish People's Order.

The Congress of Canadian Women is part of a worldwide organization, The Women's International Democratic Federation, with 121 member organizations in 106 countries. The WIDF holds consult ative status "B" at the United Nations which covers non governmental organizations, and as such, participates in the work of the U .N. Com mission on the Status of Women which has resulted in the universal declaration of human rights, the declaration of the rights of the child and the declaration on the elimination of discrimination against women.

It was upon the suggestion of the WIDF , backed up by other non governmental organizations, that the United Nations decided to declare 1975 International Women's Year, which marks the beginning of a decade for women as adopted by the General Assembly of the United Nations.

Our parent organization has made submissions to the United Nations Commission on the Status of Women recommending democratic laws of marriage, equality in case of divorce and inheritance, equality in the right of ownership, equality in the right to work and equal pay for work of equal value, equal rights and responsibilities in matters concerning their children, eradication of all those traditional customs and prejudices which in some countries prevent women from attaining emancipation and their full status.

One of the purposes of our organization is to advance the stability and well-being of the family which we consider to be the foundation of society. We welcome therefore the establishment of the Law Reform Commission and believe its report to be a big step forward in the right direction. We endorse the recommendations of the action Coalition on Family Law, its principle, as outlined in their presentation and in addition, we would like to draw attention to some areas which are of special concern to us.

The 20th Century has seen a period of accelerated change and technological advance which uproots families to follow industry. It has also seen changing modes of living from farm and reserves to urban centres, as well as a transition from the support of the extended family unit to the isolation of the nuclear family. We must see to it that family law changes to meet the needs deriving from these changed conditions affecting the marital child raising environment.

While we believe the report of the Commission to be excellent in many ways in dealing with marital separation, it falls short in dealing with existing marriages. Family law in our time must buttress the family milieu bolstering the harmony between husband and wife and eliminating the inequalities which create friction and hostility. This purpose can best be served by provisions for full and immediate community of property during marriage. If we concern ourselves only with the dissolution of the marriage, it becomes a case of locking the door after the horse has been stolen.

The non-earning spouse in the vast ma jority of cases, the woman, should not have to wait for marriage breakdown to establish her right to a fair share of the property accumulated during the marriage. it would Page 96

Statutory Regulations and Orders Tuesday, November 23, 1976 appear to us that "if sharing takes place only on marriage breakup", to reiterate an opinion expressed at the previous public hearings on Family Law, "the economically weaker spouse has a stronger incentive to force such a breakup." Ma rriage can only be strengthened if the non-earning spouse is not put in the humiliating position as many now are of having to ask the earning spouse for money. To remedy the situation would be a positive step in creating and maintaining harmony in the home with the resultant good mental health of all members .

We believe that young people should be prepared for a good sharing family life. This could be attained through high school education and premarital counselling by well-trained, competent personnel, as well as the salutary effect of a happy home environment. At present, people go to marriage counsellors only when there is danger of breakdown or when the marriage is already broken down. We recommend that a pamphlet explaining the new family law be issued with each marriage license. In the

section dealing with maintenance and the necessity for training or retraining skills of the non earning spouse on separation or divorce, in order to become self-supporting in the shortest possible time, we must point out that in most cases this would be impossible without adequate child care facilities. We propose that the government make a strenuous effo rt to increase the number of such facilities. This applies as well to after school and lunch hour supervision which at present are far from adequate. Regarding the opting-out clause, we believe it tends to negate the whole idea of partnership in marriage.

We feel that opting-out must be a dual agreement on the part of both partners not just one. Furthermore, before opting-out, the partners should be counselled fully about the implications of this step and it should not be undertaken too early in the marriage. Should there not also be provision for the pair to opt in again if they change their minds? In attempting to reform our out-dated Family Law, we might well be guided as suggested by the British Co lumbia Royal Commission on Family Law in its Sixth Report dated Ma rch, 1975, by the following concepts: l. All persons should be equal under the law. 2.

Mar riage is a partnership of shared responsibilities. 3. The roles of econom ic provider and homemaker are of equal value to the relationship. 4. Ma rried women are equally competent. Equality in Ma rriage is included in the world plan of action adopted by the International Women's Year Conference held Mexico at which the Canadian Government was represented. See Items I and J in the extracts from the World Plan of Action attached hereto. We therefore appeal to the Comm ittee to recommend legislation which will enable women to achieve full equality as human beings and as citizens without further delay. Thank you.

MR. CHAIRMAN: Thank you. Are there any questions? Hearing none, thank you Mrs. Jackson. Is Professor Soko loff here, please? Professor Sokoloff. Is Professor Cameron Ha rvey here, please? Would you come forward? MS. JILL OLIVER: I'm really not Professor Cameron H arvey. However, he apologizes for not being here and I ask the indulgence of the Com mittee to allow me to give his presentation. MR. CHAIRMAN: Would you give us your name, please? MS. OLIVER: My name is Jill Oliver. MR. CHERNIACK: Could you answer on his behalf, too? MS. OLIVER: I don't profess to be able to do that.

I will be able to answer on my own behalf as far as I understand his position. MR. SHERMAN: Is this, might I ask, an independent position or a representative of a group? MS. OLIVER: No. Professor Ha rvey is a Professor at the Faculty of Law, and he is presenting an individual independent paper. MR.

CHERNIACK: With no discredit to Miss Oliver, we've had two briefs left with us to read and if all she's going to do is to read the brief then surely we can read it ourselves and save the time of those people who are waiting to make a personal presentation, and make it possible for someone else to be heard and questioned on it. Is that unfair, Mi ss Oliver? MS. OLIVER:No, I don't think it's unfair. I know Professor Ha rvey was hoping to be here, and as such I've brought the brief again expecting him. MR. CHERNIACK: Well, Mr.

Chairman, may I also suggest that we accept the brief but reserve the opportunity to Professor Harvey to come here at some later date when we are sitting for that purpose, a ne yet hear him because I would think that not only hearing the brief but discussing it with him will be of value to us. So wouldn't that take care of both needs, one that the brief be presented, the other that he have an opportunity to appear before the Commi ttee. MS. OLIVER: I think that's fair. As I say I have had long discussions with Professor Har vey on this paper.

As I say I can only answer as far as I understand his position, and if you'd prefer to hear it directly from him I think that's fair enough. But if prefer to hear it now I can answer as best I can. MR. CHAIRMAN: What's the wish of the Comm ittee? MR. CHERNIACK: That's agreeable, Mr. Chairman. MR. CHAIRMAN: Is it agreed then that copies of the brief be circulated to the Co mmittee and . Page 97

Statutory Regulations and Orders Tuesday, November 23, 1976 MR. P A WLEY: Well, except Mr. Chairman, if Professor Havey will not be presenting the brief I would prefer to see Miss Oliver proceed with the reading of it since she's had discussions with him and there may be questions that we might want to present after she's completed reading it, because I notice it's rather a legal and technical brief. MR. CHAIRMAN: The Chair has heard two different opinions. What's the will of the Committee. MR. CHERNIACK: When in doubt, hear her. MR. JENKINS: Mr. Chairman, it's only a three-page brief.

I think that Miss Oliver could present it and if we have any questions we can ask them, and if there are some questions she can't answer she can perhaps pass them on to Professor Ha rvey and at a later date we could hear them. MS. OLIVER: I'd be pleased to do that. MR. CHAIRMAN: Is that the will of the Committee? Agreed. Would you proceed Mrs. Oliver, please. MS. OLIVER:Thank you.

I am going to address myself to the Commiss ion's recommendations concerning Dower and Succession, pages 10 5 to 10 6, and 13 5 of t he Comm ission's Report in particular; however, I do wish to state my support for the amendment of our Jaw so as to bring about the implementation of an immediate community of property regime for married persons insofar as post-nuptially acquired property other than that acquired by gift or inheritance is concerned.

Possibly there could be some alleviation of potential joint management aggravation with respect to decisions having a relatively trivial economic aspect to them by providing for sovereignty to either spouse concerning decisions involving less than $500 00. Aside from this accommodation, I see no need for stopping short in implementing community of property at deferred sharing of property. I am not persuaded in this regard by the reasons of the Commission, and in any event, we should find out for ourselves whether or not the joint management ramification of an immediate community of property regime is unworkable.

Turning to the "Dower and Succession" recommendations of the Commission , I disagree with the Commission. I read the Commission's report as recommending the continuation of separate property concept, modified by its recommended amendments to The Devolution of Estates Act and The Dower Act, for the determination of how a deceased spouse's estate is to be distributed.

It seems to me that if we are going to have a commun ity of property regime for married persons - I think he means by that deferred sharing of property regime to married persons - then the rules of that regime should be applied to dissolutions of marriages that occur by separation, divorce or death. 1 agree with the Commission that upon a dissolution of a marriage by death, the law does not have to be concerned with starting both spouses upon new lives.

However, in my opinion, that is not sufficient reason to interfere with both the testamentary right of persons to dispose of their property as they wish, subject to certain rules regarding accumulations and perpetuities, and the judicially enforceable obligation to provide for certain dependents, and the legitimate expectations of issue of a deceased person to share in that person's estate, again subject to judicial power to re-order the distribution of estates to take care of the need of dependents.

As I stated above, I think that the rules regarding shareable property and the division of that property, which comprise the commun ity of property regime made standard for married persons should be applied to dissolutions of marria ge by death. This should be the first step in the determination of what happens to the marital asset as a result of the death of one of the spouses.

Then, insofar as the deceased spouse's share of the marital assets is concerned, the law could, in the interest of the surviving spouse, in the interest of encroaching no further than absolutely necessary on testamentary freedom, etc. , be written to embody one of the following four mutually exclusive rules: 1. That the surviving spouse succeeds to the deceased spouse's share of the marital assets by operation of a doctrine of survivorship, similar to that which operates with respect to real property held in joint tenancy. 2.

That the surviving spouse has a life interest in the deceased spouse's share of the marital assets, similar to the potential interest of a surviving spouse currently pursuant to

Section 14 (1) of The Dower Act in the homestead. 3. That by fixed forced sharing the surviving spouse is entitled to a percentage of the deceased spouse's share of the marital assets. 4. That the deceased spouse's Will, or The Devolution of Estates Act, amended as recommended by the Commission, if the deceased spouse dies intestate, govern the distribution of the deceased spouse's share of the marital assets.

It could also be provided, regardless of what rule was embodied in the legislation, that the Court of Queen's Bench have a discretion, similar to that which it has currently under The Testators Family Ma intenance Act, to intervene to re-order the otherwise distribution of an estate to take care of the need of (

a) dependent(s). My preference, based as it is upon my inclination for testamentary freedom and my dislike of fixed forced sharing rules which operate without regard to particular circumstances, is for the operative rule to be (4) as outlined above, with The Testators Family Ma intenance Act continued generally as it now exists. Of course, my suggestion involves the repeal of current

Section 15 and so on, of The Dower Act. My disagreement with the Commission's recommendations concerning "Dower and Succession" and especially regarding The Dower Act, is founded not only upon my dislike of forced sharing, but also because the Commission 's recommendations do not require any accounting, so to speak, regarding the respective Page 98

Statutory Regulations and Orders Tuesday, November 23, 1976 spouses' shares of the marital assets. In its desire to provide for the new life of the surviving spouse, it provides for a potential over-compensation. This is not necessary, so long as the Court of Queen's Bench pursuant to The Testators Family Maintenance Act has the same kind of discretionary power to intervene upon dissolution of the marri age by death as it has to intervene to order maintenance upon dissolution of the marriage by separation or divorce.

Regarding The Testators Family Maintenance, I think that it should be amended so as to open its relief to not only lawful spouses and legitimate children, as the situation is currently, but also to any dependent and to the parents of the deceased. Also I think that

Section 22 of the Act should be repealed. I agree with the Commission's recommendation concerning the amendment of The Wills Act, contained on pages 10 6 to 108 of the Report. Respectfully submitted . MR. CHAIRMAN: Are there any questions? If there are none, thank you Mrs. Oliver. MS. OLIVER: Thank you. MR. CHAIRMAN: Is the representative of Women's Place and Women's Liberation present, please? So would you come forward. MS. LINDA TA YLOR: My name is Linda Taylor and I'm here today to speak on behalf of Women's Place and Women's Liberation.

We are participating members oft he Coalition on Family Law and we support all the recommendations put forward by the Coalition this morning. Women's Place is a meeting centre for approximately ten women's groups involved in activities and education designed to improve the conditions of women. Our Walnut Street Centre also acts as a service and referral agency for all Manitoba women in need of our support. Women's Liberation, the political arm of Women's Place, has a subscription of 500 individuals to its monthly newsletter, in publication for more than six years.

Although our ope rating expenses exceed $5,000 a year we operate without any government assistance. We would like to begin our presentation with a statement of principle. We are committed to the full equality of all citizens in a society based on co-operation and democracy; free of poverty, exploitation and discrimination. We see the reforms proposed by the Coalition not as an answer to the needs of women but as a step forward, a beginning.

Until society recognizes its responsibilities towards children and no longer defines them primarily as women's responsibility; until women have control over if, when and how many children they will bear; until all adults are independently economically secure and the value ofthe work women perform given full recognition; until women participate in all aspects of our society and are no longer trained to be subservient and docile, the full equality of women inside or outside the family will not be achieved.

We remind the legislators here today of their continued responsibil ity to press for changes to remove discrimination in all areas of public life and we ask for the support of all parties for the proposed changes in family law. We will address ourselves to only three areas of the Coalition recommendations: child maintenance, interspousal maintenance during marriage and the Law Reform Commission proposal for opting out of the standard marital regime.

Family Law must reflect the principle that all children are deserving of support and that the birth of a child creates a serious obligation both to the parents and to the commun ity as a whole. All children are entitled to have their basic physical, emotional and social needs met in order to provide them the greatest opportunity to become self-respecting and participating members of the community.

For the more affluent members of our society the equal division of assets in the event of divorc<> will assist in providing these opportunities, but for the large number of children in economically deprived family situations, the division of property will only slightly affect their circu mstances. For these children it is not accumulated property, but the wage labour of their parents which provides the only economic security they will experience. Let us look for a moment at the conditions of single parent families.

Nine ty percent of these families are headed by a mother and according to Statistics Canada more than one-third of them live in poverty; about one-quarter of these families are supported through welfare payments. And yet, in spite of this, about 75 percent of court-ordered maintenance payments in Canada are not received by the spouse with care of dependent children. According to the Royal Commission on the Status of Women half of all female heads of families have only an element ary level of schooling or no schooling.

They would then likely receive jobs paying near the minimum wage and many would be forced onto welfare. But with the knowledge that 80 or 10 0 or 200 additional dollars would be paid to them each month they could leave welfare, plan their future and begin a life of economic independence. We quote from the Royal Com mission Report: "The biggest single and continuing problem ofsole-support mothers is a basic .financial insecurity and a subsistence level of living which they have no real hope of improving.

Therefore, we believe that a special agency should be created which would maintain a registry of all maintenance orders, collect and enforce all maintenance orders and make this payment to the single parent whether or not the full amount is collected. This action is essential for the following reasons: Page 99

Statutory Regulations and Orders Tuesday, November 23, 1976 1. If the government was making child support payments out of public funds it would take more seriously its responsibility to uphold the law and to pursue offending and irresponsible spouses. Just as we do not ask bank managers to track down bank robbers we should not expect single parents, already overburdened, to track down spouses who break the law by withholding child support payments. 2.

Such a provision would primarily help children because at present, it is the children who we force to pay the cost of the illegal actions of one of their parents and of the reluctance of society to regard the action with the seriousness it deserves.

Although we believe and recommend that the court begin to order maintenance at a level which ensures a stable environment for children we do not ask that any unreasonably high level of child support be paid out of public funds; there must be a cut-off level, perhaps when the single-parent families' income reaches the average income of a two-parent family with the same number of children. 3. Guaranteeing maintenan ce awards will effectively result in some redistribution of income, by providing additional monies to those at the lowest end of the income scale.

All Manitoba political groupings have committed themselves to provide for the needy. What group is more deserving than low-income sole-support families? We advocate and will happily support through our taxes, any mechanism which will redistribute money in this way. According to the Women's Bureau the average wage for males in Manitoba in 19 75 was $1 1, 000, while women on the average earned only $4,000; we have been trained to have unequal job aspirations for which we receive unequal wages. Children of single parent families suffer from this widespread and complex system of discrimination.

We believe our proposal would begin to overcome this injustice. The second area we wish to discuss is spousal maintenance during marriage. We support the following: 1. Each spouse is responsible for the support of the other during marriage. This may be accomplished by one spouse making a financial contribution while the other is involved in child care and household duties, or both spouses may choose to share in child rearing and homemaking responsibilities and also contribu te financially to the unit.

Income earning and child care are to be seen as equally valuable and important to the family and to the society. 2. Each spouse has the right to participate in making decisions. A question came up this morning about this. The existing law states that whoever earns the wages makes the decision on how to spend them regardless of how responsible or irresponsibl e or competent or incompetent they may be. We are simply suggesting here that both spouses may share in that decision-making. 3. This necessitates that both spouses must have full information about the earnings, assets and debts of the unit.

If one spouse withholds this information, the law must require that it can be obtained through the spouse's employer (including the government), partner or accountant. 4. Each spouse has a right to a reasonable standard of living including a personal and clothing income. This amount should not be determined by the spending of the wage-earning spouse, as proposed by the Law Reform Commission, but should depend on the financial circumstances of the family. 5. A spouse should be able to apply to the courts for enforcement of each of these rights.

The Coalition supports these reforms not as a solution to equality in marriage but as a base for the introduction of full community of property. The community of property system is essential to an equitable reform of family law; Women's Place and Women's Liberation would like to go on record as supporting its immediate introduction. We wonder why a law would be introduced that would distribute property equally upon the dissolution of a marriage but deny its sharing during the course of a marriage.

We dis agree strongly with the position of the Law Reform Commission that during the first six months following the passage of Family Law Reform Legislation that one spouse could unilaterall y opt out of equal sharing of all assets acquiied up to that time - a point I should remind you that has been supported by almost every brief so far presented. We agree that certain couples may wish to opt out of this law because of special circumstances and if they agree, after each receives independent legal advice to do so, that course of action should be available to them.

But we say, as many women have said to us, after hearing the Law Reform proposal, that if one partner can opt out, where is the reform, where is the just ice? The principle that marriage is an equal partnership and that both partners whether at home or in the labour force contribute equally to that relationship is a ju st principle. Let us reflect on why we and all the other provinces have begun to examine family law with a view to reform it. It began because Mrs.

Murd och fought for her right to be recognized as an equal partner in her marriage and to have her contribution recognized as equally valuable to that of Mr. M urdoch. During that case we came to recognize that women who do not receive wages for their work are not regarded as equal partners in a marriage. All across .Ca nada women were outraged - they felt deceived and humiliated. Their effort, their work, the responsib ility they had shown to their home and their family was negated.

Work which received wages was enshrined in law as better and more deserving than their work, whether in small business, farms or city homes and communities. We all, men and women, felt an injustice was being perpetrated in law and that therefore the law must change. But to accept a proposal for unilateral opting out would not change the situation of Mr s. M urdoch because Mr. Murd och simply would have informed his spouse he did not like the principle of equality Page 100

Statutory Regulations and Orders Tuesday, November 23, 1976 and that would have been the end of it. The proposed changes in family law are not going to alter our concept of justice, they are going to remove an existing injustice. To show you how long women have struggled for this recognition, I will quote from a letter published in 19 09 in the Grain Growers Guide.

"Women do not 'lay claim' to half of their husbands property; women lay claim only to their own share, to their own property, which the husband has appropriated, with the aid of the law, which law the husband made without the consent of his wife." That effort that women put in, to attempt to have their contribution recognized, resulted in The Dower Act. New laws must protect not only good relationships but also difficult or deteriorating relationships.

We do not have to create laws of any type for those who behave in socially acceptable ways; we create laws to state principles that the society feels are just and to deter those who would abuse our principles, who would seek to undermine societies' values. Unilateral opting out would encourage unfair and manipulative spouses to immediately attempt to ignore the principle of equality and it would be necessary for lawyers to support their clients attempt to gain whatever they could under the old and unjust system. Every Mrs. Murdoch in this province, and there are many women who make the contribution Mrs .

Murdoc h made, would find past injustic es perpetuated . This Committee is meeting to make better laws, more just laws, laws which recognize the value of the work women do and have done in the family. These laws must apply to all of us. A unilateral opting out provision is simply not acceptable. In conclusion, we have touched on only about three areas of family law, but we remind you that Women's Place and Women's Liberation support all oft he proposals as set out by the Coalition on Family Law. We urge you to examine these recommendations seriously and to support their adoption. MR.

P A WLEY: I would just like to ask Ms. Taylor in connection with Page 3, I would like to obtain her impressions in connection with the present system of enforcing maintenance orders at the Family Court. As you know, in the past, approximately four years ago, enforcement officers were hired to actively enforce orders and to exercise some initiative in place of the very passive role at the Court prior to that, so that there was a substantial improvement at that point.

But I sense from the brief that you note many problems still existing as far as the enforcement of maintenance ordeis are concerned, and thus the recommendation for a central agency. I wonder if you would mind just expanding on your your group's observations to the present system. LINDA TAYLOR: Well I understand that the efforts taken on behalf of the people of Manitoba through the government, have provided some assistance and that the situation is somewhat better than it was.

Our feeling is that as long as any woman is not receiving the order, the maintenance that she is entitled to and has been ordered through the court, , that the system is still not working adequately. Far too many women simply do not receive the moneys to which they are entitled.

The purpose of this special registry was also to ensure that payment would be regularly coming to this person (it could be a man, there are a few men that could be in the position of receiving child support, but it's mostly women) and so if a payment wasn't made for three or four months and at the end of four months the court was able to get all of the money back which had been owing, the woman still would be getting her money regularly each month, and without that it's not possible for women on low wages to take jobs or to anticipate, to predict, to plan their life in any sort of reasonable way.

So that we don't like a system where a woman has to wait three months and perhaps receive nothing, and then receives a lump sum, and then for another ftve months she doesn't receive anything, and then she receives some back. We think it should be that children are important, that we should recognize that sole support families are experiencing not only economic difficulties but psychological difficulties and that we should be supporting any effort on behalf of the government to provide them with some security.! don't know if I avoided your question too much by this. MR.

P A WLEY: I wonder if you would like to make some suggestions in connection with the other area of weakness in connection with the enforcement of such orders, and that is the enforcement of such orders from province to province, the lack of speedy and effective means too freq uently in enfoicing those orders, and not only from province to province but, of course, from country to country. LINDA TA YLOR: Do we not have an agreement with the other provinces whereby we can collect the funds from spouses who leave this province but have been ordered by the court to make payments? MR.

PAWLEY: Yes we do except there is some lengthy procedure. I just wondered if you had any observations as to the effectiveness and speed by which such orders are actually confirmed. LINDA TA YLOR: I don't have any observation on how it is working.

If you were to accept our proposal then there would be no problem because the money would be paid regularly out of public funds, and if you had to wait six months to collect that money, that would then go into the fund which would make up for the money that had gone out but it would be regularly received then by the spouse who had care of dependent children and that would iemove those kind of problems which result from the delays you've described. MR.

P A WLEY: Would the sum that you are referring to there be, as in the earlier brief that dealt with this, another organization, be restricted to maintenance for the children; that that would be the sum that would be paid out? LINDA TAYLOR: The position of the Coalition is that the only money which will be paid out are court ordered child maintenance. We're not speaking at this point about spousal maintenance, only about child Page 10 1

Statutory Regulations and Orders Tuesday, November 23, 1976 support payments . We also think that a law like this will state a principle which the people in our society perhaps don't grow up understanding clearly enough, that both parents, male and female, are equally responsible for any children which they have jointly brought into the world and we feel this is important to recognize and reinforce in the population. MR. CHAIRMAN: Are there any further questions? There seems to be no further questions. LINDA TAYLOR: Thank you. MR. CHAIRMAN: Order please.

Is the representative here for the Manitoba Association of Women and the Law. Would you come forward please. LAURIE ALL EN: My name is Laurie Alien, and I'm speaking on behalf of the Manitoba Association of Wo men and the Law. We are a group of lawyers, law students and people who are concerned about and interested in the law especially as it pertains to women. We are a member of the National Association of Women and the Law and our aim is to work towards law reform, to remedy inequality in law, and education of the public about the law as it is and should be.

We are also a member of the Coalition on Family Law and we firmly support the Coalition 's position as presented this morning and the various aspects of it presented by different groups throughout the day. Our brief and presentation here is to expand and enlarge on the Coalition's stand on the concept of fault and the

part it should or shouldn't play in maintenance awards. And just at this time I would also like to inform this Committee that the Manitoba Family Law subsection of the Canadian Bar Association has passed the following resolutions regarding several aspects of the Law Reform Commission's recommendation s. It's my understanding that these resolutions may not get to this Co mmittee in time and I've been asked to review the ones that have been overwhelmingly passed by this sub-committee oft he Bar Association.

Their first recommendation that they agree with is that there should be no-fault equal division of all property acquired during the marriage on separation; that there should be no judicial discretion to vary this equal division of property, and that the matrimonial home be jointly owned during the marriage. And while those recommendations are outside my topic tonight, we do agree with those as well. I would also like to re emphasize it is our position that there should not be any judicial discretion to vary property divisions .

We feel to allow for judicial discretion would encourage litigation and couples trying to see if maybe they can get a 60- 40 split or something like that, and for the few circumstances that this situation may arise we feel that it is not something that should be put forward in legislation. We also feel that if there is no judicial discretion that shows that the Manitoba Government firmly recognizes the principle that marriage is a partnership, an equal partnership, not one that can be 60-40 somet imes or 30-70 or something like that but 50-50 all the time.

However, to go into the main part of my presentation now, in order to have a clear understanding of the concept and purposes of maintenance, we feel it is necessary to first look at the concept of marriage and the role of each party in a marriage. Today, I think that most people in society, as reflected by the Law Reform Commission's statement and commentary on spousal maintenance during marriage, see marriage as a partnership with each spouse being responsible for the support of the other through financial contributions, child-rearing, household duties.

We firmly support this view and feel that this understanding of a partnership, arrangements between spouses, should and must be carried through to the maintenance after marriage breakdown. The Law Reform Commission, in consideiing interspousal maintenance, deals with a number of factors to be taken into account both when determining the entitlement to and the amount of maintenance.

We feel that most of the factors listed by them accurately reflect the concept of equal responsibility for maintenance and support between spouses, however we do strongly disagree with the Law Reform Co mmission's introduction of fault into the facto is to be considered. The factors which concern us are: "the extent to which each spouse has contributed to the marriage," as I believe it's recommendation (

e) and recommendation (h), "the relative responsibility of both spouses for the separation or marital breakdown or for the refusal or neglect to provide support." Keeping in mind the equal responsibility that we recognize as being present during a marriage, from one spouse to the other, we see the concept and purpose of maintenance after separation encom passing the following goals: The first goal is the support of a spouse with dependent children; the second goal of maintenance we see as support of a spouse during appropriate formal education and job retraining with a view to establishing economic independence; and (

c) long-term support for a spouse if their ability to earn has been impaired during the marriage by age, health or home iesponsibility. The above concepts of maintenance, we feel that we are perhaps somewhat closer to the minority recommendation s on maintenance, although the minority of the Law Reform Commission also sees fault as a factor. This is where we

part company with the minority as well. A consideration of fault in determining entitlement to or amount of maintenance will only serve to distort the goals listed above. Maintenan ce should not be seen as a punishment or as a reward' but as an award that is necessary in some circumstances until a spouse is able to achieve economic independence. If a husband and wife have chosen a traditional marital relationship it seems illogical to say suddenly that a wife -when I'm dealing with a traditional marriage situation- can only get maintenance to establish her own econo mic independence Page 102

if the husband is at fault. Statutory Regulations and Orders Tuesday, November 23, 1976 At present, the law is moving a way from the consideration of fault in awarding maintenance and we feel the Manitoba Legislature should recognize that trend and carry it to its logical conclusion. While it is true that courts have been dealing with the concept of fault in the past, it is, I think everyone will agree, an uncertain and nebulous concept at best. We submit that by looking at the parties' relativ e responsibility for breakdown, the court is getting into even more uncertain ground.

If you ask yourself questions such as, does a "cold shoulder" contribute more to the breakdown of a marriage than a violent temper; or does extravagant spending contribute more to a breakdown than niggardliness; or does a "workaholic" contribu te more to a breakdown of a marriage than a loafer, you will certainly see that it is certainly difficult to measure fault, and not only fault but the relat ive responsibility between the parties . Any attempt to try and measure this will certainly distort and often, perhaps, ignore the purposes of maintenance.

A major criticism of the general public towards many laws today is that they seem uncertain, unclear and leave too much in the air. Surely a judicial review of the behaviour of a husband and wife over the whole course of their marriage, be it 20 years, 10 years or one year, and an assessment of relative responsibility in order to determine entitlement to maintenance will only further enhance the public's disenchantment with the law. To continue this assessment will continue to tie up the courts and be counter-productive in .terms of lessening chances of settlement by agreement.

While the Law Reform Commission's commentary on the recommendat ions and indeed the draft recommendation states that fault should only be one of the factors to be considered , it appears likely that if all other factors are equal , it will be the weighing of the relative fault of each spouse which will tip the balance of the determination of entitlement to maintenance. Again, it is our opinion that this possibility neglects the fundamental principles of a maintenance award.

Most rational people feel that maintenance should not be considered a "meal ticket" or a reward if the other spouse has been "guilty" of causing the marriage breakdown. The picture of the spouse who plans to make his or her spouse "pay" for real or imagined faults is unfortunately too often a reality which is enforced and indeed rewarded by legal principles of fault.

The Law Reform Com mission Report at Page 21 states: "It seems equally unjust that a party who fails to live up to the commitments expected of a marriage should escape scat free, should not be required to compensate in any way for the injuries iriflicted during the years of marriage, "and so on. Ho wever, even the emphasis in the Law Reform Commission 's quote I've ju st mentioned, makes maintenance sound more like a fine than an award based on need and financial circumstances.

Again, I must emphasize that we see maintenance as a rehabilitative tool that is used to try and restore the parties to the positions they held before the marriage. Only if this is not possible should the concept oflifetime maintenance enter the picture. Maintenance should be based on need and circumstances, not on the fact that one party is more responsible for the breakdown than the other. With the rising marital breakdown and ensuing separation and divorce marriage in today's society is more and more likely to be only one of a series of marriages.

To reflect that fact and to avoid over-burdening people with lifetime obligations to spouse No. I or even sometimes spouse No. 2, maintenance must not be seen as a reward or as a punishment but as a rehabilitative tool to permit a spouse to become economically independent and responsible for his or her own future. A final consideration in examining the role fault is to play in determining entitlement to maintenance is its effects on the children of the marriage. It is a trite truism that children are the innocent victims of a marriage breakdown.

A system that omits fault will be a system that does not place children in the middle; that does not expect them to take sides or even often act as referees. The Law Reform Commission also recommends that fault should be a factor in determining the amount of maintenance payments payable. If the relative responsibility is not seen as serious enough to deny maintenance altogether, they are recommending that the court consider that in determining quantum. In our opinion this can lead to even more ridiculous results . Should a wife be asking her lawyer, is an unfaithful husband worth an extra $1 00.00 a month?

Or a man asking his lawyer, can I deduct $50.00 a month because my wife didn't speak to me for weeks on end? What is the value of these things? How is the court realistically supposed to consider them when he is faced with a woman who is entitled to maintenance because of need? To reduce or increase an award because of a greater responsibility for the marriage breakdown is losing sight of the purpose of maintenance.

If, for example, a woman who has custody of the children has her award reduced because of a finding of a lesser contribution to the marriage, it seems likely that she will perhaps be forced to use part of the children's maintenance award to support herself. If a man is ordered to pay more because of his lesser contribution to the marriage, perhaps he will cease making any payments at all. In both cases, the children will suffer, a curious result indeed.

A further reason for omitting the consideration of fault in maintenance awards is that it will perhaps permit more "civilized" behaviour on the part of unhappy spouses. There should be less "mud-slinging", less remembrance of every little item of marital discord and a more positive approach to ordering financial affairs in the spouses' separate futures if the Court is able to ignore the highly subjective and emotionally charged concept of fault. If a court is permitted to defuse the relationship between fault and finances, an easing of Page 103

Statutory Regulations and Orders Tuesday, November 23, 1976 tension between spouses will benefit the children as well, as neither party will have to denigrate and depreciate the other in the hopes of enlarging or reducing the maintenance payable. Simply because a marriage has broken down does not mean that a wife is not a mother, a husband is not a father, and it is our opinion that looking at the question of fault gets those concepts mixed up somewhat. Finally, it is our submission that a battle over fault and its relationship to maintenance will further hinder any possibility of reconciliation that may exist.

It has often been said that nothing hurts more than a blow to the pocketbook. If one's financial future, in whole or in part, depends on how well a spouse can prove to the Co urt how the other spouse was more to blame for the breakdown of the marriage, feelings will run higher and certainly won't be easily forgotten. In conclusion, the Manitoba Association of Women and the Law as a member of the Coalition on Family Law Reform, firmly urges this Commi ttee to delete fault from the factors in determining both entitlement to and quantum of maintenance.

We feel that to consider fault loses sight of the purpose of a maintenance award and is degrading, both to the parties and to the institution of marriage, to attempt to place a dollar value on a party's contribution or lack thereof to a marriage, or a party's responsibility for its breakdown. We feel that we are speaking for a majority of Manitob ans who wish to see their Legislative Assembly adopt laws which will provide for a more rational and less emotional determination of the necessity for and the contribution to maintenance of a spouse. Thank you. MR. CHERNIACK: Ms.

Alien, since my inclination is to agree with your position on fault, I don't want to deal with that, I want rather to ask you why you left out, where you cite the factors which concern you dealing with interest rather than maintenance, why did you leave out the length of the marriage, why do you want it in"? Why is that a factor, if you are dealing with the question of need and financial resources, where does the length come in?

LAURIE ALL EN: Well, we feel that the length of marriage has a part to play especially in considering long term maintenance where a person's ability to maintain themselves has been impaired because of the previous marital relationship. I suppose to a certain extent it would also play a

part in short marr iages in looking at the need for maintenance and the possibilities of financial independence in the future. For the major ity of middle length marriages I don't think that that would be that relevant; but in certai n circumstances we felt it may be a factor that the court should consider. MR. CHERNIACK: Let's assume we have two 62-year-old ladies. One was married thirty years, the other was married two years, they each have the same resources; should they get different amounts depending on length of marriage?

LA URIE ALLEN: Well, that's a difficult question to answer right off the top of my head. I'm not sure - based on the factors that you've given me -that there would be any difference in the awards, but we do feel that a court should be able to consider that. Circumstances is one of the seven or eight that have been listed. MR. CHERNIACK: Suppose we have two ladies each 62 years of age; one has been married thirty years and has a quarter of a million dollars which she got tax-free somehow; and the other one has nothing and has been married only two years.

Now would there be a difference depending on the length of marriage"? LAURIE ALL EN: No. I think that in that circumstance, other circumstances that you have introduced into a hypothetical question would out-weigh any consideration of the length of the marriage. All of the criteria that are listed are to be considered together and to pull out one in isolation I think you could make circ umstances where it would make a lot of difference or no differe nce, if you were just looking at that one factor in isolation. MR.

CHERNIACK: Well, the reason I raise this -and I raise it very seriously because this Commi ttee will be making a recommendation to the Legislature and I want to know whether I go along with your concept on leaving in the question of the length of marriage or not - you worry or at least some of the people who presented briefs today worry about what a court might do when using HIS discretion. I understand that worry and I will recognize a concern.

By introducing the length of marriage are you not introducing something like an emotional aspect like a bias that ought to be brought in that a long marriage may deserve a larger payment than a short marriage? And if so, doesn't it turn against the principle which you have espoused and that is need should determine the amount; and also that the amount should not be considered to be permanent if there's a hope that the dependent becomes independent.

Don't you recognize my concern that if you put in the length of the marriage that indeed that could be an influence which could adversely affect the justice of equality which we all aspire to? LAURIE ALLEN: Well, we recognize your conce rn. Perhaps we didn't give that first phrase the consideration it deserves, and if the Committee feels that it could distort the concepts as we endorse them, we certainly would not be unhappy to see the whole phrase deleted from the legislation. MR.

CHERNIACK: Could you tell me , since I'm sure you studied this much more carefully than I did , is there anything in the consideration suggested other t n fault and length of marriage and then contribution to marriage, which I don't even understand, other than those? That is items C and H. C is the length of marr iage and the extent of which each spouse has contributed; and H which is fault. My impression is that those are unmeasurable and therefore dangerous, I don't know.

Could you tell me if any of the others have the same kind of lack of quantification that would make for a Judge using that as a reason for letting a bias or an emotional reaction influence him? Page 104

Statutory Regulations and Orders Tuesday, November 23, 1976 LAURIE ALLEN: No, I think that the others are certainly more measurable than these two. We have stated that we are happy with the other ones. The only circumstance that one could perhaps see problems with would be the standard of living and financial situation of each one, where a Judge may have to come to a determination that someone is not entitled to the standard of living that they wish to have. But on the whole we feel that that is reasonable consideration to take into account. MR. CHERN IACK: Thank you. MR. SHERMAN: I just had one question, Mr.

Chairman. I'd just like to ask Ms. Alien whether her group presented its position as spelled out in this brief to the Law Reform Commission? LAURIE ALLEN: Well, I believe our group presented an overall position regarding their Working Paper -all the things that were considered in the Working Papers. It's just for the purposes of this presentation that all the members of the Coalition have decided to look at one or two areas in more detail than one presentation could do. But the core of my presentation, I believe, was presented to the Law Reform Commission. MR.

SHERMAN: Did you zero in on the question of fault in your presentation to the Law Reform Commission with the same degree of conscientiousness that you have in this presentation? LAURIE ALL EN: Well, I don't think to the same degree of conscientiousness because basically I think we presented approximately a 15 or 20 page report dealing with all their recommendations. So obviously their recommendations weren't as firm, so our crit icisms couldn't be as firm as they are right now. But basically our position was the same, that fault should not be a consideration in determining maintenance. MR.

SHERMA N: That's all, thank you. MR. F. JOHNSTON: Miss Alien, going back ... Mr. Cherniack has been discussing on the length of marriage of a lady 62. Is it possible whether you are considering the length of marriage from the point of view of the lady 62 who had only been married two years would be in a much better position to rehabil itate herself if there is a separation than the lady who has been married all that long? LAURIE ALLEN: Well really to take that example, there may be less of one in some ways because surely if a man was marrying a 62 year old woman he would be aware of what her background was.

If you look at a marriage that is two years in length where the woman is fresh out of university or high school or something like that obviously with the same lack of degree of specific training she is certainly in a better position at the end of the marriage than the 62 year old lady and I believe a court would certainly consider what the position of the party was prior to entering the marriage. MR. CHAIRMAN: Are there any further questions? If there are none, thank you Miss Alien. Mrs. Anne Ross, Mount Carmel Clinic. Mrs. Ross? The Manitoba Action Com mittee on the Status of Women. Their representative is here.

Would you come forward please. MARILYN McG ONICAL: Gentlemen, I represent the Manitoba Action Com mittee on the Status of Women and my purpose is to give you a

summary of the Family Law Coalition position and also to deal with some of the issues that have been discussed today by the members of the Coalition that were presented to you by Alice Steinbart this morning. . . MR. CHAIRMAN: Would you give us your name for the record please. MARILYN McG ONICAL: I'm Marilyn McGonical. ... hopefully to clarify some of the things which have been subject to a lot of questioning which reveals certain misunderstandi ngs about the position. To the extent that I'm able I'd like to clarif y some of those issues for you with respect to the Coalition position.

Now first of all, before discussing the various highlights of the Coalition position, I want to make some preliminary comments. The Coalition response to the Law Reform Commission Report and the recommendations before this comm ittee are by way of enunciating principles and rights that are not now reflected in the law. We are not lawyers and we are not statute drafters .

We are also not interested in seeing any inequities as between spouses or with regard to children made into statutory provisions so that where there is a position, we're stating, that will obviously create an inequity that has to be taken care of as well in the drafting of the legislation. We feel that the Com mittee, you people, are responsible for the drafting and we urge you to do so with regard to the principles of equal partnership, equal capacity and equal responsibility in marriage and family matters.

I detected an inference today that would seem to be taken about some of the presentations, because they were specific and dealt with only certain issues and did not enunciate a concern for children, that perhaps the concern for children is lacking in the Coalition considerations. I think that nothing could be farther from the truth. We are by and large parents, married men and women who are considering always the needs of children and there is no question that this is a priority.

Ho wever in dealing with the questions we looked at the Law Reform Commission recommendations which had a few references to children, important refere nces with regard to the responsibility for them and perhaps the alteration of that responsibility with regard to the age of majority and those are the issues raised that we dealt with. Believe me we would be the first in line to submit to you opinions and suggestions for the rights of children where that is the primary consideration. Here we see the family law reform as being primarily concerned with the status of the marriage and the property.

That is how it was dealt with by the Law Reform Commission. Certainly wherein it affects children, the parents' responsibilities and so forth, that is relevant. Now this in no way puts children in second place. In fact I think it Page 105

Statutory Regulations and Orders Tuesday, November 23, 1976 should be obvious from everything that's been said today that one of the very basic concerns and difficulties is that the care of children is thwarted by the present law as it is articulated and as it affects men and women, particularly women who have the custody of children and the responsibility for them. The Law Reform Commission for instance did not deal with the child custody question, that is who gets child custody and so forth, and that we see as a different issue and we dealt with what they did.

The other area in which there was an inference that we were notconcerned about children was in the idea of the testamentary disposition, the receipt by the surviving spouse of 100 percent of the estate of the deceased in the case where there is no Will. Now we don't see that as ignoring children at all.

In fact we see that if the marriage is a unit and does not terminate by separation or divorce but on death, we're concerned that the estate should continue in the surviving spouse, and that the children will be cared for by and large because there were mutual concerns and mutual responsibilities while they lived and we don't see death terminating those, death creating a conflict.

So we have recommended that rather than cause a split ofthe estate which works a Jot of hardship on surviving widows and perhaps widowers, we see that we can incorporate a concept into the Jaw of deferring that hardship and deferring the estate going to the children until both spouses are dead, until both spouses have been taken care of throughout the marriage, until they've both been able to benefit by, throughout their lives, the proceeds or the acquisitions of the marriage. So we did not see a conflict.

We do see however- I think we can always see in a general principle all kinds of exceptions and difficulties and we do support the Testator's Family Maintenance Act provisions for instance that dependents can have a right to apply to the court for what they need and that right now includes children, in fact children and wives only are included. That would mitigate against the harshness of the 100 percent over in cases of need and dependency where that responsibility is not being carried out by the surviving spouse.

Now as to the general provisions of the Coalition's position the first statement, and you've heard it many many times today, is the notion that marriage is a partnership of legal equals with equal legal capacity and equal responsibility. I wish to stress just one point about this and that is that this Committee should not under estimate what a surprise it is to people in existing marriages that this is not the state of the law today, that mutual input does not necessarily give equal entitlement. I think that you can view the situation two ways.

The marriage has been formed on a basis that it is an equal partnership or a unit that two people share equally in somehow, in which case the law should simply bring itself up-to-date and articulate that. If you take the view that people do not enter marriage with that idea, that people enter marriage with the idea that they do not share equally in what they jointly put together, then I see no harm in allowing those people to consentually sit down together and write their own contract, that is to vary it to conform with what they thought the marriage was.

Now why we should allow someone to do it unilaterally is not understood at all by the Coalition and not supported as a recommendation, to allow one person to do it alone. We agree that marriage contracts should be permitted as they are today but looking at today's realities we don't have marriage contracts very often and we're not really foreseeing marriage contract as a solution to inequities that exist in the law. We see that the overall contract should be written by the Legislature reflecting what exists, the values that we have.

Then if there's going to be a contract to vary that that's fine as long as it's fully informed and there is legal advice so that we get around the obviously coercive possibilities, the undue influence perhaps that can be brought to bear on someone at the beginning of a marriage.

We also support the idea that marriage contracts should be varied at any time during the marriage by consent and with legal advice and this way they can deal with unforeseen events because marriage contracts have the definite flaw of at the time of their making events are not foreseeable nor is the amount of wealth or the other circumstances that might come into the marriage. Now opting out of course is a very different concept and I mentioned that already. It has the unilateral aspect and as I've said, if we believe in equal sharing then opting out should not be allowed unilaterally.

It's unfair to let one person say it's all mine in reference to mutually acquired and worked for property. Now the next area is the support for the full and immediate community. We favour that but we have supported the Law Reform Commission Report recommendation for deferred and the reasons were raised a couple of times today with respect to what we thought we could convince this Committee to decide to enact. What we're saying is that deferred community is the very minimum that should be done and that full and immediate should be looked at and considered and favoured.

But had we dealt only with the recommendation for full and immediate we would have had to ignore all the rest of the Law Reform Commission Report that deals with what you're going to do with the ongoing marriage in the event that deferred is what is enacted. We wanted to deal with all the recommendations and address ourselves to the deferred community ramifications. You see the disadvantage of a deferred community - disadvantages include that ... the whole concept does not recognize equality, economic and legal, in marriage. In fact it denies it for the ongoing marriage.

The other problem that is raised by deferred is how does the deferred sharing concept protect the future half interest where the management rights and ownership are in the one party and there is no necessity for consultation or no way to enforce consultation when the property does not belong to the other spouse. The other very great disadvantage in the deferred community concept is it doesn't apply on death in which case those marriages that end that way do not ever give the non-earning spouse property rights or testamentary rights. That is a very great Page 106

Statutory Regulations and Orders Tuesday, November 23, 1976 inequity. Where your non titled spouse dies first there is no property that ever does come into that person's possession or into that person's estate, and if we're talking about denying testamentary freedom we take that one step further. Here we've denied even the ownership concept, the equal sharing concept in that case. In this respect the Law Reform Commission has recommended that dower rights be updated and take the place - presumably because the potential share is greater than if the standard marital regime formula is applied on death.

We see that there is a necessity for the Dower Act to continue even if we have full and immediate or even if we have deferred community applying on death where there's an accounting at that time and you figure out what the shares in the community, the mutually acquired assets are and that would be for the people who have opted out of the system, opted out of community. Dower rights should protect as they do today if there is going to be a separate property option.

Now I just wanted to mention these things to highlight what was said and the big area of concern today of course is the maintenance area and our recommendations with respect to that. It has been said by Linda Taylor, very well, the aspects of maintenance and I'll be very brief. We see our maintenance recommendations as positive reform for both men and women. It's very important that what we're seeing not be construed as something that is very one-sided. Every reform we look at we want it to be fair and apply so that neither spouse has an injustice performed against them.

We find that we support the principle of the necessity to terminate the marriage obligation as soon as possible after the breakdown, and this of course is the interspousal obligation, because of course the child obligation carried forth during the infancy of the children, and we see our guidelines being far better criteria than either judicial discretion or the fault principle which, as has been said many many times, clutters up the whole issue of maintenance and its purpose and the necessity to provide for women and children in these situations.

There are difficulties with that when it comes to working that both ways. We have a problem with the social fact that women are not able to earn as much as men, particularly if they've stayed home, and the availability of child care so a woman can go to work is an important factor that makes it difficult to strictly apply the principles.

The job market and their skills and opportunities and so forth which we said are important, the social facts work against women in all these situations, and this raises difficulty with the maintenance obligation' but we see that as making it necessary to have adequate maintenance that enables women to train, pay for child care, become self-supporting, which means probably more maintenance immediately and less later. One of the difficulties is that people get locked into maintenance situations.

The woman gets locked into the fact that if she goes to work her maintenance is reduced by that amount and she doesn't have any incentive to go to work to reduce the maintenance. If it's too low she is also in no position to get herself trained to make more money. There are too many problems with it and with! ong-term low maintenance and we're trying to mitigate against them. The question about the length of marriage ... MR. CHAIRMAN: Order please. The Committee has iequested that people speaking to the Committee do restrict their remarks to I 5 minutes.

You have gone a couple of minutes over that, I will give you a couple more if you wish to conclude youi remarks. MARILYN McGONICAL : Okay. Then I want to mention just two more important things that were raised today, and one is the question of the length of the marriage seems to work against the concept of need and the length of marriage, I think, is relevant in situations where there is a great lack of assets in the marriage, that is the property split doesn't amount to anything or where the only money involved is the earnings, the money that is earned.

So that I think it is relevant there that the length of the marriage be taken into consideration in this respect. The two-year marriage and the 30-year marriage create different considerations. I won't mention the fault principle again. I have mentioned that we support children's rights.

The agency then, the government agency, I think one thing that was overlooked is that we support the principle that government should assist women in enforcing their rights and that is that it is as much a collection agency as a pay-out agency, and that is what we really mean by this is that women cannot enforce these rights themselves so that they have to have the opportunity, they need the support of the system which does pay lip service to women and children but doesn't live up to it by putting its money where its mouth is, and it is time that we had that kind of consideration and make it work.

So it is not really a pay-out from government funds except insofar as their payments are in default and I also would like to point out there that the women who are seeking this assistance are on welfare and if those maintenance payments are collected, it should inevitably result in a reduction of welfare payments to these people just logically and put the responsibility where it belongs. Now I think that's basically all that I should say at this point then except that that is what the Coalition wants you to consider, and if there are no questions ... MR.

CHERNIACK: It is just coming back to the length of the marriage. Miss McG onical if you look at (b), the extent to which the applicant spouse is dependent upon the earnings of the other spouse; don't you think that is a much more important factor than the length of the marriage? MARIL YN McGONICAL : It may be and under circumstances as they are . . . MR. CHER NIACK: Under what circumstances would it not be more important? MARIL YN McG ONICAL: Which. . .? MR. CHERNIACK: The extent to which the applicant spouse is dependent upon the earnings of the other Page 107

Statutory Regulations and Orders Tuesday, Nov ember 23, 1976 spouse. Can you conceive of any circumstance, or if you can't please tell me, where this is less important a factor than the length of the marriage - the extent to which they are dependent on the earnings of the other? Isn't that really the crucial thing? MARILYN McGONICAL: The extent to which they are dependent, yes, I mean, that is a crucial factor. MR. CHERNI ACK: Doesn 't that factor involve whether or not the distribution of the moneys earned during the S.M.R. is great or small?

That's the factor, the extent to which the applicant is dependent on the spouse, the earnings. Now it seems to me that that is so much more important than the length of the marriage that I marvel that you still want that factor in when I think that it is emotional and will influence on an emotional basis. You don't agree with that, you think it is a rational approach, the length of the marriage as a factor?

MAJ,liLYN McGONICAL: I think the length of the marriage is a rational approach and if you are not going to support it on the basis of needs, then I think you can support it on the basis of the fact, on this consideration, that at the end of a long marriage, in which one spouse stays home throughout and does the homemaking function, there is usually a situation of a substantial income, there may or may not be substantial property.

Now if you are going to stick with the need to the exclusion of all other factors, you can actually arrange criteria that the spouse is going to be on maintenance should have only as much as she needs rather than what she has got coming to her by virtue of her contribution, and if there is a 30-year marriage, there is a longer contribution, there is a higher income which is all being earned by one s pouse, and there is a right, I think an inherent right to receive a standard of living and to receive something based on that length of time - contributing. MR.

CHERNIACK: So you are now saying that in addition to the equal right to share in the assets of the marriage, a person with a longer marriage has a greater right to the future earnings of the spouse with whom she is no longer living. MARIL YN McGONICAL : Yes, I'm saying . . . MR. CHERN IACK: You say that is the positive position of the Coalition? MARILYN McGONICAL: Yes, as an alternative reasoning because the point here is that we stress the idea that maintenance should be based on need and should encourage the self-sufficiency as soon as possible, and we find that to be important.

But invariably in a very long marriage, you know 30 years or so, you are going to find a person, particularly a woman, in a position where to become self-sustaining is almost impossible or it is very unlikely and therefore it is relevant how long she was a part of the unit and assisted her husband in achieving the income he has got. MR. CHERNIACK: Miss McGon ical, you have item "(g), the relative means and ability of the spouses to be or become economically independent." It seems to me you have in all these things each oft he factors you are looking for. . . MARIL YN McGONICAL: The elements in which . . . MR.

CHERNIACK: Well in respect to the spouse - no, that's for the support of children - "in respect to the responsibility of the spouses fo r the support of others, the extent to which the applicant spouse is dependent on the earnings of the other; the probable amounts of proceeds of any possible or likelv property settlement between the spouses; the spouses standard of livingand their fi nancial situation; their relative means and ability of the spouses to become economically independent." I assume from what you have said that that's not enough. You want something additional to be involved.

You want the rights of the wife of a long marriage to have a share in the future earnings of the husband regardless, or in addition to these other factors. MARILYN McGONICAL: Yes, and conversely we want to see that in the very short marriage you don't apply all the rest of the principles to the exclusion of consideration of a short marriage. For instance, if indeed all the other considerations add up to the same amount of maintenance for a woman of a 30-year marriage as for the woman married two years, you know, a younger woman let's say, then you have an injustice there. MR. CHER NIACK: What is the injustice?

Would you tell us the injustice? MARILYN McG ONICAL: To tell you the truth I think that the a very short marriage should not engender. let's say, a life sentence of maintenance based on all those criteria. MR. CHERNIACK: Even if there is no independence achieved because of the inability of the wife to acquire independence. Would you not then say there should or should not be a life sentence as you say? MARILYN McGONICAL: I think that there is a point at which the responsibility after marriage breakdown should cease.

Not that a person should be left bereft but in terms of a very short-term marriage. it seems logical that theie isn't an obligation, for instance, long-term retraining or long-term maintenance. MR. CHERNI ACK: Why not? That person may be, I don't know, a widow who has recently been bereaved and a year later got married and has no chance of retraining, and one assumes that that marital union was made with the eyes wide open of the husband knowing the responsibility he was assuming. MARILYN McGO NICAL: That he was assuming for the rest of his life. MR.

CHERNIACK: Yes, and you are suggesting that there be a differential. MARIL YN McGONICAL: In which case , if you are saying that the marriage is undertaken with the idea that maintenance is to continue no matter when it breaks down and forever, then we shouldn't take out the Page 10 8

Statutory Regulations and Orders Tuesday, November 23, 1976 woman who has less of an ability to support herself. MR. CHERNIACK: Wouldn't you take that into account? MARILYN McG ONICAL: Yes, you would take it all into account. If you think length of the marriage is covered by all the other things . . . MR. CHERNIACK: No, I don't think it is a factor.

I am having trouble seeing length of marriage as a factor when all the other factors are real and measurable and logical and rational as being something required to rehabilitate a person and maintain that person until that stage comes about, and that to me is what you have all been saying is important - needs and resources. Now you are saying you want an additional, may I say "payment" for a long marriage. You want a stake or a mortgage on the future earnings because of a long marriage?

You are saying that a long marriage carries with it the right to some nebulous but something that can be turned into real money, payment for marriage of a long term. MARIL YN McGO NICAL: The length of the marriage is relevant to the situation that the two people are in. Women who stay at home contribute to the marriage not only in the acquisition of property but in the status of their husbands in terms of assistance with a career or something like that.

Now after 30 years of a marriage, it is reasonable to look at a 30-year marriage oi a two-year marriage to see just where - you know, it seems to me to be very obviously relevant to how long the maintenance obligations are going to. Right now we are talking about reducing from life sentence. Today, in law, there is the only remaining life sentence in law that can be imposed for the lifetime of the person who has to pay. Now we are talking about the means of reducing it without performing an injustice, and it seems to me to be completely logical that you would consider how long the couple were together.

Let's say the money is in fact all spent throughout this marriage and there is no asset, which often happens either in poor situations or in situations where property simply isn't acquired. The only asset of that marriage is the earning ability of one spouse and I think it seems so obviously relevant how long they were together and how they contributed to that. MR. CHERNIACK: Well we are not really meeting on common ground, so I will ask you one more question in that relation and then I am going to drop it.

What it seems to me that you are saying that sounds inconsistent to me is that it is your desire that the dependent wife becomes independent as quickly as possible. Give her all the opportunity for job training, give her all the opportunity to earn equally with the husband, do everything possible that she will achieve an independence which makes her no longer reliant on the husband. MARIL YN McGONI CAL: Yes, bring about the termination of the relationship. MR. CHERN IACK: But I interpret what you say that a longterm marriage is entitled to something beyond that.

MARIL YN McGONICAL : In terms of time, yes, that is why we put it in. MR. CHERNIACK: Then would you give that person a longer, once she has acquired all these abilities and gotten a job which may even pay her better than her husband is earning, you would still say, "Ah, but she has been married 30 years and entitled to something extra." MARILYN McGONICAL : Oh my gosh, I think you are so confused, I hardly even want to talk to you any more. MR. CHERNIACK: All right, let's drop that.

I have no question in that regard, Miss McGon ical, because now that you feel there is no hope for me, don't talk to me about it, Miss McGo nical. Then would you please clarify something else for me? What is your position on The Dower Act? I read here that you think it should be studied. Have you not come to a conclusion of what you think ought to be done with The Dower Act? MARILYN McGONICAL : Well personally I certainly have ... MR. CHERNIACK: I mean the Coalition. You know, I am the one that's confused but at the same time I want to hear what the Coalition thought about it.

MARIL YN McGON ICAL: Well we have to look at The Dower Act from two points of view. One is when we are looking at a deferred community that is not effective on death, that is the Law Reform Commission's position which leaves marriages basically as they are and the only thing that fills in for rights is The Dower Act. In that even then The Dower Act is necessary and it has to be changed to make the share 50 percent instead of the one-third so that we don't have a situation in which a smaller estate goes to a surviving spouse than would on the break-up of the marriage by separation or divorce.

The preferable position on dower, is that if a community of property or a deferred community applies on death, if you . . . immediate it will of course apply at death and if you have deferred community and apply it in a death situation, then you have the consideration of what role dower would play with regard to the personal property, the property acquired prior to the marriage, and the share of the community property.

Now when you consider that you have the four alternatives as outlined in Cam Ha rvey's paper, you know, from the extremes, 100 percent over on dowei; Cam Harvey's paper dealt with the share that would be the community ... MR. CHERN IACK: Do you want a copy of it? MARILYN McGONICAL: I have one here, I think.

He was dealing with the community share, and it can go by survivorship to the other spouse, the surviving spouse can be given a life interest in the deceased spouse's share of the community property; the third alternative is that there is fixed forced sharing, that's what The Dower Act is about, it's a forced sharing of property that belongs to one spouse or belongs to the estate of one Page 109

spouse ... Statutory Regulations and Orders Tuesday, November 23, 1976 MR. CHERNIACK: What percentage? MARILYN McGONICAL : What percentage of the estate. Well if you applied a 50 percent, if you look at it this way, you take the community share and the surviving spouse owns half and then you would fix a percentage of the other half so that could be 50 percent or 25 percent depending on other values than equality. We are looking at the question of equality in marriage and equal sharing in assets. That is one issue.

The other question is what do you do with the personal property on death of the deceased spouse, and there is where we look at the other considerations, like what are the considerations in The Devolution of Estates Act? What are the considerations in The Testator's Family Ma intenance Act? Now we have supported the retention of The Testator's Family Maintenance so that you have a situation where you can take care of need of dependents, and in this case you could opt for the fourth alternative there which is that the deceased spouse then has complete testamentary freedom with respect to his half, his or her half.

Now there is a problem there and that has to be solved by looking further into this and it might be solved by a basic minimum that goes over such as in the Devolution of Estates Act. It's 10 ,000 now and we could make that a higher amount so that there is not a problem of forcing the surviving spouse to give up property that's needed, to give up the opportunity to live and use some of the community property.

When one spouse dies there is an accounting situation and perhaps a necessity to sell off property to satisfy the legacies that are given to other people and it seems a rather odd concept to make it necessary for a spouse to, in effect, buy twice the property. With the husband it's been acquired in the marriage, it becomes a community property, then on the death of one suddenly it's necessary to buy out perhaps an unrelated person, their share, suddenly they own an interest by virtue oft he legacy in some of the community property.

This is esse ntially why I personally favour and the Coalition has not got a position on this, I personally favour the survivorship of the community property, with testamentary freedom for the personal property and pre-acquired. It's definitely true that each of these situations has problems, each of these options, and when you start dealing witb them you can get more and more tangled up. But that's because we've got conflicting values.

You see there is testamentary freedom, there's shared property concepts and then there's the dependent and need concept and it's true that these have to be examined and balanced to see which way you are going to come out on it. Dower, of course, is necessary for situations in which opting out has taken place and you are back to separate property. MR. CHERNIACK: I agree with you, you have confused me completely. MARILYN McGONICAL: Oh, that doesn't seem to have been hard to do today. MR. CHERN IACK: You're right. MR. CHAIRMAN: Are there any further questions? If there are none, thank you Mrs. McG onical.

Order please. Mr . Charles Huband, please. Is Mr. Huband here? MR. CHERNIACK: Give him a rain check. MR. CHAIRMAN: I'll move Mr. Huband one place down on the list and call on the representative of the Manitoba Association of Registered Nurses. Would you come forward please. BONNIE McDONN ELL: My name is Bonnie McDonn ell and I would ask the members' indulgence if, when they get the Association's brief, that we did make an error on the preface date and we think that possibly in checking it that it was in anticipation and hope that Family Law Reform must be in the process by February 19 77.

On the bottom of the first page we put February 23rd, 1976, it should be November, please. Honourable Members, this brief is presented on behalf of the Manitoba Association of Registered Nurses, as approved by a duly passed resolution of the Board of Di rectors of the Association. The Association membership is comprised of all Active Practicing and Active Non-practicing Registered Nurses in Manitoba, such membership presently totalling in excess of 8,200.

The health and welfare of all persons, regardless of race, color, creed or sex, is of prime concern to our Association, and this must, and does, include equal rights for all. Recent court decisions, such as the Murdoch and Rathwell cases, point up the many injustices and discriminations still existing in present day law, or in the lack thereof, particularly as it applies to women. Our Courts must have the necessary legislated authority to assure justice for all, regardless of sex. Much emphasis is today being placed on the implementation and application of The Human Rights Act.

How can we support "equal rights for all" and yet ignore the urgent need ofreform in order to provide equality and justice in Family Law? In February 19 76, The Ma nitoba Law Reform Commission completed and sub mitted to the Provincial Government a detailed report on needed reforms in Family Law. This report contains specific recommended revisions in two areas: I. The Support Obligation; and ll. Property Disposition.

Our Association supports the majority of these recommendations, which we will briefly outline in this presentation but, above all else, we strongly support and stress the urgent need for Family Law Reform, and we solicit the support and unanimous approval of this Ho nourable Committee in recommending to the Manitoba Government that Family Law Reform legislation be immediately drafted and presented for consideration and official sanction of the next first sitting of the Manitoba Legislature.

Let Manitoba be at least among the leading provinces in righting the wrongs and injustices which have been carried forward from ancient common law, and let us thereby assure our citizens of equality of rights in the administration of Family Law. Page 11 0

Statutory Regulations and Orders Tuesday, November 23, 1976 In the following list of our recommended reforms, we have endeavoured to relate to the recommendations as set forth by the Law Reform Commission, but at the same time to eliminate as much detail as possible in the interest of brevity. In dication will be given as to our agreement and/ or disagreement with the A. Children Both parents have a responsibility to support their children and the children of their spouses until attainment of age 18. The amount of support should be determined by the actual financial circumstances of each spouse.

Natural parents have the primary responsibility to maintain their child, a common law step-parent should have secondary responsibility and the province should only be responsible if the natural and/ or common-law parents are unable to fulfil! this duty. We are not in agreement with Clause 4 of the Law Reform Commission but agree with the minority in that there is already sufficient provision in

Section 16 of The Child Welfare Act re a child beyond parental control. We prefer to place more emphasis on parental responsibility in child upbringing and guidance rather than providing additional legal reprieve from such responsibility and the resulting cost to the provincial taxpayer. The amount of maintenance for a child should be based on appropriate total costs of such maintenance including accommodation, reasonable household assistance, food, clothing, recreation and supervision in order to provide a stable environment for children. We aie in agreement with the L.

R.C. clauses 8, 9 and 10, in providing the Courts with discretion and jurisdiction in awarding child maintenance. We do, however, wish to voice one caution by strongly advocating that existing court and government agencees are idequate to record and otherwise, as directed to administer any such court ordered child maintenance and that there is no necessity of the already over-burdened taxpayer being laden with the cost of any new agencies. Suffering and deprivatUon haverbeen caused through inability to collect maintenance orders.

Debtor spouses have disappeared and recipient spouses may not have funds to finance search and legal aid. Legislated authority should be such that all maintenance court orders can be Xeadily enforceable both within and beyond provincial boundaries. Surely in this day of"highly registered" society, provincial and federal governments can agree to utilize and make accessible such things as Social Ins urance Registration, or even the sacro sanctum of the Department of In ternal Revenue, if the same are necessary in locating a delinquent debtor spouse.

In many such cases of delinquency it is the innocent taxpayer who again pays the bill through the necessity of welfare support. Also to many recipient spouses the welfare state is a demeaning position and too often places a stigma on the innocent children involved. This Ho nourable Committee, through its recommendations to government, has the ways and means of assuring immediate, effective and enforceable family B. Spouses: Maintenance during Ma rriage.

We support the L.R.C.' s position of General Principlesand 2 on maintenance during marriage and on Disclosure and Allowance 3 to 6, with only one question which relates to Clause 3, subsection (3), the answer to which only requires a clear and concise understanding of the word "reasonable" as contained in the last paragraph, and that this term should clearly apply to both the family's financial circumstances and the actual expenditures by either spouse. Our concern is that "reasonable" be correctly interpreted and that it does not necessarily mean an equal expenditure in dollars and cents.

Conditions of out-of-home employment may, in the interest of earning potential, require a somewhat larger sum, both for clothing and personal allowance. Emphasis is therefore placed on the correct insertion and

interpretation Maintenance after Separation: The L. R.C., in

Section 4, outlines reasons on which maintenance should be granted and the principles governing the determination of the amount of such maintenance. We concur with the principles given in the sub-clauses (

a) to (g), both inclusive, but find disagreement with sub-clause (

h) which we intrpret as "Fault", and we urge your support in the deletion of any fault provision in the deliberation of maintenance determination. To define and prove "fault" is, in many cases, an arduous task and very seldom can children be kept entirely immune from the controversy involved, in fact, there is every possibility of later traumatic implications. It may even result in deterring either spouse from attaing a respected self-sufficienty.

We wish to make one further reference to "Main tenance after Separation" in that we support and recommend for inclusion in legislation, the complementary general principle which reads: "Upon separation, a spouse is obliged to do everything or anything which is lawful and within his or her ability to maintain Maintenance in Separation from Non-marital Cohabitation: Clause 5(

a) and (

b) of the L.R. C.'s report receives our agreement in that maintenance should be awarded, as in a marriage separation, if a child is born or expected as a result of the union and/ or the union has impaired the economic self-sufficiency of A. Marital Home: We agree with the definition of Marital Home contained in the L.R. C. Clause 1, (!)a nd (2). We also concur with Clauses 2 through 7 of the Law Reform Commission, which in brief, provide as follows: A marital home purchased after marriage or with marriage in mind will be jointly owned.

There should be no taxation on transferring titles to joint tenancy when this Act comes into effect. Couples may opt out of these provisions, but only by joint consent with a written agreement and independent legal advice, but even then an updated Dower Act would still apply. The Dower Act disallows the sale of the family home without the consent of the person whose name is not on the title and gives the surviving Page Ill

Statutory Regulations and Orders Tuesday, No vember 23, 1976 spouse certain rights to inheritance. A spouse may enforce their right to joint ownership by filing an appropriately completed deposition along with a marriage certificate in the Land Titles Office. A joint tenancy cannot be transferred without the consent of the other joint tenant. Partition and sale should be allowed but should not be forced on the spouse having custody of any child if it is in the best interest of the spouse and child to remain in the home. Property acquired before marriage will be separately B.

Equal Dispostion of Post Nuptial Assets: We are in agreement with the Law Reform Commission's recommendations, Clauses 1 through 41, but request the inclusion of the additional recommendation following Clause 25, which reads as follows: "Even in the extraordinary circumstances described above, some definite and final limitation period of reasonable duration should be imposed, after which the right to apply for equalizing payment should lapse absolute I!'.

" Clauses 34 and 35 recommend retention of The Dower Act with revisions in said Act to increase the surviving spouse's share to "one-half of the Testator's net estate". Consideration should also be given to first and second families in the case of more than one marriage.

We wish to further recommend that in relation to all existing law governing intestate estates of married persons, revision be made and become part of the Standard Marital Regime legislation to provide that, where there are no children from the marriage or children for whom the deceased spouse was legally responsible, the surviving spouse be entitled to one hundred percent of the deceased's estate. If there are children, one half of the estate should go to the surviving spouse and the other half to such children. To briefly summarize our concurrence with this

section on division of property after separation: There should be a no fault equal division of all assets acquired during the marriage upon separation. Assets acquired by either spouse before marriage should remain separate property and be accounted as such during the division. The following property should not be included in any division calculation upon separation: a. gifts to one spouse; b. inheritances; c. trusts and incomes from (

a) and (

b) above; d. damage settlements. During the first six months immediately following the effective date of this Act, as approved by Royal Assent, one spouse can unilaterally opt out of an equal sharing of all assets acquired up to that time. The method of computing the amount each spouse is to receive should be as follows: a. value all assets except the family home; b. deduct all debts; c. deduct the exempt assets such as gifts, inheritance, etc. d. one half of the remainder to each spouse.

If the debts are more than the value of the property then the debts will not be shared unless they were incurred for family maintenance. In dividing the assets a spouse can receive either a particular asset or an equalizing payment. The couple can agree either to division of assets and time for paying the equalizing payment or apply to the Courts for an Order. Details of the recommend ations and the new law should be widely distributed and well publicized.

Thank you for giving us this opportunity to express our views on Family Law Reform, and we sincerely trust that this Honourable Committee will be recommending to the Government that immedi ate action be taken thereon. MR. P A WLEY: I would like to just ask one question because I don't believe we dealt with it yet today, about where property was acquired prior to marriage, such as a home or a summer cottage, whatever it be, and that property thus, under your recommendation on page seven and the same with the Law Reform Commission, remains separate.

What about the increased value of that asset, the appreciation on that asset, which may double in value during the term of the marriage from before, would that increased value become part of the community estate or would it remain separate in your view? BONNIE McDONNELL: I would think it would remain separate. It is part of trust and income. MR. P A WLEY: What about a bond or shares held prior to marriage, the interest from those bonds and shares accumulating an additional asset? Again would you recommend separate or community? BONNIE McDONNELL: Separate MR. P A WLEY : Separate.

I'm not sure, it would be interesting ... We didn't ask the Coalition their view on that, whether .. MR. SHERMAN: Mr .

Chairman, I'd like to ask the delegate if she would explain for the benefit of the Committee, the reasons behind the positions that MA RN takes with respect to the opting out provision. it's interesting that in the recommendations put forward by the Association you advocate favour for the unilateral opting out provision which has been the subject of some considerable opposition here today, as you are aware, and I think it would be helpful to the Committee if you could give us your reasons for favouring that provision.

BONNIE McDONNELL: Well, one reason is that it does include, the opting out, a written notice of intent to do so. . . could I ask my associates? MR. SHERMAN: Yes, please. MR. CHAIRMAN: Would you give your name for the record, please. JEAN CUMMIN GS: I'm Jean Cummings from the M.A.R.N. We've worded it very simply in stating Page 11 2

Statutory Regulations and Orders Tuesday, November 23, 1976 unilaterally opting out. We have stayed within the Commission's recommendations. Our understanding is this does not involve the marital home, it only involves other property acquired or other assets acquired in the previous term of marriage.

We look at this as relating to the possibility of a business, regardless of which spouse may have built the business, may have been solely responsible for contributing to the business, and we feel that the leeway should be given to opt out of such a situation, that it necessarily- it doesn't say whether it's the man or the woman, either spouse may so have acquired property. MR. SHERM AN: Well I think it's very helpful to have that point of view on the record for the Committee's consideration. Thank you very much. MR. CHERNIACK: Mr. Chairman, Mr.

Pawley asked about the position on accretions to the estate from property that is not included in the assets of the Standard Marital Regime. BO NNIE McDONNELL: I'm sorry I didn't hear the first part of your question. MR. CHERNIACK: I gather that you said that you did not think that the earnings from an asset which was acquired, let's say premarital, should be included in the assets to be divided at the termination of a Standard Ma rital Regime. BONNIE McDONNELL: If you're talking of property? MR. CHERNI ACK: Yes. BO NNIE McDONNELL: No. MR.

CHERNIACK: My impression is that the Law Reform Commission believes that it should be because it is moneys earned during the marriage. Now do you disagree with it knowingly or is it just a ... I mean I don't want you to be fixed on a position which possibly you haven't thought through that point. BONNIE McDONNELL: Well I thought through from my own point of view, but since I'm speaking for an Association perhaps ... MR. CHER NIACK: I'm just pointing out that it is different from ... BONNIE McDONNELL: I see. JEAN CUMM INGS: May I ask a question? Are you referring to the question that we were just answering to Mr.

Sherman or were you talking about property, separate property, before marriage? MR. CHERNIACK: The earnings from separate property. JEAN CUMMIN GS: Earnings, or the value, yes. MR. CHERNI ACK: The earnings during the marriage of separate property. JEAN CUMMIN GS: We believe that should still accrue, as does any interest or income on inheritance, whether it's a bond, as you say, it could be a cottage which was given to one or the other of the spouses prior to marriage.

Had the spouses then, following marriage, both contributed to an improvement on that property, then I would say that it should apply, only that portion to which they have contributed which has provided the increased value. MR. CHERNIACK: Oh, thank you. JEAN CUMMIN GS: Am I not making myself clear? MR. CHER NIACK: Oh, absolutely.

JEAN CUMMIN GS: You might have a cottage, following marriage the couple then agree to spend money on that, $1 ,000 for a deck which increases its value, then if it's a joint contribution that joint contribution and its prorated relationship to the increased value would be a consideration ... MR. CHERNIACK: Yes, that's clear, the only reason I pointed it out is to possibly inform Mr. Pawley that your opinion differs from that of the Law Reform Commission and that of the other groups that have made presentations. There's nothing wrong with that, I just wanted to point out the difference.

And another difference I seem to see is in relation to the Devolution of Estates Act where it seems to me all the briefs we heard up to now have recommended that on death, on an intestacy the total estate shall pass to the survivor,

whereas in your case you are making that distinction saying; �No, if there are children, or children who are dependent, then it should be equally divided." JEAN CUMMIN GS: That is correct. MR. CHERNIACK: Yes, I just wanted to clarify it, to make sure of that. Thank you, Mr. Chairman. MR. CHAIRMAN: Are there any further questions? There are n.one, thank you Ma'am. Mr. Charles Huband please, would you come forward. MR. SHERMAN: You are speaking for whom? MR. CHARLES HUBAND: I'm appearing on my own behalf Mr. Sherman. MR. CHER NIACK: Not as the Liberal leader? MR.

HUBAND: I can't divorce myself from the position that I occupy however. MR. CHAIRMAN: Would you proceed Mr . Huband. MR. HUB AND: Yes, thank you, Mr. Chairman. I'm glad to have the opportunity of meeting with such an alert, vibrant, bright group at virtually 10:30 in the evening.

Because the electors of both River Heights and Crescentwood have seen fit not to give me a seat in the Legislature I thought that I might take this opportunity to address you, for a few moments, on what I conceive to be a very important issue that has come up and has been recognized by the Legislature in the establishment of this Committee. What I have put before you in written form is a brief authored by myself, and attached to that brief - and you will note that there is some Page 113

Statutory Regulations and Orders Tuesday, November 23, 1976 commentary about it- is a policy paper on women's rights, that has not been passed by the Liberal Party but is the policy paper that is going to the Liberal Party Policy Convention in approximately a week's time, on this subject matter, and to which I commend your attention. Fundamentally I am in agreement with that policy paper with a few very minor exceptions.

First of all I might say on the major issue I agree that marriage should be regarded as an economic partnership as well as a partnership in social terms, and consequently, I believe, that the assets of the marriage should be shared. I concur with the Law Reform Commission that the best way of implementing that sharing of marital assets, assets accumulated during marriage, would be by a deferred sharing scheme, and that is the thrust of the policy paper that is attached.

It is also my view that the division of property between spouses on marriage or divorce should not be eroded on the basis of misconduct, or alleged misconduct, on one or the other part, because my experience is such that in most instances there is fault to some degree on both sides and the process of having the courts decide the issue of fault is often a tedious, time-consuming, costly, irritating and inexact process, and I would rather move to a situation where the law simply states that on the separation or divorce that the marital assets accumulated during marriage be shared equally.

Since this enactment would alter the rights of persons, who are married before the legislation is passed, we also agree with the opportunity to opt out providing that the opting out be done within a reasonable time after the legislation has been passed. One of the more difficult questions is whether the opting out provision should also be extended to persons who are married after the legislation. One can argue on the one hand and I don't want to be ambivalent about it, but I think that there are two sides to this argument.

One can argue that the whole process of passing the legislation is to protect the otherwise unprotected spouse, and therefore, that there should be no opting out provision after this law is passed. On the other hand I suppose that there would be some people who would be prepared to trade their property rights for the simple expedient of getting married, and ifthey're adults perhaps they should be allowed to do so. I think that there are validly two sides oft hat argument that could be argued.

I would come down on the side, right now in any event, of saying that I do not think that the opting out provision should extend to marriages consummated and solemnized after the legislation has been passed. The Law Reform Commission and the policy paper that is attached to my submission both conclude that the marital home should be jointly owned by a husband and wife and I concur in that philosophy. If one accepts the concept of marriage as being an equal partnership, then I think that that concept should extend to a situation created on the death of one or the other spouses.

In other words the marital assets accumulated during marriage should be totalled and then divided and one half of the value of those assets should automatically become the property of the surviving spouse. And I say this with respect to division of property on death, and I say it also on divorce or separation, that there should be no narrow definition, as there is in Ontario, of what constitutes assets accumulated during marriage.

I think, for example, that if I, as a lawyer, have built up an interest in a business, it is not that the wife will all of a sudden come in and become a partner in that operation, of course, but I think that is an asset that is accumulated during marriage and it should not be narrowly defined to include only bank accounts and household contents.

In terms of death and what occurs on death, as I mentioned, automatically I would suggest that one-half of the assets accumulated during marriage would go to the surviving spouse, that would leave me as a testator with the freedom to dispose of the other half of the estate by Will.

But then I have gone one step further, and so does the policy paper, and suggest that just as we now have dower rights that guarantees the surviving spouse an interest in her spouse's estate, so with the one-half that I now am free to dispose of it should be subject to a one half interest or $1 0,000 whichever is the maximum, the larger, that would automatically go to the surviving spouse. We're now dealing with my assets, and my right to dispose of property would therefore be confined only to what is left after that dower interest, if you will, has been taken off.

Under the existing Devolution of Estates Act, as you gentlemen are aware, where an individual dies leaving a spouse alone that spouse succeeds to the property; where there is a spouse and one child it is equally divided; where there is a spouse and two or more children the surviving spouse receives one-third and the children divide the remaining assets between them. This is in my view not the best form that the law should take.

It causes problems, particularly with infants, where the estate is often tied up subject to court rulings on obtaining the access to those funds for maintenance and support, but usually it is money that the widow could well use. What we are suggesting is that in those kinds of instances, upon a death of an intestate person, that if there is a surviving spouse the entire estate pass to the surviving spouse.

Now if a person finds that law abhorrent that person has the right to exercise the limited right that we've got here to simply make a will and make some other disposition of the estate according to that person's choice. The further comment that I wish to make is with respect to maintenance. Obviously we are going to have to rely on maintenance as a tool to maintain an individual after a separation or divorce has taken place.

Again I would suggest that the concept of maintenance should be based upon the means of one partner and the needs of another, it should be directed at creating independence so that the spouse who is receiving maintenance will as Page 11 4

Statutory Regulations and Orders Tuesday, November 23, 1976 quickly as possible come off maintenance. I think maintenance should be regarded as less important to some extent if we alter our laws on the division of property because that can properly be taken into account as afactor in determining whether a spouse has a level of independence because she will have assets that she perhaps otherwise would not have. I should say, he or she, will have assets that he or she would not otherwise have had.

The goal however should be to allow the spouse who is receiving maintenance to, as quickly as possible, reach a position of independence, and consequently I think that long-term maintenance would be used only in situations where you have a husband and wife who have been married for a long period of time, where for example, a separation takes place and the wife has not been on the job market for 20 or 30 years, and is of an age where retraining and finding a place in the job market would be impractical, then you would rely, continue to rely on maintenance as a long-term support for such a spouse.

But the thrust of it should be to try and create an independent position for both spouses with less reliance on maintenance than perhaps we have at the present time. There is one further suggestion in the policy paper on which I declare my own ambivalence again, and unashamedly do so because again I think that there are two sides to this argument, and that is on the question of whether maintenance payments that fall into default ought to be guaranteed by the state. Now this proposal has some attraction and I think other speakers who have brought papers before you have commented upon this.

It is particularly attractive to women who do not wish to become a welfare statistic, and without that guarantee is forced to utilize her own small capital resources in order to become eligible, at some later time, to obtain welfare assistance. But if we are moving towards the idea of a guarantee then we suggest that it should be up to a maximum of three quarters of the maintenance payments as ordered by the court or the level of welfare payments whichever is the lower, but we don't want to get into a situation where the state would be guaranteeing maintenance payments to an already wealthy person of pe

Document details

Collection	Manitoba — Debates (Hansard)
Citation	30-4-sro5
Type	hansard
Volume / chapter	30th 4th hansardpdf sro5.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	3203b34deb1bc54e46df026313d810b7b55fa9c3

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