1978 Legislative Session: 3rd Session, 31st Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JUNE 27, 1978

Afternoon Sitting

[ Page

2669 ]

CONTENTS

Routine proceedings

Presenting reports.

B.C. Development Corporation fourth annual report. Hon. Mr. Phillips ––

British Columbia Hydro and Power Authority Fair Taxation Act (Bill M 220) Mr. D'Arcy.

Introduction and first reading –– 2669

Oral questions.

Funding for Klemtu Indian band. Mr. Lea –– 2669

Industrial property assessment. Mr. Stephens –– 2670

Excessive lottery advertisements. Mr. Rogers –– 2670

Government contribution to school taxes. Mr. Stupich –– 2670

Closure of group homes for children. Mr. Gibson –– 2670

"Sneaky and deceptive" practices by municipalities.

Mr. Cocke 2–– 2671

Children's Rights Act (Bill M 221) Mr. Lauk.

Introduction and first reading –– 2672

Family Relations Act (Bill 22) Second reading.

Hon. Mr. Gardom –– 2673

Ms. Brown –– 2677

Mr. Gibson –– 2679

Hon. Mr. Gardom –– 2682

Family Relations Act (Bill 22) Committee stage.

section 1. Division on motion to report progress –– 2690

Mr. Gibson –– 2684

section 46.

Hon. Mr. Gardom –– 2684

section 2.

Mrs. Dailly –– 2684

Amendment to

section 49 –– 2693

Hon. Mr. Gardom –– 2685

section 54.

Mr. Macdonald –– 2685

section 3.

Ms. Brown –– 2685

section 60.

Hon. Mr. Gardom –– 2685

section 4.

Mr. Macdonald –– 2685

section 61.

section 4 amendment

Hon. Mr. Gardom –– 2686

Ms. Brown –– 2686

section 62.

section 43.

Ms. Brown –– 2686

Mr. Cocke –– 2686

section 68.

section 44.

Mr. Gibson –– 2686

Hon. Mr. Gardom –– 2686

section 76.

Ms. Brown –– 2686

section 45.

section 75.

Mr. Gibson –– 2687

Hon. Mr. Gardom –– 2687

Ms. Brown –– 2687

section 84.

Mr. Macdonald –– 2688

Mr. Lauk –– 2688

section 46.

section 90.

Mr. Gibson –– 2688

Ms. Brown –– 2689

Hon. Mr. Gardom –– 2689

Report and third reading –– 2698

Heroin Treatment Act (Bill 18) Second reading.

Mr. Cocke –– 2698

Mr. Barnes –– 2702

An Act Respecting the Royal Trust Company and the Royal Trust Corporation of Canada

(Bill PR 402) Committee stage.

On the amendment to

section 3.

Mr. Strongman –– 2703

Report and third reading –– 2704

Presenting reports.

Report of Select Standing Committee on Public Accounts and Economic Affairs.

Mr. Nicolson –– 2704

Annual report, Ministry of Agriculture. Hon. Mr. Hewitt –– 2704

Agricultural Aid to Developing Countries and World Disaster Area Fund report.

Hon. Mr. Hewitt –– 2704

The House met at 2 p.m.

Prayers.

MR. GIBSON : Mr. Speaker, in the gallery today are two constituents from North Vancouver, Bill and Joan Dobson. Why a newsman would want to attend the Legislature on his vacation I don't know, but I ask the House to make them welcome.

MS. BROWN : People seem to be always coining to the Legislature to say goodbye to me. First it was the Vancouver Resources Board; now it's my constituents. There are 12 of them present and I'd like the House to join me in welcoming them and saying goodbye to them too. They'are: Al Wiebe, Chairman Munro, Mike Hermesh, Chris Bjorkaund, Rene Lavaeu, Gay Greer, Shirley Masse, Sharlee Arnason, Lorri Arnason, Jim Plett and Doug and Nancy Jensen.

MS. SANFORD : Mr. Speaker, I would like to introduce to the House today a number of representatives from the labour movement, namely: Johanna den Hertog and Dave McIntyre from the B.C. Federation of Labour; Rick Dowling from the Union of B.C. Hydro Council of Unions; Doug Cronk, who is the business manager of IBEW; Bob Rennie, who is with the OTEU; and several other representatives. They are here this afternoon because of their concern about the labour provisions, in the omnibus bill. I wish the House would make them welcome.

HON. MR. GARDOM : Mr. Speaker, I would very much like to introduce to the House today a very special guest for me and I would like the hon. members to know why I am attempting to be upon my best behaviour. That is because my cousin, the Rev. Cyril Venables, graced us with prayers today. Mr. Speaker, I would very much like Rev. Venables to convey to his mother - my aunt, my father's sister, Mrs. Vernon Venables, Aunt Frances - the very best. She is in her 97th year.

MR. SPEAKER : Being somewhat familiar with prayers, I analysed this afternoon's prayer and liked it so much that I have asked the reverend's permission to use it at my wish some day in the future, and claim it as original. (Laughter.)

MR. BARBER : I would like to introduce from the constituency of Chilliwack

a good friend of our own party, Susan Rose. I ask the House to make her welcome.

Presenting reports.

Hon. Mr. Phillips presents the fourth annual report of the British Columbia Development Corporation for the year ended March 31,1978.

HON. MR. PHILLIPS : Mr. Speaker, I ask leave to table a document entitled "Industrial Expansion in British Columbia by Economic Regions for the Year 1977."

Leave granted.

Introduction of bills.

BRITISH COLUMBIA HYDRO AND

POWER AUTHORITY FAIR TAXATION ACT

On a motion by Mr. D'Arcy, Bill M 220, British Columbia Hydro and Power Authority Fair Taxation Act, introduced, read a first time and ordered to be placed on orders of the day for second reading At the Next sitting of the House after today.

Oral questions.

FUNDING FOR KLEMTU INDIAN BAND

MR. LEA : I have a question for the Minister of Labour, Mr. Speaker, in regard to his responsibility both as Minister of Labour and as the minister responsible for Indian affairs in the province.

Some weeks ago there was a mixup within his ministry over whether or not the Indian band at Klemtu would get funding under the summer student employment programme. The minister, I know, had been trying to get to the bottom of it to see what should be going on. But so far the Indian band at Klemtu has still not had any word and we're into the programme already. At this point it could mean that Klemtu, even if they get the money or even if they get the aid, couldn't do what they want to do. I'd like to ask the minister whether, before the end of today, he could let me know exactly what's going to happen to the people at Klemtu.

HON. MR. WILLIAMS : As the member pointed out, Mr. Speaker, the matter is under investigation. We have not reached the bottom of the difficulty. I cannot commit myself to fulfilling the member's request today, but the matter is under current - this afternoon -review.

[ Page 2670 ]

INDUSTRIAL PROPERTY ASSESSMENT

MR. STEPHENS : Mr. Speaker, my question is for the Minister of Finance. Last week I asked the minister whether or not he was aware that his government's new assessment method had increased the burden on industrial property by at least 25 per cent. His response was that he did not think that to be the case. I'd like to now refer the minister to the annual report of the British Columbia Assessment Authority dated December 31,1976. In that report, on page F2, it states that industrial property for the year 1977 was based upon an assessment of 23.9 per cent.

Is it not true that your government has raised that to 30 per cent, and is it not true that that amounts to an approximately 25 per cent increase in taxation imposed on that property?

HON. MR. WOLFE : With all respect, I think the member has misinterpreted that information. Did he not say that in the report -which I don't have before me - commercial properties on a province-wide basis were previously at a relationship of 23.9 per cent?

MR. STEPHENS : Industrial properties.

HON. MR. WOLFE : On industrial properties there was a marginal increase from the provincial average of before. Incidentally, Mr. Speaker, I respect the member's interest in property taxes, but he was not here when we debated this matter at great length before. I'd like to offer him a copy of the bill from last year. Perhaps he could read it and make himself more familiar with the contents.

MR. SPEAKER : Hon. members, perhaps those arrangements could be made outside the House.

MR. STEPHENS : On a supplementary, Mr. Speaker, the minister referred to commercial property; I'm referring to industrial property. The facts of the report are quite clear that it was assessed at an average of 23.9 per cent last year; you have increased it to 30 per cent this year. Is that not, Mr. Minister, a 25 per cent increase?

MR. SPEAKER : The question suggests its own answer.

EXCESSIVE LOTTERY

ADVERTISEMENTS

MR. ROGERS : I can assure the members that the minister who is going

to be asked a question doesn't know it. My question is to the Minister of

Consumer and Corporate Affairs, and I do hope I have your title correct.

Would the minister use the good offices of his ministry to speak to the federal, provincial and other agencies that are using excessive media time, both in print and on the electronic media, in flogging lottery tickets and these dream chances? In recent weeks their advertising has become extremely excessive and noxious; and any other descriptive adjective would be in order. I wonder if as the minister responsible for our consumers you couldn't use one of the various Acts or maybe some gentle persuasion in convincing those people that it's becoming excessive.

HON. MR. MAIR : Not only because I happen to be personally very much against lotteries as a matter of principle but because I agree with the member, I'd be very pleased to accede to his request.

GOVERNMENT CONTRIBUTION

TO SCHOOL TAX

MR. STUPICH : To the Minister of Finance: in Surrey the contribution to the school board from property tax has , increased by 15. 7 per cent, while the provincial government contribution has increased by only 4.9 per cent. Does the minister consider it sneaky and deceptive for that municipality to release these figures to the municipal taxpayer?

HON. MR. WOLFE : Mr. Speaker, I presume that the municipality would want to have the answer to any questions of that nature, and I see no reason why it shouldn't be made available to them. Incidentally, in a case such as Surrey, I'm informed that the enrolment did decrease, as it did in municipalities like Vancouver and Burnaby. In the municipality of Surrey I believe the enrolment of school teachers did decrease.

CLOSURE OF GROUP

HOMES FOR CHILDREN

MR. GIBSON : Mr. Speaker, I have a question to the Minister of Human Resources. I understand there are now no residential Emergency services for children in Richmond as a result of the closure, for various reasons, of the six residential group homes which were operating there in 1976. In view of the fact as I understand it, that this has resulted in at least some children sleeping in parks and abandoned cars, can the minister tell the House why he has not honoured a commitment he made in January of this year to continue

[ Page 2671 ]

operating social services in Richmond following the closure of the last of these homes?

HON. MR. VANDER ZALM : We are continuing to operate social services in Richmond. Certainly I have received very few, if any, complaints. Also we are presently in the process of purchasing a very large home, and the request is before Treasury Board.

MR. GIBSON : I have a supplementary question. It is my understanding from a report in The Vancouver Sun of last Friday that the regional manager for the minister has stated that facilities would not be ready until fall of this year. I would ask the minister why it is taking so long, in view of the serious time pressures.

HON. MR. VANDER ZALM : We are providing the required services in Richmond. Any area, I am sure, could request more of these services. One of the services that is being provided is a further home. As I said, the acquisition of the home, the approvals required and the necessary legalities attached to it may take a month or six weeks - I'm not sure. If it does take that long, it could be fall but I don't foresee it taking that long.

MR. GIBSON : I have a further supplementary. At a meeting in February the minister said something would be done almost immediately. I understand that there are two homes - one on Moffat Road and another on Ash Street - that could be opened at very short notice. Will the minister investigate the possibility of having these homes opened this week? While the minister may say he is providing social services, as I understand it, the fact of the matter is that there is no residential home open at the moment.

HON. MR. VANDER ZALM : Yes, it is these homes that I we are negotiating on.

"SNEAKY AND DECEPTIVE"

PRACTICES BY MUNICIPALITIES

MR. COCKE : My question is to the wise Minister of Education.

In Vancouver the contribution to the school board from local tax has increased by 10.1 per cent, while the provincial government contribution has increased only 1.4 per cent. Does the minister consider it sneaky and deceptive for the municipality to release figures such as these to their taxpayers?

HON. MR. McGEER : Mr. Speaker, the city of Vancouver is welcome to release any information that it deems in the public interest to release. Obviously I haven't had an opportunity to study the figures. I would let the member make his own comment about their appropriateness.

MR. COCKE : In light of this kind of situation across the province, is the minister now sorry that he dumped school costs on local taxpayers across our whole province?

HON. MR. McGEER : Mr. Speaker, I am indeed sorry that I'm not the tooth fairy and I can't make money rain from the sky. 1 wish I could. I've said many times I wish there could be more money for education but there are realities to how much money the province has got available and how much money the taxpayer is willing to afford, no matter whether that taxpayer is federal, provincial or local. It all comes out of our pockets, ladies and gentlemen. I wish there were some other way.

MR. COCKE : Mr. Speaker, in light of the minister's promise and in light of the Premier's promise prior to the last election that the direction would be the other way, I ask the minister when he is going to turn around and pick up his fair share of the load. When is this government going to pick up their fair share of school costs?

MR. SPEAKER : That question tends to be argumentative, but the minister may wish to answer.

HON. MR. McGEER : Mr. Speaker, I think that I should inform the member and inform the House that a year ago I met with the executive of the B.C. School Trustees Association and with the executive of the B.C. Teachers Federation, and explained to them the indications I had had from Treasury Board as to the amount of money the provincial government would be able to commit to education without increasing taxes.

It was made very clear to both those bodies at that time that if they were to bargain for payments to teachers and engage numbers of teachers that fell outside the provincial government's ability to pay, they would be doing so at the expense of their own ability to raise taxes at the local level.

Mr. Speaker, further to that, I will again be meeting with both the B.C. School Trustees and the B.C. Teachers Federation, and once more will give them indications of how much money it looks like will be made available by Treasury Board. The Minister of Finance gives

[ Page 2672 ]

that indication and that will make it possible once again for local school boards to predict what the impact on the local mill rate will be as a consequence of whatever budgetary decision they make. As you know, this year we've asked school boards to send a five-year budget to the provincial government, and hopefully we will be able to make predictions about local taxes five years in advance.

MR. BARRETT : Mr. Speaker, my supplementary question to the minister is: to the minister's knowledge, in his opinion, has there been any municipality that has been "sneaky" or "devious" about sharing their information on tax costs - that is, vis-à-vis the relation-ship between the municipal share and the provincial government share? Has there been any municipality that has been sneaky or devious in sharing that information?

HON. MR. McGEER : Mr. Speaker, I don't think the Leader of the Opposition would have asked that question unless he had some local school board or some municipal council in mind. You don't ask questions in the House unless you have the answer. I would ask the Leader of the Opposition which ones he had in mind.

MR. BARRETT : Mr. Speaker, to clarify the question for the minister, the Premier of this province and the Minister of Municipal Affairs

(Hon. Mr. Curtis) made statements alleging that certain councils were sneaky and devious in presenting tax information to the population of this province. When asked by the opposition, the Premier and the Minister of Municipal Affairs took it as notice in terms of letting us know after one minister named Saanich. I'm asking this minister if he knows of any municipality that would fall into the category defined by the Premier of this province as being sneaky and devious in sharing tax information with the taxpayers of this province.

HON. MR. McGEER : Mr. Speaker, to answer the member, in my opinion, if he still has a ques-

tion in his mind about this, he should be asking the Premier or the Minister of Municipal Affairs, and in my opinion he must have some of that information himself, or he wouldn't be asking the question of me.

MR. BARRETT : Supplementary, Mr. Speaker.

MR. SPEAKER : The bell terminates the question period, hon. members.

MR. BARRETT : Mr. Speaker, on a point of order, could the Clerks inform the Speaker and the House exactly what time the question period started?

MR. SPEAKER : I'm informed that question period started at 2:16.

MR. SPEAKER : The hon. first member for Vancouver Centre on a point of order.

MR. LAUK : No, Mr. Speaker. I want leave to introduce a bill I neglected to introduce before question period.

MR. SPEAKER : We have a point on the order paper at which we introduce bills. Shall leave be granted at this time?

Leave granted.

CHILDREN'S RIGHTS ACT

On a motion by Mr. Lauk, Bill M 221, Children's Rights Act, introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

Motion approved.

MR. GIBSON : Mr. Speaker, I would like to bring a point of order which you may wish to take under advisement. I do think it has some urgency in view of the rumour of the near end of this sitting.

One June 9, in Votes and Proceedings, the House appointed a special committee which was to be appointed "during this sitting of the Legislative Assembly." I would ask for your

interpretation as to whether this sitting is the one that will terminate very shortly or whether it goes until prorogation; and further, if this committee has permission to sit during any extended recess, because these powers are not provided for in the resolution. I raise those two points for your attention.

MR. SPEAKER : Any power given to a committee which is structured by this Legislature is included in the motion itself. It usually includes powers such as calling for persons and papers; also it usually includes the directions as to when the committee is empowered to sit.

I would have to review the motion to see whether or not that power is given in this specific measure. I'll be able to do that when I have a few moments, and then perhaps report to the House.

[ Page 2673 ]

Orders of the day.

MR. BARBER : Mr. Speaker, I ask leave of the House to move Motion 10

standing in my name on the order paper regarding reciprocal pension rights for

citizens of the United Kingdom now dwelling in British Columbia.

Motion negatived.

HON. MR. GARDOM : Mr. Speaker, I ask leave to proceed to public bills

and orders.

Leave granted.

HON. MR. GARDOM : Second reading of Bill 22, Mr. Speaker.

FAMILY RELATIONS ACT

HON. MR. GARDOM : Mr. Speaker, I would like to make some remarks concerning the introduction of this bill, which is a first of its kind for British Columbia. It contains many concepts and I think it will be well received, and, to this point in time, it has been well received by the general public.

Mr. Speaker, 1 would say that there is probably nothing quite as fundamental to our daily way of life and to our society, to our religious tenets and our mores as the institution and the partnership of marriage and everything that flows from it - the spirituality, the ups, the downs, the loves, the life, the death, the raising of children, the acquiring and maintaining of sustenance and shelter and all of the things that emanate for the life, the livelihood and preservation of the family unit, and the infinite number of joys and sorrows that follow.

This bill, Mr. Speaker, initiates the process of putting all of our family and children's laws under one roof. It is a measure that may touch every British Columbia family, and we have endeavoured, with the widest of consultation, discussion and review, to prepare

an Act that reflects the consensus of the law of the family for B.C. It will give recognition to the contemporary roles of parents and spouses, specifically insofar as they relate to the custody, access and guardianship of the children, maintenance, the enforcement of support obligations, and provisions for the redistribution of marital property in the event of marriage breakdown. The Family Relations Act is a revision and consolidation of four statutes: the Equal Guardianship of Infants Act, the Extraprovincial Custody Orders Enforcement Act, the Unified Family Court Act and the Family

Relations Act. All'of these laws are now to be lodged here, with special attention being given to the matters that I have mentioned.

The bill emphasizes five principal elements: 1) that in civil proceedings in which a child's custody, access or guardianship is at issue, the child's interest will be the paramount consideration; 2) that the homemaking, child-rearing and breadwinning capacities of the spouses will be accorded equal status where matrimonial property and maintenance issues are concerned, reflecting the concept that in any matrimonial dispute it is the individual situation that should be addressed with fairness being the guideline; 3) that the maintenance of spouses, children and dependent parents will be based on reasonable economic need rather than on the notion of fault, with emphasis upon the duty of people to take responsibility for their own lives and wherewithal where they can; 4) that its provisions are sufficiently flexible so as to leave the family unit quite free from legal interference when its members are living in harmony, but also to ensure that fair and equitable protections are available if disputes result; and 5) that there is enable ment for the automatic enforcement of maintenance orders.

The statute, Mr. Speaker, is comprised of six parts, each of them dealing with a different aspect of family and children's law.

Part 1, in addition to defining a host of terms, provides for the appointment of family advocates and describes the proceedings in which they may intervene to represent the interests of the child. Family court counsellors may be appointed to help spouses or parents and children to voluntarily resolve their disputes outside a courtroom. The court can also request family service professionals to investigate the specific circumstances of family litigants.

Various court proceedings among family members may be consolidated and joined for better economy and less duplication, as well as to encourage the disposition of all family controversy issues at one time so as to provide in the hearing for support or property division a fuller picture of the whole family situation. The remedy of consent orders and the filing of agreements as to custody, access, maintenance and property division is highlighted, so litigants can be encouraged to settle issues without trial.

The second part, Mr. Speaker, deals with guardianship, custody and access to

minor children. When the parents live together they are the joint guardians.

Where they live apart or are no longer married, a number of provisions are spelled

out. When court intervention

[ Page 2674 ]

becomes necessary to determine custody or access or guardianship, the best interests of the child again will be the paramount consideration.

Certain of the criteria to be considered will include the health, the well-being, the special needs for care and treatment, love, affection, education and training of the child, and the capacity of a guardian to perform. The guardian will be able to apply to a court for directions, will have to account for the property of a child and post security for the performance of his responsibilities.

The court may also order that an individual not make contact with a child or spouse, and not go into premises where such a person resides and, further, that where an individual is awarded custody and denied it, order that the child may be apprehended and taken to him or her. Breaches of certain of these provisions, of course, could also give rise to a

summary conviction offence.

This part, Mr. Speaker, also re-enacts and revises the Extra-Provincial Custody Orders Enforcement Act, wherein our courts can enforce or vary custody orders from other provinces, states or countries - again, on the premise that any such step would have to be paramountly in the child's best interest. Seven other provinces have similar legislation in this country.

Part 3 would replace sections 8 and 9 of the Family Relations Art, 1972, and sets forth new provisions for the management and division of matrimonial property. These follow in principle those proposed in Bill 69 of last year, which was tabled for public discussion and debate. They have now been streamlined, and they're made more precise both in definition and in procedure.

For the purposes of placing

Part 3 in historical perspective, a few words should really be said about three periods of time: before 1882; 1882 to 1972; and 1972 to the present. Before 1882, really on the way down the aisle with the wedding bells still ringing, a women's right to manage her own property immediately disappeared. I perhaps could say, Mr. Speaker, no wonder the poor bride blushed. But all was not lost because the wherewithal passed to her husband. In return for this - what shall I say? - loss leader from ecclesiastic union she became entitled, as they used to say, to mensa et thoro, which is to say bed and board.

That was her receipt from dear old George, plus certain dower rights against his property if he came to an untimely end or to a divorce, or if he strayed and was nabbed, sort of flagrante delicto, provided she wanted a divorce or perhaps, indeed, more practically, could afford one. On the other hand, if she was found guilty of some matrimonial misdemeanour she lost her rights to both maintenance and to dower.

So from 1882 to 1972 spousal rights and obligations remained essentially as they had been, although the Wives' and Children's Maintenance Act, the Reciprocal Enforcement of Maintenance Act and the Divorce Act of Canada made the enforcement of these rights by women far more practical.

Section 8 of our Family Relations Act of 1972 was essentially

section 34 of the Divorce and Matrimonial- Causes Act, revisited and broadened to the extent that it now applies equally to both women and to men, but without the previous reference to matrimonial fault. So under

section 8 on divorce, judicial separation or annulment, the court has discretion to apply property for the benefit of both or either spouse for the children of the marriage.

[Mr. Rogers in the chair.]

From this date of the Family Relations Act of 1972 till today, there is some jurisprudence to the effect that the

section that I'm referring to merely establishes procedural rules for the application of traditional and equitable principles and other jurisprudence to the effect that it provides a new and wide, although vaguely defined, power in the interests of fairness to redistributed property where called for between former spouses up to two years following the marriage dissolution. Notwithstanding that this latter view has now received appellate pronouncement, many questions still remain concerning the scope

[ Page 2675 ]

and the application of this particular

section 8 of the existing statute.

Throughout all of these periods that I have mentioned, under the rules of equity the court had powers to redress wrongs and establish trust relationships, known as resulting trusts and constructive trusts, where a husband or a wife would exercise his or her property rights in a manner that cheated the other. This bill will in no way alter those historic and equitable principles. Further, while the Married Women's Property Act gave married women full legal rights to own and to manage property, and although

section 8 of the Family Relations Act has been interpreted by some as permitting former wives to be compensated for special effort in household management and child care, there has been scant practical recognition in matrimonial property law of the contribution of women for their child-rearing and house-management role. This is one of the principal issues that this

Part 3 of Bill 22 before us today addresses. It establishes the concept of deferred sharing of property, in the event of marriage breakdown, for those husbands and wives who have not made provision through marriage agreements or separation agreements for any alternative allocation or sharing of the matrimonial property or family assets.

Under the deferred sharing system, marriage partners maintain separate property rights unless and until their marriage officially breaks down, at which time all of their family assets may be automatically divided equally. That is the basic rule, with family assets being anything that is owned by one or both of the spouses, or their minor children and used by them for a family purpose - things such as they would use for shelter, transportation, for household, educational, recreational, social or aesthetic purposes.

So if they reached a rocky road, this sort of property, subject to other agreement between them, would be equally shared under the Act, irrespective of who had made the promise or who held the title.

The bill doesn't provide for the deferred sharing of a business asset acquired or maintained solely by one spouse, and for which the other made no direct or indirect contribution. Mr. Speaker, I'm trying not to make my remarks this afternoon too long, but I think there indeed is a requirement for me to fully illustrate to people in this debate exactly what is contained in this statute.

The legislation paves the way for a couple to establish their own agreement and opt for a different system of management and division of matrimonial property both during and after marriage, if they so choose. This is a clear mandate for freedom of choice.

A marriage agreement has to be in writing; it has to be signed by both husband and wife and witness. Where land is concerned, it may be registered in the land registry office as a charge or a security instrument under the Mobile Homes Act. This part also grants the Supreme Court power to reapportion property where the parties can establish strict adherence to the 50-50 deferred sharing system where strict adherence to the terms of a marriage contract would be unfair or inequitable in all of the circumstances.

The court could therefore vary the shares of the spouses or even award to one a share of other property that was not considered to be a family asset. Here the court would take into account matters such as the length of the marriage, the extent to which property was acquired by inheritance or gift, the ability of a spouse to be self-sufficient and the capacity or liabilities of a spouse, all with fairness being the prime consideration.

One of the hon. members said: "Shocking." I must, with all respect, differ with the hon. member's

interpretation, because it is not possible to parameter human behaviour to the extent of 100 per cent in any kind of a document yet designed by man. That's why there is a requirement always for the exercise of discretion, and a very necessary requirement, in my view, it is.

Further, if parties can't agree to the ownership or division of property or to the right of its possession, then the court has been given wide powers to make declarations of ownership toward a sale, to have items held in trust, to have the parties furnish security to ensure performance, or to grant orders to restrain improper gifts or transfers that may be attempts to defeat the principles that are set forth in the statute.

Interim orders can also be obtained for the delivery, safekeeping and preservation of property until final adjudication.

Couples whose marriages have broken down will also, by their own agreement, be able to bring this deferred sharing of property rule into effect immediately rather than having to wait until the time of judicial separation or divorce. Where such an agreement cannot be reached, one of the spouses may be able to apply to the Supreme Court for declaration that reconciliation is not possible. Upon the court reaching that conclusion and granting a declaratory judgment, the deferred sharing systems could then come into being immediately as opposed to having to wait the full period of time.

[ Page 2676 ]

To ease proof and support the thrust of the bill that property which is ordinarily used by the family for a family purpose is a family asset, it will be incumbent upon disputing husbands and disputing wives for the one who claims that an asset is not a family asset and therefore not subject to the 50-50 deferred sharing to so convince the court, rather than, the other way around. Hence this reverse onus provision will buttress the presumption that all that which is used for a family purpose is a family asset and is subject to sharing unless proven otherwise.

Part 4 of the six parts you will see that , i am approaching the end deals with maintenance and support obligations. These are themed as they are at the present time on the economic need of spouses but with the further recognition that each spouse, subject to his or her capacity and ability, has a responsibility to become self-supporting as soon as possible after a marriage breakdown.

The legislation also places clear emphasis on the consideration to be given on assessing maintenance awards re the possibility of a spouse's reduced capacity to work and be self-sufficient because of past or present dedication to the raising of children.

So if one or the other spouse has spent or has to spend a great deal of time in the home attending to the highly important needs of his or her children, this is a factor which obviously must be given very careful consideration when the court determines the maintenance award, with the legislation again stressing child and spousal maintenance on present need rather than on past guilt. When considering children's support, Mr.

Speaker, there is to be taken into account their requirement for a stable and supportive environment as well as the financial circumstances and obligations of each person responsible for such maintenance.

Now prior to a court assessing maintenance, a party can be requested to produce to the other copies of relevant financial information, income tax returns, assessment notices, statements of revenue and expenses and assets and liabilities in order to better determine the true facts, again with penalties for non-production.

Enhanced enforcement procedures will include garnishee action, with those orders remaining in effect for three months and subject to renewal, registration of orders against property, seizure of goods, posting of bonds or other security and continuing attachment orders against wages, and even imprisonment for up to 30 days if a defaulter capable of paying arrears refuses to do so. A highly important point, Mr. Speaker, is that court services will be given the responsibility, whether by court order or by agreement between the parties, to collect and distribute maintenance.

This automatic enforcement will attempt to provide a more effective and efficient way to assure the support of children and spouses as well as lighten the burden on the taxpayer when he, through his taxes, is contributing toward the support of the dependents of others who, in many instances, are fully or partially capable of paying, and should pay, instead of turning their backs on their obligations.

It's interesting to note that there are about 21,000 single parents in B.C. who are forced to rely on public funds for financial assistance to the extent of about $122 million annually, and a pilot project in Victoria recently revealed that as many as 60 per cent of all court orders for maintenance were in arrears. So this system is being developed, Mr. Speaker, whereby court-awarded maintenance orders may become automatically enforced without the necessity of a recipient having time and time again to appear before a judge and request that default be rectified and moneys be paid.

Because where maintenance is capable of being paid - and I stress that -and is not being paid, it's obvious that the burden falls on Joe Q. citizen, and the cost is enormous. A uniform accounting system has been introduced, Treasury Board approval has been obtained, and this project should be in place before too long.

All of this has been looked at, Mr. Speaker, from the viewpoint that those who are able to pay for the support of their spouses and children should do so, and also that, where possible - subject to needs, means, capacities and economic circumstances - parties should be independent and employed if they're able to, rather than have to rely upon court-ordered support.

Maintenance obligations will extend also beyond the matrimonial bond. Where a man and a women live together as if married, then the relationship will take on the same financial characteristic as a marriage. So a similar support obligation to those who are married is imposed on common-law situations, providing the parties have lived together for at least two years. They are not, however, covered under the Act for the sharing of family property. So if they choose to take that route, that is a matter that they can attend to by themselves under a separate agreement.

Now family law reform has recently occupied legislators in other parts of the world and right across our country. Ontario has recently enacted equal sharing of family assets in

[ Page 2677 ]

dissolution; Manitoba provides for division following marital breakdown; Saskatchewan has somewhat similar provisions for fair and equitable redistribution; Alberta has granted its courts broad discretionary powers to divide marital assets.

So you can see, Mr. Speaker, that this Family Relations Act, 1978, brings together in one statute a host of family legislation which heretofore had been separate despite its common theme. The bill recognizes marriage as a partnership, with child rearing being an integral element of that partnership. It puts into law those concepts which have been in recent years a growing trend, both in the thinking of the general public and in our courts.

It recognizes the importance of need rather than fault in the awarding of maintenance, but at the same time it stresses the necessity for spouses to regain financial independence as soon as possible after the breakdown of a marriage. Finally, Mr. Speaker, it provides a most notable statutory update and clarification.

So this afternoon I have done my best to inform the House as it was, as it is At the present time, and as it shall be. I would say also that the ministry will be developing a booklet which we will make available for very wide circulation in the province that will concern itself with the many details that are existent in the legislation.

Before sitting down, I would like to express my personal thanks to Mr. Bob Adam on, legislative counsel, Mark Krasnick, Director of Policy Planning, Deputy Attorney-General Dick Vogel and all of the hundreds of people who have spent many, many hours and a great deal of energy and effort and a great deal of understanding in producing this legislation that we now have in front of us today. There are so many to make that, rather than starting a list, I think it would be appropriate if I just expressed the thanks of all of us to them and, finally, to my wife and children, who've had several rather uneventful weekends as a result of our expenditure of time and commitment to this project.

Accordingly, Mr. Speaker, it gives me a great deal of pleasure this afternoon to move second reading of Bill 22.

MS. BROWN : Mr. Speaker, I think I'd like to start out by adding to that list of people whom the Attorney-General thanked the name of Mr. Justice Berger, whose recommendations certainly laid the groundwork for this piece of legislation, and that of the former Attorney--General, the first member for Vancouver Fast (Mr. Macdonald) , who appointed the commission which Mr. Justice Berger presided over.

The opposition recognizes that this is an imperfect b ' ill, that it is indeed a flawed piece of legislation. But we also recognize that it is important that we have a piece of legislation c..i the books that we can begin to work with. And for that reason, Mr. Speaker, despite the weaknesses in the bill, the opposition is going to support it.

We recognize that it's really a lawyer's bill, and that the lawyers are going to have an absolute field day with it - creating new precedents, interpreting words, interpreting meanings and dealing with new principles which they've never had to deal with before such as the whole concept of equality in marriage. And we recognize that for the next three or four or five or maybe even 10 years, there's going to be utter chaos in this province in terms of really working out this piece of legislation.

So we think that the sooner we get on with it, the better. Certainly the parents

and the children of British Columbia have needed good, comprehensive legislation

in this area for a long time. And we are not going to get it until we accept

even a flawed piece of legislation and, hopefully, allow the courts to turn

it into some kind of semblance of responsibility.

I had hoped, Mr. Speaker, that, along with the introduction of the bill today, the minister would have brought a couple of amendments with him. I gather he hasn't. So I just want to suggest to him that although the Act.... The first member for Vancouver East, incidentally, is going to assist, I gather, in that area - aren't you? Yes, the first member has an amendment which is a very important one, dealing with the legal capacity; but I'll leave him to talk about that one. I do not support the concept of deferred sharing.

I believe that the original concept - which was outlined by the previous government in Manitoba - where family assets were shared during the marriage and business assets were dealt with only on the dissolution of the marriage was a better way to deal with it. I believe that we cannot talk about equality after the marriage is over, that what we should be talking about is equality during the life of the marriage.

So although we are supporting the legislation, the battle to get away from the concept of deferred sharing and to move into the area of genuine community of property during the life of the marriage is one that we are going to be working for. This obsession with the end of the marriage is certainly one that I do not understand. Where women have been talking about the life

[ Page 2678 ]

of the marriage and ensuring that we are more secure as equals during the life of the marriage, governments continually bring down legislation dealing with the dissolution of the marriage, or the end of the marriage.

Mr. Speaker, I'm hoping that the member for Vancouver East will introduce an amendment dealing with the definition of family purpose. Although the Act speaks at great length of family assets - it says "those assets which are used for family purpose" - there is no explanation of what family purpose is. The minister spoke of shelter and that kind of thing, but I don't think that's good enough. I can see five years of court battles going on while two or three lawyers get together and give us 15 or 20

interpretations of what being used for family purpose is all about. And this is certainly very important to the wives of farmers, to the wives of fishermen, certainly to spouses who together share a small business and to women who see raising of the family as their full-time commitment in life rather than taking some time to work outside of the home.

The option given to both spouses to not go along with this legislation but to go for a contract at the very beginning is beautiful -except that I cannot think of a time in life when two people are more irresponsible than when they're making a decision about getting married. I mean, there's absolutely no logic at that time, no reason. And to ask them to sit down and draw up a contract at that time.... He's going to give her everything, she's going to say no, no, no; and, you know, the end result is going to be exactly what we have right now. So I'm not impressed with that option at all.

I believe that the option has to come when the honeymoon is over. That's at the end of the first year. Then let them sit down together and draft the contract - not at the beginning.

HON. MR. CHABOT : They can at any time.

MS. BROWN : Okay, fine.

(Mr. Speaker in the chair.]

The other thing that I have a couple of concerns about is the business of the spouse having to be self-supporting as soon as possible. I don't know how you're going to deal with this rash of divorces which are occurring in the age group of people over the age of 50. I'm not quite sure whether that should be left to judicial discretion or not. We're finding more and more that these women who are being abandoned are over the age of 50 with no experience in the labour market as such. They have not got the excuse of having small children and therefore having to stay home.

The minister said if they have small children and have to stay home, well, of course, that is taken into account. The children are grown. They have left home.

I have an instance, Mr. Speaker, where on the wedding day of the youngest child the day the youngest child was married the husband turned to his 53 year-old wife and said: "Now I have discharged my responsibilities to this family. I'm going to find myself." He took off with a 25-year-old to go and find himself. Now how is she at 53 going to become as independent as possible after 35 years of marriage, part of which was spent working to put him through university? She was thrown on the labour market.

If this legislation goes through and the courts decide that she has to become independent as soon as possible, that is going to be a hardship. I'm not quite sure how the minister is going to deal with that.

HON. MR. GARDOM : Where they can; where they're able to.

MS. BROWN : Okay, but a 53-year-old....

HON. MR. GARDOM : Then she wouldn't be able to.

MS. BROWN : Look, she's healthy. She's got good strong teeth, you know. She's got muscles. But the labour market being the way it is, it's not possible and the court has the discretion....

MR. GIBSON : Even if you're 13 it's not possible!

MS. BROWN : Right, but what this legislation does is leave the courts with the discretion to decide that she should become independent as soon as possible.

The other area, Mr. Speaker, that I have a little bit of concern for is the no-fault thing, because one of the things that the battered wife has always had was the idea of the fault being able to be placed. "I have to leave this marriage because if I don't. he'll beat me to death." I'm not sure what kind of protection the no-fault thing is going to give to the spouse who is only leaving the marriage because of physical or mental abuse, if everything is now going to be decided on the basis of nobody being at fault. So I'm not completely happy with that particular section.

Section 51, which gives a judge in one court power to vary a marriage agreement, I think is outrageous. On separation you can settle down

[ Page 2679 ]

and have an understanding of how the property should be divided. One spouse can get themselves an expensive Philadelphia lawyer from Kamloops, or something like that, go into the higher court and get the judge to say: "That's not fair. He's given you too much." The judge then has the option to vary that agreement. I think that's outrageous. I don't know any other Act 'under which it's possible for the courts to vary a contract agreement that way. So I'm not happy with that, though I am happy that the separation of property can begin right at the very beginning and not wait until the divorce goes through.

I'm getting the evil eye of the Whip, Mr. Speaker. Although I would really like to go on for hours, I can't, not under the evil eye of the Whip.

MR. COCKE : Not true!

MS. BROWN : Mr. Speaker, in closing I would like to say I am very happy, certainly, about the decision to make the wishes of the child paramount. I'm very happy about the appointment of an advocate to speak on behalf of the child, and the fact that the child's wishes are going to be taken into account in dealing with custody. I believe that what this bill does is to take some of the good things out of the unified family court and pass them on to all the other courts.

I have my doubts about whether it's going to be possible or not. I think we're dealing with 100 or 150 judges steeped in the traditional way of looking at the law, but in fact we are presenting a whole new concept to them. Short of sending them all back to school and reeducating them, I honestly don't know what we're going to do with this piece of legislation once it becomes law. I do know that the lawyers are going to have a field day with this and probably get rich at the expense of the women and the children - maybe even the husbands - before this thing finally shakes itself down and becomes good legislation.

Very reluctantly indeed, the opposition has decided to support this bill.

HON. MR. MAIR : Mr. Speaker, I would just like to say that while I am a Kamloops lawyer, and while I have never been to the place, sometimes after sitting in this House for a great length of time I an in support of W.C. Fields epitaph: "On the whole, I would rather be in Philadelphia."

MR. GIBSON : Mr. Speaker, this is unquestionably one of the most important

bills of this session; in the social field, it is undoubtedly the most important.

In introducing it, the Attorney-General said to us that nothing could be more

fundamental than this bill, in terms of family relations. With that in mind,

Mr. Speaker, I would remind you that this bill was introduced only on June 21.

It is now six days later - June 27.

Interjection.

MR. GIBSON : No, Mr. Member. It was introduced last year, but in a much different form. There are some very substantial changes in this bill from Bill 69. The nuances which are so important in this kind of legislation have come before the people of this province in this Legislature only six days ago. There are many interested organizations that are still not entirely aware of the ramifications of this bill, and I suspect that includes the Social Credit back bench, as a matter of fact. Most of the interested individuals in this province are not aware of the provisions of this bill as yet.

I think that the timetable the government has set for its passage is wrong for a far-reaching measure like this. Nevertheless, it is before us and there is nothing else we can do. But it has happened too often in this session that important measures have come in to be dealt with almost immediately. It's not good enough.

The purposes of this bill are completely laudable. The execution, I think, is somewhat questionable. There will be a very great deal of court-made law come out of the passage of the Family Relations Act.

At this stage no layman and, I suspect, very few professionals should pretend any great knowledge with respect to this bill, and certainly I will not. I suggest lawyers will become knowledgeable, but at very great cost, of the ramifications of this bill. As a matter of fact, if there were some way I could buy stock in a legal firm, I would want to go out and do it. I think it is going to improve business to that extent.

Incidentally, I assume that divorced spouses of law-firm partners soon will in effect have stock in legal firms with respect to their half-share of their spouse's right to that firm. That will be an interesting....

MR. STRONGMAN : That's not right.

MR. GIBSON : What do you mean "that's not right, " Mr. Member? You just wait until we get to the business section. I don't think you understand that, Mr. Member. I'll explain that to you in a moment.

Going through the bill, the children's

[ Page 2680 ]

Section 1s good on the whole. The touchstone that the interest of the child is paramount is good to see enshrined in legislation. The office of family advocate is good. I hope that the Attorney-General will say when closing second reading or we can inquire in committee stage what will be the financial provisions for the position of family advocate. Who will pay for this service?

The family court counsellors are absolutely key to the proper treatment of a child from a troubled home, for one reason or another. Again, funding is going to be key to the proper operation of that process. It will require a very humane and overall approach and, in my view, it should be taken out of the corrections branch and into a special family branch.

In the

section having to do with the rights of children, there is provision for expert witnesses. Who will bear the cost of paying for these expert witnesses when they are needed in court or other proceedings? The personnel appointed as family court judges will be tremendously important in view of the very broad human dimension in anything having to do with family law as distinct from ordinary legal considerations. By and large, the

section having to do with children's law is well done.

The

section relating to marriage property,

Part 3, is very far reaching. As the hon. first member for Vancouver-Burrard (Ms. Brown) said, it still relates only to deferred sharing rather than immediate community of marriage property. Nevertheless, it is a step forward, but an extraordinarily uncertain step forward. In some ways it is similar to the Ontario legislation that was passed earlier this year. 1 have a quote here from the Financial Post of May 20,1978.

The headline says "Family Law Reform Bonanza for Lawyers." The first two sentences are this: Panicstricken clients and puzzled lawyers are being left in the wake of a wave of family law reform legislation sweeping Canada. In Ontario, where reform legislation became effective March 31, the Attorney-General's office reports that lawyers are asking questions about the

interpretation of 'almost everything.' " I think we are going to see the same thing happen here because there is insufficient definition in a great deal of this bill.

Family assets needs more definition. The Attorney-General told us that it had to do with things relating to transportation and shelter and so on. Where would the cash value of an insurance policy which predated a marriage fall in terms of being a family asset? What would a stamp collection be? Would it depend on when that stamp collection was acquired? How about a valuable painting? How about a recreational asset of some kind, used by only one spouse? Would it make a difference whether that was acquired before or after marriage?

What about anything acquired by gift or by inheritance? Apparently such things would not be excluded if they fell into the category generally covered as family assets.

HON. MR. GARDOM : It's in the bill.

MR. GIBSON : No, it says in

section 51 - or one of the sections - that the question of whether it was inheritance may be taken into account, but things that arrive in the marriage by gift and inheritance are not, by reason of that fact only, excluded from consideration as a family asset. The Attorney-General agrees with that.

This whole concept of excluded business assets, in my view, needs more definition. What, for example, about the case of a relatively small business that one of the spouses had at the time of marriage, which during the time of the marriage developed into a relatively large business? Now is that a family asset or is that an excluded business asset?

Interjection.

MR. GIBSON : The hon. first member for Vancouver-Burrard (Ms. Brown) suggests it is a family asset. I think that's very possible.

HON. MR. GARDOM : I'm sorry, what point was that? I missed it because I was doing something.

MR. GIBSON : This is the case of a small business owned by one of the spouses at the time of marriage, which continued to be nominally owned by that spouse but was developed during the time of the marriage into quite a large business. I suggest there's a good chance that that would be considered a family asset under

section 46. Is that right?

What rules are to be developed for the degrees of contribution and therefore for the proper degree of equity in any asset that would otherwise be excluded?

Section 46 suggests that direct or indirect contribution is sufficient to convert what would otherwise be an excluded business asset into a family asset.

Interjection.

[ Page 2681 ]

MR. GIBSON : Well, it may be judicial discretion, Madam Member, but the words seem pretty clear: "indirect contribution." There's no quantum given in indirect contribution.

HON. MR. GARDOM : How could you?

MR. GIBSON : Perhaps you can't, Mr. Attorney-General, but I'm just suggesting to you, if anything that has been the beneficiary of an indirect contribution becomes a family asset, then there is nothing left that is going to be an excluded business asset. If you would give me an example, under that rule, of how anything could be an excluded business asset, I'd be interested. But it seems to me that with two people living together, both making indirect - at least - and possibly direct contribution to all of the activities of the other, if it is not an excluded business asset, then as I understand it, the presumption is that it is a family asset and therefore a 50-50 division proposition.

What about something that is both primarily used for business purposes - to use the language of

section 46 - and is also ordinarily used for family services to use the language of the previous

section for example, a privately owned taxi that is the livelihood of the person who owns the taxi and is also used for family transportation? Which category does that fall into? There is just a tremendous amount of definition left to be done in this bill.

There is a great stress put on marriage agreements as one of the ways of resolving these kinds of problems. And yet I have to agree with the hon. first member for Vancouver-Burrard that there can be very few times in the course of an individual's life when he is less suited to enter into business type agreements than at the time of marriage.

HON. MR. GARDOM : It could be at any time.

MR. GIBSON : I realize, Mr. Attorney-General, that a marriage agreement can be entered into at any time; but, as you very well know, agreements are more likely to be amicably entered into in advance of commitment than they are after commitment.

HON. MR. GARDOM : I wouldn't think so. I differ with your point of view.

MR. GIBSON : Well, we'll see. This could be changed if marriage agreements, rather than being optional, were something that was required....

HON. MR. GARDOM : Why forcefeed? Let people make up their own minds.

MR. GIBSON : Perhaps there should be a requirement that either a marriage agreement is entered into or, failing that, that a standard-form agreement is in force. Perhaps that's what the Attorney-General intends this bill should be, but I say it is not detailed enough for that. There certainly should be a requirement for access to separate advisers in the drawing up of marriage agreements. That seems to me to be a very important thing.

Interjection.

MR. GIBSON : Well, one would hope so; but people might not always be intelligent enough to do that. They might say: "We'll both go."

MR. SPEAKER : I would invite the hon. member not to be so easily distracted and to perhaps continue with his speech.

MR. GIBSON : I do appreciate the wise comments of members in this difficult debate, Mr. Speaker.

Now after this

section dealing with marriage agreements is another

section describing how it is filed in land registry offices. After all of that, we learn that contracts don't necessary mean anything, because by this incredible provision here the court can vary a solemnly entered into marriage agreement. Along with the first member for Vancouver-Burrard, 1 think that is wrong.

This whole

section 51 - and I won't get into it in detail at this point - gives an absolutely incredible discretion of judicial reapportionment, and I'm going to suggest that it's very likely that this discretion will have to be tightened up on after some experience. The courts may well be too conservative or they might be too liberal, whatever that would mean in this context. They may go one direction or another that is some what different than the minds of the members of this assembly in passing this bill.

The enforceability provisions of the Act in

section 50 give wide room for evasion, I would suggest. It possibly can't be helped, but the enforceability

section does give room for the transfer of assets out of the reach of our British Columbia courts. The law is conservative in this sense: it applies only at an adjudged breakdown of a marriage situation which, even under the declaratory power, could be years down the road as far as the financially dependent spouse is concerned.

[ Page 2682 ]

HON. MR. GARDOM : It's only for the people who don't agree. Do you understand that?

MR. GIBSON : I understand that.

HON. MR. GARDOM : So you're imposing something upon people who don't agree.

MR. GIBSON : Mr. Speaker, if I understand it correctly, the marriage property

section applies only to people who are legally married; the co-habiting persons are not covered by this section. I wonder if this will, to that extent, encourage a certain amount of non-marital co-habitation. I just say that in passing, since that is not covered by this

section of the bill.

Interjection.

MR. GIBSON : You are right. The Minister of Human Resources (Hon. Mr. Vander Zalm) might not approve of that. Maybe he didn't read that

section of the bill. I think there are a lot of sections in this bill that that caucus didn't read.

Mr. Speaker, I would ask the minister what happens when a divorce or separation agreement is effected in another jurisdiction - that may well be covered in a part of this bill; I'm just asking him - and what powers our courts will have over assets that may be in another jurisdiction. Suppose, for example, an important part of the marriage property is in the United States. Do our courts have any power in that regard?

The next part of the Act with respect to maintenance orders generally seems reasonable; I do hope that the enforcement provisions work better than they have in the past. The miscellaneous part of the bill has one

section which I think is incredibly foolish and wrong, and that is the

section which provides for the suing of damages by one spouse of another in respect of damages arising from adultery.

HON. MR. GARDOM : That's existing law.

MR. GIBSON : Well, it way well be law. I understand it to be common law rather than statute law; now you are putting it into statute law. To me it's an absolutely ridiculous thing. It flies in the face of the whole spirit of this bill, which says that marriage is a partnership among equals. Now you're going on to say, however, a person does not own their own body. I think that is absolute nonsense and not worthy of being included in this bill. It's one of those transient idiocies which seem to creep into our law from time to time.

In

summary, Mr. Speaker, I would say that we are starting our courts off in this whole new family relations law with a very, very inadequate roadmap. We're in effect saying to the judges, "Go west, young marriage, " and not much more. We're giving them a very broad direction and we have no idea exactly what path they're going to follow. In some kinds of law - for example, a constitutionally entrenched Bill of Rights - I think you have to probably do that and write your great provisions and principles and trust to the courts to interpret them, but you also trust to the legislatures to interpret them in a sense of making law consonant with these great principles.

In a case like this, more direction should be given. More specifics should be given to the courts and more information should be given to people as to the kind of things they have to consider if, for some reason or other, their marriage breaks down and canes to the point of a division of marriage property. All of this said, I devoutly hope that this statute will at least, as I say, start us on that road.

Like the first member for Vancouver-Burrard, I suspect it will be a road with adventures along it that none of us can foresee right now, except to say that the adventures will be numerous and costly to some of the parties involved in the litigation. I think a lot of that could have been avoided by a more careful and thorough drafting at this time. Nevertheless, what we have before us is a government bill which, in the nature of things, we have no power to bury. On that basis I will somewhat reluctantly support it at second reading.

MR. SPEAKER : The hon. minister closes debate.

HON. MR. GARDOM : A few remarks, Mr. Speaker, and I wish to thank the two speakers for their comments.

There's no question that this is a farreaching bill. There's certainly not any question either that the law of family relations over the past few decades has been changing somewhat dramatically insofar as it relates to both maintenance provisions between spouses and sharing of matrimonial assets between spouses. But I think the high point of our bill before the House today is that we have attempted to lay down guidelines, but to maintain. You can readily see the requirement to maintain, from the remarks of the last two speakers, judicial discretion to cover areas where it is not possible, through conjecture,

[ Page 2683 ]

research or printing the Bible on the head of the pin, to find out and ascertain what different types of behaviour may exist, what different types of arrangements may exist between different individuals and different families, different spouses and different children situations. One hon. member indicated that it was chaotic legislation and it was flawed. It would seem to me, if it's considered to be chaotic legislation or flawed, it's not the type of legislation I'd be supporting.

MS. BROWN : I did not say "chaotic legislation." I said the courts are going to be chaotic.

HON. MR. GARDOM : Insofar as the reference to the concepts and the requirements of the courts to consider situations wherein parties are unable to come to agreement between themselves, and are the result of consultative efforts on their part, the bill that we have today is infinitely superior to that which exists in the province at the present time, where it is essentially open sesame without any boundaries or any guidelines, or any

definitions whatsoever.

Mr. Speaker, there are almost two schools of thought here. Either the door is completely open or the door is completely structured, or you say we're going to have a door, in either case, Mr. Speaker, with some type of parameters that are indicated, wherein one can exist and what the size of the ball park may be. And that's the route that we have attempted to take within this particular bill.

Fault is a non-emphasis, but fault is again something that it is possible to take into account. It would not be the principal matter to be taken into consideration when assessing maintenance. The hon. member for Vancouver-Burrard was distressed concerning the tests that would have to be taken into account - for the responsibility of people if they're able to become self-supporting. Mr.

Speaker, it's quite clearly set forth in the bill that a spouse is responsible for the support of the other, subject to the role that they play in the family, subject to the express replied agreements between them, subject to their custodial obligations, and subject to their abilities and capacities. And that's the first matter that is addressed. The second one is that wherein those qualifications are or are not complied with, under certain circumstances a spouse should be required to be self-sufficient. So the other questions are addressed first, Mr.

Speaker, and if those questions are effectively responded to and it would be a conclusive decision on the part of court, well, yes, this man or this woman should be attending to their own wherewithal because all of these other items are not of paramount necessity. Surely to goodness it's not unfair to suggest that that could be a decision that could end up being a part of a judgment.

The hon. member for North Vancouver-Capilano (Mr. Gibson) again, as did the first member for Vancouver-Burrard, discussed the question of the role of lawyers and so forth. I think, Mr. Speaker, without question, by virtue of us having the parameters within this bill, far, far, far better than they were ever de fined.... And they were not defined before in legislation.

This should indeed not increase but hopefully decrease that type of exercise, and it is still open to people. This is why we're stressing the freedom of choice. It is still open to people here to make their own plans. It's not a compulsive type of thing. This is only to take care of the situation where we get into the love-hate syndrome and people are unable or incapable for a variety of reasons to settle amicably or otherwise their differences and have to go to a third party to arbitrate. So under these circumstances, surely to goodness these provisions that are built in here will best do the job.

There was discussion about the particular specifics of assets and so forth and so on. Really, the touchstone - to use the word of my friend from North Vancouver-Capilano - insofar as a business asset is concerned is: was there a contribution to the specific asset? Dealing with one

section that he spoke to - and I'm not going to refer to the

Section 1n detail during second reading - the definition of family assets, that is all subject to the definition of business assets. So that, first of all, is the determination.

He has placed some fact situations to me. I think perhaps better than me responding to fact situations we could come up with probably 4,000 or 5,000 different fact situations today. I don't think we're going to do great service to the bill in concerning ourselves with hypothetical fact situations. But I do say that the principal test to be followed in the business asset situation is the test of contribution to the acquisition or to the management of that business asset.

Finally, there was a question about movables and fixed assets outside of the province. The movables could be dealt with by our own courts. The fixed assets out of the province obviously could not be reapportioned but the matters could be taken into account under

[ Page 2684 ]

judicial reapportionment with the assets that are within the province. There are very wide parameters given to the courts under these circumstances.

Accordingly, Mr. Speaker, I thank the hon. members for their remarks. I would reiterate the fact that the general public will be receiving complete and full particulars of this bill in booklet form before it will be proclaimed. We certainly have no intention of force-feeding anyone.

I move second reading.

Motion approved unanimously on a division.

MR. LAUK : On a point of order, Mr. Speaker, I'd like to refer you to the standing order where it states that no member is entitled to vote on any question in which lie has a direct pecuniary interest. (Laughter.)

MR. SPEAKER : I noticed all members were standing, hon. member.

HON. MR. GARDOM : Mr. Speaker, I ask leave to refer Bill 22 to a Committee of the Whole House for consideration forthwith.

Leave granted.

Bill 22, Family Relations Act, read a second time and referred to Committee of the Whole House forthwith.

The House in committee on Bill 22, Mr. Rogers in the chair.

section 1.

MR. GIBSON : Mr. Chairman, if I could direct the Attorney-General's attention to definition of spouse, it says the following: " (iii) except under

Part 3...."

HON. MR. GARDOM : That's right.

MR. GIBSON : Why was this exclusion made, could I ask the Attorney-General?

HON. MR. GARDOM : As I mentioned under second reading debate, this deals with the deferred sharing concept which does not apply to common-law relationships.

MR. GIBSON : So the Attorney-General is suggesting, then, that a common-law relationship, no matter of what extended term, is not to come under the deferred-sharing part of this bill.

HON. MR. GARDOM : No, as I indicated in debate, Mr. Chairman, it does not come within the terms of the bill. If they choose to enter into that kind of arrangement between themselves, that's entirely up to them. The deferred-sharing concept, which is only for married people who are unable to reach agreement themselves at any point in time, comes into play upon matrimonial breakup; but it does not apply to common-law situations. That's correct.

MR. GIBSON : Does this not then constitute an encouragement for people who are unable to reach an arrangement as to the division of property to live together without benefit of clergy?

HON. MR. GARDOM : No, I think that's - with every respect - nonsense.

MS. BROWN : It sounds as though the Attorney-General is not concerned about sin, Mr. Chairman.

This is a proclamation bill. When is it going to be proclaimed?

MR. CHAIRMAN : That would not be appropriate under this section.

MS. BROWN : I just thought I'd ask the question anyway so that the minister can answer if he feels like it.

HON. MR. GARDOM : In due course.

Section 1 approved.

section 2.

MRS. DAILLY : I have a question to the Attorney-General on

section 2, which refers to the family advocate. I think its an excellent idea, as it's certainly going to assist in the area that it's supposed to here. But this is an appointment of new personnel and where are the funds? I think the Attorney-General knows that throughout this Act a lot of new personnel are created. It's an excellent idea and it's certainly going to help, but it's not going to work unless there's the funding there for the hiring and the payment of these people. I was wondering if the Attorney-General can allay some fears out there.

People who've read this Act agree with most parts of it, but it won't actually cane into any fruition unless you have the personnel. Can you tell us what the intentions are of the government when it comes to the necessary funds in these areas?

[ Page 2685 ]

MR. MACDONALD : Just a short question on that matter. Is the federal government now willing to listen to joint appointments where the county court judge would be appointed by the federal government, and also the same person would be cloaked with the authority of a provincial court? That's a sensible answer to it.

HON. MR. GARDOM : I agree with the hon. member, and thank him for his comments. To this point in time the federal government has not agreed. I'm very hopeful in fact that the door is not closed, and it's still giving consideration to it. A constitutional argument was presented essentially as being the negative reason for not taking that course. The constitutional advice that British Columbia has received is that the argument, with all respect to those who are advocating the other side of the coin, is not sound.

Section 2 approved.

section 3.

MS. BROWN : A very brief question about the family court counsellor. Is this counselling service going to be given without charge? As you know, the Ministry of Human Resources is talking about charging for counselling services. This

Section 1s very silent on the business of cost. Is this going to be free of cost?

HON. MR. GARDOM : The service has been provided in certain areas since 1974, and it is my understanding from a policy point of view that the service will continue on the basis that it is provided now.

MS. BROWN : Mr. Chairman, the counselling has been provided free by the Ministry of Human Resources for years too, so the fact that it has been in Existence since 1974 doesn't answer the question I asked. I want to get it on the record that there is going to be no cost attached to this, that's all.

Section 3 approved.

section 4.

MR. MACDONALD : This seems to have very chauvinistic language in it. It says: "No woman is under a legal disability in respect to a matter under this Act by reason only that she is a married or unmarried woman."

HON. MR. GARDOM : That's historic.

MR. MACDONALD : Well, that implies she's under a disability of some other kind, and I propose that that should not be the case. Ever since the Privy Council decided that a woman could be a person and therefore eligible for the Canadian Senate, we've made progress in this field. But you still have the Married Women's Property Act in the background - I know it is referred to in this Act - and I think there are disabilities. So I suggest you accept the words: "No woman is under a legal disability in respect to a matter under this Act by reason only that she is a woman, or a married or unmarried woman." Otherwise, you are implying that she's under some disability. I so move.

HON. MR. GARDOM : No, no.

MR. MACDONALD : What have you got against women?

MR. CHAIRMAN : Hon. member, prior to doing anything, could we have the member moving this amendment read the amendment before the House?

MR. MACDONALD : It simply says in the second

[ Page 2686 ]

line of

section 4 (l) , "by reason only that she is a woman, or a married or unmarried woman.' Otherwise, you have just implied that because she is a woman, there is disability.

MR. CHAIRMAN : The committee will just wait for a second while we have a look at this amendment.

The amendment appears to be technically in order.

On the amendment.

HON. MR. GARDOM : Mr. Chairman, I thank the member for his concepts,

and I don't differ with them, but I must with respect not accept the amendment.

The reason for the

Section 1s to make it abundantly clear, and reaffirm and

enshrine in the bill, that the provisions of the Married Women's Property

Act of 1882 apply, and that a married or an unmarried woman is not under any

legal disability.

Now if you just go the route that you went here, apart from anything else, we could get into problems with minors. This is a point that was thought out; it was considered in depth at the time of the drafting of the bill. It's a precaution.

There is no inference in there whatsoever, nor is there intended to be, that the disability.... We're just enshrining the fact that it is not a disability, and this is the best terminology to do that.

I agree with your concept, though.

MS. BROWN : I'm rather curious to know what other kind of women there are? There is a married and an unmarried - and what else? What is the other kind of woman? I'm just wondering.

MR. CHAIRMAN : We are on the amendment at this time.

MS. BROWN : I'm speaking in support of the amendment, because it says if you are married you are not a minor.

HON. MR. GARDOM : The amendment refers to married women, and I would

draw to the hon. member's attention that both a woman and a man can be under

legal disability by virtue of incapacity, by virtue of minority.

MS. BROWN : So why not just say "a woman"?

Amendment negatived.

Sections 4 to 42 inclusive approved.

section 43.

MS. BROWN : I just want to repeat what I said earlier about the Manitoba system, Mr. Speaker, which saw the family assets as existing during the life of a marriage being superior to this one, which sees the couples being equal only -on dissolution of a marriage. I really am totally opposed to that concept.

MR. COCKE : Mr. Chairman, I'd also like to draw to the attention of the House that what the member for Burrard is talking about was what the former Manitoba government put forward and what the new Manitoba government rescinded, unfortunately.

Section 43 approved.

section 44.

MR. GIBSON : Mr. Chairman, I just want to make sure I understand this. The declaratory judgment under this

section may be made by the court in the absence of any other kind of judicial order - that is, in the absence of any separation agreement registered with the court, in the absence of any granting of divorce and in the absence of any order declaring the marriage null and void. In the absence and in advance of all of those things, a declaratory judgment may be made which will bring into operation

Part 3 of the matrimonial property section. Is that correct?

HON. MR. GARDOM : Yes, the declaratory judgment of lacking reasonable

prospect for reconciliation would have effect for the purposes of

section 43

only.

MR. GIBSON : To follow up then, if I am a spouse who feels that the marriage is irrevocably broken down and yet I feel it may be a long time before I was able to obtain a divorce or enter into a separation agreement that was acceptable to me, such a person could go to the court and say: "Things are in bad shape and I would like an order that I am entitled to the protection of

section 43 as of now." Is that correct?

MS. BROWN : Mr. Chairman, despite the fact that it is a no-fault concept, would a battered wife be able to use this

Section 1n terms of ... ?

HON. MR. GARDOM : The question is whether they're reconcilable or not.

Section 44 approved.

[ Page 2687 ]

section 45.

MR. GIBSON : Mr. Chairman, I asked the hon. Attorney-General during the debate about a few case examples as to what might or might not be a family asset. First of all, let me ask the Attorney-General a general question. In his opinion, according to this law does every asset owned by one or the other of the spouses fall into one of two categories, either a family asset or an excluded business asset, or might there be assets owned by one or the other of the spouses that is in a third category outside of this bill?

HON. MR. GARDOM : Yes, that's essentially correct, unless it happened to be owned and it was not used for a family purpose or for a business purpose. I'm finding it difficult to speculate and give you an illustration, but I suppose under those circumstances the answer could be yes.

MR. GIBSON : Let me ask the Attorney-General about four specific case examples:

the cash value of an insurance policy owned by one of the spouses, not

necessarily with the other spouse as a beneficiary.

a stamp collection. Would that be different whether the stamp collection

was acquired before the marriage or after the marriage?

a painting of value.

s a recreational asset - let us say a recreational piece of property used

by only one spouse and not by the family generally.

Would these four things be family assets or not?

HON. MR. GARDOM : Once again, the question here would be as to whether or not the particular asset was used for a family purpose. If the painting decorated the front room or the dining room, I think it's conceivable to say yes, it was used for a family purpose. If the painting happened to be stored on the Maui Lu on the high seas, conceivably that would be used for a family purpose too. But I suppose if the painting was put into a vault somewhere or another and was maintained solely for the purposes of effecting capital gain on a Van Gogh, it could well be argued that that painting was not used for a family purpose.

MR. GIBSON : Mr. Chairman, there are three other examples: the paid-up cash value of an insurance policy acquired before marriage, a stamp collection acquired before marriage and a piece of recreational property used by only one spouse.

HON. MR. GARDOM : Once again I have to respond in a similar manner as I did to the painting. If the policy was used in one form or another for a family purpose, conceivably its cash value could be construed as a family asset; also the stamp collection and also the recreational property. Most recreational assets, I think, would well fall within the category of articles that were used for a family purpose - definitely.

MS. BROWN : I guess the problem we're running into is "family purpose." The definition of family asset is, according to this bill, anything used for a family purpose. Maybe there is a real reason the minister has left that open-ended, Mr. Chairman. Maybe he would like the courts to define what a family purpose is. Is that the case? Has it been a deliberate act on the part of the Attorney-General to leave family purpose undefined so that the lawyers and the judges can get together and work out between various and sundry of them what family purpose is?

HON. MR. GARDOM : It's a general term and I think it encompasses the spirit of the bill. Don't forget, once again we're talking about those people who have to have this type of law imposed upon them. We're not talking about the people who are, without question, the majority of society, and who enter into their own arrangements.

Interjections.

HON. MR. GARDOM : No, no. My friend for North Vancouver-Capilano says the majority of people don't have marriage contracts. The majority of people have marital understanding, which is a contract. It doesn't necessarily have to be inscribed in stone. A marriage agreement -fine and dandy, they can have their marriage agreement.

MS. BROWN : We're dealing with the breakdown of the marital understanding.

HON. MR. GARDOM : We're only dealing with the situation where people are unable to make peace between themselves and come to their own understanding.

MR. CHAIRMAN : Mr. Attorney-General, sir, if you would address the Chair it would be very simple for Hansard to transcribe some of this dialogue that is taking place. The comments across the floor are totally unacceptable. Kindly address the Chair.

[ Page 2688 ]

HON. MR. GARDOM : I'm having trouble addressing the Chair, but my apologies, Mr. Chairman, it was all my fault. I accept total condemnation.

Insofar as the definition of family assets is concerned, and family purpose, they're broad. The concept is broad. It's intended to be. The reverse onus establishes that as well. That's another ingredient to establish it. I don't think it will be difficult for courts to reach a conclusion on that which is or is not, from an evidentiary point of view, an

article that is used for a family purpose. If the contrary proves to be the case, well then, we can take an additional legislative look at it./-

MR. MACDONALD : Well, sir,

section 44 runs through

section 47 and I would have thought there would be a definition in the definition

section of the Act as to what is a family purpose. The first member for Vancouver-Burrard (Ms. Brown) is correct. It's very, very broad. My law business - is it maintained for a family purpose? One judge could say yes, and Mr. Justice Adamson would say no. Then you'd have to go to the court of appeal. And when you come to later sections of the Act about business properties, it says what is not a family asset, but it doesn't go on and say what is a family asset where there are indirect contributions.

So I don't know that there's been enough consideration given to protecting spouses in this situation, particularly wives in a marriage breakdown situation. What's the use of having it so broad? What's the use of coming to

section 46 and saying what isn't a family asset without the corollary being in there that otherwise it is? I don't think the wording achieves the apparent purpose of these sections. I think more consideration should be given to them.

I have an amendment to

section 47 that would help, but there are some other problems. Basically what you need is a definition of family purpose.

MR. LAUK : Mr. Chairman, it also strikes me that this is a

section prejudicial

to different economic classes in society. It strikes me that if you're

going to open up to the courts the opportunity for judges to determine and interpret

what family purpose means in relation to family assets, you're going to

really allow the spouse with the most expensive lawyer, the spouse who has

the access to the courts, to protect his or her assets from being divided equally.

The persons with less, but probably with as much or more at stake, will have

a lack of opportunity. That's why it is always preferable to define as closely

as you can what you mean. Certainly family purpose virtually includes every

asset in the family, if one is to read the

Section 1n the spirit in which it

was written.

Judge-made law is fine, but sometimes, in my experience, it is only available to a particular class of person in society - that person who can afford the lawyer to go in and argue. For the Attorney-General - this is what really drew me to my feet - to say that about the family jewels, the diamond tiara....

Pressing on, if the Attorney-General had a remote connection with taxation law, which tries to deal with some of these problems in terms of the Taxation Act, he would know that it is a swamp of decisions going every which way. You're inviting a disaster with respect to this

section and others related to whether or not it is for a family purpose or not.

Section 45 approved.

section 46.

MR. GIBSON : Mr. Chairman,

section 46 is in very convoluted language. The title is "Excluded Business Assets, " and it goes on to define what these are. It says:

"Where property is owned by one spouse to the exclusion of the other and is used primarily for business purposes, and where the spouse who does not own the property made no direct or indirect contribution to the acquisition of the property by the other spouse or to the operation of the business, the property is not a family asset."

That is a description of what is not a family asset. The requirements include that there must have been no direct or indirect contribution by the other spouse.

In the next section, an indirect contribution is defined to include among other things "parent through effective management of household or child-rearing responsibilities by the spouse who holds no interest in the property." Mr.

Chairman, under that definition it seems to me that there is hardly any conceivable business asset which would not be construed to be a family asset, because 1 can hardly conceive of a successful or even moderately successful marriage where there would not have been what is defined here as an indirect contribution to the operation of the business, which includes savings through effective household or child-rearing responsibilities. That's the way it seems to me. Could the Attorney-General give me a counterexample? In other words, can he give me an

[ Page 2689 ]

example of a case where there would exist such a thing as an excluded business asset in a marriage that has been reasonably successful, or is this in fact kind of an empty set?

MS. BROWN : Mr. Chairman, I would certainly like to speak in support of this section. I think that certainly the principle that has been enshrined in this - that child rearing and homemaking should be considered as an indirect and very valuable contribution to the development of or the acquisition and operation of any assets in a marriage - is one that should have been enshrined in the law a long time ago.

I'm not quite sure what the word "savings" means, if in fact it only applies to savings that can be proven as a result of this indirect contribution or if it's a blanket statement that the law is now beginning to recognize that it takes both spouses working together to accrue any assets whatsoever in a traditional marriage or even in a nontraditional marriage. In fact, whether it's a matter of working in the home or outside of the home, the assets are only accrued because both of them are contributing directly or indirectly.

I certainly speak very strongly in support of this section, and I hope that it doesn't have a sleeper in it that the courts will be able to get around. We have been waiting a long time for that section.

MR. GIBSON : I asked the minister if he would give the committee an example of what might be an excluded business asset in a reasonably successful marriage. It seems to me that everything is included as a family asset because everything has an indirect contribution. If that is not the case, can he tell us?

HON. MR. GARDOM : There's a requirement under the

section to certainly have a link between the specific contribution and the asset. I would think that if there is not a link between the contribution and the asset, it would not be construed as a business asset. I'm not going to say to anybody this afternoon - and I don't think anyone can at any time, for that matter - that there will be certain fact situations which may be considerably difficult to explain.

But you are not going to be parametered, hon. member, necessarily within this specific section, because the court still has power to reapportion, still has power to consider all of the circumstances, still has power to take into account the needs of the individuals and to reapportion on the basis of fairness, to make judicial determination as to the right of possession of specific articles and specific items and specific assets. I think when you look at this you really have to look at it in the totality. It's really not possible to just launch one

section and say, "Look, what's going to happen under this section?" because that

section will have to interrelate with the others.

MS. BROWN : Mr. Chairman, maybe I can assist the minister by bringing to his attention one thing that is not included as family asset: property acquired under the Veterans' Land Act. I have a very, very tragic case in front of me now where property was acquired under the Veterans' Land Act. On dissolution of the marriage the husband sold the property to his lawyer for $1 and the wife and the children are being evicted from that home.

When we got in touch with the Minister Daniel Macdonald and various and sundry ones, the response came back that property acquired under the Veterans' Land Act is given to the veteran for service during the war or whatever. Certainly this legislation does not say whether it supersedes the Veterans Land Act or not. This woman and her kids are being put out on the street because that particular spouse sold the property to his lawyer for $1; I'm talking about acres of land with a house on it.

He sold it for $1, and presumably once the marriage is over and a settlement has gone through, the lawyer will sell it back to him for $1.50. This is one Example of something that is not covered by this piece of legislation.

HON. MR. GARDOM : I tend to think, hon. member, that the case you are referring to may well be in front of the courts at the present time.

MS. BROWN : I hope not. If it were, I would not raise it on the floor of the House.

HON. MR. GARDOM : Let's be hypothetical for a moment. It's my understanding that when title is in the name of the director, under the Veterans' Land Act there is a constitutional bar within the province to dealing with the matter in the interests of any other people. But dealing with the specific illustration, I commend you to

section 52 (3): "Where the court in application is satisfied the spouse has made or intends to make a gif t to a third person or transfers or intends to transfer to a third person who is not a purchaser in good faith for value, then there is power to restrain the making of the transfer." So this is a good provision.

[ Page 2690 ]

MS. BROWN : I want to get this absolutely clear. Is the minister saying that this Act has precedence over the regulations of the Veterans' Land Act?

HON. MR. GARDOM : No.

MS. BROWN : What was the point of drawing that to my attention? It doesn't apply.

HON. MR. GARDOM : As long as it is in the name of the director, under the Veterans' Land Act there is not any constitutional authority for this Act to have precedence over the other one. If it's out of his name, there can't be.

MS. BROWN : Even if it's used for family purpose.

HON. MR. GARDOM : Right. I'll be back in a minute.

MS. BROWN : Cannot you hang on, Garde?

MR. CHAIRMAN : Hon. member, the committee has no power to....

MR. GIBSON : Mr. Chairman, if you don't want to call a recess until the minister gets back, I move that the committee rise, report progress and ask leave to sit again. It's up to you, if you want to play it that way.

MR. CHAIRMAN : It is not a question of whether that's the situation. This committee is not empowered to call a recess.

MR. GIBSON : You have a motion, then.

MR. LAUK : On a point of order, Mr. Chairman, the motion is out of order.

MR. CHAIRMAN : On what particular basis is the motion out of order?

MR. LAUK : Resolutions have been passed.

MR. CHAIRMAN : Hon. member, on bills we rise and report progress. In the estimates we rise and report resolutions.

MR. LAUK : Well, I'll refer you to the 20th edition of Sir Erskine May, which states that no member of a splinter party can make a dilatory motion. (Laughter.)

MR. CHAIRMAN : Well, I'm advised that the 5th edition of Beauchesne is just coming from the printer's now. If you'd care to quote the more up-to-date statute, we would be probably more in order.

MR. LAUK : Mr. Chairman is thinking of Beauchesne V, who was the King of Luxembourg in 1610. The 5th edition of Beauchesne has been out for some months now in the original Polish and French.

MR. CHAIRMAN : The question is that the committee rise, report progress and ask leave to sit again.

Motion negatived on the following division:

YEAS - I

Gibson

NAYS - 41

Waterland

Hewitt

McClelland

Williams

Mair

Bawlf

Nielsen

Vander Zalm

Haddad

Kahl

Kempf

Kerster

Lloyd

McCarthy

Gardom

Bennett

Wolfe

McGeer

Chabot

Calder

Shelford

Smith

Bawtree

Macdonald

King

Stupich

Dailly

Cocke

Lea

Nicolson

Lauk

Stephens

Mussallem

Veitch

Strongman

Wallace

Barber

Brown

Barnes

Lockstead

Sanford

Hon. Mr. Chabot requests that leave be asked to record the division in the Journals of the House.

MR. GIBSON : It's nice to have the minister back in the House with so many of his colleagues. Returning to

section 46, 1 want to give him a set of facts which I think are generally reasonable facts and ask him to comment on them.

Interjections.

MR. CHAIRMAN : Hon. member, until such time as the House thins out a little bit, it will be difficult to maintain any sort of order. Perhaps if the members come to order we can continue.

MR. GIBSON : If in a marriage a spouse has made an indirect contribution ' within the terms of

section 46, to either the operation of or the acquisition of any business asset, then it seems to me the presumption is that that business asset ceases to be an excluded

[ Page 2691 ]

business asset and becomes a family asset, and the presumption then is that it is fifty-fifty shareable on a marriage breakdown. Under the next section, which we're not debating at the moment, the burden of proof is on the spouse attempting to exclude the particular piece of property. No%$1 ask the Attorney-General: is that a fair

summary of the most general set of facts that one might find under this section?

HON. MR. GARDOM : Mr. Chairman, that was one

interpretation, but I think that the point the hon. member is not stressing in his articulation is that the

article must be used for a family purpose.

MR. GIBSON : Well, Mr. Chairman, I'm very puzzled by the Attorney-General's answer, because we are talking about

section 46, which talks about excluded business assets. It has nothing to do with family purposes. These are assets used primarily for business purposes in the terms of the section.

The question is this: if the non-owning spouse has made an indirect contribution within the terms of this Act to either the operation or the acquisition of the business assets, then it seems to me -and this is what I'm asking the Attorney-General for confirmation of - that at law the presumption then is that the particular business asset is no longer excluded under the terms of this section, but becomes a family asset and is subject to fifty-fifty sharing upon marriage breakdown, and that the burden of proof is on anyone who seeks to have this business asset at that point excluded. Now is that correct?

That's my reading of the law, but I'd like to have the Attorney-General's confirmation.

MR. CHAIRMAN : Shall

section 46 pass?

MR. GIBSON : Well, Mr. Chairman, the

Attorney-General is trying to figure this out.

MR. CHAIRMAN : I appreciate you're having some difficulty. However, the Chairman cannot direct members other than to go through the normal procedure of calling for votes when members are not standing. Please continue.

MR. GIBSON : I would have thought he would have had this figured out in the legislation committee rather than here.

I'll go through it again. If there is an asset which is used primarily for business purposes and the non-owning spouse had made an indirect contribution, within the meaning of this Act, to the acquisition or the operation of that asset, it seems to me - and I'm asking for the Attorney-General's confirmation - that at that point 'hat business asset is no longer excluded, but at that point it has become a family asset and is subject to fifty-fifty sharing upon marriage breakdown, and that any change in that will require the burden of proof being on the person who wishes to exclude the asset. Is that correct?

HON. MR. GARDOM : That's the onus section, that's right.

Well, once again, the first question that we have to determine is whether or not it is a family asset and used for a family purpose. Now once you start to look at something that is outside, you have to satisfy yourself as to that definition, whether this business asset is used for a family purpose in order to have it come in under the definition of family asset. If it's not, there you are.

MR. GIBSON : In other words then, Mr. Chairman, if a business asset is in no way used for a family purpose - and I'm just beginning to understand this here - then it cannot be brought into the family asset category for the purpose of sharing, if I understand correctly from what the Attorney-General just said. Let me draw a hypothetical situation. Let me say that a person owned two companies, one company a relatively modest company and the other company an enormous company, and let us say that he financed his family out of the relatively small company and kept the enormous, wealthy company entirely separate.

Then the one which had been kept entirely separate, in a financial and every other way, could not, in any other way under the terms of this or any other section, I suppose, be termed a family asset in terms of marriage breakdown. Well, that's rather different than we'd interpreted the bill, or at least differently than I understood it before. But the Attorney-General is nodding his head at that.

HON. MR. GARDOM : That's with a tie into it.

MR. GIBSON : Aha! And other lawyers are shaking their heads at that.

MR. LAUK : This is a sneaky way to get to the bench.

MR. GIBSON : All right, another

interpretation question. I'm very puzzled at that one. I have another one here:

section 46 (2) refers to an indirect contribution including savings through effective management of household or child-rearing responsibilities. Now what does "parent" mean?

[ Page 2692 ]

Let me give a concrete example. Statistics Canada says that the average family income in Canada is, I think, around - let's use the term - $12,000, so we can say $1,000 a month. Let us say that one spouse, the spouse who runs the household and is not in the market economy, has the total responsibility for managing the household. If that spouse manages the household, at the average Canadian standard of living, for $800 a month instead of $1,000 a month, does that constitute a saving?

Does that mean that there is $200 worth of equity contribution, or does that mean that there's an absolute equity earned of 50 per cent right there? If the spouse is only able to operate the household at the average cost level with no saving beyond the Canadian average, is that person not eligible for an indirect contribution under this section? Exactly what does "saving" mean?

[Mr. Veitch in the chair.]

HON. MR. GARDOM : The concept is essentially contribution to and tracing to, insofar as the savings are concerned. Contribution to the specific business, and tracing to the specific business.

MR. GIBSON : What was the second ... ?

HON. MR. GARDOM : Traceable.

MR. GIBSON : A traceable contribution to the business. But in what is essentially an

interpretation

section here, such-and-such a traceable contribution to the business shall be deemed to be the operation of the household in some effective manner, and the indirect contribution that is specified here includes savings realized through such effective management. Now need there be actual savings above and beyond the ordinary standard of performance? I mean, would an adequate level of household management constitute an indirect contribution for the purposes of this section? Or must it be an extraordinary level of household management?

HON. MR. GARDOM : The concept is that it not be extraordinary, but it would have to be traceable. This is sort of the Murdoch situation.

MR. GIBSON : In other words, let's say that a spouse had nothing whatsoever to do with the operation of a business, save and except the spouse looked after the children, purchased household supplies, that sort of thing, but never went in the office door, did not give advice and counsel to the business-owning spouse as to how it should go. Would a person in that category be making an indirect contribution or not? I'm anxious to nail down what "indirect contribution" means, and what "directly traceable!' means.

HON. MR. GARDOM : Oh, come on.

MR. GIBSON : Well, really it's important.

HON. MR. GARDOM : I'm not judicial.

MR. GIBSON : I know you're not judicial, but you drafted the bill, and the House is entitled to know what the bill means, in your opinion.

HON. MR. GARDOM : With every respect, hon. member, you can give me 14

million fact situations here and it's just impossible to speculate as

to how those particular fact situations would end up, either by settlement agreements

or in a court of law. It's just not possible to do that, and the court is

not going to look at a single isolated aspect of any of these types of things.

It will be looking at the complete scene. In being able to look at the complete

scene, by being able to apply these guidelines that are laid in here, by being

able to utilize the powers of judicial reapportionment and so forth and so on,

it will be able to come up with effective conclusions. Now I really can't

go much beyond that today with this bill.

I think what you're really wanting me to do - which the bill is not doing - is to set forth 425 particular points of entry into a section, by virtue of this, that and the other. And that, with every respect, is just not possible for us to do. It's not only not possible to speculate, but I think in these situations its really not proper to do that.

MR. GIBSON : Mr. Chairman, I share the Attorney-Generals frustration, and I am not asking him to pronounce on a myriad of different factual situations. I'm trying to understand the intent of the bill. He has imported language into the debate which I had not seen in the bill, and that is that the contribution of the spouse must be "directly traceable."

HON. MR. GARDOM : I said: "traceable contribution."

MR. GIBSON : Yes, traceable contribution. There must be traceable contribution to the business. Now as I understand it, there must be some direct tie, some direct link beyond

[ Page 2693 ]

simply being the spouse of the business owner. And if that's what it is, then this

section offers a good deal less protection to spouses than has seemed apparent on the face of it.

MS. BROWN : I think it's really the courts that are going to have to decide this, I can see. This is what I meant when I said the battle is going to go on for three to five years while we get some kind of

interpretation on it, and if we start out with a good judge, then some good

interpretations will come down. If we start out with one who is traditional and hidebound, then we're in trouble.

Sections 46 to 48 inclusive approved.

section 49.

HON. MR. GARDOM : We have a printing error in

section 49. 1 would move an amendment by deleting the words "of marriage agreement" in the second line of

section one and also by adding the words "or separation agreement" in the last line of

section 4. just to make it more clear for everyone's purposes - it was a typographical error.

Amendment approved.

Section 49 as amended approved.

Sections 50 to 53 inclusive approved.

section 54.

MR. LAUK : These sections with respect to property are retroactive - from my reading of all of the sections in the Act - for at least two years on a dissolved marriage, as is the date of the proclamation of the Act. Is that correct?

HON. MR. GARDOM : Under 43.

MR. LAUK : What do you mean, "under 43"? All provisions of the settlement can be varied by the court under

section 54. If we poke ahead briefly to

section 84, there's a retroactive provision. So that is also in the judge's mind under

section 54 (3) , which means that a court can reveal a settlement that took place 40 years ago. Did you notice that? Under

section 54 (3) 1 can go before a court and say: "Look, you've got to open up this settlement that took place in 1902, because it is unconscionable and would have an unjust consequence on these 93-year-olds." I just thought I would point out to you that you're just not thinking over there. It says, "not more than two years." I've read all those sections and that's fine, except: "Notwithstanding this section, the Supreme Court may, on application, where circumstances warrant, extend the period during which an application may be made or power exercised under this section."

I think it's a good

section but I don't think you would....

HON. MR. GARDOM : The purpose of 54 (3) was to take care of the situation of illness or incapacity or being absent and so forth and so on. The application was not made precisely within the two-year period.

Sections 54 to 59 approved.

section 60.

HON. MR. GARDOM : I have an amendment to

section 60 and I will read it to the hon. members.

You will see that the penalty here for failing to provide the requested financial information is to an amount not exceeding $1,000. This is not in substitution for an award that may be granted to the courts, nor is it a penalty unto the Crown, but it is a civil penalty which would be provided unto the applicant if the court reached the conclusion that the other individual unreasonably failed to comply with a request for the furnishing of this financial information.

It is extremely difficult for a court and, indeed, for individuals when attempting to effect settlement between themselves to not have before them the necessary financial information. The amendment is, in effect, to stipulate a higher amount - and it is only up to. But we can have situations where people who have a great deal of wherewithal do not feel inclined to comply. Under these circumstances we think there should perhaps be a greater burden upon them if they do fail to comply and a court reaches that conclusion.

The amendment is to the effect that the $1,000 would be up to a maximum of $5,000. 1 think it is a reasonable suggestion.

Secondly, dealing with the disclosure of income tax returns, the amendment is to the effect that where a person makes available that particular type of return, who shall receive it shall keep it in confidence, save and except disclosing the information to his or her solicitor for the purpose of the particular 'proceeding, or to the court. So it's not really a matter of common knowledge.

MS. BROWN : Mr. Chairman, this amendment and that particular subsection go totally and

[ Page 2694 ]

completely counter to

section 60 (i) (e) . The very people who have a lot of assets and don't want to give an itemized statement would rather pay $1,000 - or $5,000 - than have to give an itemized statement of their revenue, their holdings, their assets and their liabilities.

MR. CHAIRMAN : Hon. member, are you speaking on the amendment or on the principle of the section?

MS. BROWN : I'm speaking against the amendment; I'm totally opposed to the amendment. As a matter of fact, I do not believe that

section 60 (2) should have been in there in the first place. It's a loophole; that's what it is. The minister is saying that anyone who fails to supply an itemized statement of his revenue, expenses, assets and liabilities will have his wrist slapped. He can dip into petty cash and come up with $1,000 or $5,000. That's not the point. The point is that you need

section 6 (1) and (

f) in there.

HON. MR. GARDOM : They are in.

MS. BROWN : 1 know. But

section 60 (2) says that where a person fails to comply with a request .... What happens if a person says: "I will not give an itemized statement of my assets and my revenue."?

HON. MR. GARDOM : In response to the hon. member, if the court reached the conclusion that the individual unreasonably failed to comply with such a request, then it would be open to the court to order a penalty of up to the amount of money that I have stipulated for the benefit of the spouse or the parent or the child on whose behalf the request was made. Again, it's a question of the court taking into account all of the circumstances.

If you happen to find a brutish individual who had all of this information and refused to make it available in order that the court could make an effective adjudication in the interest of a child who has got to have support or in the interest of a wife who has got to have support, I think it's a pretty reasonable thing. It's not meant to be a double whammy; what is meant is to see that these people will effectively produce this stuff. Nor does it mean that they've got to hire a chartered accountant to go to their bank manager. It's just a question of being reasonable.

MS. BROWN : Maybe I need to have the minister clarify for me.... What so of ten happens is that the spouse with a lot of assets ref uses to supply that itemized list. This is not a guessing game. I'm speaking of specific cases where the lawyer has not been able to get an itemized list of revenue and assets out of that spouse. What happens, then, if he refuses?

HON. MR. GARDOM : We're actually totally ad idem on the point. Under those circumstances that individual who improperly refuses to deliver can receive an additional penalty against him of up to $5,000.

MS. BROWN : What I'm trying to find out, Mr. Chairman, is if a spouse refuses to present this itemized list, is that spouse held in contempt? Is that spouse forced to present that list? Because if the spouse is not forced to present that list, to say, "You are fined $5,000, " is asking him to just dip into petty cash and come up with it.

HON. MR. GARDOM : It's an alternative remedy and an additional remedy - both.

MS. BROWN : Okay, fine.

Amendment approved.

Section 60 as amended approved.

section 61.

MR. GIBSON : My question to the Attorney-General is this: provincial court judges, if I understand it properly, will have expanded jurisdiction under this

section to, among other things, award a lump-sum maintenance award which could result in a substantial property transfer. For example, if you combine subsections 61 (3) (

b) and (c) , there could be, in effect, an assignment of equity in the matrimonial home. This may get into important financial implications. What I am asking is: will the resources be available in terms of properly trained counsellors and court time to hear the extensive hearings that this change may entail?

HON. MR. GARDOM : Yes, hon. member. This again is part of the process of evolution, and there is no question that the courts will find that they have additional matters to take into consideration. The capacity is there, and it will work in.

Section 61 approved.

section 62.

[ Page 2695 ]

MS. BROWN : Mr. Chairman, I made some comments earlier about

section 62 (3) when it was under

section 57. I'm a little bit concerned about the courts having judicial discretion in this area, again as it applies to those women over the age of 45, in terms of whether they are making a reasonable effort to be self-sufficient.

HON. MR. GARDOM : I'm very glad that you have illustrated your concerns. I don't think it will be a major problem; again, it will be a decision in the wisdom of the court. 1 would commend you, when considering this particular

section -

section 62 (3) - to read it in conjunction with

section 57, where the spouse is responsible for the support of the other having regard to their role in the family, the agreements between themselves, their custodial obligations respecting children, their particular ability and capacity - which is the point that you have raised with me just now -to fulfill the task which we are talking about. If those individuals did not have the capacity to do it, then obviously, Madam Member, I couldn't say that a court would reach a conclusion that a spouse was not making reasonable efforts. If a court did reach that conclusion, it sure as heck would be appealable, in my view.

MS. BROWN : That's fine.

Sections 62 and 63 approved.

section 64.

MR. LAUK : When will

section 64 be proclaimed, Mr. Minister?

MR. CHAIRMAN : Hon. member, that is not in order.

Section 64 approved.

Sections 65 to 67 inclusive approved.

section 68.

MS. BROWN : I had one question about a selfemployed person, because this only deals with garnisheeing or attaching the wages of someone who is employed by someone else. I'm wondering what would happen in the event that a person.... I'm thinking of lawyers, for example. How do you deal with that?

HON. MR. GARDOM : There is a multitude of collection proceedings here. First of all, there is the process of warrant of execution against goods, where you seize goods and chattels and then they are sold. Secondly, there is the procedure of garnishee, which, of course, relates not only to wages but is also against accounts receivable, bank accounts and that type of thing. The attachment order is another one, and the other one is to show cause on default. These are in place today; the new ones are attachments.

MS. BROWN : Okay. The accounts receivable would do it.

Sections 68 and 69 approved.

section 70.

MR. LAUK : Would the Attorney-General tell me when we could expect that this

section would be proclaimed?

MR. CHAIRMAN : Order, please.

Section 70 approved.

Sections 71 to 75 inclusive approved.

On section