Manitoba Committee Hansard — 17 July 1978 (Statutory Regulations and Orders Committee, Sitting 10, 31st Legislature, 2nd Session)

31-2-sro10

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Chairman Mr. Warren Steen Constituency of Crescentwood Monday, July 17, 1978 8:00 p.m. Printed by P.N. Crosbie-Queen's Printer for the Province of Manitoba

�he ��nding Committee Statutory -Rules aREI Regulations � � Monday, July 17, 1978 ime: 8:00 p.m. HAIRMAN, Mr. Warren Steen. IR. CHAIRMAN: Kindly come to order. Members of the Committee, it's been suggested to me 1at we might deal with these bills in reverse order, starting with 42 and working our way back 1 38. Is that agreeable with members of the Committee? I would imagine that we leave the more fficult ones to the end, the ones that are time-consuming, you can get the other ones out of the ay. Reverse counting. Is that all right with members of the Committee? (Agreed). Ready and prepared to move on? We are starting, Mr. Spivak, in reverse or"r, Bill 42 and working J f10�1tJ> th((!/k��

k) Pawley, are you prepared and ready to go? U. PAWLEY: So, they have all our amendments related to the two larger bills. ;1 R. CHAIRMAN: They have not been distributed yet? R. PAWLEY: You can go ahead with the smaller bills. R. CHAIRMAN: Okay. Bill 42. There are amendments on that particular bill that have been stributed. Bill 42, section1 1-8ass.rr. Cherniack. �.ltt / (.!. f1.L•f F:(.' CHERNIACK: '"" Mr-. Chai man, I think it would be advisable if Mr. Mercier and Mr. Tallin should st give us a brief explanation. R. CHAIRMAN: Of what? The proposed amendments of each section? R. CHERNIACK: No, no,

section 1. R. CHAIRMAN: We better get another mi� for Mr. Tallin. All right,

Section 1. A brief explanation. o. r. Tallin. ( 1 I /\ ) !2Ff8 te!;'$/VJJil<, l....qu�)-el R. TALLIN: The purpose of

Section 1 of the bill is to give additional authority to the County )Jr:\ judges as local judges of the court, except in the eastern judicial district. The County Court clge is the local judge of the court in any judicial district and in the eastern judicial district any )unty Court judge is a local judge for the purpose of dealing with matrimonial causes. Up to now, e

section dealt with the County Court judge's jurisdiction as a local judge only with the judicial strict in which he was appointed. R. CHAIRMAN: Mr. Cherniack. R. CHERNIACK: Mr. Chairman, who will now determine which judge will hear whatever matrimonial use is filed in court, and which court? R._J:H��II9,N: M/J MEjlrCier.1 &�•;{� . (//"? /JdJp� f. MERCI �: The litigant. , �-CHERNIACK: You mean the litigant? No. The litigant will file in Q. B., presumably, who will 3n determine who hears that, the local judge of the County Court, or .. . 349

Statutory Rules and Regulations Monday, July 17, 1978 MR. MERCIER: . .. answer that, because he's been dealing with the judges on the matter. G_;LBE�:r �. MR. GOODMAN: It'll be up to the Chief Justice, but certainly the Chief Justice of the Court Queibn·s Bench and the Chief County Court Judge judge have been consulting with each other wi regard to these amendments. I have been consulting with them. MR. CHERNIACK: So that this being a Queen's Bench Act, will the litigant decide which court select or will it go to the Queen's Bench and then the Chief Justice of the Queen's Bench v determine who will hear the case?

MR. GOODMAN: Well, of course, it will have to be lodged in the Court of Queen's Bench, a1 the County Court judges being local judges in the Court of Queen's Bench, can hear any matrimon cause. MR. CHERNIACK: So it will be set down by the Chief Justice of the Queen's Bench as to wl will hear it? MR. GOODMAN: Yes. Right. But a matter that's set .. . MR. MERCIER: Excuse me. lt won't be set down by the Chief Justice, it will be set down by t litigants. MR. CHERNIACK: lt will be determined by the Chief Justice. MR. MERCIER: Yes.

And if it's in the Western Judicial District, that's where the action will conducted, unless they ask for a change in venue under normal procedures in the . ..y MR. CHERNIACK. Yes. Will there by any actions launched in the County Court? .,_. ............. MR. GOODMAN: What sort of actions? 7 MR. CHERNIACK: Actions under the Matrimonial, or the Marital Property, or the Fam Maintenance ... MR. GOODMAN: Well, the purpose of this, of course, is to allow County Court judges to hear a matter relating to a matrimonial cause, as local judges of the Court of Queen's Bench.

Let's s in The Divorce Act or dealing with partition and sale, that matter has to be launched in the Co1 of Queen's Bench but a County Court judge can hear it as a local judge of the Court of Queer Bench, with these amendments, throughout the Province of Manitoba. MR. CHERNIACK: So the clarification I want is that a litigant in the Eastern Judicial District w wants to start an action, does that litigant have a choice as to which of the courts to select, will it all be Q. B.? MR.

GOODMAN: Well, of course, the whole purpose of the amendment is to ensure that if a litig� commences an action let's say under The Family Maintenance Act or The Marital Property Act the County Court, and there's further action which must be commenced in the Court of Quee1 Bench, then the matter can be heard in the County Court by a County Court judge as a local jud of the Court of Queen's Bench, but any matter such as divorce or petition has to be launched the Court of Queen's Bench. MR. CHAIRMAN: Okay. 1, subsection 9( 1)-pass; subsection 9(2)-pass;

Section 1-pass. Secti MR. PAWLEY: Mr. Chairman, the Member for Wellington has an amendment for Bill 42. MR. CHAIRM ,AN: �r 1w�ich \one? Sorry. 'V..tf/tfJV l )..f.. O')J� J M W. CORRIN: ,..one amendment for Bill 42. I do apologize for being late, Mr. Chairman. /) MR. CHAIRMAN: What section? Maybe that would . . . There is one for

Section 6 distributed of now. 350

Statutory Rules and Regulations Monday, July 17, 1978 MR. CORRIN: Excuse me. it's for

Section 6 in 41. MR. CHAIRMAN: All right.

Section 2-pass;

Section 3- pass;

Section 4- pass;

Section 5- pass. 5(2)(1)- pass; 5- pass. 3ection 6. This is where we have the amendments. MR. CORRIN: We are dealing with Bill 41 are we, Mr. Chairman? VIR. CHAIRMAN: lt will be a new subsection.

Section 6. 1. VIR. CHERN IACK: Mr. Chairman, did you pass

Section 6? VIR. CHAIRMAN: No, because 6.1 will be part of

Section 6. VIR. CHERNIACK: Should we pass

Section 6 first and then deal with this amendment. VIR. CHAIRMAN: Oh, I see, okay. 6- pass; 6. 1 - . IIIR. MERCIER: I'll move the amendment as distributed' Mr. Chairman. The intention of the 1mendment is to simply provide for the transfers of actions between the various courts. IIR. CHERNIACK: What does the existing 6. 1 say Mr. Chairman? 10 6. 1(1) , what is that? IIR. TALLIN: A tGdnsfer between the Q.B. and the Family Division of the Provincial Judges Court IS well as betw�the Q.B. and the County Court. IIR. CHAIRMAN: Moved as distributed. Mr. Corrin. IIR.

CORRIN: Well, I'm about to ask an uninformed question, Mr. Chairman, and so I apologize 1 advance ... IR. CHERNIACK: Don't. , MEMBER: We're all in the same boat. IR. CORRIN: Perhaps I'll get an uninformed answer and I won't have to apologize. I'm wondering, Jst in terms of the logistics of this, certain courts have in the past made claim that they are verburdened with work.

In the report that we dealt with during the Attorney-General 's Estimates ·om the Provincial Judges Court, the Provincial Jud ges Association, for instance, there was mention f the crimin al division of the Provincial Judges Court being very badly overworked and members !lt that there was a need for some new systems to assist the progress of matters before those ourts.

I'm wondering whether or not the Attorney-General could comment on whether or not he as conferred with the courts that are set out in this amendment and what responses he has received om the representatives of those courts respecting this particular amendme nt and the placing of ::tions, litiga tion before those courts. Ha ve any of them evinced a concern, for instance, that they 1ight become overbu rdened , or have any indica ted that they feel that it's in some sense might !duce their jurisdiction, or are there any such concerns that have been made known to the ttorney -General? 'R. CHAIRMAN: Mr. Mercier. R.

MERCIER: Well, Mr. Chairman, I don't think the question is really so much with respect to is particular amendme nt as a general question. There have been discussions with my departme nt ith all three levels of the courts. Certainly there is some concern probably at each level that they ill get all of the work under the new Act, but we expect that that will be resolved over the course time. Certainly the County Court has had a significant increase in its duties with a large increase the number of speedy trials and the work under The Marital Property Act may very well, again, crease its work.

But it's expected that that matter can be resolved between the Queen's Bench )Urt and the County Court. R. CHAIRMAN: Mr. Corrin. 351

Statutory Rules and Regulations Monday, July 17, 1978 MR. CORRIN: A supplementary to that. I was wondering whether the effect of this amendme to Bill 42 would confer any jurisdiction on Provincial Jud ges Courts to deal with actions pendir under Bill 38, The Marital Property Act. I take it, then, that all actions just to clarify - I want be clear on this point, I think - all actions pertaining to The Marital Property Act will have to t convened or conducted either in the County Court or the Court of Queen's Bench. MR. MERCIER: Yes. MR.

CORRIN: I was wondering then, as a result of that, whether or not the Attorney-General wou share my concern that there would possibly be a signific ant increase or appr eciation in the numb of cases being heard in those two courts, the County Court and the Court of Queen's Ben ch, ; a result of the rather expansive jurisdiction that they will have pertaining to marital law in the provinc I suppose I am concerned that a lot of litigaants - I should say their counsel - will choose have cases heard in either of those two forms simply because they will be able to do so in a mann that is consis tent with the winding up of all the marriage affairs, prop rietary affairs and the oth affairs respecting custody of the chil dren and maintenance, things of that nature.

And I was wonderil whether the judges, particularly in the County Court, were at all concern ed. I understand, for instance, that the County Court will soon have the jurisdictio n to handle divon matters as well. So they will, in effect , be a unitary Family Court, although of course they still � have jurisdiction dealing with speedy trials and criminal matters, and civil litigation of all sorts am wondering whether that court feels that it has sufficient resources to be able to sustain su1 a heavy workload. MR.

MERCIER: That is a distinct possibil ity, but it's one that I don't think that we can accuratE forecast until the actual experience has gone ahead. But I have to admit that that's possibility. MR. CORRIN: A supplementary, Mr. Chairman, to that. I was wondering whether or not there� be, in view of the fact that we're introducing this legislation and there will be this new format a1 this new option with respect to the County Court particularly, whether or not the Atto rney-Gene1 cont empla tes at this point reviewing the situation in the immediate future.

We know that he v be monitoring the impact of the legislation in general, because he told us that during the wo1 brief hearing portion of the Committee's but will the Attorney-General then be keeping a watch 1 the situation as it relates particularly to the County Courts of the province, andwill he consid1 if the situation warrants, making recommendatio ns that there be additional County Court judg appo inted by the Federal Government? MR. MERCIER: Yes, Mr. Chairman. MR. CHAIRMAN: 6. 1-p ass - Mr. Cherniack. MR. CHERNIACK: One minor question; the other is more serious.

The word "plight", is that a wo with a legal definition? The dictionary definition is a little off this. I'm not familiar with that wo1 Is that a term that has a legal . . . ? MR. � T ALLIN: lt has been used for years in these sections. -- MR. CHERNIACK: In these sections, and it has not coloured the state of the actions by havi the connotation of a bad state of affairs? MR. T ALLIN: No. MR. CHERNIACK: No. All right, Mr. Chairman, I accept Mr. Tallin's comment.

I'd like an explanati that in the first portion you say that where all parties agree then the courts "shall" change to t County Court or Provincial Judges Court. Then you say where any party wishes, a judge "ma transfer the action to the Queen's Bench. I'd like that distinction clarified. MR. CHAIRMAN: Just a minute, Mr. Cherniack, so we can get this micropho ne No. 14 over front of Mr. Tallin. MR. TALLIN: Well, if all the parties agree to having it changed then I don't think there is any reas why the courts perhaps shouldn't be required to change it to whatever court the parties wish have it heard in. 352

Statutory Rules and Reg ulations Monday, July 17, 1978 MR. CHERNIACK: Mr. Chairman, may I interrupt on that point. There is no indication here that all the parties may agree to transfer it from County Court to the Queen's Bench and therefore it shall be done. Is there somewhere in some other Act, The County Court Act, or somewhere? Is that right? MR. TALLIN: That would be in the Statute Law Am endment bill. MR. CHERNIACK: Ha ve we got it yet? MR. TALLIN: No. But in any case that would be in The County Court Act because it's telling the County Court judges what. .. MR. CHERNIACK: ... realize that.

Is it in The Provincial Judges Act? I haven't looked at that yet. MR. TALLIN: Yes. MR. CHERNIACK: So now what we are saying is that regardless of where the action was launched if all the parties agree in the middle of the action, the courts shall, when all parties agree, transfer it to the court to which they agree to move it, and it will be the same plight. MR. TALLIN: Yes. MR. CHERNIACK: Okay. Then what about the other? Why is it in the other cases ... ? MR.

TALLIN: Well, because in the other cases one of the parties might object to it being transferred :md therefore the court should be given some discretion to hear the motion and any opposition :o the motion. lftR. CHERNIACK: And they have a similar one in the other courts? lftR. TALLIN: Yes. lftR. CHERNIACK: And the County Court will have the same right - will it have the same discretion f the parties do not agree? lftR. TALLIN: Yes. it's descended down. IIIR. CHAIRMAN: 6. 1-p ass; 7 ... III R. CHERNIACK: Oh, you mean you passed all the subsections already. IIR.

CHAIRMAN: I said 6. 1-p ass, and nobody interrupted me. IIR. CHERNIACK: No, no, I thought you then said 7, so ... IIR. CHAIRMAN: I was going to go on to 7. 7- pass;

Preamble- pass - Mr. Cherniack. IIR. CHERNIACK: What is the intention in regard to assent? What is the Attorney-General planning o do about . . . ? Are the courts ready to work within this tomorrow if tomorrow . IR. MERCIER: No, they're not ready. IR. CHERNIACK: And the same applies to all the other Sections. IR. MERCIER: Okay. IR. CHAIRMAN: 7. -pass;

Preamble-pa ss; Title - Mr. Corrin. IR. CORRIN: Mr. Chairman, I think my question is probably better directed at Mr. Tallin but I'll irect it through you, Mr. Chairman. If Mr. Mercier wishes to respond he can and, if not, I will respect 1e need for Legislative Counsel to respond . I'm wondering about situations where actions are 353

Statutory Rules and Regulations Monda y, Jul y 17 , 19 78 say in the Provincial Judges Court, and there has been no oppor tunity afforded either of the litiga nt: to examine for discovery. Perhaps Mr. Tallin can advise me. I believe that the right to examine to discovery is not accorded the litiga nt under The Marital Property or The Family Maintenanc1 Act. -MR. MERCIER: Well you won't, it's not possible to start an action under The MarJtal Property AcJ there ... MR. CORRIN: Oh, excuse me, under The Family Maintenance Act. MR. MERCIER: ... will be an oppor tunity for Examination for Discovery. MR.

CORRIN: There would be. MR. MERCIER: Under the rules. MR. CORRIN: Okay. I think that satisfies my concern. So that under this legisla tion, Examinatio for Discovery would be available regardless of the jurisdiction of the court you said. You know, � actions under The Family Main tenance Act. MR. MERCIER: Yes. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, I'm not satisfied with that answer. MR. CORRIN: I must admit I did not recollect ... MR. CHERNIACK: The answer was yes, and I would like to carry it forward. I was waiting un we get to Bill 40 but are we into that? MR. CHAIRMAN: No. All right, Mr.

Cherniack, do you want to wait until 40 to get an answer f, your question? Okay.

Preamble- pass; Title- pass. Bill be reported. I might point out that the recording people have said that it would be far easier for them wi the short questions and answers if perhaps we each paused for a moment and I recognized tl speakers. He's having a great deal of difficulty keeping up with us. MR. CHAIRMAN: Bill 41, the Clerk informs me there are no amendments to Bill 41. Mr. Mercier. MR. MERCIER: I think the Member for Well ington indic ated he might have an amendme nt for E 41. MR. CORRIN: Yes, that is an amendment that the Legislative Counsel was so good as to ass me in preparing. lt deals with

Section 3 of Bill 41. MR. MERCIER: Did you make any changes to what I prepared? MR. CHAIRMAN: Has Mr. Corrin distributed copies? MR. CORRIN: 1 can give you, Mr. Chairman, one copy and perhaps you could have it copie· MR. CHAIRMAN: I was asking Mr. Mercier really if he has one, is what I meant. All right,

Section 1 on Bill 41 -pa ss;

Section 2- pass;

Section 3 - this is where we have c amendment, Mr. Corrin, right? MR. CORRIN: Yes. Basically this amendm ent provides for those situations that we discussed dur the hearing of briefs where a widow's right of succession would be short-circuited or ci rcumven1 by the present provisions of the law. You remember we discussed the right of the wife to succe the husband in title should the husband die intestate, in other words without a will, under · provisions of the bills before the comm ittee. lt appeared to the persons submitting briefs, and course to myself as wel l, that widows would not have a right, in those circu mstances, would 1 354'

Statutory Rules and Regulations Monday, July 17, 1978 have a right to inheritance of the same estate in the prop erty as the husband held. lt appe ared that resulting from the provisions of The Dower Act, that a woman would only be entitled to receive a life estate, that is an estate that would subsist for the term of her natural life, as opposed to a full estate in what lawyers call "fee simple" which basically means full ownership rights, registerable :md full owner ship rights. So with the assistance of the Legislative Counsel amendme nts were prep ared that would relate !o The Dower Act - well to Bill 41 and through Bill 41 to The Dower Act -

Section 14 , and to ;ertain Schedules of The Dower Act, particularly Form C of The Dower Act. As a matter of interest, Mr. Chairman, although I'll pla ce the amendment before the Committee, would like as well the Legislative Counsel to look at

Section 22 (1) of The Dower Act in relation o this amendment, not because I think that it necess arily will have any profound impact, the lmendment would have any profound impact or effect on 22 (1) , but rather because I am concerned hat it may possibly have some impact which would be adverse to the right of a separated spouse. 3ut in any event, I would be willing to defer to the learned opinion of the Legislative Counsel in hat respect. Mr. Chairman, would it be appropria te for me to present this to you? lt's in written form. �R. CHAIRMAN: Yes. IIR. CORRIN: Should i sign tt? IIR.

CHAIRMAN: Give it to the Clerk. He says not necess arily. IIR. CORRIN: lt's so moved, Mr. Chairman, by myself and seconded by the Member for Selkirk, 11r. Pawley. IIR. CHAIRMAN: As distributed IIR. CORRIN: As distributed. !9:J.1Qt!:..-- - . � Bill41 be amended by adding thereto, immediately after Sect fo'"i13'lfiereof, tne tolloWiiig >ection: Su bsec. 14(1) of Dower Act rep. and sub. 3.1 Sub

section 14(1) of The Dower Act, being

Chapter D100 of the Revised Statutes, is repealed nd the following subsection is substit uted therefor: Wife to have homestead on death of husband. 14(1) Sub ject to

Section 4, upon the death of a married man whose wife survives him, the •ife is entitled to an estate in fee simple in his homestead as fully and effectually, and to the 11me effect, and under the same conditions, as if he had left her the estate in 8 fee simple y will and every disposition by will of a married man of any interest or estate in his homestead therwise than to his wife is void and of no effect. � �: �:;��;;��;�;;��nnkma.��um��mrwmaa�la;� T

Section 4 of Bill 41 be amende · of clause ereof, by adding thereto at the end of clause (

b) thereof, the word "and",8 and by adding ereto, at the end thereof, the following clause: (

c) by striking out the words "life estate" in the 2nd last line thereof and substituting therefor e words "estate in fee simple." ill 41 be amended by adding thereto immediately after

Section 6 thereof, the following !CIOn: Form C of

Schedule am. 6.1 Form C of the

Schedule to The Dower Act is amended by striking t the words "life estate" where they appear in the 2nd line of the body thereof and again the 5th line of the body thereof and substituting therefor, in each case, the words "estate fee simple" - R. CHAIRMAN: Mr. Mercier. �-MERCIER: Well, Mr. Chairman, it's an intriguing idea and I think it's one worthy of serious nsidera tion. I ind icated in introduc ing this bill in the Legislature that basically the only change l were making in this bill, and the comparable one last year, was the arbitrary increasing of the 355

Statutory Rules and Regulations Monday, July 17, 1978 annual income provisions of

Section 16 (2) by which one spouse could avoid the provisions of th Act. That's contained in

Section 5 of Bill 41. I ind icated at that time that I was, and have sine, referred The Dower Act to the Manitoba Law Reform Commission for a thorough review and I a' certainly, Mr. Chairman, prepared to recommend that this particular proposal be referred in additic to the Law Reform Commission for its thorough report. I think it has some appeal but I think it one, unfortunately having been introduced at this late moment --a nd I don't in any way comme1 adversely on the Member for Wellington for introducing it at this late stage, because this is tt manner in which all of these amendme nts are being considered.

But it is a serious one and farreaching one and is deserving, I think, of consideration by the Law Reform Commission as w• as the whole of The Dower Act. Perhaps their report could be made prior to the next Legislati1 session. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, the Attorney-General says it's intriguing and is farreaching ar deserving of consideration and all sorts of other heart-warming comments. Mr. Chairman, this not a new subject - it is a very important part of the whole concept of division of property, ar has been discussed.

As a matter of fact, there has been discussion in answer to some of the brie that were presented that would sort of indi cate - well, The Dower Act is still in place, The Dow Act protects women, to the extent where I wouldn't bother to go back to the transcript - ar we don't have all the transcript, to my knowledge - where it was almost impli ed that there is defern sharing in the marital home. I think that some people came away with the impression that it w: deferred sharing but still a joint tenancy that was created, with right of survivorship. Mr.

Chairman, the Attorney-General surely need not be reminded that he had to be consideril this very subject when he decided to dump the present legislation, because there,

Section 3 ar

Section 6 seem to me to indi cate that it was clearly in last year's Act and in the present statu which is about to be repealed, that there should be immediate joint sharing of the marital hon with joint owners hip and the right of survivorship - unless I don't read it correctly, or don't rememb it well. lt seems to me that what Mr.

Corrin has done is come back to that basic principle whi1 nobody, to my knowledge, fought against openly in the House, in debate, or in Committee her And he is now saying what you cut out of the present legislation he thinks you ought to put ba1 into the bill before us, so as to ensure that at least the marital home in which you are not prepan to give immediate vesting, there should be deferred vesting to the extent that the marital hon shall be the right of survivorship so that when one spouse dies the other one automatically becom owner of that home.

And I just chal lenge the Attorney-Genera l's suggestion that it's an intriguil thought that deserves further study, and that he might refer it to the Law Reform Commission. No I have not gone back to the recommendations of the Law Reform Commission, but I have a ve vague hunch that the Law Reform looked at it, com mented on it, and I suspect, recommended So I'm really wondering why we can't deal with it, in its full intent and not in a general way saying, "Well, it's a new idea, let's think about it." MR. CHAIRMAN: Mr. Corrin.tm Well, I think I'd like to reinforce the remarks made by my colleague, Mr. Cherniack.

Mr. Chairm� he's quite right in saying that this, in effect, just would re-invest certain rights in perso throughout the province that were taken away from them as a result of the suspension or rept of the former legislation. I don't think at any point in this hearing, or in the House, for that malt! have I heard anybody suggest that there was not to be a principle of equal sharing of the mari home.

I would suggest that to not deal with this particular amendment would be discriminato and that it would affect a certain class of citizens, those who, of course, are least able to defe themselves, particularly widows who have had their husbands pass on without making a w a situation that probably applies to many people throughout the province, have the 11 discriminate unfairly against them.

I think it's only proper, since we are making provision I immediate sharing by way of this particular legislation, that we deal with appropriate revisi to The Dower Act in order to make The Marital Property Act and The Dower Act consistE in substance and concept, one with the other. And I would suggest that to do otherwise v only lead to a situation where the Attorney-General has before him, in a very short time, ma very deplorable and sad circumstances involving women who are prematurely widowed and fi themselves unable to gain ownership of the family home.

I should point out that a life estate - and I think there is some confusion on this poi 1 know in legal circles there's always been a contentious debate as to the relative merits o life estate versus a fee simple. Basically, that argument, Mr. Chairman, devolves about t saleability of the two types of ownership. Some people suggest that a life estate can be SCl 356

Statutory Rules and Reg ulations Monday, July 17, 1978 but I would argue that it's very difficult in practice to do that, simply because to do so requires the consent of all the ultimate beneficiaries of the deceased 's estate.

And for a widow to obtain consents of all those people in order that she can dispose of this life estate, you know, give a full estate to someone else, is very often almost impossible, because you do get situations where members of family, particularly children, are not getting along, one with the other, they're not enjoying good relations, and very often, as a result of the untimely death of a senior member of the family, squabbles do arise, and there's acrimony and discord, and it has to be the most inappropr iate time for a widow to be inv olved in that sort of very confused and contorted situation.

So I would think that in order to rectify even the possibility, in order to assure us that such a possibility will not arise, we should bring forth the amendments to the bill dealinc v11 ith

Section 14 of The Dower Act contemporaneous with our delib erations with respect to the other Acts relating to marital property. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, I want to help the Attorney-General in that, but I don't want to make it appear as if I'm being cynical about it or sarcastic; I'm not. He referred to the Law Reform Commission; I have the Law Reform Commission Report.

There are five pages devoted to the marital home, and I'll read only a couple of sentences: "We suggest that in the absence of any contrary agreement between the sr0usec:, th<:! rn<>rital home shou!d b'3 "'nd become by standard operation of law, the jointly owned property of both spouses." I will continue further. "Our original proposal and our working paper concerning joint ownership of the marital home attracted general appr oval on the part of those who wrote to us and appeared before us. Among those who appeared was Mr. Gerald 0.

Jewers, Q.C., Chairman of the Manitoba Branch of The Canadian Bar Association who presented a resolution passed by the Manitoba Bar at its 19 75 annual meeting, which is: Resolved that the matrimonial home and household furnishings and equipment be deemed as a matter of law, to be held in joint tenancy from the date of marriage, unless the parties otherwise agree by written agreement executed on inde pendent legal advice at any time.

And finally, there is the specific recommendation that every legal or equitable right, title and interest of the spouse in a marital home acquired before the solemni zation of the marriage and in contemplation of the marriage, or acquired after the solemni zation, is, for all purposes of law, held jointly with the other spouse, whether or not it is so recorded in any deed, etc., etc. So, Mr. Speaker, the Law Reform Commission which dealt with the entire question of family Jrop erty law, dealt with this at length, consid ered it, of course.

There is no dissenting or minority Josition that I have noticed, and strongly recommends exactly what Mr. Corrin's amendment Jroposes, and therefore it's not new and it is highly recommended and I haven't heard any argument :tganst it. So I would like to invite the Attorney-General and his colle agues to accept the proposal ly Mr.

Corrin and make law what I have heard said said in debate has been the practice so frequently IVith so many people that it is assumed by many that it is already the law, and to the extent that he law makers follow behind custom and society's idea, then it is time we caught up with what ;ociety thinks as expressed by the Law Reform Commission. III R. CHAIRMAN: Mr. Axworthy. III R. AXWORTHY: Mr. Chairman, I was just going to suggest that I think the case has been made 1bout the value of the amendment.

I also understand, in part, the hesitation of the Attorney-General 1 making a quick, off the cuff commitment to a fairly major change in the law.

I was wonderingif t is quite likely this comm ittee will be continuing its deli berations tomorrow, whether this particular lause can be reserved for the opportuni ty of the Attorney-General to consult with others of his olleagues and gain their agreement and then come back and accept the amendments, so that if e needs some time to take it under advisement by his officials, in other words, and come back J see if there are any particular problems with it and at least give some time for perhaps some 1ore cautious assessment. But I would agree with Mr. Cherniack and Mr. Corrin that I think the ase has been made.

I have certai nly heard the case made many times about the need for this nd that there is a present injustice if we all owed it not to be introd uced considering the fact that 1e family property law doesn 't incude com munity property as part of its element. lt would seem > me that this is only a proper compensa tion. I wonder if the Attorney-General would be prepared t least to take it under advisement and then bring the consideration of this clause back for review 'hen commi ttee reconvenes. IR. CHAIRMAN: Mr. Mercier. IR. MERCIER: Mr.

Chairman, while I have some sympathy with the proposal I think we have to 1spect the fact that what we are dealing with here is what happens on death, not what happens 357

· Statut ory Rules and Regulations Monday, July 17, 1978 on marriage breakdown. Ha ving just been presented with this particular motion I can think c circum stances, and I'm sure others on the comm ittee can, where there are situations which occL or could occur where the intention may be that the wife has the life estate, perhaps more ... secon or third marriage, and the childr en have the rights thereafter. I am not prepared at this momen Mr. Chairman, to accept the amendment without giving it further consideration. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, I will now' like Mr.

Corrin, make a comment about which I ar not that sure, but my impression is that the law as it would be changed by the proposals alread before us under The Marital Property Act as propo sed by the Attorney-General, provides that i the case of the marital home acquired even before the marriage, and long before the marriagE the spouse acquires a right to live in it for the rest of her life, and in addition, has a half intere� in the property itself under The Dower Act, and under The Marital Property Act, for the home, acquire a half interest in it.

So it is beginning to look to me like - and I want to be corrected on thil Mr. Chairman, because I have not thought it through so I'm not sure - it seems to me that o marriage breakdown, under the Conservative law, the wife acquires a half interest in the home an the wife has a right to live in it for the rest of her life, and on the death of her husband, I thin she acquires a half interest in his half interest - I may be wrong about that - I am wrong, ar I? Yes.

So that under the Conservative law as it would be when this is passed, the wife acquire a half interest on breakdown and a half interest on death of her husband, in his home, plus th right to live in it for the rest of her life, and what is now being denied that wife by rejection < this amendment is her right to the other half, that is, to the estate in remainder, of the other ha interest. She owns estate remainder of one-half interest; she owns a life interest of all of it; sh owns half of it, which is the estate remainder and the life interest, and all that she is being denie is the estate in remainder.

That is, what happens to one-half the property after her death, she doe not acquire the control of that. I would like to know if I am right about what we are dealing with now, and that all I think M Corrin's amendme nt is, is to give to the wife a right to determine the half interest, one-half interel of what would remain the value of the home after her death. And that of course means that sh does not have the freedom to deal with the property as she sees fit in her lifetime.

She may acquir this estate in remainder to half, and the life estate to all, of a house that is comple tely unsuitabl to her, and she would not have the right to sell the house and change it into some more suitabl accommodation. That is really, I gather, what is being denied her by this, and it's not a new matte I think Mr. Axworthy was very kind and I would go along with him and say yes, if you need mor consultation, by all means take it, but surely this has been a matter of detailed review by th Conservaticve caucus, or whoever makes decisions. MR. CHAIRMAN: Mr. Spivak. MR. SPIVAK: Mr.

Chairman, the Attorney-General has ind icated at this point he is not prepare to proceed with this. There has been indication in the previous Marital Act, which in fact veste the rights, and therefore in effect superseded The Dower Act, although The Dower Act provisior were not changed or altered in the sense that they were not eliminated.

If I am correct, there no jurisdiction in Canada would have a similar provision, but that doesn't nece ssarily mean th1 this amendme nt shouldn't proceed, but I think that if his position has been, and I think it is expresse to this point, that he is not prepared to proceed, there is an opportunity for that amendm ent i be introduced for consideration in third reading in the House, and at that point, the position r the government can be stated pretty clearly at that stage. MR. CHAIRMAN: Mr. Pawley. MR. PAWLEY: Mr. Chairman, in fact, I was going to suggest that, that what Mr.

Corrin has propose is what the former law reflected and certainly the Attorney-General has ind icated the acceptan< of that. And rather than seeing Mr. Corrin's amendment voted down at this stage, I would hor that we can keep the Attorney -General's options open and that he review this and then we caul at this point, serve notice that at Report Stage we would be introducing such an amendme nt unlel the Attorney-General preceded us with a similar amendme nt at Report Stage. I would suggest · I'm just making a suggestion to my colleague - that he withd raw it at this stage with th understanding. MR. CHAIRMAN: Mr.

Corrin. 358

Statutory Rules and Regulations Monday, July 17, 1978 MR. CORRIN: I'm amenable to that, Mr. Chairman. I think that the Attorney-General should have an opportunity to discuss this, particularly with Legislative Counsel , in order to discuss the full impact and full breadth and scope of the amendment. I will advise him, though, that this amend ment was prepared on my instruction by Legislative Counsel. I think that is important to know that it wasn't something that I just prepared and cooked up myself down in my office, but it was properly prepared by Legislative -( Interjection)- lt does.

I would never, with all due deference, I would never use a word like "pligh t," Mr. Chairman. MR. CHAIRMAN: Mr. Corrin. are you withd rawing the amendment for the time being. MR. CORRIN: I am withd rawing the amendment. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: I think he needs consent to do so, so before I give consent, may 1 express regret that I haven't heard an argument against the amendment? But I suppose that's the way it is. MR. CHAIRMAN: Does the me (A!=Jreed) er have consent to withdraw the amendment? (3)(a)-pass; (b)- pass; 4, is there an amendment to

Section 4, Mr. Cornn? That was all one amendment, eh? MR. CORRIN: That's one amendment, Mr. Chairman. MR. CHAIRMAN: 4 (a)- pass; (b)- pass - 4 (b), an explanation, Mr. Tallin. MR. CHERNIACK: Just clarification. MR. T ALLIN: This is the

section that deals with the one-half interest and it says that it will be the one-half interest, in effect when added to any benefits that the person gets under The Matrimony Property Act, so that the concern of some people who have appeared before the comm ittee that a spouse would get one-half of the family and comme rcial properties under The Marital Property Act and then get one-half of the remainder under The Dower Act, is not quite true.

She may, indeed , �et one-half of a greater group of assets under The Dower Act than she or he did under The Marital 0roperty Act, but the assets which she acquired under The Marital Property Act would have to be :aken into consideration for the purpose of calculating how much he or she was to get under The )ower Act. III R. CHAIRMAN: Mr. Cherniack. III R. CHERNIACK: This means, then, that on a death of a spouse the other spouse is entitled to me-half the estate, less the value of what may have been received under The Marital Property �et. .. R. TALLIN: Yes. �R.

CHERNIACK: And the value, how was that to be determined? Would it be the value as of late of death, or the value as of date of division? IIR. TALLIN: I would think that the court would have to make a decision on that. lt is not expressed pecifically in the amendment. The division under The Marital Property Act was a division based on values at the time of the eparation or the marriage breakdown.

I would think that on The Dower Act division that would e considered to be an absolute unchangeable value, and would be taken into consideration with �spect to the value of the estate of the deceased at the time of the deceased's death.

So that lthough there might be an appreciation of value on the portion of the assets which the deceased �tained or was granted , under the division, the surviving spouse then would get a share of that ppreciation of value with perhaps not having to take into consideration any appreciation in the :llue of the estate, or the portion of the assets which the survivor had al ready received . IR. CHERNIACK: Mr. Chairman, I agree with Mr. Tallin as to what it should be, and I wonder we can't get agreement with that and ask Mr.

Tallin to draft clarification so that it is that way. 1 other words, if we decide it should be that way then why worry about our

interpretation of what 359 I

Statutory Rules and Regulations Monday, July 17, 1978 a court may interpret. lt is a decision of policy, and I agree with it because it means to me tha if the spouse gets a certain asset, and either dep letes it or increases its value by good judgmen or good rrianagemnnt, that that benefit should not pass to the other spouse because there wa a division and there was, for the first time, separate ownership and control. I'd like to suggest, Mr. Chairman, to Mr. Mercier, that that is what Mr. Tallin described as logical proper, and that since he felt that it would be a matter that would be left to the

interpretation o the court, that we do use whatever words Mr. Tallin deems advisable, so that the court will knO\ the intent of the Legislature, rather than grope for it. -(I nterjection)- MR. CHAIRMAN!: To the members of the com mittee, Mr. Tallin would like to speak again. MR.

TALLIN: My own feeling is that that might cause some difficulty with the courts because i those cases where the courts actually made a division of the assets themselves, for instance gav half of a group of shares to one spouse and half of a group of shares to the other spouse, if yo valued the group of shares that went to the survivor as of the date of the evaluation for the divisior and the value of the shares that went to the deceased as of the time of his death, that would perhap give more than a half interest to the survivor, or perhaps in some cases less, vis-a-vis the rest c the estate, because under The Marital Property Act the court may make an actual division of th assets and direct that the certificate for 1, 000 shares in some company be split into two - on for 500 shares and the other for 500 shares.

When that was done, it would seem to me to be unfa to then treat the value of one-half of that as of the date of the deceased's death for valuatio1 and the other half as of the date of the division, which may be 10 or 15 years apart. MR. CHERNIACK: We're dealing with two separate concepts. One is, the right of the spouse 1 acquire half of the assets that have been acquired by the couple during the marriage as a mattl of right and recognition of the role that spouse has played. That's one thing.

Now, The Dower Act says that on the death of a spouse the other spouse is entitled to one-h� of the estate, and I recognize and I agree with the concept that the portion already received coul be charged back against the half of what the total entitlement is, but, Mr. Chairman, it is not fa to entail that first portion received, because that became outright, the ownership, under the ownersh and control of the spouse as something as a matter of right and should not be entailed for futUI distribution. MR. CHAIRMAN: Mr. Spivak. MR. SPIVAK: Mr.

Chairman, at the time of the distribution of whatever assets have been mad that would represent a percentage of the assets at that time, and if in fact, for the sake of argumer it was a 25 percent distribution of the total assets, then, in effect, all that you would be dealir with in the remaining

part is 75 percent, and all you are going to be dealing with in the one-hi is 25 percent of that 75 percent, or one-third. Now, that's in effect what you are really basical saying. But the problem is, I don't know how you are going to be able to in legisla tive wordir to be able to put that through, but that's basically what you're saying. MR. CHERNIACK: There's no problem of saying that the value, as of the date of distribution, sh; be the value, the amount used in determining the amount by which the entitlement on The Dow Act will be reduced. lt becomes an arithmetic thing, it is really quite simple. MR.

SPIVAK: That's going backwards. MR. CHERNIACK: I think, Mr. Chairman, that it's really a matter of poli cy, what is right - wh is fair, and I support that, I have no argument against it, so I don't know. -(I nterjec tion)- WE Mr. Tallin is the expert on it. MR. CHAIRMAN: Well, Mr. Tallin said he couldn't . . MR. CHERNIACK: Oh, he didn't say he couldn't. I have yet to see something he can't do, drafting. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: I wonder, Mr. Chairman, I don't know whether this is usual or unusual, but I wonc if we could leave this matter again until third reading, and Mr.

Tallin and I will attempt to see wl change could be made in the wording. 360

Statutory Rules and Regulations Monday, July 17, 1978 MR. CHERNIACK: Yes, Mr. Chairman, except that the rules I think determine that an amendment for third reading must come in ahead of time and be distributed so that if we are to deal with it then we have to have something with which to deal. If Mr. Mercier undertakes to bring in an amendment along that line for discussion - I don't say he has to commit himself to voting for it, but if he and Mr. Tallin discuss this and bring something in - then we can discuss it on third reading by all means. There's no point in holding up this until they've had the chance.

I would think that's a good idea. MR. CHAIRMAN: So, Mr. Cherniack, we pass it as is. until it's redrafted? MR. CHERNIACK: I would be prepared to pass it as is, on the understanding that Mr. Mercier will come back at third reading with wording such as Mr. Tallin could draw in setting up that principle, but then later, he could by all means say, "No, I don't go along with it, but here it is," to give us a chance to debate it. But I'm sure he doesn't want to foreclose the opportunity to debate it. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Well, Mr. Chairman, that can be done with or without my undertaking. Mr.

Tallin can draw an amendment, I just don't want to undertake to propose it. MR. CHERNIACK: Mr. Chairman, can we agree that either Mr. Mercier or I will propose on report stage, an amendment to be drawn by Mr. Tallin, and leave it to Mr. Mercier to decide whether he wants to put it in, or doesn't. If he doesn't, I will. How's that? '-'JR. MERCIER: That's fine. '-'JR. CHAIRMAN: 4(b)- pass; 5(a)- pass; 5(b)- pass; 5(c)- pass; 5(d)-pass; 5(e)-pass; 6- pass; UIR. CHERNIACK: I'm sorry I've not read 16 (2). Is that The Dower Act? UIR. MERCIER: That's The Dower Act, yes. III R.

CHAIRMAN: 6- pass; 7 -pass; 7(7)-pass; 8- pass; 9.1 -p ass; (9)-pass; 36. 1 -pass; 10- pass - Mr. Cherniack. III R. CHERNIACK: Mr. Chairman, I would like to hear an explanation as to the reason - 10 and 11 and really 13 - the reason that it is proposed to have this kind of a deadline date. III R. CHAIRMAN: Mr. Tallin. IIIR. TALLIN: The reason for it? I'm afraid that's a matter of polic y. IIR. CHERNIACK: That's right. I wasn't asking IIR. CHAIRMAN: Mr. Mercier, then. IIR. MERCIER: Well, Mr. Chairman, that's correct. lt is a pol icy decision, that is the date that we hose.

We felt that those could be brought in on a specific date and we chose October 1, 19 78, ·ankly, because, for one reason, that may be the possible date that all of the Acts can be brought 1to force. IR. CHERNIACK: I understand that there may be a delay in bringing in The Marital Property Act nd The Maintenance Act, I'm not sure about The Maintenance Act, we will be discussing that; but he Property Act provides for agreements, bilateral agreements entered into to vary and to exclude rovision of it. But here we are talking about the grim reaper, Mr. Chairman.

We are deal ing with omething that is beyond the expectation or planning of the individual, and it seems to me that the principle is right that there should be a change or a progressive and inflationa ry view of it, r a greater sense of fairness or consideration for the survivor, that that should not be determined y the time somebody dies. As a matter of fact, people have written the greatest mystery stories 1at are so popular, based on determining in advance when a person shall die, based on what the 361

Statutory Rules and Regulations Monday, July 17, 1978 in heritance shall be, and boy right here you have got the making of a mystery story, or a detective story because it may be that you decide that it's to the advantage of some survivor that a death take pla ce before October 1s t, or vice versa, then there is a great story where some body is kep1 locked away somewhere and hidden and not disc overed until after October 1s t. You know, there are such stories written. I can't give you the name of the author or the title, but -(Jnterjection) No, that's a different person.

But I am not really jesting or making words about this, Mr. Chairman, it seems grossly unfai1 that the Legislature this week is about to make a decision to change The Dower Act by increasin� the value of certain guaranteed successions by one spouse. So why should there be an Octobe1 1s t date?

Really, why should somebody say, "J ust because my husband died on September 30tt I don't get the benefit," or worse, somebody says, "H ere the Legislature passed a law, which theJ thought in all fairness and right they ought to pass, and on August 1s t, the day after the LegislaturE has prorogued, a husband dies and, boy, that doesn't take effect ." I really would urge the Attorney-General to consider that that should really take effect on th« date of Royal Assent, not even proclama tion. Because it's either fair or it's not fair.

Frankly, I'< then want to argue as to why make this bill at all subject to coming into effect on proclamation I'm not sure I understand it. Maybe

Section 1, which deals with another Act that may not hav� been proclaimed, but The Dower Act is older than any of us present in this room and could wel be - if it's right, and I assume it's right - passed right away. So I'd like to urge that that b� the case. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Mr. Chairman, perhaps we under-estimated the length of the session. MR. CHERNIACK: That's one that doesn't go in the record. MR. MERCIER: The previous Act was to come into force on a day fixed by proclamation. lt wa never proclaimed into force by the previous government. I, frankly, have all that is required.

Mayb a couple of weeks or days ... There is no magic to October 1s t, 19 78. MR. CHERNIACK: I think we're dealing with two things. One is the date that the Act comes int force and proclamation could be the day after it receives Royal Assent. -(I nterjec tion)- Yes, bL 1 figured ... The Attorney-General has pointed out that part of the Act comes into force on Octobe 1s t. -(I nterjection)- Yes, but the point is that they come into force on October 1s t, but regardles of when they come into force - that's sort of the second question.

The first one is I don't car if they don't come into force for two years, providing we recognize that if a person dies the da after it receives Royal Assent that the spouse of that person is not adversely affected by a late death. That's my argument. You know, the proclamation date or the automatic date is of less concer to me than the need for a person to die or live after October 1s t. That's a bad principle. I'm sur it's a bad principle, Mr. Chairman. I really think it ought to be that that date ought to be the dat of Royal Assent, or, say, August 1s t, or, say, July 1s t. Mr.

Chairman, while we're waiting, I don't remember what date - I don't have to remembe - what date Mr. Mercier introduc ed this bill for a second reading, or even for a first reading. W� shouldn't that date be the one that's effect ive? lt was June 16 th first reading, July 5th second readin! Why shouldn't Jly 5th be the date then. Once the government made public its decision to crea1 a greater benefit for the spouse under The Dower Act and Devolution of The Estates Act, then wt shouldn't that date be the effective date? lt makes sense. I don't know any other date that make more sense. Mr.

Chairman, shall 1 move that the date set out in 10 and 11 be changed - and 13 - tt dates referred to as October 1s t, 19 78, shall be replaced by the words "the date of Royal Assent' 1 forget the exact cor rect wording but the day it receives the Royal Assent. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Mr. Tallin will have the cor rect amendment, but that's acceptable to me.$ MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: . . . to the amendment but I guess more to the general concept of what is beir discussed.

I've had a little experience, of course, in drafting legislation, and probably in view the fact that at least we studied the drafting of legislation in Law School but we of course nev had the opportun ity to study actually making it. I have a question which I would be interested

Statutory Rules and Regulations Monday, July 17, 1978 eceiving a reply to, although I'm not sure that the Attorne y-General, given that he has had a little nore experience than I have in this area, will be able to do so. But if anyone feels compelled to 1rovide a response I'd be pleased to receive it. The question, Mr. Chairman, is this: Is it not a general 1rinciple when one app roaches the drafting of new legislation, that one should presume that people 10vern their affairs in such a way as to be in accordance and consistent with the existing law, the 1resent law.

So, just by way of example, if I were considering whether or not, for instance, I should o out tomorrow morning and make a will or leave it be, even though perhaps I was desperately I and perhaps imminently to die, but should I be faced with the determination of whether to make will or not to make a will and should I, of course, be that reasonable citizen who, of course, would ave taken the proper steps and consulted legal advice and so on, shouldn't we presume that people's ffairs in this province are governed by what is while they are alive.

And, having made that resumption, not retroactively legislate in such a way that would remove or otherwise reduce or 1st change the rights that would have otherwise accorded to a person while he or she was alive. low, I'm not sure that I made myself very clear, but what I'm saying, I suppose, in brief is that : it proper to retroactively legisla te in such a manner that people could not possibly have put their 1ind to the possibility or the probability of certain laws coming into force or certain laws ceasing > be in force.

I'm wondering because you know the fellow or the woman who died just after October 1s t may ell have - if he or she were asked - may have said, "Well, the law is such and such, and I ould prefer, for instance, to have my estate pass under the terms of the Devolution of The Estates et. I don't want to make a will varying those provisions." I would not feel very good about creating .ws that would circumvent people's expressed intentions. I am saying, though, that we presume tat such intentions were expressed, given that that reasonable citizen who of course always is miliar with the provisions of the law.

But could anybody address themselves to that question, because I think that's really the substance ! what we 're discussing. R. CHAIRMAN: Mr. Cherniack. R. CHERNIACK: I would be prepared to add ress myself on the basis that what we were agreeing , was to make it effective as at date of Royal Assent, so that's not retroactive. R. CORRIN: No, but Mr. Cherniack, or Mr. Chairman, through you, I agree with the intention Mr. Cherniack's motion and I am saying I do. But I just was wanting some clarification as to 1y such provisions are made in legislation. You know, whether there is any reason for such a uvision.

Obviously, October 1s t was prior to the October 11 th elect ion , or excuse me, October :t is subsequent. lt is next year. If somebody in this particular instance is unable to see ahead that point, is s it proper either to go retroactive, or - what's the word? - prospective. I think at the same rule applies. R. CHAIRMAN: Mr. Mercier. R. MERCIER: Mr. Chairman, the suggested amendment is that Bill 41 be amended by striking 1t the word and figures October 1s t, 19 78, in Sections 10, 11 and 13, and substituting therefor 9 words "the date this Act receives the Royal Assent." :t.

CHAIRMAN: Agreeable? (Agr eed) 10 - pass; 11 -p ass; 12-p ass; 13-p ass;

Preamble- pass; le- pass; Bill be Reported -p ass. Bill No. 40,

An Act to Amend the Provincial Judges Act(2). There were amendments distributed. ·. Mercier. t. MERCIER: Mr. Chairman, the amendments again provide for the ... of Bill 42, the transfer one action to another court. On the third page of the amendments substitute for the existing :tion 1 of the bill .. . The only changes, Mr. Chairman, from what was in Bill 1 and what is on the third page of the 1endment or in paragraphs (

c) and (d) - if you compare them, there is a period after "courts" w, and all of the provisions for the transfer of actions is in the previous sections of the amendment; d), some of the reference to special examiners, etc. is taken out of that because that is contained other ... l. CHAIRMAN: Mr. Cherniack. :. CHERNIACK: This is the pla ce where I was going to deal with a question about examinations 363

Statutory Rules and Regulations Monday, July 17, 1978 for discovery, etc., and Mr. Corrin already raised that. I was going to deal with it under 25. 3( 1) , which will be on Page 3. I am not through reading Page 2 so I don't know how you want to proceed with it; do you want to give us time to finish reading it? I'm ready to deal with this now and I want to stop on Page 3. I don't know about others. MR. CHAIRMAN: Mr. Cherniack, you said that you were prepared to deal with something on the third page of the . . . MR. CHERNIACK: Mr.

Chairman, I just indic ated to you that since we were each reading these ind ividually, that I for one was ready now and I have no concern with Pages 1 and 2. I want tc deal with Page 3. So if other members are ready, I ... MR. CHAIRMAN: Will the Attorney-General move them as distributed? MR. MERCIER : I so move. MR. CHAIRMAN:

Section 1- pass? MR. CHERNIACK: No, Mr. Chairman,

Section 1 is everything. MR. CHAIRMAN: I was getting some help from the solicitor and he said that we've got to go througl them one at a time. Okay, of

Section 1,

Section 25. 1(1 )- pass; 25. 1( 2)- pass; 25.2 (1 )- pass 25. 2(2)- pass; 25. 2(3)- pass; 25.3( 1) - Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, I'm not too sure that this guarantees that there will be the samt provision - examinations for disc overy, disc overy of documents, etc., such as raised by Mr. Corrin as we now know in the other courts.

We know the rules of the other courts, but here the Provincia Judges Court, which may or may not have rules now - that may be acad emic - I think shoult be required to make rules and to make special provision for the proper examination of document and of people as set out in the other courts. We want to ensure that the same opportunities ar1 given for proper pleadings and proper practices as are known in other courts. My suggestion wa going to be, and I guess it still is because there is no real change in this sec tion, to say that th1 courts "shall" make rules, and under (

a) regulating the pleading, practice and procedure in the court� and is set out there, including - I don't know how to describe it in technical terms - examinatio for discovery, disc overy of documents, etcetera. That would take care of the concern that I ha1 and also the concerns that have already been expressed by some of the briefs we hav heard. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Mr. Tallin points out, Mr. Chairman, that it is done in the County Court under similar

section which allo ws the judges to regulate the pleading practice and procedure in the court: Mr. Tallin has no concern. MR. CHERNIACK: But the point I made is that we know that it exists in the Queen's Bench, w know it exists in the County Court, so the fact that the wording is the same is of academic intere: because they already have it. But since the Provincial Judges Court does not yet have it - an I'm not accustomed to it and have not had it in the past - I think it merits using some particuh wording that spells it out and I see nothing wrong with that. MR. CHAIRMAN: Mr. Corrin. MR. CORAIN: This may, Mr.

Chairman, well be the best argument - maybe not the best, b1 one of the good arguments - for the establishment of a unitary family court, the fact that th sort of problem would not arise. Perhaps some would say it is a technical problem. Maybe I'm wror and the Attorney-General will disagree, but I think it is possible that we will have different sor of rules as between the courts, although I think we would all agree the County Court and the Cou of Queen's Bench have a consistency as between them.

However, it is possible that there will I a differentiation as between the rules of the Provincial Jud ges Court and the County and the Queen Bench Courts, and this sort of problem would be neatly circumvented and ni pped if there we a unitary sort of division. This is why I asked earlier, Mr. Chairman, as to whether or not the was going to be provision for examinations, for instance, for discovery, not only examination documents but also for discovery. I am concerned that the privilege that is accorded on peo� 364

Statutory Rules and Regulations Monday, July 17, 1978 to transport with consent, their actions may be more of a paper privilege as opposed to a real one. lt may not really afford a real substantial opportunity to many liti gates. -(I nterject ion)- Please add ress yourself; you are looking quizzically at me but I think you would agree that it is possible that the Family Court rules may be at variance with, for instance, the County Court rules and as a result we may have conflicts. Is that logical? I think it is. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Mr. Chairman, we of course don't have any final rules of procedure in Family Court yet, and until there is

an Act that is passed, we won't. But they have been addressing themselves to that particular situation and I think will attempt as much as possible to develop uniform rules of procedure. MR. CORRIN: Mr. Chairman, Mr. Chern iack can cor rect me, I thought Mr. Cherniack was suggesting that we not leave this thing wide open, that we make an attempt to direct them, to channel them through the legislation in order that they be well aware of our intention. lt seems to me that no harm can come to anyone if we were to do that. I think Mr.

Cherniack's argument is compelling simply because we have seemed to have done that with respect to other courts, so if in fact we do that with respect to -(I nterjec tion)- Is that not true? Ha ve we never made provision that the other courts direct themselves to those things? MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: I read out the authority for the County Court to enact their rules of procedure, which is the same as we have here. MR. CORRIN: I see. How about the Court of Queen's Bench? MR. MERCIER: Mr. Tallin thinks it is the same. MR. CORRIN: But it is hypothetically possible, Mr.

Chairman, that the Provincial Judges Court may in their wisdom decide to go another route, and that may cause problems. UIR. MERCIER: They might' and you have to appreciate, I think, that's a court that holds hearings n vastly different forms. In northern Manitoba compared to Winnip eg, we'll probably have to allow 'or some ability to adapt to their particular circumstances. UIR. CHAIRMAN: Mr. Cherniack. VIR. CHERNIACK: Mr.

Chairman, there is a person who presented a brief so recently describing 1ow she made an application to the court - I think she said it was her first time before the court - and how the court arbitrarily said, "I wouldn't think of doing that; I won't listen to that kind >f evidence; I will do exactly as I have been doing up to now." That's fine, that's what a court 1as the right to do. But, Mr.

Chairman, that very case probably would have been different had there >een an examination for discovery, had there been information given as to the assets of the ;upporting spouse, the earning spouse, and then it would have been a much more clear-cut >resentation of the case saying this guy has so much and he is earning so much and he can afford o give so much, rather than have the court deal with it in a

summary fashion. I'll have to ask the Attorney-General a very direct question. Does he believe that in the Provincial udges Court there should be those prel iminary procedu res such as examinations for disc overy, 1roduction of documents, etcetera? Does he believe that ought to be the case? �R. MERCIER: Yes. tR. CHERNIACK: Mr. Chairman, I knew he would say that. Any lawyer should say that. One would 1ink any judge would do that.

But if we believe it ought to be done and we know that there is o such rule in the court today - the courts might be quite happy with the way they have been perating up to now - if we believe it should be done, why do we not say that it should be done? herefore, I would want to say that it should be done. That's it. And then the courts will do IR. MERCIER: Mr. Chairman, we have looked at The Queen's Bench Act, which has similar rovision again as a County Court and as we are proposing for the court to regulate the proce edings. 365

Statut ory Rules and Regulations Monday, July 17, 1978 If it is any comfort to the Member for St. Johns, in some very prelimina ry draft rules, the Famil; Court is proposing that in the procedure, the parties each have the right to obtain from the othe any or all of the following: examination for discovery, int errogatories, and particulars. I have onl: ind icated in introducing this legislation that the specific procedure does not have to be set out il the Act, that it can be in the rules, and it will allow the court the flexibilit y to make the necessar: rules. MR. CHERNIACK: Mr.

Chairman, I pointed out earlier that The County Court Act, The Queen' Bench Act, both say apparently that the court may make certain regulations. We know that th1 court did make those regulations, so to me now it is acad emic whether it says they "may" or the "must. " What I am saying is that we are now saying to the Provincial Jud ges Court, you "shall do something. -(I nterject ion)- No, we are not. We are saying, you "may" make rules. They coul' have made rules before, I assume. Maybe they didn't have jurisdiction and we now give ther jurisdiction.

But if in fact we want them to, we believe they should, and Mr. Mercier agrees the should, and if in fact we are told in an advanced way that they are alr eady thinking in those term� then I say we should say that and I would be glad to include the words Mr. Mercier used, whic I think said examinations for discovery, interrogatories - I forget - but particulars - those exac , words. I would say it is simple to just just put it under (a), regulating the pleading, practice an procedure of the courts, including provision for - the same wording Mr. Mercier used - I'd lik to include that.

And then we know that what we want them to do they will do. MR. MERCIER : Mr. Chairman, the provincial court did not have the authority before to make th rules. That was set out in the Act, and informations were laid under The Wi ves and Childr enl Maintenance Act. This gives them the authority to make their rules. Their draft rules that we're awar of to date include these rights; I'm satisfied that they will continue to include these rights. If b some strange quirk of fate they did not, then I would be prepared to amend them at the next sessio of the Legislature. MR. CHAIRMAN: Mr. Corrin. MR.

CORRIN: I was just thinking, I must admit that at first glance when Mr.

Mercier suggeste that the judges of the courts have traditionally, and almost by convention, always had jurisdictio to make their own rules, I must admit that I immediately succumbed, and then I thought about and I had been pre-conditioned to succumb. lt's almost a presumption; it's a presumption to � people who practice law that the judges should be in that position of authority, and now, I gues I'm just questioning whether or not it's a decision that's been made - been the by-product 1 reasonable thought and consideration or whether or not it's just a knee-jerk react ion. lt seems 1 me in this particular instance that there is a possiblity, however remote, that there could be sorr havoc as a result of this sort of a delegation of responsibil ity and authority, and if that is the cas 1 don't see why we as legislators can't take the bull by the horns and make some decisions.

V.. know that it's in the best int erests of people to have uniformity and cons istency, that is why tt former government continually spoke of and was in the process of implementing a unitary fami court experimental program. I think we understood the value of it and many people who are involvE in the courts expressed that value.

I'm not sure that we should do anything that would detract fro as uniform a procedure as is possible in the ci rcumstances, and given that we don't have a unita court, given that we're going to continue with the old subdivision, subdivided jurisdiction, even thou� it's less now than it was a year ago or it will be less than it was a year ago. I'm not sure th we should kowtow and fall back on our old preconceptions of what is proper. I would move th we give consideration to this motion, and I'd put it on the table for considera tion, seconded I the Member for St. Johns. MR.

CHAIRMAN: You don't need a seconder in Committee, Mr. Corrin. What is your motio though? MR. CORRIN: Well, that we insert the word "shall" in stead of "may," and I am wondering wheth 1 shouldn't defer to the Legislative Counsel, because I think what I would like to do is specify tl nature of the regulations dealing with pleading and practice. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: I'd like to suggest some wording along the lines Mr. Mercier used. I would suggE at the end of (

a) to add the following words: "in cluding provision for examinations for discove1 interrogatories and particu lars." 366

Statutory Rules and Regulations Monday, July 17, 1978 MR. CHAIRMAN: A question, Mr. Cherniack, from the Chair to you. Are we still talking about Mr. Corrin's taking "may" and turning it into "shall" as well? MR. CHERNIACK: I guess they should be two separate motions. MR. CHAIRMAN: Yes. We can deal with them separately. I'm just waiting for the Attorney-General to ready himself. Mr. Mercier. III R. MERCIER: This is to include "shall," the amendment will include "shall?" III R. CHAIRMAN: No, the motion by Mr. Corrin is that we replace the word "may" with the word 'shall." Right? In 25(3)( 1), the third line. III R.

CHERNIACK: The practice is to make the amendments to the subs (a), (b), (c), etc., and then �o back to (1) . lt seems to me that the amendment first should be (a). III R. CHAIRMAN: (a). The one that Mr. Cherniack has is (a). III R. CHERNI ACK: I think procedurally that that's the more conventional way. �R. CHAIRMAN: I think, Mr. Cherniack, the legal counsel is writing (1) out right now. Do you want o read it in? IIR. CHERNIACK: Well, it's really Mr. Corrin's. I think it should be satisfactory to him. IIR. CHAIRMAN: Under

Section 25. 1(1) (

a) we have an amendment. Mr. Corrin do you have the tmendment written out, and if so, would you read it into the record? IIR. CORRIN: Yes. The first amendment, Mr. Chairman, would be that

Section 25.3 (1) be amended 1y striking out the word . . . IIR. CHAIRMAN: Well, we'll do that one after we've gone through (

a) to (

f) and then we go back :> ••• •R. CORRIN: Oh, excuse me. In keeping with Mr. Cherniack's admonition you're right we'll do rear to front. IR. CHAIRMAN: Okay. IR. CORRIN: That Clause 25.3(1) (

a) be amended by adding thereto the words "including procedures >r discoveries, interrogatories and particulars ." Mr. Chernia ck may note one change, and that was I was queasy about the word of the use examinations for discoveries," because I was considering "d iscoveries" dealing with documents s wel l, and "examinations" as used in legal parlance. The second amendment, Mr. Chairman ... IR. CHAIRMAN: Wel l, no, we have to deal with them ind ividually. Mr. Mercier, did you want to )eak to the amendment? R. MERCIER: Yes, Mr. Chairman.

There seems to be prevalent, even among those who continually >eak of a unified family court, that the Provincial Court is inferior to the County Court, and the ounty Court is inferior to the Court of Queen's Bench. We have a situation where the County Court 1d the Queen's Bench each have a \similar authority, and they make rules regulating the pleading ·actice and procedure in the court. As Mr. Chernia ck has ind icated, he certainly appears to be ttisfied with the procedure that has been developed and app roved in each of the Queen's Bench 1d the County Court.

I see no reason to distrust the Provincial Court in establishing similar ttisfactory rules of procedure, and I therefore am not prepared to support either of the nendments. R. CHAIRMAN: Mr. Cherniack. R. CHERNIACK: Mr. Chairman, I reject the word "distrust." I reject the value content of what 367

Statutory Rules and Regulations Monday, July 17, 1978 Mr. Mercier said. The point I made was that we know what the rules are in Queen's Bench anc County Court, we don't know what the rules are in Provincial Judge's Court, because there an no rules. So that to talk about inferior courts or superior courts is not relevant. What is relevan is that we believe that the rules should provide for procedures for discoveries, interrogation anc particula rs. We agreed, Mr. Mercier said he agreed - as a matter of fact, Mr.

Mercier even hac a veiled threat, he said, "If they don't do it then in the next session we can do it for them." ThosE are not his words, but they are awfully close to his words. So why should we bother to worry abou whether the judges read Hansard or don't read Hansard, do the right thing - and I use the word1 "right thing" in the sense of what Mr. Mercier agreed is desirable. Well, why don't we just tell then this is what we expect of them because we think it's right? They may say, they didn't have to tel us because we knew; fine, let them say that. But why shouldn't they do it?

We think they shoulc do it, they may think they should do it, let's say that they should do it and then it will be done rather than have to say, "Well, next year, if they won't have done it we 'll pass an amendment.' 1 think that it's much better to do it now. it's not a question of trust at all, it's a question of tellin! them what we think they ought to do. There's nothing wrong with that; that's why we were electec that's why we were brought here. That's why we have certain decisions to make, and I think w should make them. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: Mr.

Chairman, I would submit that it's only proper that these rights be conferre on litigants in the Provincial Judge's Court. it's particularly important because the fault principlE the question of conduct, is still implicit in the main area of this court's contention, The Famil Maintenance Act. And as long as that is the case I would submit that there is going to be a nee for full exposure in dealing with evidence. There is going to be a need for an extended practic procedure in the courts.

This is, of course, what we, the former government, were attempting t elimin ate from the practice with respect to marital law and disputes relating thereto, but we wer unsuccessful in doing that, and there has been a re-institution, as I said, of the fault principle.

Th1 of itself, and in itself, is sufficient to warrant significant consideration by the court, because th finding of fault is going to have sign ificant and dramatic repercussions one way or the other, an 1 can say that if I were either a litigant or a lawyer appearing before that court I would want 1 be sure that I had the same rights in that court as I might have in either of the other two court: I'm particularly concerned in this year of cutbacks, and I say this in all sincerity, I think that havin seen what has transpired with respect to Legal Aid freezes and Legal Aid policy directions an changes in the past six to eight months, I would suggest that it's not inconceivable that we m1 well see the day when Legal Aid app licants who want to bring applications, have to bring applicatior under The Family Maintenance Act, may be forced, compelled, to bring those actions in the Fami Court as opposed to the Provincial Judge's Court.

And I'm not sufficiently trusting in the prese1 members of the Board and the government, the present government, to allow any differentiatic as between the courts, because if, for instance, the Provincial Judge's Court should have reducE procedure, then I would imagine that would only act to encourage the present government to mal such a revision of the regulations, to make it a requirement that legal aid applicants, for instanc bring all actions before that court in order to cut costs and economize.

But I would point out, any event, in any event it is never a necessity that there be an Examination for Discovery or 1 exchange of documents, that's never an absolute requirement, it's a matter of discretion on tl part of the litigant and his or her counsel. I have to presume that litigants before the court 111 respect the court's process if for no other reason but their own pocketbooks. I have to presun that a person will not waste his or her money by way of extending the action before the court ju for the purpose of doing that, and for no other good reason.

So in order to assure us that the will be consistency and continuity as between the courts and that we don't get any more high-hand� arbitrary rulings from Legal Aid Manitoba with respect to the right of indi viduals appearing befo the court, 1 would suggest that the imposition of such a requirement, manda tory requirement, wou be proper and should reco mmend itself to the Members of this Committee. QUESTION put on the amendment and defeated. MR . CORRIN: Mr. Chairman, on a point of order.

The recent outbursts from the audience might suggest that the Chairman may well recommend it to the Premier that there is Cabinet mater in the room, untapped Cabinet material. MR. CHAIRMAN: (

a) as distributed- pass; (b)- pass; (c)- pass; (d)-pa ss; (e)-pass; (f)-pa: Now, we have another amendment on 25.3(1 ). Mr. Corrin, do you have it in front of you? 368

Statutory Rules and Regulations Monday, July 17, 1978 MR. CORRIN: Yes, Mr. Chairman. MR. CHAIRMAN: Would you like to read it into the record? MR. CORRIN: That subsection 25.3( 1) be amended by striking out the word "may" in the third line thereof and substituting therefor the word "shall". MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: No, I can't support that. MR. CHERNIACK: Mr. Chairman, I just want to know is this a case where "may" means "shall" or "shall" means "may", or "may" means "may" or "shall" means "shall"? I'm not clear on just what is meant. MR. CHAIRMAN: Who are you directing your question to, Mr.

Cherniack? MR. CHERNIACK: Well, it's Mr. Mercier's ... I have no right . . Well, I can ask the legislative counsel, but it's Mr. Mercier's bill. MR. MERCIER: This is a case, Mr. Chairman, where the word "may" means "may". But as 1 have indic ated, we have a similar authority in each of the other courts. We had satisfactory rules.

In fact, I am aware already that tentative rules are in the process of being drafted by the provincial judges n anticipation of the legislation, and subject to the final form of the legislation, and I see no reason, n view of the action that has been taken, to insult them by making it "shall". III R. CHERNIACK: Mr. Mercier is again using words that are compl etely unjustified. If I wanted :o insult the courts, I wouldn't hesitate to do so. I don't need his

interpretation to decide what I >hould do. Mr. Mercier says "may" means "may". I would wonder if Mr. Mercier will tell us what 111 ill happen if they don't make the regulations. Is he going to come back next session and say, 'The court didn't do it, so we will have to say 'they shall make the rules'." Is that what he >roposes? IIIR. CHAIRMAN: Mr. Corrin. III R. CORRIN: Following that line of thinkigg, Mr. Chairman, it is of inter est because again I related 'arlier my problem with knee-jerk react ions, Pavlovian preconditioned react ions and responses, and his is a very good example.

"May" obviously does mean "shall", but because of some polite tests, :ome courtesy that the Attorney-General wishes to make as a gesture to the courts and that's very 1ice. lt's very nice that we have a polite Attorney-General, a man who is obviously given to diploma cy 1 his relations with his equals, should want to couch his language in this fashion, but I think that ince "may" does mean "shall" I think that we should be explicit. -(I nterjec tion)- Yes, he said may" means "may" but he presumed that the rules were going to be made and he defended the ourts on this basis. He, like us, Mr.

Cherniack, I think would be highly distressed, quite distressed, the courts were to tell him that they were refusing to make rules; that they were not going to 9gulate the pleading and practice anymore ; in their court in this respect that they were not going > deal with the regulation of service out of the province; that they were not going to prescribe >rms; that they did not have time or see any utility in their doing that. Obviously, the Attorney-General is presuming that they will, and I think that we all fairly do. But s a matter of preci sion, ' "may" should read as "shal l" and go forward on that basis.

I think it's ur responsibility to make the law and their responsibili ty to interpret it, and they certainly have lways attended to their responsi bilities, Mr. Chairman, much to my detriment. JR. CHAIRMAN: Mr. Mercier. R. MERCIER: Mr. Chairman, when you look at the Acts, it will be a virtual impossibility for the >urt to operate without making rules. R. CHAIRMAN: Mr. Spivak. R. SPIVAK: Mr. Chairman, there is really no point. This

section is a similar

section to other Acts which the courts do make rules. So I think that it's just nonsensical to suggest something different, lcause there is nothing we can suggest ... that's different. So, it occurr ed to me that we should 369

Statutory Rules and Regulations Monday, July 17, 1978 go with the question and finalize it. MR. SPEAKER: Mr. Corrin. MR. CORRIN: This may be a hol dover, Mr. Chairman, from the old English tradition in which we are rooted, of course, of law lords. I think one of the reasons formerly that legisla tion such as tha1 was couched in that langua ge was principally because the court was constituted of members who were very often of the gentry. They were peers of the realm, and it was deemed socially unacceptable that language in legislation should be directed to them in an imperative fashion.

So this sort oi wording is a convention and I don't think the Attorney-General if he were to try and distinguish this particular wording from that used and eloyed in other pieces of provincial legislation woulc suggest that he would be willing to confer the same sort of latitude on other groups, boards commissions, agencies. I don't think that that would be the case at all. lt may be a small poinl but I'm not sure that it isn't somewhat relevant. I think that we have to decide how society wil be priorized and it's our responsibili ty, as has been decided, that we make the law. We make i· and they interpr et it.

QUESTION put on the amendment and defeated. MR. CHAIRMAN: 25.3- pass; 25.3( 1)- pass; 25.3(2)- pass;

Section 1 as amended- pass; Sectior 2- pass;

Preamble- pass; Title-pass - Mr. Cherniack. 1 MR. CHERNIACK: May I ask the Attorney-General what is his plan in regard to proclamation o this bill? Is there any reason why there is any holdup? MR. CHAIRMAN: You are speaking on the motion the Bill be Reported? MR. CHERNIACK: No, on

Section 2. I told you you went a little too quickly for me. Is it 2 or . ? Yes,

Section 2. I don't know if you called

Section 2 ... MR. CHAIRMAN: Yes, I did. MR. CHERNIACK: ... but if you did, it was because I was looking for it that I couldn' t ... MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Mr. Chairman, just as soon as we can get confirmation of the rules of procedur and the necessary forms are ready, then I would think we could bring it in. I don't expect that th� would be too long. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, the Act says the court "may" make regulations. MR. MERCIER: We can't act. We can't act. You know, I don't know how long we're going to pia this game, Mr. Chairman.

I have ind icated it's virtually impossible for the court to operate undE the legislation without rules. The court has al ready drafted preliminar y rules. They are ready to I:J app roved as soon as the final legislation has been passed. MR. CHE RNIACK: They are ready to be app roved as soon as the Act is passed. MR. MERCIER: Depending on the final form of the Act. MR. CHERNIACK: Mr. Chairman, we now know the final form of the Act. That's pretty clear. VI voted on all the sections except the one about commencement of the Act. -(I nterject ion)- J right, I didn't hear what he said. Mr.

Chairman, the Attorney-General says that the ... Is he suggesting that this bill would n· be proclaimed until the rules provided for in

Section 2 are brought in, because they can't t proclaimed. The rules cannot be passed by Lieutenant-Governor-in-Council until this Act proclaimed. I want to understand his timing. Is he suggesting that somehow the Act will have be proclaimed concurrently with the rules? Mr. Chairman, I wonder if the Min ister can explain what he means by the game that he is playin 1 wasn't aware that we were here playing games. 370

Statutory Rules and Regulations Monday, July 17, 1978 MR. MERCIER: Mr. Chairman, as soon as the final rules and forms are prepared and the courts are ready, we will then be in a position to proclaim it. I don't expect it will be very long, indeed, if that's a concern of the Member for St. Johns. Is he asking for a specific date? MR. CHERNIACK: Mr.

Chairman, I was asking for an understanding as to why it is necessary to delay the proclamation, or the commencement of this Act, and now I gather that he wants to delay the proclamation until he has the rules prepared and ready to pass by way of the Lieutenant-Governor-in-Council. I assume that's it, or don't they even go through the Lieutenant-Governor-in-Council. Maybe the court just makes rules. How do these rules become rules that have the same force and effects as if they are embodied and fom part of this Act. Do they have to be passed by the Lieutenant-Govern or-in-Council or just by the courts themselves?

MR. MERCIER: My understand ing, Mr. Chairman, is by the courts themselves. MR. CHERNIACK: Well then the court will pass them and then the Attorney-General intends to proclaim this Act, is that the way it works? MR. MERCIER: Mr. Chairman, I believe it's the same as the other two courts and they're published in the regulation, in the Manitoba Gazette. MR. CHERNIACK: But as I understand it, the Attorney-General does not intend to proclaim this Act until after the rules are ready. MR. MERCIER: Right, and filed, Mr. Cherniack. MR. CHERNIACK: And filed. MR. MERCIER: We follo wed the same procedure as last fall, Mr.

Chairman. Under the previous govern ment. MR. CHERNIACK: The Attorney-General relies on what was done last year, last fall he says. I don't know what procedure they follo wed last fall. MR. MERCIER: The one for bringing the Act into effect and proclaiming it. MR. CHAIRMAN:

Section 2- pass;

Preamble- pass; Title-pass. Bill be reported -p ass. MR. CHAIRMAN: We ll, now that we got through the difficult bills, let's get on with the easy )nes. BILL 39 - THE FAMIL V MAINTENANCE ACT III R. CHAIRMAN: Mr. Pawley. Before we get going, clause by clause? IIIR. PAWLEY: Mr. Chairman, we have an amendment which is to serve as a

preamble insofar as 3ill 39 is concerned, The Family Main tenance Act. I note, Mr. Chairman, that the Attorney-General IIR. CHAIRMAN: Mr. Pawley, would we not follow the same procedure and do the

preamble ast? IIR. PAWLEY: Well, I'm in your hands, Mr. Chairman, on that. I will not debate that. I thought hat to deal with the

preamble was natural to deal with it at the beginning but ... ,R. CHAIRMAN: Well, when we deal with bills, from my lim ited experience, we deal with

Preamble, itle, and then report the bill. IR. PAWLEY: Okay, I won't argue with you. IR. CHAIRMAN: Okay. All right.

Section 1. I don't have a comple te list and I haven't read through 11 the amendments so ... Okay. (Section 1 was read clause by clause and passed.)

Section 2(1)-p ass; (2) - Mr. Mercier. 371

Statutory Rules and Regulations Monday, July 17, 1978 MR. MERCIER: Mr. Chairman, with respect to Sec tion 2(2), in the amendments that we'v distributed, I moved the first amendment to Sec tion 2(2). There was concern expressed throug the hearings that conduct should not be considered as to whether an Order should be made unde

Section 5(1) or

Section 21 which is a variation Section. We are, therefore, proposing this amendmer in substitution for the existing 2(2) which will clearly set out that in determin ing whether to mak an Order under this part, or

Section 21, "the court shall not consider the conduct of the spouse in respect to the marriage relation ship." The balance of the

Section is the same as it was before so that conduc t can be looked at i determining the amount of support and maintenance "having regard to a course of conduct th1 is so unconscionable as to constitute an obvious and gross repudiation of the marriage relat ionship. But the amendment clearly points out that conduct shall not be a factor as to whether an OrdE should be made. MR. CHAIRMAN: Mr. Pawley. MR. PAWLEY: Mr.

Chairman, we oppose the principle of conduct being utilized in this manne We have objected to the use of the words "unconscionable as to constitute an obvious and grol repudiation of the marriage relations hip." I think that the briefs which have been submitted ha\ clearly indic ated concern with respect to the use of these words.

A number of references were mac to the cases that had been relied upon earlier by the Attorney-General in arriving at the use ' these words which have been used in English cases. lt's our view that 2(2) is a backward ste1 that it reintroduces conduct in its own way back into The Family Maintenanc e Act, pre-separatio and we certainly do not intend to vote for 2(2) either in its older form or in the form which tt Attorney-General has amended it because the basis remains the same regardless of tt amendment. MR. CHAIRMAN: Mr. Spivak. MR. SPIVAK: Well, Mrs.

Bowman, in presenting the Manitoba Bar brief indic ated that in her opinio or at least in the opinion of the group that she represented which is the Manitoba Bar, that son conduct should be included with respect to quantum. A MEMBER: Why? MR. SPIVAK: Well, that's what she said . . . A MEMBER: Well, can you tell us whether .. MR. SPIVAK: ... and in her determination of some conduct, she said it would be better to tal conduct as it was determined in The Divorce Act which would simply say that conduct of the

partiE if I'm correct, and that was the exact word ing, and to use the case law in that respect. I think the is a vast difference between that suggestion and the suggestion of "a course of conduct that so unconscionable as to constitute an obvious and gross repudiation of the marriage relationshi� On that basis, I believe that this is a far better

section than is being proposed. lt is to define sor conduct in a way in which there would be the extreme situations in which for quantum purpos1 the judge will in fact be determinin g the actual relationship and course of conduct between t parties for the determination of the amount to be given. I think it's unrealistic not to believe tt that would not happen in any case when quantum is going to be dealt with.

So in effect, by stating and very specifically that it has nothing to do with the entitlement t it does deal with quantum, we would in fact resolve what will occur in the actual practice ever the proposals that Mr. Pawley wanted were accepted. MR. CHAIRMAN: Mr. Parasi uk. MR. PARASIUK: Mr.

Chairman, I still haven't heard anyone explain why the term, where 1 consideration of conduct is put forward with respect to the amount of maintenance - this 2 seems to ind icate that it won't be used to determine whether there should be maintenance bu· will be used to determine whether in fact maintenance should be zero, which is a logical possibi after this amendment that you put forward. I thought maintenance was some thing that to me conno need and it doesn't connote punishment. Now if in fact maintenance is to connote punishment, lE bring in 2(3) where we give punishment to people for their conduct.

But surely let's not h1 maintenance which, to me, is something connoting need determined by conduct. And I've yet 372

Statutory Rules and Regulations Monday, July 17, 1978 have a clear explanation from people as to what they mean by conduct. I thought that maintenance would be provided to someone depending upon what their needs were. That doesn't seem to be the case now and we are introducing some type of a notion of punishment, or we're enforcing the notion of punishment. I don't know whether in fact we're going to get into the debates regarding other forms of deterrents or deterrents for other types of activity. But is that the intent of this particular amendment, to confirm the concept of conduct as punishment?

Is that what it's intent is? Because I think we're, you know, this is I think the crux of the matter with respect to this particular section. Are we talking about maintenance which is something that relates to need or are we talking about conduct which is going to be used to deter mine punishment? MR. CHAIRMAN: Mr. Cherniack, follo wed by Mr. Axworthy, and then Mr. Corrin. MR. PARASIUK: I was wondering if I could get an answer in the course of the discussion from the Min ister on this. MR. CHERNIACK: Mr.

Chairman, I would have liked to have persuaded my colleagues to let this amendment pass before they debated the

Section because it contains a principle which I had wanted to move an amendment to and that is a clear statement that conduct shall not be a factor considered under this part. I like that, so I would like to see that go in and then I would like to speak against the amended sect ion. Not that it matters much, but just in ... lt would have taken on that slightly different improvement, I think, and that is the clarification propo sed in this amendment. lt doesn't matter when we discuss it; we 're going to discuss it anyway. I wanted to ask the Attorney-General a couple of specifics in relation to this. One is, why he is not including

Part 11, or

Section 13, in this description -

Section 13 being the one dealing with the maintenance of the child. Under 13 , it does read: "The court shall consider the following factors and any additional factors it deems relevant." I don't want to get into a debate with Mr. Schulman in his absence as to whether this is confi ning or broaden ing, I just want to say that I would say that conduct in the marriage relationship, which is the wording in this proposed amendment, should not, in my opinion, be a factor at all in determining whether or not to make an order under

Part 11. So I do ask Mr. Mercier, why not include

Part 11 in this? The second question ... Well, maybe I should . . . Well, I'll . . . The next question was: Does he not in his mind - and now I'm debating with him something with which I don't agree and that is the conduct in the marriage. Does he make a difference in his own mind as to the differentiation between conduct before separation and conduct after separation?

Surely there is a tremendous difference between conduct when a husband and wife are living together and behaving in some way or other in relation to each other, that's one form of conduct which may well determine the separation or influence the separation. lt seems to me after the separation there's hardly any reason I can think of where conduct in the marriage relationship should be a factor except the one that 111 as implic it in the former statute that we passed which said that whether or not she is applying 1erself to becoming a dependent, which I think is really covered under 5(i), - is it? - yes, under 5(i).

So that once 5(

i) is there, I really ... You know, now I'm debating something I don't really 1gree with but I think we ought to cl arify it that even if my point of view fails, at least the majority )Oint of view should be clear. So my questions, specific ones to the Attorney-General are:

(1) Why isn't

Part 11 included in this since

Section 21 is? And

(2) Doesn't he see - and these are two separate questions. Doesn't he see an important difference >etween conduct before separation or while they're living together, and conduct after? And shouldn't here be a different weight, although I know that he considers that the circumstanc es in either case vould be bizarre or very extreme were his words. �R. CHAIRMAN: Mr. Mercier. �R. MERCIER: Well, there's an Order, Mr. Speaker, I'm making a note of the ... IR. CHAIRMAN: All right. Mr. Axworthy. IR. AXWORTHY: Well, Mr.

Chairman, I agree with the way in which the amendment separates ut the two decisions relatdd to separation, but I obviously disagree with the second part of it and frankly am curious. We've never really had what I consider to be a proper explanation from the ttorney-General, speaking on behalf of the govern ment, as to the rationale for using this particular )ncept to be used as a formula for det ermining the quantum of support.

On the other side of 1e case, there has been an enormous amount of evidence presented particularly from the, I guess you wanted to call it the social side of the argument, not the legal side, ind icating that the ability 373

Statutory Rules and Regulations Monday, July 17, 1978 to judge and make judgments as to what would be considered to be unconscionable conduct is virtually impossible in the marriage situation because there is such a close and intima te int eraction between the two people that for someone in a social work position or a counselling position to try to make those judgments and advise the court is virtually impossible acco rding to those who came from those professions.

I asked them if they were prepared to provide expert testimony and they said they could not provide that kind of testimony in a court if anyone asked them. 1 think the point raised by Mrs. Sisler in her recommendation, and it said, in other words, and it's lawyers making judgments about social relationships.

Considering the concern expressed by the Attorney-General in presenting the bill and in public statements about the way in which he didn't want this legislation to affect the family, to affect the children, to affect the rela tionships, it seems to me that in this area, again there is a pretty substantia! weight of evidence that sug gested that this would even exacerbate the problem and make relationships worse, provide for more acrimony, provide for a delving into the most minute corner5 of the long married period to bring out whatever peculiar aberration of behaviour that might bE used in order to save $5.00 on a monthly payment. lt would come down to that fact, that therE would be this kind of intense comba t over the most particular and perhaps unforuntate circums tances I have been frankly puzzled, Mr.

Chairman, about the professed co mmitments of the Attorney-Genera personally, and I think of his government generally, that they didn't want to use legislation that woulc interfere with or intervene with personal or human relationships, and yet the weight of evidencE by the witnesses or people who came before this comm ittee was in fact that this was what y01 would be producing, by this particular reason. So I think, Mr.

Chairman, the Attorney-General really owes the commit tee a fair degree o explanation as to why he still sees this as being such an important component for the determinatior of the amount of support that should be required. What particular justification is there that woulc be so important to maintain it as part, in fact a key

part I, bil when there has been such an enormou: weight of evidence cont rary to that from a variety of people who have been working in the fielc of domestic relations? I am curious as to what the explanation for that fairly steadfast and over position is at the present time. MR. CHAIRMAN: Mr. Corrin, then Mr. Parasiuk. MR. CORRIN: Mr. Chairman, I would like to endorse the remarks made by all those who have spoke before me.

I think all those remarks are directed at the basis of the problem and I simply cannc see that this particular amendment and/or the concept which is embodied in it will give effect t the type of law that we, as legislators, wish to propaga te within the Province of Manitoba.

I thin that the essence of law, if it is to be successful and if it is to provi<;le the sort of assistance th� we have in mind to our society, is that it first be respected, that it be capable of fairly read understanding, at least in terms of basic principles, and therefore it would be respected by everyone I think that this sort of law is just calcula ted to fall into disrepute in rather short order.

I think 1111 can say in this sort of law that virtually every litigant is going to have a very different standarc No two people in this province are going to be able to agree on what is an obvious and grm repudiation of a marriage relationship. The standards in contem porary society vary dramatically fro1 region to region, from street to street, from group to group, and given the fact that we have dispa rate, pluralistic society that is the sum of many different components, many different input I don't think it is possible to put this sort of burden on a court of law within our province.

I thir it is inhumane from the point of view of the courts. I think it is a burden that just simply can be borne. First of al l, the people who sit in judgment in the courts that have this sort of jurisdiction ar I think, without exception all lawyers. Some of them may have backgrounds that lend themselvc to the arbitration of such determinations, but I would suggest that most of them have been traim to int erpret law and as my colleague, Mr. Axworthy, said, we are talking about very very intric at detailed human interrela tionships. We are dealing with problems that defy ready solution.

Even t1 most experienc ed professional, somebody who has a background in the humanities and the soci services, would find it very difficult to provide any guidance as to what sort of conduct might I construed as being obvious and gross repudiation of a marriage relationship. So I think we are very soon going to find ourselves with a situation where the law truly will I undefinable. I don't think you are going to find that a body of jurisprudence will, by virtue of preceder accumulate. I think what is going to happen is you are going to have very different judgments ma1 by very different judges.

I personally don't think that that's correct; I think that that is going work a hardship on a lot of people. Frankly, I just see it I suppose - on the bottom line and the final analysis, I see the whole exercise as being rather childish and immature. I don't see w this province should encourage people to go through that sort of anguish and agony when th, relationship dissolves. I don't see why we should put them to the expense, both emotionally a ":l74

Statutory Rules and Regulations Monday, July 17, 1978 financially. lt makes no sense to me; it makes no sense at all. If somebody could show me where the benefit will lie - will the benefit lie with stronger family units? Will the int erests of young children be served because their parents have had a real good fight in the Family Court of Winnipeg? Will that give effect to child welfare in the interests of childr en in our province? 1 don't think so.

So what if a mother who otherwise is - and it happens all the time - a mother who otherwise is absolutely without fault in terms of her mothering abilities, her ability to nurture her childr en, her dedication, her effort - if such a person as this is to commit one act that is construed by one judge to be an obvious and gross repudiation of the marriage relationship ...

If somebody can tell me why those childr en should have to possibly be put to the hardship of not receiving an adequate maintenance, should not be afforded a maintenance that is of a standard that will enable them to maintain themselves with the necessities of life, why should those children be penalized? 1 don't understand why the sins of the parents, if that's the game we are playi ng, should be borne by the children. lt makes absolutely no sense. We hear so much concern about expanding Legal Aid costs. If the Member for Wolseley were here he would give us a dissertation on the subject.

Well, what we are doing here is we are just exacerbating, we are just doing all that is humanly possible, anything that somebody could conc eive to promote expensive, useless litiga tion - well, we are doing it. We're passing a law that will invite everybody in Manitoba to fight and it makes no sense; they have already fought; they have already had their innings.

A day in court in this case will not provide any final judgment because neither party will ever be convinced , regardless of the judgment that is brought down, neither party will ever be convinced that they received justice. lt is not like the Criminal Code where you have a burden of evidence and the burden having been proved before the court, the court brings down a judgment. lt is not that sort of situation at all. lt is all very arbitrary. If client X asks lawyer Y, what will the burden of proof be against me?

The lawyer will say, I don't know, it depends whether Judge Smith :>r Judge Jones is sitting today, I suppose. I really don't know because who knows what his or her )OSition might be on the day we appear. Why do we want to encourage this? lt is pointless. lt is not effacac ious; it does nothing. We ook the fault out of auto insurance and that was long overdue. Why can't we take it out of family aw? lt is amazing. We can take it out of a commercial acitivity, you know, we seem to be sufficiently ·ational to be able to deal with that one.

But here, because I suppose that this deals with something hat we all have so many fundamental prejudices about, we can't seem to escape our old >reconc eptions; we can't escape the old lessons we have learned, and we insist on taking this damn ault thing with us wherever we go. We rattle it about like a ball and chain, and it is not doing mybody any good. I can assure you the court's time would be much better spent dealing with the :ubstance of the application.

If the court could spend all its time dealing with the needs of the :hildren and the division and disposition of the pro perty, all of which are compl icated matters, :ufficiently complex unto themselves, and less time dealing with this darn fault concept and all of he acrimony and all the difficulty that that will undoubtedly provide, the court's time would be much nore efficiently spent.

The concept is borne out by unworthy emotions; it is bred of unworthy motions, jealousy, hate, envy, all sorts of emotions that I think we in our more rational moments muld dispense and put aside are being encouraged by this particular bill. I would submit that there is no argument. I will wait to hear what the Attorney-General poses 1ecause I think it is absolutely fundamental now that he give us some solid rationale as to why re have to continue with the fault concept.

As other members have suggested before me, if he :tils to do that, in the absence of such a rationale being produced and presented to the comm ittee, would suggest that it is ind efensible. No member of this comm ittee, regardless of political affiliation, o member of this comm ittee can endorse this particular

section and this concept. lt is time - nd I look not only to the Attorney -General, because that is unfair - the Attorney-General is a pokesperson for his party, true, but I don't see why he should bear all the responsibility - I look cross the table to the other members and down the table to the other members who have not :lt spoken to this matter. I think that they should make their opinions known. Some of them have ad this matter before them for a very long time; some of them many years. I think it is time that 1ey went on the record. I don't think it is irrelevant.

We have had many int erested people, 54 or 5 briefs presented by various deponents. Those people were representative of literally thousands I Manitobans. I was astounded to see the number represented . I would not think that it would terstate the case to suggest that some 40,000 to 50,000 people were represented by those 55 :!positions. I would suggest that in view of the fact that such int erest has been genera ted throughout the anitoba commun ity, I would suggest that it is incumbent on the four or five or six members of e government caucus who are here tonight to go on the record once and for all.

Let's get it out 1 the table and if need be, let's debate the darn thing to dawn, but let's deal with it. R. CHAIRMAN: Mr. Parasiuk. 375

Statutory Rules and Regulations Monday, July 17, 1978 MR. PARASIUK: There were quite a number of questions asked and I'll just speak very briefly because I expect the Attorney-General will deal with these questions. Specifically, I hope he can determine or define to us what this course of conduct is or might be, when is it relevant, before the marriage breakup or after the marriage breakup, and the genera� defence of it being considered at all? I hope he will deal with those very direct questions. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Mr.

Chairman, I think to a great extent there has been a misinterpretation of this particular clause. I have tried to say on a number of occasions that the vast majority of cases which occur will not be affected by the principle embodied in this section, that we are dealing here with a minority of cases, and the judgments that I have cited on a number of occasions support that contention. $ The financial need is the basic criteria under

Section 5.(1) , and this

section is discretionary: "May" take into consideration in determining the amount - and that has to be viewed in the context ol the premise underlying

Section 5.(1) that financial need is the basic matter to be dealt with. Mr. Chernia ck referred to

Section 13 of the Act and enquired as to why it wasn't made clear that conduct was not to be considered a factor affect ing an order for maintenance of a child. Mr. Speaker, I don't believe that conduct ever has been or ever would be considered a factor in determining the amount of maintenance to be paid for a child. lt has never been so in my experience and there is no suggestion here whatsoever that conduct should be considered a factor in determinin�; the amount of maintenance to be paid for a child. The reference to

Section 21, I believe that was the

Section that was referred to.

Section 2(2 now clearly says conduct is not to be considered a factor either in the initial application or interirr order or

Section 21 which is a variation of an order. Mr. Chairman, the purpose of this

Section is not the purpose of punishment as was suggested Mr. Chairman, but more one of encoura ging a basic sense of resp onsibili ty as the cases that we have sighted ind icate, that in the case in which a reasonable person would consider it a complete injustice for any moneys to be paid. I think those cases, Mr. Chairman, will be pretty rare considerin� the provisions of

Section 5(1) which I maintain established that financial need is the basis of thE Order for Maintenance. Mr. Chairman, again this is very similar to a

Section included in the Ontario legislation so tha we will have the benefit of being able to monitor the cases decided in Ontario on their Sectior as well as our

Section and I'm not suggesting that any of this legislation is to be written in stone There are, Mr. Chairman, in a general way, great improvements taking place in matrimonial reforn legislation. Different provinc es have each gone, some only certain distances, not all the same. I thinl we have to monitor the developments in all provinc es with respect to this Section, particularly thos• cases in Ontario, and it may very well be that as a result of changes in society which have occurrec and which are occurring and will occur, that the changes will have to be made in the legislatiol in the next few years.

But for the present time, Mr. Chairman, we feel we've gone a considerabl1 distance in removing conduct from consideration in the vast majority of cases while maintainin! it only for a very small number of cases which would simply not be accepted by many in societ' today. But that may very well change, Mr. Chairman, in the future. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, a couple of questions. Firstly, where is the provision for an orde for custody? I mean, what does it provide that the court shall decide as to custody? MR. MERCIER:

Section 8(1) (d). MR. CHERNIACK: 8(1) (d). That comes under

Part 11. MR. MERCIER: Under

Part 11, yes. MR. CHERNIACK: Does it? MR. TALLIN: That's

Part I. MR. MERCIER:

Part I. MR. TALLIN: That's

Part I.

Statutory Rules and Regulations Monday, July 17, 1978 MR. CHERNIACK: I'm sorry for the delay, Mr. Chairman. So that we are saying that conduct, of either spouse, shall not be considered in determinin g custody and that, I believe, is the point. We are saying that conduc t shall not be considered in the decision as to custody. MR. MERCIER: Or maintenance. MR. CHERNIACK: No, not maintenance. Under 8(1) (d), and that's

Part I, so the Attorney-General is saying that - and I hope he isn't changing his mind - that the order under 8( 1 )(d), that conduct of the parties shall not be considered a factor in determining custody. That's what he's saying. That's fine, I agree with that. MR. MERCIER: Mr. Chairman, I'm saying that conduc t is not to be considered, or has never been c considered a factor in the amount of maintenance and support to be paid for a child. The principle of the law has always been, and it will continue to be with respect to custody, that custody is determined on what is in the best interest of the child.

I'm not saying that conduct will not be considered in determinin g that. Certainly there was no provision in the previous legislation that there was to be any change in that. In fact, I said last fall that I think in custody cases you probably have the worst instances of where conduct is used by both sides against the other. I said at the time the legislation we had, that the previous government drafted, did not do away with that form of conduc t or allegations of conduct and unfortunately that still remains. MR. CHERNIACK: Mr.

Chairman, I suppose I shouldn't have launched into the subject I did launch into because I really wanted to compliment the Attorney-General for removing conduct of the parties, in respect to the marriage relationship, from a determination as to custody and I don't think it belongs. The conduct of the parent in relation to the child should be a question in determining custody, but it ought not to be, in my opinion, and I think it isn't under the Attorney -General's legislation, that conduct in the marriage relationship would be a factor in determining custody. So I'm complimenting him.

Having done so I'd better move on lest he change his mind to ask him to comment on my question as to whether he does not distinguish about the unconscionable conduct as to whether it occurs before or after the separation. MR. MERCIER: Mr. Chairman, the provisions of

Section 21, I think, is what Mr. Chernia ck is referring to. MR. CHERNIACK: Not at all. MR. MERCIER: You're not referring to variations of order after an order has been made? MR. CHERNIACK: No, no, no. I'm sorry, if I may just clarify. I'm talking about 2(2) where it says the guantum that the court may look into the conduct of the parties in the marriage relationship and if it determines that it's unconscionable to the degree described there, the quantum may be affected.

I'm asking whether the conduct before the separation, while the people are living together, should not be considered differently than the conduct after the separation. In other words, I suppose I can give an example, the couple live together and the spouse, either spouse, never comes home, is hardly ever at home, never does any of the household duties ... MR. CHAIRMAN: Must be in politics. MR. CHERNIACK: . . . of either spouse during the marriage. Now there's a separation and the same thing applie s after the separation.

But surely nobody's going to care one bit if that spouse who is now separated doesn't come home to that old spouse's house. So here you have what may be considered wrong conduc t during the marriage and perfectly okay after. So I'm asking whether the Attorney-General doesn't distinguish between the two. I could be more dramatic and talk about adultery. I could say that adultery during a marriage Nould be considered differently than adultery after the separation. You know, it might be viewed :li fferently. III R. MERCIER: Mr.

Chairman, I stand to be corrected on this but I think that the prima ry focus )f the legislation after marriage is more with respect to their economic circu mstances and changes n economic circumstances that may result from whatever actions they may take. 377

Statutory Rules and Regulations Monday, July 17, 1978 MR. CHERNIACK: That would be under 21. MR. MERCIER: Yes. MR. CHERNIACK: Mr.

Chairman, that would be under 21, I assume, butwhen I'm looking at 2(2) as amended, and as I say I approve of the amendment, it says: "H aving regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the marriage relationsh ip." Now I want to suggest to the Attorney-General that the wording there would imply that after the separation there is now the debate on quantum and I don't think it makes much difference as to whether or not the conduct was such as to repudiate the marriage relationship because, in my opinion, it has already been repudiated.

So, I am under the impression that the intent of 2(2) with which I disagree - I don't have to say it all the time, but I don't agree with the intent - but I have to include that the intent is the course of conduct during the

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Collection	Manitoba — Debates (Hansard)
Citation	31-2-sro10
Type	hansard
Volume / chapter	31st 2nd hansardpdf sro10.pdf
Language	en
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