Manitoba Committee Hansard — 11 July 1978 (Statutory Regulations and Orders Committee, Sitting 6, 31st Legislature, 2nd Session)

31-2-sro6

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Chairman Mr. Warren Steen Constituency of Crescentwood t Tuesday, July 11, 1978 8:00 p.m. Printed by P.N. Crosbie- Queen's Printer for the Province of Manitoba

ime: 8:00 p.m. Hearing Of The Standing Committee On Statutory Regulations and Orders Tuesday, July 11, 1978 IR. CHAIRMAN, Mr. Warren Steen • IR. CHAIRMAN: Committee come to order. The first person on our list is Mrs. Beverley ,oodwin. Mr. Cherniack. IR. CHERNI ACK: Mr. Chairman, I understand that there are two people who wish to present briefs. hey are numbers 36 and 37 on the list. I'm told that they have come 200 miles to make their resentation on behalf of the National Farmers' Union and tomorrow they are tied up preparing ,r tomorrow evening's committee dealing with agriculture.

I propose that it will not be as gr eat hardship on others who are planning to speak tonight if we can fit them in sometime during the vening. I wonder, Mr. Chairman, if you could arrange with other people who are slated to speak tis evening and shuffle arou nd. IR. CHAIRMAN: I've been informed that Mrs. Goodwin cannot stay very long tonight. Is that true? erhaps we could fit them in right after Mrs. Goodwin. IR. CHERNIACK: Oh, sure, they've said any time this evening, Mr . Chairman. IR. CHAIRMAN: All right. We' ll start with Mrs. Goodwin and then we'll go with the other ersons. IRS. BEVERLEY GOODWIN: Thank you.

I have copies of my brief. IR. CHAIRMAN: Mrs. Goodwin has copies for the committee. I hope Mrs. Goodwin that you can :ay as close to the 30 minute time limit as possible. IRS. GOODWIN: I've timed it. IR. CHAIRMAN: You have eh? That's very good. You can proceed any time that you're !ady. IRS. GOODWIN: Fine, thank you. Mr. Chairman and committee members. This brief is presented , you tonight in the spirit of good faith, as an expression of my concerns which have developed ver a period of many years. I hope that you will receive this brief in the same vein as it is resented. I would like to introduce myself as Mrs.

Beverley Goodwin, a resident from the constituenc y of iel. lt has been a long ten years since I first became involved with the issue of family law and has become a long, hard struggle, one which I now find distressing because we are once again rappling with the issue which many of us felt had been resolved sufficiently one year ago. I am married and I believe marriage to be a desirable state in which to live for some, however, :>t for all.

I had always considered myself equal in marriage, not better than but equal to my husband. was not until I began to question where I fit into the stream of things that I found that society 1d not view me as equal to my husband in marriage. When this all began, I recall qu ite well the at reaction from many friends, particularly male friends. "Don't worry your pretty little head. You ill be looked after." Well, time has proven that there is indeed plenty to worry about if you are male, married and do not have a marriage contract.

At the time of my initial involvement, it was explained to me that the only way in which to correct 1e inequity which existed was through the political process. I had an elected representative who 175

Statutory Regulations and Orders Tuesday, July 11, 1978 made the laws to reflect the values of society and it was through that elected representative th the laws were changed. Laws were not made from behind the scenes as I had thought, by lawye1 The lawyer's role was that of interpreter of the law. I hope this fact will hold true. This legislation was not intended for those who will live happily ever after in marriage. lt is intend1 for those marriages which are devoid of trust, to protect values which society, and 1 trust, you belie are sacred in marriage. That marriage is a relationship of trust.

To people have made a commitme for better, for worse; for richer, for poorer; in sickness and in health; to love and to cherish, a1 all my worldly goods with thee I share.

In 19 71, the census reported that 91.4 percent of the population were Christians and it is the Christian solemnization of matrimony that the vows are exchanged "And all my worldly goo' with thee I share." Most married people do not question the validity of these vows because they believe them. is only when a marriage is unstable that the law of the land comes into play at which time individw realize that their vows are not substantia ted by law. At times, legislation lags behind the valu of society as a whole which is understandable when laws are old and outdated.

However, wh1 legislation is updated and lags, such as Bills 38 and 39, it is intolerable. Women in Manitoba will be wal king a tig ht-rope with this legislation. They simply will not knc where they stand in their marriage until such time as the relationship is in jeopardy. Marria' breakdown, for wh atever reason, is not a happy occurrence, however, we must ackno wledge th just as some business partnerships terminate for various reasons, so do some marriages.

Therefo1 adequate care must be taken to assure the protection of the values held by a greater majority the popula tion, that being the principle that marriage is an equal partnership.

I ask, if this legislation was a business contract that you were going to be held to in the absen of an agreement, would you be satisfied that you may use and enjoy the business establishme until the termination of the partnership; that you may use and enjoy the business assets duri1 the business partnerships; that you are not permitted joint ownership rights, however, you ret� joint responsibility to the assets; that your business partner can sell, lease, mortgage, hypoth8cal repair, improve, demolish or otherwise deal with or e dispose of the asset to all intents and purpos as if the Act had not been passed; that upon the termination of your business relationship, a numb of factors will be cons idered by the court to determine whether you will be entitled to an eqL share of any share of certain assets, one factor having regard to any circumstances the court deer relevant, which could incl ude your conduct?

I would suggest that none of you would be so foolish as to jeopardize your future with this ki1 of a relationship, with built-in insecurity, however, this is precisely the situation Manitoba worn< will find themselves in unless they have a marriage contract. With amendments, this legislation is not going to weaken the institution of marriage or the fami The family is in jeopardy because of the prevalence of divorce and the absence of responsit legislation to back up marriage. Strong equitable legislation will place a price on the pastime divorce.

Without strong family law in the province, I sugge st that many women will continue to li in a state of unc ertainty and insecurity which can only hinder the quality of family life. The repe legislation was equitable, a law against greed. The legislation is not equitable; it perpetuat greed. I am suggesting that this legislation must carry the principle of partnership, equality and justi from its first statement to the conclus ion.

Society has never concerned itself with the after-effec of marriage breakdown, the effect breakdown and fault has on the spouses and the chil dren, tl effect fault has on the prospect of reconciliation, the effect fault has on how individuals percei themselves, the effect fault has on how the community perceives the spouses, whether fault w the cause of the marriage breakdown or simply a means to an end, whether the use of fault v make better individuals out of the spouses, so as they may re-enter the mainstream as responsit citizens. Or, does fault bring the worst out of all of us?

If this legislation is to be truly effective, there are questions you should be asking or you shm be asking when making the appropriate changes. Traditionally, women have not been familiar wi the ropes of the system, such as when to seek legal advice, where to go to seek legal advice. AI� housewives don't have income. How will I pay for legal advice, etc? Most people and particula women, look to the laws for misplaced protect ion, not realizing that laws are not and were 11 God-made but man-made and therefore carry the prejudice of man.

I will not duplicate my remarks in dealing with fault and conduct in the area of maintenan and the sharing of the commercial assets as my react ion to the use of the principle of fault remai the same. From the Canadian Bar Review, March, 19 78, I quote the following: "The fault concept has alrea disappeared in a number of jurisdictions and is under attack in others. human cravi ngs. He cra v acceptance from somewhere so he acquires friends that are less than desirable. He craves affecti so he lives common law and the consequences of that union - chil dren. The family gets the torme 176

Statutory Regulations and Orders Tuesday, July 11, 1978 1f not knowing whether he is dead or alive and wonder if there could not have been another tay. You call it justice, fairness and commonense. With all due respect, I sugge st that in light of this example, and others, I would call it injustice, insensitivity and lunacy. I sugge st that the use of conduct is destructive, pitting individuals against one another, individuals who, at one time, felt affection for one another. Assessing a fault only serves to complicate the relationship between spouses and the chil dren.

Hard feelings, bitterness and hate are generated by this sytem, making reco nciliation a pipe dream. There is a saying "a law for the rich and a law for the poor." We ll, in the past, in the absence of grou nds, or to protect the reputation of an individual, grounds have been created for the sake of facilitating a divorceand to accommo date the system. Prior to 19 68, those individuals unable to provide evidence of grounds were unable to get a divorce while, since then, those unable to pay the price of a speedy divorce have had to wait for three years in the absence of grounds.

Some individuals may have prospered - lawyers, detectives, and the courts have been kept 1usy. Money, of course, went to the eo-respondent, however, I'm not too certain how cautious these ldividuals had to be before the reappearance of their names would raise suspicion. The people tho were involved in these shenanigans were placed in the position of having to create fault, ccommodating the system, a practice which only served to weaken the system and lessen respect Jr the court.

I realize that many on the inside will react "c ollusion", and I suggest that most ldividuals on the outside would react, "So what?" If the court is not representative of the values held by society, why respect the court? lt is up ) the courts, through you, our elected representatives, to see that the laws reflect society's values nd in this case case, they sily do not.

As an offshoot of the practice of collusion, I wonder if you ave consi dered the possibility of a spouse framing the other spouse in order to get grounds which tould be sufficient to vary the division of commercial assets or to decrease the payment of 1aintenance. I realize that this concern sounds very devious, however, as previously mentioned, his legislation is not required for the marriage which dissolves amicably. I view the use of conduct as totally irrelevant and offensive.

Not using conduct as a basis for_ alculating maintenance and the sharing of assets does not suggest that society condones 1ermissiveness. lt ackno wledges that irrespective of conduct, the responsibility to provide 1aintenance and share the assets equitably remains. The marital home and family assets are there by virtue of the contribution of both spouses. The urvey of Consumer Census reports that home value comprises of 59. 1 percent of the total household .ssets and mortgages on owner occupied homes made up 69 percent of the total measured IOUSehold debt.

The National Finances, 19 77/78 reports that 90.59 percent of the taxpayers have a taxable income 1f less than $20 ,000.00. Therefore, I suggest that in most instances it is only through the team effort hat the majority of families accu mulate their assets. So I ask, what is the problem with immediate joint ownership? We're not advocat ing the sharing 1f inheritance, gifts, etc., we're advocat ing the sharing of assets which are accumu lated during the 1arriage. Today, 48 percent of married women work outside of the the home and their income has been nown to be used primarily for family related expenses.

Today, it is a common practice for couples o purch ase their family assets through time payments and once again, this requires sacrifice on he part of both spouses in dealing with the responsibility to the debt. Both spouses usually sign he contract for payment, however, this does not necessarily entitle both spouses to the right of 'wnership. If payment is defaulted, both spouses stand to lose the asset, so the joint responsibility emains for the payment of the debt.

In effect, women in marriage have been pawns, exploited in the system. lt is through women hat many of these assets are acq uired, their income, eo-signing or foregoing of beneficiary rights 'n insurance policies, etc. The asset must be registered or intended for joint ownership before it ; jointly owned, a factor which few married women are aware. Ideally, marriage should be a sharing 1etween two people, not an owning, manipulating and stifling relationship, which could evolve with nis legi slation.

Section 13 (2), Discret ion to Vary Equal Division of Commercial Assets, completely destroys any ,resumption of 50-50 sharing. 1 sugge st that this sect ion can only serve to further weaken the fibre ,f family life in this province. lt is often through the sacrifice of both spouses that a man gets his tart in business. Although the wife may not be directly involved with the business, her supportive )le and in many instances acceptance of converting family assets into cash for the business collateral ave given many the opportunity of becoming financially successful in business.

Without this support, ,ften the business would not get off the ground. I realize that discretion to vary would be a consideration when family assets are a contributing 1ctor to the initial beginnings of a business, however, the time factor and other circums tances would 177

Statutory Regulations and Orders Tuesday, July 11, 1978 certainly influence an equitable settlement. I have often suggested that marriage can be a contract of broken promises, and 13 (2) provid1 a lot of room for that. The owning spouse can promise the moon before or during the marriag however, if the non-owning spouse cannot prove this promise, what has she or he got - nothin Anyone who has owned a puppy can appreciate the problem of assig ning ownership when the de has misbehaved. it's our dog until it wets inside the house. it's your dog when the mess has be tidied up.

Well, a similar problem exists in marriage. When the marriage is in a state of good health, tl assets are our assets. lt's our car, our home, our chil dren.

However, in contemplation of separatic or divorce, possessiveness surfaces and what used to be ours becomes mine. it's now my car, n house and my chil dren, etc. you In marriage, wives are the first to know how little have and tl last to know how much. 50-50 sharing must be incorporated into this legislation, ideally, at the beginning of each marriag When there is nothing to share, there is no problem over ownership, and therefore it is desirat at the beginning to establish sound ground rules which will help to create a more stable foundatil for the family and the marital relationship.

Many people have said to me: "My wife and I are happily married and are partners." I find the remarks encoura ging, however, sugge st that "talk is cheap," without a cont ract in wr iting, eve wife is vulnerable to the very concerns which are being raised during these hearings. When a marriage breaks down, the battle lines are drawn and all that is left of the marria! are the chi ldren and the assets. Therefore, these will be the things which are going to cause tl greatest trouble. Quoting from the Canadian Bar Review, March 19 78, I would like to put forwa the following on Judicial Discre tion.

"Primarily, a court is a machine for dispute settlement. Normal for example, in commercial cases, it does this according to general rules or legal principles, so tt1 similar cases will be decided in similar ways. But in family law areas, such as custody and suppo the principles are so general that they constrain little or nothing. The judges operate mainly discre tion, which refers them ultimately to their own standards. The theory is that specific rules a undesirable because families and family problems are so varied.

So virtually there is no social poli in these matters beyond the reference of the issue to the judge and the judge's own react ions any evidence, arguments or reports that may be presented to the court." An example of where a judge applied his own standard is taken from a Decision in the Coc of Queen's Bench, dated September 19 74. In the matter of The Married Women's Property A Turcheniewich vs Turcheniewich. This is an application by a wife for an order admitting her to share in property owned by her husband.

The Decision in part reads - and I quote sections from it - "as with many other couples similar background and cir cumstances, their marriage was not enlivened by holidays shared togeth1 the giving and receiving of presents, or delight in the entertainment of and in being entertain by their friends." and it goes on, "evidence was inc onsistent with any view of their relationship exce as an uneasy truce." And ag ain, "Unha ppily, her demeanour and personality observed throughc the course of this litigation, do not persuade me to credit her story as being, on the balance probabilities, an accep table recital of the history of their relationship." Mrs.

Turcheniewich lost her case, and I do question under the circums tances as a housewi how she could have contrib uted to their marriage by enlivening it with holidays and the giving gifts, and the entertaining of friends in the absence of income. Heaven help the women if this is what judicial discret ion is all about. I believe it unfortunate that our legislators leave such a large part of the onus on the judge determining these matters. Without legislative direction they have no option but to lean to their o• standards.

Although the collection of maintenance is not provided for in this legislation, I woc like to take a moment to address myself to this matter. From "A New Law of Mai ntenance" I quo "Something is profoundly wrong with a body of law and practice that fails to attain its object me often than it succeeds. Failure is the Universal character istic of the traditional system for ehforei maintenance orders in Canada. With a few notable exceptions in recent years, apathy has be the companion of failure. "Reform involves two courses of ac tion.

First, there must be an effort by the government Canada to improve individual laws and practices that deal directly with maintenance enforceme Second, the whole body of marriage breakdown law must be thoroughly reshaped. lt is as mL the traditional fault, and adversary foundation of this law, as it is the particular deficiencies enforcement techniques that accounts for the appalling record of non-payment of maintenar obligation in Canada." From the Canadian Bar Review, March 19 78, I qu ote: "Complete information is not availat but all the indications point to a high failure rate in paying under financial support orders and inde' the level of failure sugg ests that the court- based system is an inefficient and expensive way supporting family dependents after a marriage breakdown." 178

Statutory Regulations and Orders Tuesday, July 11, 1978 As you know, three out of four maintenance orders in this cotmtry are not fulfilled. Not to mention, hose spouses who don't bother in the first instance to obtain a maintenance order. Quoting from 'A New Law of Maintenance" ag ain: "In 19 75-76, the Province of Alberta gave financial assistance o mothers with dependent child ren to the tune of $52 ,745,8 22, while the recovery rate showed )2,634,534 from husbands and fathers.

These figures do not account for the costs incu rred for the ecovery." When maintenance doesn't arrive, or is late, what do you do about such matters as the hydro, >hone, heat, health related expenses, clo thing, and food? Can you imagine? lt becomes a luxury or you and the ch ildren if you can scrape together sufficient money for an ice cream cone on a lOt day, while it is not uncommon to hear that the other spouse is out buying another round for he boys. Default is a serious problem, a problem swept under the rug for too long, and one which 1 hope his government will deal with immediately.

I fully realize the intention of

Section 10 (2) Penalty, when a spouse is in violation of an order estrict ing entrance to the premises of the other spouse; and

Section 26, Penalty for default under >rder. However, I do wonder whether inc arceration will further delay the payment of maintenance, hus causing further hardship upon the dependent spouse. I took it upon myself to contact Headingley Jail, to enquire as to what the policy would be in :uch instances.

Where a person is convic ted and is an infrequent or first time offender, the in the ront doo out the back door policy would be applied. lt is called temporary absence program and 1elps to keep the population down at the penitentiary, and also in the case of a offender with outside 1mployment, it would provide the opportunity to retain his job.

So it would appear, that the exercise of pursu ing the errant spouse through the court system vould ultimately be in vai n, taking a great deal of time and money on the part of the dependent pouse, which is normally the female and she doesn't have either, and also expense to the taxpayer or naught. Mind you, in times of high unemployment, the offender would be provided with a roof over his 1ead, and apparently if he shows signs of being industrious he would be entitled to earn from 60 :ents to $1.00 per day at Headingley or else up to $3.00 per day if he works in the bush, plus neals.

Compulsory saving of one-half of the earnings would be employed for the time of his release, 1nd even if garnishment were possible, it would not be worthwh ile. So, I ask : What is accom plished by inc arceration - who gains?

Quoting from "A New Law of Maintenance:" "Ma ny husbands and fathers who do not pay on support orders generally are unable to do so. llany of them are chased away by fear of going to jail for non-payment on support orders and heir chi ldren are deprived of paternal affection because of the poverty of their fathers." In closi ng, I urge you to provide for immediate joint ownership of the marital home and family .ssets, and the deferred sharing of commercial assets with limited judicial discret ion in Bill 38, The llarital Property Act.o$ and in Bill 39, The Family Mai ntenance Act, I urge that the conduct clause be removed.

Greater mphasis be stressed to overcome the problems of default in maintenance, and I sugge st you econsider the merits of incarcerat ion. In an address given by the Honourable Ron Bastard, Minister of Justice, to the Join t Session ,f the Conference of the Association of Family Conciliation Court and the Conference of the Family .aw

Section of the British Columbia Branch of the Canadian Bar, May 19, 19 78. I quote the )llowing: "In this country, the legislative jur isdiction over family law matters is divided between the 'arliament of Canada and the Legislatu res of the provinces, undoubtedly creating problems, but roblems that I am convi nced public policy makers must overcome, in my view, can overcome. The eeds of the family surely override intergovernmental jealousies and legislative chauvinism.

Keeping in mind the need to preserve the integrity of the family as a fundamental unit in our ociety, we must ensure that the economic inci dents of divorce are fair and equitable. Our 1aintenance and marital property regimes must recognize that homemaking and ch ild-rearing are artnership activities entitling the non-wage-earning spouse to a share in the assets accumu lated uring the marriage." I ask that, during your deliberations, you retain your perspective when determining these laws. crime has not been committed.

Two people have come to the conclusion that their marital 31ationship must be terminated - for whatever reason. The reason should be of no concern to 1e courts, other than in instances where constructive gui dance can facil itate reconciliation. We are all losers if this legislation does not reflect the principle of marriage as a artnership. lt is only when this legislation recognizes both spouses as equals that justice will be enshrined 1 the statutes of Manitoba. Thank you. 179

Statutory Regulations and Orders Tuesday, July 11, 1978 MR. CHAIRMAN: Mrs. Goodwin, would you permit questions? MRS. GOODWIN: Yes, certainly. MR. CHAIRMAN: Mr. Cherniack. MR. CHEIACK: Thank you, Mr. Chairman. Mrs.

Goodwin, you know that when you have 50-oc briefs you expect to hear some repetition, but it is refreshing to know that almost all briefs ha· some nuance or difference that makes it worthwhile to hear, and in your case, firstly, I'd like thank you for your research and all your footnote statistics, which I think are very helpful, and suppc your last line on Page 18, or second last line, that you ask that during our deliberations we reta our perspective when determining these laws, and to me that's really the key of what you've be1 talking about. And I'd like to expand a little on that.

Firstly, in a more specific sense, Mr.

Mercier, when he introduced on May 29th, the Proper Bill, talked about problems created by immediate re rather than deferred sharing, and he said, "TI still are, and the Family Law Review Committee has pointed out tax implications, which have al: been pointed out and ackno wledged by the Alberta Government, which have referred it in the passi1 of their legislation." So that's tax implications; there are creditors' rights, which must be considere the security that is to be required by banks, credit unions, etc., which concern was expressed qui succinctly in the Family Law Review Committee Report; and there is also the question wheth government should interfere in the lives of married persons living together, whether or not they a responsible enough to make their own decisions for themselves at that time.

So he raises the as problems with immediate sharing, and in the perspective that you present your paper to us, whe you speak of the fact that just over 90 percent of taxpayers have a taxable income of less th; $20,000, which already excludes the vast number of non-taxpayers, who earn less than a taxat income, I wonder if you would like to comment about the implications of taxation. If I can help y1 first and tell you that Mr.

Mercier has now said that the only current problem they see is the questi1 of the ownership of the principal family home, where the wife owns one principal family home ar the husband owns another principal family home. Do you have any comment to make about the impact of the tax problem on immedia sharing? MRS. GOODWIN: We ll, as I've mentioned before, I'm not an expert. I ask questions about tt - it concerns me that we have any tax policy that discourages sharing between spouses.

I understar that as far as the residential marital home and a second, say vaca tion home residence, there's n really a problem because you can put it in both. Each spouse can take one of the residence , their principal place of residence, and that can overcome the problem. MR. CHERNIACK: I suppose one problem may be that they may have different values and 01 spouse may say, well, I want the better one. MRS.

GOODWIN: Wel l, you're assuming that in all these instances, marriages are breaking u You know, 1 think 1 made quite clear in my presentation that most marriages are a relationship trust, and certa inly these kinds of relationships or arrangements can be dealt with early on in tl marriage. MR. CHERNIACK: 1 suppose it's helpful when you're saving tax moneys, it's helped in that respe1 I suppose. MRS. GOODWIN: Wel l, I think there's an incentive, there's an inc entive not to share too. MR. CHERNIACK: Right. Now, again speaking about the perspective that you refer to, there w a question asked of Mr.

Spiv ak - I don't remember the question. I didn't qui te understand tl answer because I'm not that knowledgeable on trust laws, but his response to a certain proble , 1 think it was as to why the nature of the asset has to be considered - he'll correct me no dou about it - but he did respond that there is some kind of trust that would create a problem if tl court did not have the discretion to deal with it. MRS. GOODWIN: I've tried to give a little bit of thought to it and, here again it's my m

interpretation and 1 don't have any qual ifications to really deal with it but I have observed and listene 1 have a feeling that maybe what you're talking about, Mr. Spivak, is the family trust, and I knc that these cer tainly do exist. They are arrangements where families have set up their affairs in su 180

Statutory Regulations and Orders Tuesday, July 11, 1978 way that income is distribut ed amongst chi ldren and certainly in most instances, or some, wives. ut it's to distribute the income over a period of time without, I think, having the inc urrence of �ry large sums of income tax. Now, my feeling is that our first and foremost concern should be the marital relationship, the artnership, and I would sugge st that if it is a healthy partnership, a husband and wife will agree > this kind of an arrangement for their family but IR. CHAIRMAN: Mr. Spivak on a point of order. IR.

SPIVAK: On a point of order, because I think that Mr. Cherniack mentioned that that was ith respect to the nature of the asset and that was not. I don't in any way want to suggest that )U should not continue. I was asked an example of number (

j) on 13 (2) and 1 cited that as one Kample. RS. GOODWIN: Oh, yes, I realize that. lt was just used as one example, and 1 can see it cou ld e a concern, but I think my point is that in a trust situa tion, if the marriage is stable, then 1 would :tther that the husband and wife would be in agreement in dealing with their assets in this manner. therwise, if there was a concern, I think that we all should share that concern. IR.

SPIVAK: I said that in the blending of trusts, which do not necessarily mean that the trust I the family between husband and wife are involved, there can ue several trusts of other families volved as well. IRS. GOODWIN: Yes, I realize that. They can become very complicated and, there again, I will )Stain from adv ancing any thoughts as we get into the complex areas. R. CHERNIACK: The only point that I'm concerned with, Mrs. Goodwin, is that we are talking 3re, at least I am talking about perspective and legislators' perspective.

I have the feeling that )U would support my contention that it is more important that we establish the principle of 50-50 1aring and ensure it, rather than leave all the loopholes which will be discussed in order to show :trticular concern for planning that involves tax savings, income tax savings, trusts of various natures. 1at's why I referred to your statistics as to the number of people whose income, I assu me, is low 10ugh so that we need not be that much concerned about the ones who have those complicated RS.

GOODWIN: Yes, you will notice on the bottom of the page, I have made reference to the ·eakdown and it's more complete, the statistics, at the bottom of Page 10 . R. CHERNIACK: Yes, that's what I was referring to. Now still speaking about perspective and >eaking about, I think on Page 9 you've put it very succinctly - I'll borrow that word from the ttorney-General: "it's up to the courts, through you, our elected representatives, to see tha t the ws reflect society's val ues," and in this case, you say they simply do not.

I'm wondering whether >u're suggesting that they reflect the artificial values, establishment values, lawyers' values, judges' tlues, and I would like to see if you would care to enlarge on this statement, bearing in mind e fact that as one reads the newspaper one sees that it is not uncommon to learn of adulterous lationships, of people who break the tax laws and get away with payment of a fine or something. n suggesting that the morality in society is not that great that we need get so deeply entrenched 1d bound by what may be considered a course of conduct.

Si nce you make the statement that e laws do not reflect society's values, I wonder if you could elaborate on that. RS. GOODWIN: We ll, number one, I've alwa ys felt that the courts should be something that we ok up to and we should not feel that we've been had by the cou rt system. I wou ldn't sugg est at the courts or the laws have been created primarily to protect the interests of the businessman, lli!rlaWyer� or whomever: 1 think wtiaCwe're dealing with here is that society-has changed but e laws haven't. Ttiere has been a lot of change.

The family has changed, marriage has chang ed, tr responsibilities in the family have changed, so therefore, of course, taking those factors and any others into account, our laws have to change. Wha t we're doing is telling the judges to interpret e past which is not relevant. R. CHERNIACK: Wel l, Mrs. Goodwin, you quote from a Canadian Bar Review

article of March, 1?8, the bottom of Page 13 , and you qu ote them as saying, the writer, "Judges operate mainly · discre tion which refers them ultimately to their own standards." At the bottom of Page 14 , you y, that you believe "it unfortunate that our legislators leave such a large part of the onus on the 181

Statutory Regulations and Orders Tuesday, July 11, 1978 judge in determining these matters. Without legislative direc tion, they have no option but to le� to their own standards." Bear in mind that the Attorney-General says, "Ah, but no, we are putting in a presumption 50-50 sharing which did not exist before and does not exist elsewhere." Since you'v e read th

article and I hav en't, would you indicate whether in your opinion, this big change in the law th the Attorney-General says has been acc omplished, will affect the conclus ions -of the writer of th article? MRS. GOODWIN: Well, I don't have to really relate to the

article because, fortunately, I'v e h� the exposure to members from the judiciary and I've approached them on this. If there is n established law, then they have no other recourse than to lean to their own standards. I asked the how they do this and in most instances it's talking over coffee about different cases and what th1 do in their own situations. They are human, you see, we are not helping them and it's not thE fault that this is the only thing we're providing them with. MR.

CHERNIACK: You will be told that when there is a statement of the principle of equal sharin that on that basis the judges already have a new set of rules and that they will be expected n to vary them except in cases where there is clear inequity spelled out with in all of the ten subsectio1 and anything else that they think is likely. Are you suggesting that the courts will not feel : constrained by the 50-50 sharing, as by their own standards and accu mulated exchanges acro the ... MRS.

GOODWIN: Wel l, let's not bear all the onus on the courts, because I think what they a presented with, will depend largely on how they deal with it. You being a lawyer, you are fully awa of the fact that every loophole will be dealt with, and if I come to you as a client, you're goi1 to look into every possible loophole that you can use. My suggestion is that the responsibility there to present all factors that can be dealt with to support your client, and it's bound to influen the judge. MR. CHERNIACK: So your conclusion is, remove discret ion, remove misconduct as a factor. MRS.

GOODWIN: Limited discret ion, I suggest. MR. CHERNIACK: You'll be told that this legislation provides for limited discret ion. MRS. GOODWIN: Wel l, if the feeling is that it provides for limited discret ion, then why not u the same clause as 13 (1) ? Wha t is the sense to putting in two clauses which are worded different but mean the same thing? MR. CHERNIACK: Wel l, I'm guessing they don't mean the same thing, and I think one is ma limited than the other, but we'll hear other questions in that regard. Thank you, Mr. Chairma MR. CHAIRMAN: Mr. Pawley. MR. PAWLEY: Mrs.

Goodwin, I would like to ask two brief questions of you. One deals with t quote, Page 6, from the Canadian Bar Review, and I was wondering if you could tell me wt jurisdictions the Canadian Bar Review would be referring to, as those that have eliminated the fa concept? MRS. GOODWIN: But actually if you can believe it, they weren't listed. MR. PAWLEY: They weren't listed? Okay.

Then on Page 12, if I could refer you again to the reference which you'v e made to 13 (2), a 1 note interestingly that the item that has been added in our Manitoba legislation is a factor tt is not inclu ded from my reading of the Ontario legislation, (h), factor the nature of the assets would just to like to have your opinion, Mrs. Goodwin, as to what you see in the use of the won "the nature of the assets". What do you view this as intending to cover? MRS. GOODWIN: Well, Mr.

Pawley, I hav en't tried to go deep into my thoughts on this, becau 1 know the process well enough to know it will mean anything but the kitchen sink, or probal including the kitchen sink. So I really hav en't dealt with specifics as far as the (

a) to (j). I have go over it, yes, and I feel that it's inc onsistent with the principle. 182

Statutory Regulations and Orders Tuesday, July 11, 1978 IR. PAWLEY: I'm trying to figure out what relevance "the nature of the assets" cou ld possibly ave, and I am wondering if you cou ld help me or assist me. IRS. GOODWIN: I haven't tried to find the reasoning, because I don't find it consistent. IR. PAWLEY: Thank you. IR. SPIVAK: We ll, do you accept the fact that there should be, in some way, by the very judges ho have no established law now, and no other recourse .. . IRS. GOODWIN: I'm sorry, I can 't hear you, I'm very sorry. IR.

SPIVAK: You've already stated that insofar as you're concerned there has to be some limited 1scre tion, there cannot be 50-50 shari ng, there has to be some limited discretion, and it will be <ercised by the very same judges who, if I can quote you, "if there is no established law, they 1ve no other recourse other than to their own standards." And those were your words when you 1y that that's how they deal with matters now, and those are the judg es who are going to have 1 apply the limited discretion.

And is it not a fact that in the limited discretion, wha tever words e would put in here, there will be an attempt by every lawyer to try every loophole that can possibly 3 argued before the judges in a limited discretion, and the judges then are going to have to apply 'e very own standards that they have in interpreting the discret ion that has to be exercised by em.

So that unless you in fact deal with this in a rather specific way, rather than the general ay that is suggested, you are going to in effect have them exercising the limited discretion that )U sugg est should be used, by an application of the very own standards which at the present time iS not applied to the law inequity which you are entitled to and which we are in thi3 Act trying RS. GOODWIN: Well, Mr. Spivak, if there were a way to legislate against bias, we'd do it, but 3 have to have some input in this area, and limited is the most that I could go for. R.

SPIVAK: Wel l, but you see, when you say if there would be discretion in the words, would � "g rossly unfair er unconscionable." RS. GOODWIN: Well, yes, of cou rse, I'm opposed to conduct, as you realize. R. SPIVAK: Well, it says grossly unfair and unconscionable. Well, maybe there would be another rminology you'd be more satisfied with. But if you say that and there was a suggestion I think at that would better than we had before in 13 (2), then I am suggesting to you that you have the oblem which you've got to face up to, that the very same people who you are critical of now e going to apply in the

interpretation of that discretion the very same standards that they have plied right today. And what we have tried to do is to make it much more explicit and to try and 1al with the realities of what will happen in many situations that they will have to deal with.

Now, if there is a declaration that spouses each have the right to have their assets divided equally 1tween them in any of the following events, which then cites the marriage breakdown, that surely this point is a restatement, or at least a statement of intent and a new law that does not exist, 1ich will in fact meet one criteria of what you said, that the judges talk about, that if there is established law, there's no other recourse to them other than their own standards.

And would 10t be better in dealing with this, to deal with the realities of the kinds of discretion they're going have to deal with and at the same time try to be realistic, so that in effect we do not have a se law developing as a result of

interpretation of discre tion, simply because the judge is trying be equitable in a situation, where by the nature of the asset, by the other items that were mentioned 13 (2), they, by the very nature, are going to have to deal with the problem when it's brought ward to them. Because the lawyers will in fact bring every loophole, and they are going to have at least hit it on the head the first time it comes through, either they establish the manner in ich they will interpret the discretion one way or the other, and if it's not correct, and we as 1islators do not think it is co rrect, we can change it.

But the point is you are going to have to through that process whether we like it or not, so long as there is a discretion to be exercised. d so far, and I just say this to you, anyone who has come here has not suggested that there )Uid n't be a discre tion. I don't know anyone that's come before this Committee who has sugge sted 1t there should not be a discre tion, so that we recogn ize that there is going to have to be discre tion, j what we recognize as well is that someone is going to have to interpret that discretion. you )W of cou rse we're looking at the 183

Statutory Regulations and Orders Tuesday, July 11, 1978 MRS. GOODWIN: However' matter from different viewpoints. I feel I'm looking at it realisticall I'm applying a principle that I believe and I feel that it's the presumption that has to be consis te1 throughout the legislation, and it's just the way you perceive it, as opposed to the way 1 percei\ it, I feel that it's not equitable. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: I have another question, but in view of Mr. Spiv ak's remarks, Mrs. Goodwin, 1 M wondering whether, considering Mr.

Spivak 's concern that the need to giv e gui dance to the cour when they're exercising their jurisdiction and discretion to vary the equal division of assets, he made what some might well consider a compelling argument to provide guideli nes, parameters, f< the court to exercise this discretion or a latitude with respect to the commercial assets.

I a1 wondering whether or not you think it would be consistent if he were to take the same positic with respect to the equal division of family assets, in view of the fact that this has previously ne been allowed, this sort of discretion has not been allowed by the courts. Would you see any mer in an extension of the circums tances, the list of circumstanc es, with respect to family assets � well, or do you think that that would only serve to further water down, as I think you have sugge ste1 is the case of commercial assets, further water down the nature of the division in th; respect? MRS.

GOODWIN: .. . water down the institution of marriage, I just think it's unbelievable becam it's agains t the principles that I believe in, and I don't see how you can subscribe to a numbc of variances if you believe in the principle. No, I wouldn't sugge st that you add the (

a) to (j) 1 the family assets. MR. CORRIN: I certainly agree, I couldn't agree with you more, but I did think that in view of tt fact that Mr . Spivak had evinced a special concern for the judges that have the difficult task 1 exercising discretion in respect to commercial assets, that he might as well consider giving gui danc and legisla tive assistance to the same judg es when they dealt with variance of division of fami assets.

But my initial question and the one I think is most important to deal with is something that thought that you brought before the Committee as by way of a nuance to a very thorny problen and that was the problems emanating from adequa te enforcement measures.

You indic ated, I thir that you made representations to the effect that fault had created enforcement problems, that tt difficulties entailed in establishing fault had more or less kicked back special problems, and interpreted your remarks to mean that people who found themselves on the short end of the tau stick, maintained their grudges, maintained their hostilities, after the court processes had cease1 and in many ci rcumstances I suppose, try to work out their own sense of equity by refraining fro1 making maintenance payments.

I was wondering about that, especially in consideration of the remar� that have been made by the Attorney-General to the effect that su bsection (2) of The Fami Mai ntenance Act dealt only with the question, this is the question of conduct, but only related � a concept to the quantum of maintenance, and not to the order itself. I am wondering, given tt Attorney-General's remarks, and his position on this particular section, whether or not you woul feel that you would be satisfied that that would serve to lessen these sorts of enforceme1 problems.

I would also ask you whether or not you had any specific statistics that you could bring to be; before the Committee to demonstrate whether or not there was a hig her incidence of enforceme1 problems with respect to fault-co ntested separation proceedings, as opposed to non-faL proceedings or consent proceedings under the present law. MRS. GOODWIN: I have no information as far as those statistics are concerned. However, gettir to your discussion on the conduct, I do feel that it's a possibility, a very good possibility, that contribu tes to the default of maintenance payments.

You know, if you're stabbed in the back, wt be nice? MR. CORRIN: So you don't think that the Attorney-General's opinion, and that's a learned opinic of course, to the effect that the fault with respect to conduct, and under 2(2) will only be pertine1 to the question of quantum of maintenance. MRS. GOODWIN: it doesn't matter what it's pertinent to. The fact that it's raised is sufficient · cause the dissension between the two partners. MR. CORRIN: Thank you. 184

Statutory Regulations and Orders Tuesday, July 11, 1978 IIR. MERCIER: Wel l, Mrs. Goodwin, I just wanted to thank you for what is obviously a well prepared 1nd thoug htful brief. I believe you were here last night when we had some lengthy discussions on he principles that you have raised and because of the number of people who wish to present briefs, don't think that I can go into the same discussion or dialogue with each individual delegate before he committee but I do thank you for obviously a well prepared brief. $ IIRS. GOODWIN: Thank you very much. IIR. CHAIRMAN: Thank you, Mrs. Goodwin.

Before I call the next party, I might inform all persons present and all persons interested in the earings of the this committee that this committee will sit tomorrow afternoon from 2:30 to 5:30 nd again tomorrow evening at 8:00 p.m. We have gone through 24 briefs to date and we have, s far as I've been able to learn, 32 more to go. So you can see that we are going to have to pend a lot of time at this.

We've been asked by the National Farmers Union's women's representative, Darlene Henderson, she could make a presentation this ev ening because of their involvement in the agricultural ommittee which will be opening up tomorrow even ing. Would Darlene Henderson like to come lrward and make her presentation at this time. I might ask her if the other person, Jacie Skelton, ; it a joint presentation the two of you wish to do? IS. HENDERSON: Yes, Mr. Chairman. Jacie Skelton would like to present her presentation first nd then I will follow her if that is all right with the committee. IR. CHAIRMAN: All right.

To Jacie Skelton, you are aware of our time limit that we try to adhere l? IS. JACIE SKEL TON: Yes, mine isn't that long. I guess I'd better explain. Because of lack of time >r studying different issues, Darlene Henderson and myself decided to split the Acts up. I will be leak ing on Bill 39 and Darlene Henderson will be speaking on Bill 38. So I will be dealing mainly ith fault and she will be dealing with sharing of assets and wha tever. IR. CHAIRMAN: Would you proceed, please. IS.

SKEL TON: The traditional terms of reference for marriage most often inc lude: a man's bligation for his wife and chil dren; the wife's obligation to care for the home and the childr en; , love, honour and obey, and the husband's position as the head of the household. Although there ·e exceptions, it is presumed to be the man's legal duty to support his wife so by law he receives referential priority treatment. Men are given preferential treatment as produc ers in respect to jobs, 3.y, promotions, taxes and land ownership on the supposition that they alone support their wives 1d childr en.

We consider married women in the home to be workers, actively employed in the home, using 1anagement and organizational skills which, if developed with the view to pursuing a career, would we substantial marketability in the employment sector. Women, by giving up opportunities to their own private income to work in the home, advantage 1eir husbands by providing them with greater possibilities to pursue gainful employment and gr eater :onomic opportunity and future development skills. Women in our view contribute equally to the :onomic stability of the family unit or marriage unit.

The productivity of women must be accepted as an integral part of the economic activity of the mily unit. The responsibility of women in the family unit has been to manage the home and raise e childr en. We see no reason why men need be excluded from this role.

In order to accommodate Id encou rage more freedom in changing roles, thus giving women more equal opportunities, our lCiety must design adequate measures to develop social services that would support the dual role women rather than intensify the conflict between traditional cultural norms that define family roles the economic and social realities of women. lt is wrong to continue with legislation which gl orifies an inferior status for women.

The inequality inforced by family maintenance and marital property laws has been a major factor, we feel, in 3akening the marriage unit, resulting in an increased rate of marriage breakdowns. The National Farmers Union views marriage as a relationship of interdependent equal persons. marriage is truly the institute that supports the family unit, then women must be accepted as 1ual interdependent partners. Marriage must be a contractual relationship, in which the obligation, >portunities and rewards for both partners are equali zed.

Partnership must take into acco unt a ir distribution of work, the talents, preferences and aspirations of the individuals. 185

Statu tory Regulations and Orders Tuesday, July 11 , 1978 Therefore, we feel it is vital that we voice our opinion regarding Bill 39, which proposes th; conduct rather than need be used as a measuring stick to determine the amount of maintenanc provided for a dependent spouse, or dependent spouse and childr en, after a marriac breakdown. - Mai ntenance denied or granted on a fault or no-fault basis is a partic ularly odious propos� In the div orce proceedings of a normal marriage breakdown who is to decide blame, either absolu· blame or degree of blame?

People have been insisting for years that our divorce laws must t revised to permit no-fault settlement. The National Farmers Union contends that it is unrealistic 1 assume a judge can decide when faults begin to appear within a relationship. Traditionally, decisior based on the establishment of fault have meant that one party in a marriage has to be entire at fault and the other entirely blameless; in other words, a black and white situation which fictitious. There are many divorce cases where the marriage has lasted 20 or 30 years.

A woman wt has spent her time and energy working for the family in the home will not have developed mar skills appropriate for the job market. This, coupled with employers' biases towards young employee make it difficult if not impossible for such women to gain financial independence. Women in th category cannot get back into the labour force. Whether or not she receives support should "' depend on her lawyer's ability to prove she was consistently blameless throughout tt marriage. We exhort the government to weigh the drawback of fostering the concept of fault in a marria� breakdown.

The onus will necessarily be placed more on one spouse than the other. Consider wh the effects of placing fault will be on the childr en of the marriage. Children can become unnecessari emotionally damaged as a result of cruel and harsh legal battles fought between lawyers and clien in a court room. Furthermore, intensifying the role of blame ensures the cou ple will never be frienc again and fosters vengeance. Therefore, we rec ommend that this bill be amended so that need I the only factor used as a determinant of the amount of maintenance provided. MR. CHAIRMAN: Will you permit questions? MS.

SKEL TON: Yes, I will. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Thank you, Mr. Chairman. I was just thinking about the fact Ms. Skelton th the government seems determined that fault will be a factor in The Maintenance Act by providir that ... A MEMBER: Is that a question to her? MR. CHERNIACK: . by providing that ... Was that the Chairman speaking? Were you speakin Mr. Chairman? MR. CHAIRMAN: I didn't say a thing, Sir. MR. CHERNIACK: All right, I thought you were speaking to me .... by saying that - I'm ju looking for this

Section and I can 't find it. lt should be deeply etched in my memory but it's tl

section that deals with what the Attorney-General has referred to as bizarre ci rcumstances. We were talking with Nrs. Goodwin about society standards or attitudes. The suggestion by tl Attorney-General is that if there are exceptional actions on the part of, let us say the depende spouse, of such a nature that the conduct is so unconscionable as to constitute an obvious a1 gross repudiation of the marriage relationship, if we bear in mind that the law which the governme reinstituted last year by suspending the legislation we passed last year, and that law under T Wives' and Children's Mai ntenance Act says that a woman who is in receipt of maintenance suppc loses that right upon committing

an act of adul tery. Bearing in mind that that is a law that t government reinstituted and is today the law if there was a case in court today, would you consid that it's not unreasonable to think that to some courts the conduct of a spouse receiving maintenan in committing

an act of adu ltery would be a repudiation of the marriage relationship. Consideri that the marriage relationship has already been broken by a separation, would you not say tt under this concept the mere act of adultery is a repudiation of the marriage relationship? MS. SKEL TON: Yes, definitely. Under a fault system, adu ltery - you can name them all - a of these things are a repudiation of the marriage breakup. This is why we cannot have fa determining, any conduct determining what maintenance you get because it doesn't matter wha •, .. . 186

Statutory Regulations and Orders Tuesday, July 11, 1978 1appened in the marriage, the marriage has broken down and at that point the dependent spouse 1as to be supported and the dependent spouse and childr en or whatever, and the support has to :Je given regardless. When you penalize somebody because of conduct, you're not helping the people, tou're deterring them further. III R. CHERNIACK: But you see, we're told that this has to be obvious and gross repudiation but )bviously it would be that it becomes known that

an act of adu ltery was committed and gross might nean two acts of adu ltery or something that makes it more . . . Ill S. SKEL TON: Out on the street or something. VIR. CHERNIACK: Pardon? Ill S. SKEL TON: Out on the street or something. VIR. CHERNIACK: Out on the street or something. Well now, I'm wondering, not so much of what udges would say, but what would society, as you know it, consider

an act of adu ltery to be in ·elation to a repudiation of a marriage. Is it fair to say that that could be considered conduct that's ;o unconscionable as to constitute an obvious and gross repudiation of the marriage? VIS. SKEL TON: Oh, definitely, because you look at court cases and you look at people talking l.bout marriages and, oh, look at that poor man' his wife ran away with somebody. lt's thought )f that way already. Or, look at that poor woman, her husband has been screwing around on her, md it doesn't matter, that's considered as that already. VIR.

CHERNIACK: In the case of that woman whose husband is supporting her, has committed m act of adult ery and it is obvious that he has done so, would you say that society would expect 1im to pay additional, over and beyond the need that is determined? VIS. SKEL TON: No. No, there's no need to pay beyond because he's done something. If he's done ;omething it was because there was something wrong with the marriage relationship to begin with md get it over with but just provide the maintenance needed for the dependent spouse and :hildren. VIR. CHERNIA CK: Thank you. \II R. CHAIRMAN: Mr. Corrin. III R.

CORRIN: Yes, thank you, Mr. Chairman. I'm particularly interested in the latter part of your >rief, Ms. Skelt on. You indicated that your group is particularly concerned about the possibility of !motional damage to childr en as a result of the harsh legal battles that often ensue in the cou rtroom ;etting.

I can tell you that I'v e practiced law for a few years and in this province and on many occasions 've been rather non-plussed and chagrined to find that I had come out, for instance, on the winning ;ide of a separation case, or my client had come out on the "winning side" of a separation case, tnd had obtained an order under the fault concept, more or less against the other party, but that he other party very often, for instance, a party who had co mmitted

an act of adult ery or had been :harged with mental cruelty had "succeeded" with respect to a custody applica tion, and I found hat you get into rather anomalous and inequitable situations because very often that party who 3 able to sustain the custody application and is deemed by the court to be qualified as an able 1arent, notwithstanding the finding that they perhaps had been responsible for

an act of adul tery, ; put in the position where they are very hard pressed to maintain the child ren of the marriage. 'm concerned, in view of the fact that you have evidenced the same concern as I have as to what ou think about this particular situation, whether or not you share my concern about the continua tion 1f this sort of situation in our courts. liS. SKEL TON: Yes, well, 1 take myself, for example. I'm a div orcee and I came out of a mental ruelty situation and it wasn't all my husba nd's fault, there's no doubt about that.

But the thing ; there is enough damage done to childr en just in the situation and through the marriage breakdown rithout, for instance, them having to go through maybe testifying in cou rt or something like this 'ecause, after all, the whole family has split and why? Especially young childr en because it's harder ) explain than maybe even older childr en and it's a damaging thing for the rest of their lives, no 1atter what you try to do. This has to be stopped because what you find is you find that in our 187

Statutory Regulations and Orders Tuesday, July 11, 1978 society, no matter how you look at it, it's people that hae come out of harsh conditions like th that end up having more problems, maybe further on in life. lt doesn't show up rig ht away but thes are all moral things we have to look at. ' MR. CHAIRMANI: Any further questions? If not, thank you kindly. Darlene Henderson. MS. SKEL TON: Oh, could I ask one more question? MR. CHAIRMAN: You want to ask a question? MS. SKEL TON: I have a brief here that has been written up by a local of the National Farmer Union who cannot be here to present it. MR.

CHAIRMAN: You may leave it and it will be distributed. MS. SKEL TON: Thank you. MR. CHAIRMANI: Yes, to members of the committee, we will ask the Clerk that that brief be printe in Hansard. MRS. DARLENE HENDERSON: My brief is here if someone would like to hand it out. My narr is Darlene Henderson. I am a Women's Advisory Committee member for Region 5 of the Nation Farmers Union. Members of an enlightened society will only accept marriage as a partnership of equals rath1 than a futile exchange of services where one partner owns the other as a chattel.

Therefore, t� sanction in law of the use of power gained by the economically stronger spouse based on the contr' of property, over the behaviour of the economically weaker spouse, must be terminated. lt is f< that very reason that the National Farmers Union asks that this committee recommend that B 38, The Marital Property Act, be amended concerning its treatment of the sharing of family an commercial assets. Bill 38 proposes that sharing of both family assets and commercial assets be deferred until tt time of marriage breakdown.

Therefore, Bill 38 means that spouses are not equal economic partne1 during their marriage. Webster's definition of the state of equality proposes that there is a likene! in magnitude or dimensions, value, qualitie s, degree and the like. The definition goes further to c1 equality the state of being neither superior nor inferior. Mr.

Mercier stated in his discussion of Bill 38 in the Legislativ e Assembly on Monday, May 2' 19 78, that the purpose for suspending the previous family law legislation was to simplify tt legislation, to make it workable and understandable, to make it equ itable while at the same tirr preserving the basic presumption that assets acq uired during marriage should be shared equal between spouses.

Yet a government supposedly dedicated to the principle of equal sharing deniE that very equality by saying that the assets acquired dur ing a marriage of equal partners, are n1 to be equally shared in law until that marriage dissolves. Is that not placing one of the spousE in a position of inferiority and the other in a position of superiority? Bill 38 goes even further to destroy the concept of equal sharing by providing the 10 discretiona factors of Su bsection 13 (2) so that the court may vary the equal sharing of commercial asse acquired dur ing the marriage and if and when that marriage breaks up.

These 10 factors must al! be seen as a perfect delight to most Manitoba lawyers. These 10 discretionary factors guarantE that the economically stronger spouse will continue in a dominant role over the economically weak' spouse, and thus- any step towards equality of spouses in Manitoba marriage has beE eliminated.

One of the strengths of the rural community of Manitoba is the abunda nce of family farms. dominant characteristic of such family farms is that the partners of the family work together to acqui ' the assets necessary for the continuation of that farm, which means that both spouses contribu to the best of their abilities to the functioning of that farm unit. In mathematical terms, equali can be seen as a comparison of two quantities which are in effect equal although differently expressE or represented.

Thus, the husband and the wife each work at tasks at which they are most efficie to provide the qua lities and the qua ntities which formulate the whole, the family farm business, ar yet this legislation proposes that these two spouses may, or will, not likely be considered economica equal. According to the 19 76 census, a total of 1, 203,17 4 off farm employment days were used supplement the farm income of 8, 151 farms in Manitoba. As many as 2, 11 8 Manitoba farms requin between 229 and 365 days of off farm employment to bolster farm income. Three thousand ar 188

Statutory Regulations and Orders Tuesday, July 11, 1978 vo farm operators who have farms of capital value exceeding $1 00,000 were required to work off trm 23.9 weeks of the year to supplement farm income. Needless to say, in most instances the erson left in charge of the farm was the farm wife.

In addition, we know that there are many farm omen who work at off farm employment to subsidize the farm operation, therefore, it is imperative 1at the contribution of the farm wife be recogn ized as economically equal to tha t of her artner. lt is the contention of the National Farmers Union that Bill 38 may destroy families and marriage y its perpetuation of selfish and archaic disregard for the rights of human beings. As quoted earlier, lr. Mercier says there is a presumption of equal sharing of assets during marriage in the proposed 'gislation.

However, we are compelled to say that it would be indeed presumptuous of anyone to elieve that they may take it for granted that equal sharing is a principle enshrined within this reposed legislation. This proposed legislation will, by its series of discretionary factors and its aspect f deferred ownership, continue to perpetuate the type of attitude where the contribution of one erson in a partnership is seen as less worthy than the contribution of the other.

To re-emphasize, it is the intent of the National Farmers Union to impress upon this com mittee 1at marriage should be seen as a partnership of equals and recognized as such in the legislation Manitoba. Once that marriage partnership is established, then all assets acquired from the efforts f that partnership should be shared equally, enjoyed equally, and if that partnership should dissolve, 1en the assets of that partnership should be automatically divided equally.

If it were the intent of 1e spouses involved within a marriage to make arrangements for other than equal sharing of assets �quired du ring that partnership, they would do so throug h the legal process of a marriage Jntract. If the law of this province states clearly that equal sharing of all assets acquired dur ing a marriage a condition of marriage, people will be aware of their rights and obligations under the law and 1ey will make the necessar� plans to vary the situation to meet their own individual needs, if �cessary.

Therefore, the Nationals Farmers Union recommends that The Marital Property Act, Bill 3, be amended to incorporate the principles delineated previously, namely: One, that any and all assets ac quir ed during a marriage be shared equally by both partners ' that marriage at all times during that marriage and also, if necessary, at the dissolution of that 1arriage; Two, that the discretionary factors listed in Su bsect ion 13 (2) of Bill 38 be stricken from the et; Three, that partners with in a marriage be recogn ized as equal economic entities in the law in anitoba. R CHAIRMAN: Would you permit questions? RS.

HENDERSON: Yes. R. CHAIRMAN: Mr. Pawley. R. PAWLEY: Mrs. Henderson, first I would like to cong ratul ate you and Jacie Skelton, who, along ith the Women's Institute yesterday, have certa inly brought to this committee the concerns of so any rural people pertaining to this legislation, particularly farmers' wives and how this legislation ight affect them. I would, if I cou ld, ask you to comment on the definition in Bill 38 of marital home. As you are ·obably aware, the homestead definition in The Dower Act is 320 acres.

Under Bill 38 marital home Jes not mean 320 acres but only inc ludes a portion of the property, the house plus that portion the property that may reasonably be regarded as necessary to the use and enjoyment of the ,sidence - that is, if it is part of a larger farm operation - so that that portion will be sliced Jt of the farm acreage. I would ask you, Mrs. Henderson, if the farm house and the acre or two 1rr ounding the farm house, if generally in rural areas the value of that compares with a house lot in town or in a city? RS.

HENDERSON: Yes, I suppose I would start by telling you a little bit about our own farm tuation. We have a

section and one-quarter of land. The farm house and the amount of property is bill proposes as being the family asset su rrounding it, is located right in the very middle of at one

section of land. There is no access to that block of land except through that property. J if there was such a situation as a marriage breakup in our family and this piece of property 1ich is deemed a family asset was divided, you would be dividing a piece of two or three acres the middle of a sec tion of land and it would have no value wha tsoever to anyone else except e owner of the property. There is another problem as well. In most munici palities now there is a law stating that division 189

Statutory Regulations and Orders Tuesday, July 11, 1978 of land cannot be made in smaller parcels than 80 acres, so if you were to sell this two or threE acres, which doesn't have any value anyway out there in the middle of the section, if you were tc attempt to sell it to gain some money, you know, to share with anyone, I don't know how you woulc do it because the law says that you cannot divide in any smaller pieces than 80 acres. MR. PAWLEY: Wel l, Mr s: Henderson, I think Mr.

Mercier or his advisors might suggest that thE court would establish a value, even if the farm holding, the farmstead, co uldn't be sold due to ThE Planning Act, that the court would at least be able to establish some value. Would there be l difference, in your view, in respect to the value of a farmstead, such as the one that you descri bec that you live in, and one which co uld be split off and sold to a third party? MRS.

HENDERSON: Yes, I would think that there would be a considerable iifference in value especially to the farm home situa ted on our land and a similar-type home, say in Winnipeg or Brandon or even in Reston, which is one of the larger centres close to us. MR.

PAWLEV: So I would not be unfair, then, in suggesting that in a situation such as your owr that the farmstead, which can 't be sold or can 't be transferred because of location or because o the Planning Act, that there would be no willing buyers, even if the law should permit, that tha farmstead would be of very little value in relationship to the total value of the farm unit.$ MRS. HENDERSON: Yes, that's right. MR.

PAWLEV: So tha t you would then, I would assume, rec ommend that we very qu ickly and withou delay return to the definition of marital home, the definition that has been traditionally used, an< that is 320 acres. MRS. HENDERSON: Oh yes, I think, as far as farm people are concerned, that's the only reasonabl1 and sensible thing to do. MR. PAWLEV: Can you think of any justification for the definition of marital home to be so restricte< as it is in Bill 38, then? MRS.

HENDERSON: No, I can 't except I might think that most of the people responsible for changin! that definition have never lived on a farm, have never seen a farm, and have never had anythin! to do with one, perhaps. MR. PAWLEY: Well, in fairness to them, Mrs. Henderson, I have to point out that they feel tha they generally in their caucus are very representative of the rural community. I would also like to raise another area with you and that is dealing with 13 (2) and the ten factor� Now, I have noticed, Mrs. Henderson, that the factors listed, that one factor is included that is no . . .

I believe there are two or three factors, but one principal factor is included that cannot br found in the Ontario legislation - I don't know about Alberta, but Mr. Mercier could comment late - and that is (h), the nature of the assets.

I would like to ask you if, on a farm where the farme is putting much of the savi ngs into farm machi nery or into cattle or or farm produce, if you feE that it would be possible that a cour t might examine the nature of the asset, the farm machine r} the combine, the tractor, the plough, or the hogs, or the cattle, and state that because of the natur' of that operation, because of the nature of those assets, that they would be considered to br non-dividable on an equal basis? MRS.

HENDERSON: The way that this bill is proposed at the moment, I cou ld see that happeninr because in our situation our land is owned in· joint title, but of course the assets of which you ar, speaking - the combine, the tractor, and what-not - are in my husba nd's name. So therefor even if the court should decide that the commercial asset - the farm - should be divided the could, by the nature of this number (h), deem that all the equipment that goes with the farm shoul, not be divided because it would be necessary to the continuation of the farming operation. MR.

PAWLEV: And certainly the acreage and the farm itself, which may have very well been hande down from grandfather to son and then again to the next generation, a court could very well examin that land and say by the very nature of the asset which has been carried down generation fror generation and dealt with within the one family, by its very nature it belongs to the male heritag in the family. Would that be an unreasonable view' in view of the wording that the Legislature i providing for the court here, that the cour t might arrive at? 190

Statutory Regulations and Orders Tuesday, July 11, 1978 �RS. HEN DERSON: I suppose. I believe inheritance is taken care of in another part of the bill, nd that is not included in the amount of assets acquired during the marriage. So we're talking ere about things like the farmland that is acquired dur ing the marriage. �R. PAWLEY: Though, Mrs. Henderson, I'd like to point out (

g) to you, which states in respect ::> inheritance "whether either spouse has assets to which the Act does not apply by reason of 1ere having been acquired, by way of gift or inheritance" in the value of those assets. So it appears 1at an inheritance can be taken into consideration and can be deduc ted from the equal haring.

In conclusi on, then, insofar as farm is concerned and the rural situation and the farm wife, you tould wish - and if I'm being unfair to you, please say so - you would prefer to see the elimination ,f the ten factors and I assume you would prefer to see the limited, very limited, discret ion, as ; provided here for the family assets; namely that little house and acre away out in the corner ,f the qu arter -section somewhere. �RS. HENDERSON: In the centre. IIR. PAWLEY: In the centre. �RS.

HENDERSON: Yes, I would definitely like to see the discretionary factors eliminated .!together, and I would definitely only be in favour of very very limited discretionary powers. �R. PAWLEY: Thank you. �R. CHAIRMAN: Mr. Mercier. �R. MERCIER: Mrs. Henderson, would you not agree that, even as was stated in the previous 3gislation, that a commercial asset is an asset primarily used or held, for in connection with a ommercial, etc., or other income or profit-producing purposes, that a commercial asset is something hat produc es income? Would you agree with that definition? IIRS. HENDERSON: Yes. IIR.

MERCIER: Would you therefore not agree that the land on a farm, with the exception of the lnd used for the home, is a commercial asset? it's an asset that produces income. IIRS. HEN DERSON: Certainly, and that's why I am asking for the commercial asset to be included tnd not be deferred until the time of marriage breakup. �R.

MERCIER: You were asking questions with respect to ... or answering some questions from k Pawley about the difference in the definition of a marital home under this legislation, and a tomestead in The Dower Act, and I am just trying to explain or cla rify for you that that is the rationale hat was used, that the balance of the farmland, other than the home, is a commercial asset. Just 1S in the city where somebody owns a 50 by 100 foot lot on which his home is and next door �ay have a garage or restaurant or some other little business, that separate property is a commercial sset. IIRS.

HEN DERSON: Yes, I see your rationale but I don't agree with it, because I feel that all the .ssets acq uired dur ing the marriage, family assets and commercial assets, should be divided evenly, hould be owned equally during that marriage and divided equally if that marriage dissolves. �R. MERCIER: Wel l, Mr.

Chairman, we went through this last night and I have come to expect hat there will not be unanimity over this legislation, but let me explain that it is the intention . . . think the government has the same objectives as many of the people that are making submissions 1 that in part the method by which we are attempting to achieve it is being misunderstood. As te explained last night that there is a presumption of equal sharing under

Section 13 (2) and, as �r. Cherniack explained on my behalf to another delegate earlier, that in fact there has already ,een a judicial decision in which a judge has said that it's only in cases of clear inequity that there rould be any variation. I take it you do not agree with that

interpretation of the legislation. IIRS. HEN DERSON: I don't really see - and it has been said very often in this committee room 1 the last couple of days - I don't really see why, if there is and if you sincerely believe that 1ere should be that presumption, why it cannot be clearly stated in the legislation. Why do we 191

Statutory Regulations and Orders Tuesday, July 11, 1978 need a presumption? Why can we not say what is what? Call it by its name. MR. CHAIRMAN: Mr. Cherniack, on a matter of privilege. MR. CHERNIACK: Mr . Chairman, on a matter of privilege. I'm sure I did not quote Mr . Merci< as saying that only in the case of a clear inequity would there be a varia tion. Because I have beE arguing that he ought to say that in the legislation and so far he has refused to say that in tt legislation. So I did not quote him as supporting that concept. MR. MERCIER: I should have prefaced my remark, Mr. Chairman, by saying that Mr .

Cherniac does not often quote me with approbation. Would your position be that an equal sharing is always an equitable sharing? MRS. HENDERSON: You 're talking about farm assets? MR. MERCIER: No, all assets. MRS. HENDERSON: Yes. MR. MERCIER: In every case? MRS. HENDERSON: Yes. MR. MERCIER: Thank you. MR. CHAIRMAN: Mr. Pawley. MR.

PAWLEY: I would like to just clarify, because I think that we do have a particular probler that has been raised by the discussions, that even if we proceeded with the assumption that th 318 acres is commercial and the two acres is to be treated as family, on the assumption that therefor we are being consistent with the non-farmer or the businessman in town, that we really have a inequity even between the businessman in town and the farmer. Is it not true, Mrs.

Henderson, th< the businessman in town usually has his house on one street and business, say downtown on th main street, totally detached one from the other, and the sale value of the house, therefore, is ne influenc ed by the fact that it's tied in or connected or attached to the business operatio itself? MRS. HENDERSON: Yes, that's true. MR. PAWLEY: So there is qui te a variation then, isn't there, with the treatment that's being provide here, on the farm situation as compared to the situation in town, as far as the businessman i concerned? MRS.

HENDERSON: Yes, the farm people are being discri minated against in this Act. MR. CHAIRMAN: Any further questions? If not, thank you very kindly. MRS. HENDERSON: Thank you. MR. CHAIRMAN: Mrs. Donnie Parker. Mrs. Parker, you are, I hope, aware of our tim limitations. MRS. DONNIE PARKER: Yes, mine is very short. Gentlemen and Ladies, thank you for letting me speak to you today. MR. CHAIRMAN: Can you get a little bit closer to the mike, please? MRS. DONNIE PARKER: Gentlemen and Ladies, thank you for letting me speak to you today. have suffered through three nervous breakdowns and was hospitalized dur ing each time.

I just gc out of Selkirk Mental Hospital three years ago in Jul y. My husband kept the children - two daughten aged 12 and 14. My last period of hospitalization lasted a year. My husband made arrangement when he was moving to dispose of our household goods and packed a very small box of ornamen1 and a few dishes to give to me. Since then, I have never seen my household furniture. All I ha 192

Statutory Regulations and Orders Tuesday, July 11, 1978 to show for the years of marriage were a few odds and ends. My husband kept the two gir ls until he met a 19 -year-old girl, whom he got pregnant, and seeing the gir ls were given unfair treatment from their dad and a gir l nearly their own age in the same house, they moved in with me. I just might add that this gir l also had a baby girl out of wedlock to begin with, which her mother looks after at present. Anyway the gi rls moved in with me after they made their choice of parents to stay with.

This .vas about the end of March or the beginning of April this year. While I was in hospital, my husband, my psych iatrist and social worker had a meeting which I attended. My husband stated that he did not want me back and that he would give me $50 a 11onth, as that was all he could afford. I realize now that that was really not the case, as he sometimes jid engraving, with the aid of the gir ls helping him, with the eng raving machine of the company 1e worked for.

Also, the fact that I never ran up a single bill for him to pay, except for Eaton's, Nhere I had to buy us clothing for the childr en to attend school. From there, other than my staying n a single room on Wolseley, I stayed at a halfway house. While staying at a halfway house, I attended =led River College where I attended upgr ading classes. Shortly after that, I found myself a job assisting Nith meals for the boarders. This job lasted till just a short time ago, then I had to apply for welfare, Jut was fortunate to find myself another job doing dishes and helping to clean up a cafeteria.

My husband stopped making payments of $50 per month last November, and I haven't received l penny from him since, except for $15 which he gave to my daughter to help buy something suitable or graduation. My daught ers came to live with me at the end of March, and have only a one-bedroom lpartment in a very old block to live in. A little while ago, I learned he had bought himself a colou r rv set. He invited his daughter over to see it, and I felt qu ite hurt, but didn't say too much because didn't want hard feelings between my kids and myself.

As well as purchasing a new TV set, he Jought furniture for his $245 a month apartment in someone else's name, so I can 't claim any of t. Besides this, he owns a Monte Carlo, which he bought brand-new about five years ago, and ·ecently he bought a new transmission for it. And also, I might add, he was always buying cars rom the time we were first married no matter how much money we owed.

I managed to buy sec ond-hand furniture and little odds and ends for the one-bedroom apartment n a poor district to make a home for my girls and myself, but find since they have come to live 111 ith me, it is hard to make ends meet. My husband ignored my requests that he at least pay the �50 a month, which was originally the amount intended, for support only. He liv es right here in Ninnipeg. I worked while married, taking my childr en out with me at the ages of three and four o gi ve child care to another two small childr en. I also did caret aking in Pla za 100 apartment with ny husband.

I did most of the cleaning and he did very little, really. My weight dropped from 17 0 o 11 0 pounds in no time, and it was shortly after that I was hospitalized. I worked whenever I :ould to supplement the family income as my husband didn't giv e me spending money or a decent 1mount of money to buy groceries - $20 a week, etc. My husband's money also went; once he :a-signed a loan of $1, 000 for a gir lfriend who married a man who did not fulfill his obligations, md as a result, my husband paid almost all of it. My sig nature was not required under the old aws. Will it be requir ed under the new law? Thank you.

III R. CHAIRMAN: Would you permit questions? III RS. PARKER: Yes. III R. CHAIRMAN: Anyone wishing to question Mrs. Parker? Mr. Cherniack. IIR. CHERNIACK: Thank you, Mr. Chairman. Mrs. Parker, you have described almost a classic 1xample of problems that occur which the courts have not been able to deal with and I'm just trying o see what could be done in this kind of legislation to take care of problems such as you had. 'ou say that your husband has alwa ys had a car during your marriage together? IIRS. PARKER: That is right. IIR. CHERNIACK: And you had furniture during your marriage together? IIRS. PARKER: Yes.

IIR. CHERNIA CK: You did not have a home that you owned? IIRS. PARKER: No. We once bought a home, but he didn't keep up the mortgage payments so re lost it. 193

Statu tory Regulations and Orders Tuesday, July 11, 1978 MR. CHERNIACK: So you lost the home. MRS. PARKER: Yes. MR. CHERNIACK: The furniture that he bought, the car that he bought, did you each have titl to it? Did you own them jointly? MRS. PARKER: The home that we lost, I did, but the car, I don't believe I did. MR. CHERNIACK: And the furniture? MRS. PARKER: The furniture, I did. Up until he sold some new furniture he had bought for th home, while I was in the hospital. He purchased new furniture. MR. CHERNIACK: He bought new furniture in his name, not in both names. MRS. PARKER: In somebody else's name. MR.

CHERNIACK: Somebody else's name altogether. But the furniture, when you lived togethe was it owned by both of you, or by you? MRS. PARKER: Yes, by both of us. MR. CHERNIACK: And what happened to it? MRS. PARKER: He sold it. MR. CHERNIACK: He sold it. And did you have any opportunity to claim repayment for your shar of the ... ? MRS. PARKER: Not really, no. MR. CHERNIACK: Wha t efforts did you make? MRS.

PARKER: Well, I was in the hospital, to begin with, for a few more months after he ha said he did not want me back, and he was paying me $50 a month and I was on my own ther and I only had myself to worry about but when it came time for me to take the childr en, becaus they co uldn't be with him any longer, I went to a lawyer and told him the ci rcumstances. MR. CHERNIACK: And? MRS. PARKER: And from then - pardon me. I went to see a lawyer after I had been petitione for div orce. MR. CHERN IACKWho petitioned for divorce? MRS. PARKER: My husband. MR. CHERNIACK: He petitioned to div orce you? MRS. PARKER: Yes.

And so then I went to see a lawyer and he told me just lately that my husban dropped out of it, and he would get a petition from me for div orce. MR. CHERNIACK: Meanwhile, is there a court order for payment, for maintenance? MRS. PARKER: No. MR. CHERNIACK: Was there any effort made to get you an order for maintenance? MRS. PARKER: Not that I know of. MR. CHERNIACK: And you had a lawyer who was supposed to be representing you in th: 194

Statutory Regulations and Orders Tuesday, Jul y 11, 19 78 MRS. PARKER: Yes. But actually, I guess it wasn't all his fault because I took it on myself to just �ladly accept the $50 a month and as long as I was getting tha t and only had myself to worry 3.bout, I didn't worry too much about it. The lawyer ... VIR. CHER NIACK: But that was a voluntary payment on his part? VIRS. PARKER: Pardon me? !II R. CHERNIACK: lt was a voluntary payment on his part. III RS. PARKER: Yes. VIR. CHERNIACK: And now that he's not paying it, are you not at least in the process of trying o get an order? III RS.

PARKER: Yes, I am in the process; yes, I am in the process. III R. CHERNIACK: Did you obtain a temporary order for support? III RS. PARKER: No. III R. CHERNIACK: Was this a lawyer provided to you through Legal Aid, or . . . ? III RS. PARKER: Yes. III R. CHERNIA CK: And you have not received any money from your husband? III RS. PARKER: Not since last November. III R. CHERNI ACK: Is he fully employed? III RS. PARKER: Oh yes, he is. I co uldn't find out where he worked; I have no idea. He quit his ob and he worked someplace else, and I don't know where. III R.

CHERN IACK: And you haven't been able to, of course, find out what he's earning, if you don't �now where he works. III RS. PARKER: No, I don't know what he's earning. III R. CHER NIACK: But you do know where he lives.? IIRS. PARKER: Yes, I do. IIR. CHERNIACK: And he is supporting someone else now?. IIRS. PARKER: That, I can't even say. IIR. CHERNIACK: Oh. But he is living in an apartment, which you say is $245 a month, you say - you know that. IIRS. PARKER: Yes. IIR. CHERNIACK: And what is your rent? �RS. PARKER: $14 5.00. •R. CHERNIACK: And you're paying that out of your own earnings?. IRS.

PARKER: From unemployment and from my own earnings. IR. CHERN IACK: Yes. On what basis did he start divorce proceedings? Do you know what his rounds were? 195

Statutory Regulations and Orders Tuesday, July 11, 1978 MRS. PARKER: He started div orce proceedings when he thought that we had been separated fo1 three years, but I had consu lted my psychiatrist and whatnot, and he had it written down that hadn't been separated three years until this Jul y, and this is why my lawyer is petitioning my husbanc now on my behalf for a divorce. MR. CHERNIACK: And you don't know of any assets your husband now has in his owr name? MRS. PARKER: The car, I believe. MR. CHERNIACK: The car.

Of course under the law that is being proposed you wouldn't be entitlec to claim any share in any of these assets unless you separated. MRS. PARKER: Wel l, my lawyer did say also that he felt that my husband should be allowed tc keep the furniture and whatnot when he had the childr en, and I more or less agreed. I mean, WE didn't own that much. But since I'v e gotten the childr en, I feel that if he can afford to buy a colou rec TV and a new transmission for his car and whatnot, I should be able to get some sort of support seeing that he doesn't even have to feed them. MR.

CHERNIACK: Is he supporting the childr en in any way? MRS. PARKER: No. MR. CHERNIACIK: How old are they? MRS. PARKER: Seventeen and fourteen. MR. CHERNIACK: Thank you, Mrs. Parker. MR. CHAIRMAN: Any further questions? Seeing none, thank you, Mrs. Parker. Oh - Mr . Corrin. MR.

CORRIN: I was particularly moved to hear about your experience with your husba nd's havin! pledged his cred it, as I believe you indicated, a co-signer of a promissory note, and as a resul of that, upon the default of the primary creditor, your husband, and of course, in these circu mstances your family, was forced to bear the burden of his irresponsibility.

I was wondering - I have wondered for some time - whether it wouldn't be a good idea, sine' we seem to be moving towards a community of property scheme in slow degrees, whether it wouldn' be a good idea in the next four to eight years - and I'm being somewhat facet ious, for the edificatiol of the Attorney-General .- if the government were to enact legislation and perhaps by way a amendment to this Ma rital Property Act that would provide that no party to a marriage, no spouse could pledge his or her credit without some form of approbation or approval being given by th< other affected spouse.

Now, I should tell you that there have been problems, I am told, in the past, when this ha happened. In jur isdictions where this has happened I am told that the business community ha� over a period of time, risen up and they have found that the process of paper transfer, the proces of arranging credit and so on, is slowed down to such an extent that they find it - I am told the have found it to be intolerable. But I'm wondering whether or not you would agree with me tha the rights of people such as yourself should probably, in an equitable and a just society, supersed the rights of the commercial sector. MRS.

PARKER: I believe that's true. MR. CORRIN: Thank you. I'm pleased to hear that you believe that as well. MRS. PARKER: Thank you.$ MR. CHAIRMAN: Thank you, Mrs. Parker. Council of Women of Winnipeg - Mu riel Arpin or El izabeth MacEwan. MRS. ARPIN: Mr. Chairman, I'm sorry, I hadn't realized that we had arrived at 30 already. Mr. Chairman, my name is Mu riel Arpin, and I'm speaking on behalf of the Council of Wome 196

Statutory Regulations and Orders Tuesday, July 11, 1978 Winnipeg. This brief has a very narrow focus, and the reason for that will appear as we continue 1 go through the brief. The Council of Women welcomes this opportunity to present a brief to the Law Amendments ommittee - except that this isn't the Law Amendments Committee - with reference to Bills 38 1d 39. The Council is a branch of the National Council of Women, founded in 18 93, and a federate the Provincial Council of Women of Manitoba. The Winnipeg Council consists of 39 federated ;sociations at the local level.

These are ethnic, church, political, business and professional, health, �tive, auxiliary and service organizations of women. When a resolution, or when policy is made 1 any level in cou ncil, it is distributed to all the organizations. lt is really a grass roots determination ' policy. Consequently, I am only permitted to speak, not in my own personal capacity, but as 1e voice of policy that has been decided by cou ncil.

In 19 69, Council passed the resolution that The Divorce Act should be amended to provide that, the event of a divorce, provision must be made at the time of the divorce is granted for an equal 1vision of property acquired by the marriage unit during the years of a marriage partnership. Now, ordinarily this would be left to the Provincial Council as it was, and in this case, to the ational Counci l, to carry it forward in their presentation to the Federal Government. But there was concern at the local level when the law was suspended and when the committee of review was �t up.

At that time, in November, the local council felt that they wanted to express their particular pinions and not just leave it to the provincial cou ncil, because this was a matter that affected women ; a whole. At the general meeting of the council in November, 19 77, the Federated Associa tions )ted to affirm the right of spouses to an equal share of the assets accu mulated by the marriage artnership. Now, some of our Federated Associations have developed more detailed and )mprehensive plans as to how that sharing and the time at which it should take place, but all ffirm the principle of equal shari ng.

You have listened to one or two of those associations. You ave also listened to people who are members of co uncil. At this point, the Winnipeg Council present just their views on the common policy that they etermined in November. In the first we deal with The Marital Property Act. In respect to The Marital Property Act, cou ncil has supported the position that the Act must pply to all marriages in Manitoba and we are very pleased that Bill 38 provides for this application nd that opting out must be by agreement.

We also recogn ize that this legislation will be the legislation" that brought marriages and the marriage relationship in Manitoba out of the Victorian mes of the 19 th Century and into the 20th Century. We commend you for this. Now, council supports the concept of marriage as an interdependent partnership of shared �sponsibility, an economic and social partnership of legal equals. Each spouse is regarded as making valuable and an equal contribution to the partnership.

If two persons entered into a partnership > carry on a business or to offer professional services, and agreed to share equally in the assets ccu mulated by the partnership and if at some point one partner withdrew, the partnership wou ld e dissolved and the accu mulated assets shared equally acco rding to the agreement.

I would think 1at all of you perhaps have had some familiarity, say, with lawyers in partnership, and I'm speaking ow of my native province, where perhaps one person in the partnership, as I recall it, was a charming yer from the war - that's the war of 1914 to 1918 - who was terribly charming and really a �asonably brilliant person, but his forte was really to attract clients to the partnership and he became 10re and more interested in the social side of life and eventually, because he was really not carrying is legal end of the partnership, the partnership was dissolved.

But there was no question of looking t his performance. There was a partnership agreement and the assets were divided equally. And 11 of you, of course, know the situation where one partner is incli ned to be in his cups occasi onally, frightfully charm ing chap when he isn't, but he is, and eventually it comes to the point where e either joins AA or the partnership is dissolved. In that case there is no enquiry made either. he assets are equally divided. We feel that the same princi ple should be applied to the partnership f marriage.

Although the word "partnership" is not mentioned in the bill, and it might be an interesting idea, lthough it is unusual in Canadian legislation, to add a

preamble to the Act and state the principles 1at this Act is recognizing. The Legislature here is proposing to change the dependency relationship 1 marriage to bring it into accord with the situation today, a relationship entered into by two equal pouses, each making an equal, if different, contribution to the marriage. Now,

Section 12, which is my favourite section, and this is the one that we are particularly >cuss ing on from Council's point of view,

Section 12 then provides that the spouses each have 1e right to have their assets equally divided between them in the event of breakdown of the marriage, ubsections (

a) to (d), or in the case of

an act of dissipation. That would appear to be sufficient nd

Section 13 seems to be unnecessary. I do not see any point in dividing the assets into two categories, commercial and family, if both re to be shared at the same point in time. I did have some experience, since 19 68, working to ave this concept realized. There was a group of very ded icated volunteers who went everywhere 197

Statu tory Regulations and Orders Tuesday, July 11, 1978 they were asked in Manitoba to speak about the case of Mrs. Mu rdoch and the general situatio of the married woman in Manitoba. When we would finish talking, the women, and we spoke t farm women, to university women, even at the request of their teachers to high school student� and there was always this thing: What can we do? We would say, at this point, and it still hold today under the condition of the present law, your only hope is to draw up a marriage contrac And they sa id, what would we say in a marriage contr act?

We sa id, well, you want to speak abOL the assets of the marriage, so speak about what you are not going to divide and then speak aboL what you are going to divide. Even tually, the pressure became so great, that we borrowed a contra< from a lawyer in Saskatoon who had been called the night before a marriage to draw up a cont ra< for a young couple approaching matrimony, and this is a contract as simply as possible. lt say� having given that they are contemplating matrimony,

now therefore in consideration of the mutw covenants made herein, the parties hereto agree as follows: First, that all property, both real an personal, owned by each party hereto on the date hereof and all property, both real and persona acq uired by each party hereto by way of gift or testamentary disposition, shall remain and be th sole and exclusive property of that party now owning or hereafter acquiring the same.

And, twc that all other property, both real and personal, acquired or earned by either party hereto durin the contemplated marriage, including but not limited to wedding gifts and income earned fror employment, shall become the common property of the parties hereto, to each an undivided one-ha interest. Frankly, we thought that would make an excellent law just like that. Now, that's the type of ... This is what the women of Manitoba have become accustomed tc This is what they see as being just or necessary. So at this point, I would say, Mr . Chairman, that

Section 12 really covers the field ver satisfactorily. Now, I don't know how effective that particular view is. I would say this, if you mu! have discre tion, let it be very limited and only where the court was satisfied that a division of asset in equal shares would be grossly unconscionable, and I would stop right there, and just simply grou all assets under the terms of 13 (1) . I think as far as 13 (2) is concerned, it is simply an effort to write a number of terms into thi marriage agreement in relation to commercial assets.

A very simple cont ract written before marriage, providing for equal sharing of assets accu mulated during marriage, excluding gift� bequests, and property brought into the marriage, would be enforceable in the court, and they woul make no enquiry into the nature of the asset or when it was acquired, or anything of that sor I think that if

Section 13 (2) remains in the Act, the signing of such a contract would be a recommende procedure. We are asking only for equal sharing and not that the female spouse may receive possibly larger amount under the provisions of

Section 13 (2). Let it be the ordinary, average, economi arrangement in a partnership. Now, then, very briefly, Mr. Chairman, with reference to The Family Mai ntenance Act. The Counc also dealt with maintenance in 19 69. lt does sometimes seem to me that Council gets around t doing these things quite soon. At that time, there was gr ave concern over the collective failure c the courts, the administration and the government, to deal adequately with the question c maintenance awards.

Now, in the interval, some progress has certainly been made, but th percentages of maintenance orders in default vary from jurisdiction to jurisdiction, some as hig as 85 percent. One of the proposals presented to the Manitoba Government in 19 70, at that time, was th creation of a maintenance award fund into which maintenance awards would be paid, and out c which a basic maintenance would be paid to the estranged family, regardless of the maintenanc paid in. Funds recovered over the basic maintenance would be paid to the estranged family. I mu! admit that this was not received with great enthusiasm.

As far as The Mai ntenance Act is concernec there are - not The Family Property Act, the one issued by the Federal Law Reform - the Famil Law Enforcement of Mai ntenance Orders, there are about 18 or 19 suggestions there fc improvement. But even if every order could be enforced, and this is really going a bit outside th scope but I think it is related to family law, that is, the other partner did ha ve the resources t meet the payments, there is still a gr eat problem remaining.

We refer to these two laws as th family law package. lt is not really a family law package. lt does strengthen the family; it does de< with the rights of the wife both to property and to maintenance, as well as with maintenance < the chil dren, but these laws cannot solve the problem for the sole support parent, usually the mothe with no resources except welfare. She is contributing approximately $1 0,000 worth of ordinar services to society and incalculable other services in raising the family. Society is going to hav to face this fact for its own safety and its own preservation.

There must be a recog nition of th significant economic contribution made to the State by the sole parent raising chil dren, and hig priority must be given to all sorts of measures, financial and otherwise, which will support her i this task. 198

Statutory Regulations and Orde rs Tuesday, July 11 , 1978 III R. CHAIRMAN: Mrs. Arpin, will you accept questions from members of the committee? III RS. ARPIN: Yes, if there are any. III R. CHAIRMAN: Mr. Pawley. III R. PAWLEY: Mrs. Arpin, I wish to commend you on your brief and also, I couldn't help but note, >n Page 2 towards the bottom, you indicated that if

Section 13 (2) remains in the Act, the signing >f such a contract would be a rec ommended procedure. I gather, then, that your organization, if his legislation is passed as presently drafted, would be doing all tha t it can to encou rage those vho are on the verge of marrying, to enter into contracts in order to assure themselves that they vill not be misled into thinking that they have an equal-sharing arrangement when they don't, under he existing law. III RS. ARPIN: Mr. Chairman, our particular organization might well, or might not do that. There 1re other organizations that are equally interested. But certainly I consider that 13 (2) is not a very ;afe

section in the Act. Therefore, I would say, as I recall us trav elling throug h Manitoba, you know, rom Flin Flon to Thompson in the north, distributing copies of this - I am sure the lawyer would >e excited in Saskatchewan - distributing copies of this contract as we went as requested by nothers and daug hters and by university people. Now that was the law at that stage.

If the Act goes through in its present form, I have been advised by practitioners of family law hat this would be sure-fire insurance and, frankly, my advice to anybody going into marriage would >e to sign that sort of contract and thereby escape the provisions of this Act. This is the contract hat we have asked that the government, the Legislature, pass for this purpose. III R. PLEV: Mrs.

Arpin, cou ld I just express a concern that I would have now with this legislation n contrast to the old legislation, the New Democratic legislation, that which existed prior to that, >eople then knew that there was no equal sharing and if a couple wished to ensure that there would >e equal sharing they would enter into a contract.

Do you see a danger now that with legislation vith so many factors and various escape clau ses, that couples may very Well, though giving lip service o equal sharing, that couples may neglect who would otherwise enter into cont racts, feeling tha t hey are protected by legislation, to eventually find to their disappointment that they have been >rejudiced in gr eater nuers than previously. III RS. ARPIN: I never liked the term "protected" particularly.

Secondly, I think that the person who ·eally needs to concern themselves about the legislation, althoug h times are changing, is the woman, md I think the woman has a responsibility to find out exactly what her situation is and provide 1gainst the perils that may lie in this Act. On the other hand, this Act could very well lead to equal ;haring as far as I'm concerned. You know, it is very possible. But I like a sure thing. I think women, md younger women particularly, are very conscious of this situation now and for people like me, vhat could I do about it. III R. PAWLEY: Thank you. III R. CHAIRMAN: Mr.

Cherniack. III R. CHEIACK: Thank you, Mr . Chairman. Mrs. Arpin, you state in your brief that you're asking mly for equal sharing and not that the female spouse may receive a larger amount under 13 (2). rhis flies in the face of the memorable words of the Attorney-General which I would like to quote o you. He said: "I think there are undou btedly a number of cases, in many cases, where a female �pouse Will be entitled to greater than 50 percent division of commercial assets depending upon 1er involvement, etc., in the initiat ion and operation of a business. And I would therefore submit, v1r.

Speaker, that this provision will go further to protect women's rights than previous legislation vhich only allowed extremely limited discre tion and thus bound the female spouse to only 50 percent. sugge st that this legislation will go further to protect their rights and their efforts in the establishment >f commercial assets. " In the lig htS of the Attorney-General's opinion and statement, wouldn't you say that you are not reating your constituents very well by rejecting his proposal that many will receive more than 50 >erce nt?O! IIRS. ARPIN: Mr.

Chairman, women ask only to be equal cit izens with equal rights to men. We 1ave no desire for a preferential treatment. Perhaps we are not as material minded. Mr. Chairman, have answered the committee member's question but I also think that the Attorney-General may 199

Statutory Regulations and Orders Tuesday, July 11 , 1978 be qu ite accurate in his statement. I don't know how many there would be at this point as wom1 go on, you know, going into positions and earning money and this kind of thing, there may be mor But I find

Section 32 very unclear. I think that the provisions in it are either redundant or real irrelevant to what we see as the principle that should stand behind this law. MR. CHERNIACK: Well that's the point I want to get to, Mrs. Arpin. We have been playing wi words here for some time now. The Attorney-General has quoted from a Silverstein case, an Ontar case, where a judge spoke about the principle of equal sharing except where it is clearly inequitab and we have challenged the Attorney-General to say so in this 13 (2).

If he means it, le< him s; "except where it is clearly inequitable," and he has not yet ag reed to do so. But what we ha' here, it says, "inequitable" , the word "clearly" is not there, "having regard to any cir cumstanc1 the court deems relevant including" - including, which means it may be in addition to these vari01 items, in addition to what he thinks are circums tances. I have looked in this

Section and the preceding one, 13(1 ), to see the extent to which condu of the parties to the marriage could be a factor which could affect the principle of equal distributio and I don't know that it is there except in the vagueness of the words in 13 (1) "having regard I any extraordinary financial or other circumstances of the spouses," and in 13 (2) where it says "havir regard to any circums tances the court deems relevant." Other than that I would think that thE may argue that conduct is not a factor here. MRS. ARPIN: Who would argue that, Mr. Chairman? MR.

CHERNIACK: I think the Conservative Party representatives will argue that. MRS. ARPIN: Well it is not specifically stated and I do not know, you might say that oth1 cir cums tances might be restricted to be of the same type of the ten who are mentioned and th1 may well be, you know, a possible construc tion. But I simply find that the ci rcumstances given a1 irrelevant and, you know, I really don't think that we are prepared to accept Sections 13 (1) an 13 (2). MR. CHERNIACK: Well, Mrs.

Arpin, I think you realize that I, for one, am in complete agreeme1 with you, but I am also in the minority and I think we have to try to convince, persuade and 1 some extent compromise with the Attorney-General and his coll eagues in an effort. to accomplis as close to what we believe as we can, bearing in mind that they make the decision.

In the ligt of that, do you think it would be helpful if we could argue strenuously that we should clearly elimina1 conduct as a factor for the courts and if they insist on bringing in all these other factors, at lea: we will have succeeded if we clearly eliminate conduct and, therefore, remove that possibility fr01 the courts. MRS. ARPIN: Mr. Chairman, I think that would be fairly accep table. Frankly, when you have c many circum stances as you have in there, I really don't think it matters if you stir conduct i too. MR. CHERNIACK: I'm afraid you are right, Mrs.

Arpin, but still I am groping for some way to cop with this. MRS. ARPIN: Mr. Chairman, if we must have some sort of guiding principle, the only thing th< 1 personally, and this is not really a clearly articula ted policy of cou nci l, but looking at it in the ligt of what we call equal sharing, if all the assets were grouped under 13 (2) and that weird limite discretion of unconscionable and so on were left in - althoug h I must admit, Mr.

Chairman, th< going home on the bus 1 try to think, you know, what would really be this odd situation that woul entitle the judge to exercise his discre tion, and I am hard put to think what it might be. But I thin it would have to be so gross in the sense that my teenagers use "gross" and so obvious that would not arise very often. MR. CHERNIACK: Thank you. I wish you were right. 1 want to move now to The Maintenance Act and you don't really comment on the question < conduct in the bill. MRS. ARPIN: No, Mr. Chairman, because we do not have a particular policy on that. MR. CHERNIACK: Well do you mind, Mrs.

Arpin, if I ask you about that or would you rather no personally. 200

Statutory Regulations and Orders Tuesday, July 11, 1978 VIRS. ARPIN: I don't mind, Mr . Chairman. VIR. CHERNIACK: Thank you. The conduct feature in The Mai ntenance Act does provide that the :ourt may in determing the amount of support and maintenance have regard to a cou rse of conduct - well I start by saying to me it's nonsensical to talk about support as supplementing or taking :are of a need and then bringing in conduct to determine the amount as if the need will be affected JY the amount.

But then it goes on to say, "have regard to a course of conduct that is so mconscionable as to constitute an obvious and gross repudiation of the marriage relationship." , too, have difficulty understanding that although in the minds of many, as I mentioned earlier, one 1ct of adult ery which becomes known as in the case of Harrett, has been sugge sted that that could Je "obvious and gross repudiation of the marriage relationship." Now we are talking about ·epudiation of a marriage relationship and it is not clear to me in reading this since the clause is vritten in the present tense whether it is meant by the drafters or proponents of this legislation 1 conduct prior to the separation or subsequent to, and that to me is very important because if t is conduct prior to the separation then a repudiation of the marriage relationship in itself is a ;eparation.

If on the other hand it is subsequent to a separation, then do you understand what s the point to saying it is a repudiation of a marriage relationship if it has already been repudiated >y a separation and, therefore, how can it be gross and obvious conduct. I am not asking you as much for a legal

interpretation although I would respect your opinion, am asking for an opinion of how we try to work with the majority group of this committee to ry and have them adopt a posture relating to conduct before separation, during marriage and :onduct after separation. Do I make clear what I am trying to get at? i/IRS. ARPIN: Mr. Chairman, I don't think that I have any particular difficulty with the wording of he section. Once the marriage relationship is repudiated by a separation then obviously it must >e the conduct before.

But in the second point I have very gr eat difficulty with this concept because o my way of thinking the conduct is completely irrelevant. I realize, as I did when I went to live n Ottawa from the West, and I heard about the Bible 1:3elt of the West and thought they were talking tbout North Dakota but I got to Eastern Canada and discovered that I was living and was shaped >y the Bible Belt of the West. And I just feel that people with our western prairie philosophy cannot !are to have, you know, adu ltery or that kind of conduct without seeing it punished.

I accept that ts perhaps, you know, one of our failings out here. We've got lots of positive things going for us >ut that is just our backgrou nd. I don't think that conduct has any place in separation, in the division >f property or anything else. I think it should be based on need and it should be continued as :mg as is necessary, should give women the option of staying with their childr en if they feel that 5 the way they want to bring them up and that's my answer, Mr. Chairman. IIR. CHERNI ACK: That satisfies me, Mr. Chairman. IIR. CHAIRMAN: Mr . Mercier. IIR. MERCIER: Mrs.

Arpin, I want to thank you for presenting the brief and obviously a nuer of ears of hard work in arriving at least at this point. You have indicated that for a nuer of years ou travelled around the rural areas of the province discussing the inequities that have arisen like he Mu rdoch case. IIRS. ARPIN: Yes, Mr. Chairman. We visited, on invitation always, we visited women's institutes. Ve visited groups in northern cities, status of women's groups sometimes, sometimes groups called ogether by interested people who cou ld see this looming up on the horizon.

We visited public schools, igh schools, universities, any place where we were invited there were three indomitable musketeers 1at went, presented what was called "The Balloon Lady" . lt was also filmed and used by the people rho conduc ted the FOCUS programs in rural areas, as part of the way of portraying qu ite vividly, must say, the situations of marriage. �R. MERCIER: Did you talk at every gathering about the advisability of having a marriage ontract? IRS. ARPIN: Certainly. lt was part of our format. IR.

MERCIER : This will be a very difficult question: co uld you estimate approximately how many eople you spoke to and how many people actually entered into a marriage contract? 201

Statutory Regulations and Orders Tuesday, July 11, 1978 MRS. ARPIN: No, Mr. Chairman. I could if I wanted to go over our records. I think we made, a a gr oup of three, around 50 appearances. Sometimes a group of two would have to do it, becaus we were volunteers, you know, doing it pretty much out of our own resources and I think we ha between 40 and 50 groups. Some of those would number as many as 200, some of those woul number as many as 25. And so, you know, you can perhaps work out an average.

We also held a conference at the University on the economic position of the women in the famil• This was done under the auspices of The Manitoba Action Committee on the Status ( Women. Now then to tell you how many people used it, no, I can 't although people would come to L afterwards and say that they had used this contract, and they would take copies of it with the1 for the purpose of using them. But I can't really say how many people did. MR. MERCIER: Thank you very much, Mrs. Arpin. MR. CHAIRMAN: Mr . Corrin. MR. CORRIN: Thank you, Mr. Chairman. Mrs.

Arpin, you didn't tell us how many women your counc represents. Do you have that figure av ailable? MRS. ARPIN: At this point are taking a su rve' we lt runs from, I would say, approximately 50 some of the service club s to perhaps 4,000 in the YWCA. The Provincial Council of Women w give you the statistics, I think perhaps for all of Manitoba, and the local council of Winnipeg is very large part of that. MR. CHERNIACK: 40,000

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-2-sro6
Type	hansard
Volume / chapter	31st 2nd hansardpdf sro6.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	6ddbd44a84ecce2362ab5b356bb2fc425fb6029d

Source file is stored in the law ingest library (pdf).