Manitoba Committee Hansard — 12 December 1977 (Legislative Affairs Committee, Sitting 7, 31st Legislature, 1st Session)

31-1-la7

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba HEARINGS OF THE STANDING COMMITTEE ON LAW AMMENDMENTS Chairman Mr. J. Wally McKenzie Constituency of Roblin Monday, December 12, 1977, 10:00 a.m. Printed by P.N. Crosbie -Queen's Printer for the Province of Manitoba

Law Amendments Monday, December 12, 1977 Time: 10:50 a.m. CHAIRMAN: Mr. J. Wally McKenzie. MR. CHAIRMAN: I'll call Sh arron Gr anove. l call Mr s. Pearl Cyncora. l call Ell en Krueg er. l call Ruth Pear. I call Ralph Kyritz. I call Ann Jacks on. MRS. ANN JACKSON: Mr . Chairman and memb ers of the committee, can you hear me? I don't know whether these microphones are adjusted for me. A MEMBER: Push it down. MRS.

JACKSON: I agree with people who made sub mis si on formerly, that is , I sat here on Saturday :md listened to some of the submissions, and my organization, which is the Winn ipeg chapter, ::: ongr ess of Canadian Woman, and its affi liates, the women's branches of the As sociation of Un ited Jkrainian Canadians, the Federat ion of Russian Canadians , and the Un ited Jew ish People's Order, 'elt that we were given too short notice. In fact, we ju st found out Friday that we would be able to make mot her su bmis si on to this committee.

Therefore, we had no alternative but to read the previou s brief, >r part of the previous brief which we su bmit ted to the former committee, partly because we feel that t's sti ll relevant, it's st ill our position, and because there are many new faces and I'm sure that some of rou have not heard this brief before. I'd like to point out that our organization is part of a world-wide organization -the Women 's nterna tional Democratic Federation -with 12 1 member organizations in 10 6 countries.

The WID F tolds consultative status B at the Un ited Nations , which covers non-governmental organizations, tnd as such participates in the work of the UN Comm ission on the Status of Women which resulted in he Univ ersal Declaration of Hu man Rights, the Declaration of the Rights of the Child, and the >eclaration on the Eli min ation of Discri mination agains t Women. lt was upon the sugges tion of the III DF, backed by other non-governmental organizations, that the Un ited Nations decide d to de clare 975 In ternat ional Women's Year, which marks the beginnin g of a decade for women as adopted by 1e Ge neral Assembly of the Un ited Nations.

I might point out that we are now going into the th ird ear of the Decade for Women. Our parent organization has made su bmiss ions to the Un ited Nations :ommis sion on the Status of Women, recommending democr atic laws of marriage, equality in case f divorce and inher itance, equality in the rig ht of owner sh ip, equality in the right to work and equal ay for work of equ al value, equal rights and respo nsibi lities in matters concern ing their children, radication of all thos e trad itional customs and prejudices which in some countries p=event women om obtaining emanci pation and thei r ful l status.

I bring this out to point out that this qu estion is not 1erely a local or provincial matter. lt is a worldwide movement on the part of women to gain equal ghts in marriage. One of the purposes of our organization is to advance the st ability and we ll-being f the family, which we consider to be the foun dation of society. We welcome, ther efore, the �tablis hmen t of the Law Reform Commis sion, and we believe its report to be a big step forward in te right dir ection.

We endor se the recommenda ti ons of the Action Coalition on Family Law in 'inciple, as outli ned in their presenta tion, and in addition we would like to dr aw attenti on to some ·eas which are of spec ial concern to us. The twentieth century has seen a period of accelerated change and te chnological advance which >roots fam ily to follow indu stry. lt has also seen changin g modes of living, from farm and reserves to ·ban centres, as well as a tr ans ition from the suppor t of the extended fam ily unit to the is olation of e nu clear family.

We mu st see to it that fam ily law changes to meet the needs derivi ng from thes e 1anged con diti ons, affect the marital child-raising envir onmen t. While we believe that the report of the Commis sion is excellent in many ways in dealing with arital separat ion, it falls sh ort of de aling with exis ting marriages. Family law in our tim e mu st 1ttress the family milieu, bolste ring the harmony between hu sband and wife, and elimi nating the equ alities which create friction and hosti lity. This purpos e can best be served by provision for full 1d imme diate commu nity of property during marriage.

If we concern ourselves only with the �solution of marriage, it becomes a case of locking the barn door after the horse has been sto len. 1e non-earn ing spouse, in the vast majority of cases the woman, should not have to wait for :miage breakdown to est ablish her right to a fair share of the property accumulated du ring the miage. lt would appear to us that"if shari ng takes place only on marriage break up," to reite rate an inion exp ressed at the previous pu blic hearings on family law, "the economically weaker spouse s a st ronger incentive to force such a break up." Marriage can only be str engthened if the non rning spouse is not put in the hu miliating positi on, as many now are, of having to ask the earn ing ouse for money.

To remedy the situ ation would be a positive step in creating and maintain ing rmony in the home, with the resultant good mental health of all its mem bers. We believe that young people should be prepared for a good sh aring family life. This could be ained thr ough high school education and pre-marital couns ellin g by well-tr ained, competent rs onnel , as well as the sal utary effect of a happy home envi ronm ent. At present, people go to trriage counsellors only when there is danger of breakdown, or when the marriage has already >ken down.

We recommend that a pamphle t explaining the new family law be is sued with each

marriage license. Law Amendments Monday, December 12, 1977 In the sec tion dealing with maintenanc e and necessity for tr aining or re-training skills of the non earn ing spouse on separat ion or divorce in order to become self-su pporting in the sho rtest possible time, we must point out that in most cases this would be impossible wit hout adequate child care facilitie s. We propose that the government make a str enuous effort to increase the numb er of such facilitie s. This applies to afte r-school and lu nch hour super vision, as wel l, which at present are far from adequate.

Regarding the opting out clause, we believe it ten ds to neg ate the whole idea of partnersh ip in marriage. We feel that opting out mu st be a dual agreement on the part of both partners, not just one. Furthermore, before opting out, the partners should be coun se lled fully about the implications of this step, and it should not be und ertaken too early in the marriage. Should there not also be a provision for the pair to opt in again if they change their mind s?

In attem pti ng to reform our outdated fam ily law, we might well be guid ed, as sugg ested by the Berger Commis sion in its sixth repor t dated March the 9t h, 19 75, by the following concepts: (1) all persons should be equa l und er law; (2) marriage is a partner ship of shared respo nsi bilities; (3) the roles of economic provider and homemaker are of equal value to the re lationship; (4) married women are equally competent. Equality in marriage is includ ed in the World Plan of Action adopted by the In ternational Womens' Year Conferenc e held in Mexic o, at which the Canadian government was represented.

See Ite ms (

i) and (

j) in the extracts from the World Plan of Action, attached here too. We ther efore appeal to the Committee to recommend legisla tion which will enable women to achieve full equal ity as human beings and as citizens, withou t fur ther delay. If anyone wants a copy of this, I'm so rry I don't have many, but it's in Hans ard for November the 23rd, 19 76. -(Interjec tion) -I'm not through yet. MR. CHAIRMAN: Oh, I'm sorry. MRS.

JACKSON: When we fou nd out what was happening to the leg islation which was passed by the previous government, which we approved although it didn't achieve all the aims that we were after -we were very pleased, but then when we fou nd out what happened, we wrote the following letter to the Prem ier, and I would like to read it in case some of you have perhaps mislaid it: "Pr emier Sterl ing R. Lyon, Leg islative Buil ding, Winnip eg.

Dear Sir : We are writing to you in connection with the Manitoba governme nt's inte ntion to repeal and rev iew the recently proclaimed leg islation embodiec in the Family Maintenanc e and Marital Property Acts.

Almost 11 years ago, after decades o• stalemate in which women struggled along un der the outm oded ' concepts of Victorian legislation, the federal government esta blis hed the Royal Commi ssion or the Status of Women , with a vie w to "ensure for women equa l opportunit ies with men in all aspects o Canadian societ y." Four years later, this Commission made many recommend ations relating t< women's marital status, and particularly with property rig hts and mainte nance -Chapter 4, Womer and the Law, pages 225-290.

These recommend ations were fur ther studied by the Man itoba Lav Reform Commission and, after three years of stud y and hearing representat ions from ind ividuals an< organizations, from various levels of society, the two laws in que stion were largely based on it: report. We submit that after 18 years of stud y and discus sion, the time has come to implemen legisla tion and to see how it me ets the need. In our opinion, there is no point in delayin! implementation of this leg is lation and adding $60, 000 in expenses for th ree lawyers to review thes• laws at this time .

Suc h an expenditure hardly fits into the government 's annou nced program of fis ca restraint. Nor does the appointment of a disse nti ng male lawyer, who obviously does not agree witl the fam ily law

section of the Manitoba Bar Association, ensur e that the recommend ations of th ReView Committee would meet with gr eater approval or to be more appropriate to the ne eds of th problem. We believe that time and experienc e in the func tioning of the Acts as originally proclaime will reveal the changes that may be req uir ed in the future, and that for the present the majority c women will be prepared to accept the jud gm ent of the courts in any disp utes that may result.

I would jus t like to give you a couple of quotati ons, and one of the previous subm issions, that ist the previous Law Amend ments Committee, one which I thought really made a good point. lt was, think, subm itted by Bern ice Sis ler. She said, "Why do we need change in fam ily law? Laws reflect th attitudes of an era in which they were form ulated.

Cu rrent laws govern ing women and fam il relations hips are based on the common law of feudal England . lt is evident that the att itud es the reflect are out of date and that change is long overdu e." Further, she said "today society no longE regards wives as the property of hus bands. lt is unr ealis tic to bring expec tations of a different tim e 1 bear on the present reality." In 19 68, Senator Mur iel McQueen Ferguson made the following remarks in her speech to t� Sena te in the supp ort of Bill C1 87, and Act respec ting divorce: "One reason why I would like to ha1 one law thr oughout Canada to govern the division of marital property on divorce is that in this Hum a Right s Year, I trust that Canada will sign and ratify the interna tional covenants on human rig hts.

Or of the these is the Int ernational Covenant on Civil and Politic al Rights which req uir e state that ratify to ensur e ' 'eq uality of rig hts and res pons ibility of spou ses as to marriage, du ring marriage and i diss olution."' Satu rday happened to be Hum an Rights Day, and I would like the mem bers here to bear that mind. Let us assure that full human rig hts for Man itoba families will be atta ined by ensu rin g them th

Law Amendments Monday, December 12, 1977 these two progressive Acts are not repealed. Thank you. MR. CHAIRMAN: Thank you. Questions for Miss Jackson? Mr . Me rcier. MR. MERCIER: Wher e did you get your fi gur e of $60,000? MRS. JACKSON: I can't answer that, I'm afraid. MR. CHAIRMAN: Is ther e any more ... Mr . Evans. MR. EVANS: Just a matter of clarification, Mr . Chairman. I didn't hear entirely the organizations in Manitoba that the delegate re present ed. I und erst and the connection intern ationally, but ... MRS.

JACKSON: Well, our affiliated memb ers to our organization, in Winnip eg that is, are the women' s branches -or I would say, in Man itoba -the women' s branches of the Association of Unit ed Ukr ainian Canadians, the Federation of Ru ssian Canadians, and the Unit ed Jew ish People,s Order. I' d like to point out that these represent about 300 women, mainly in the working class area. MR. EVANS: Another qu es tion, as a matter of informati on. The posit ion you' ve taken is quit e simil ar to that taken by most representation of various women' s gr oups.

So th er e seems to be a fair amount of consensus on the part of women who are concerned about th is matter. Has your organization or you r affil iated organizations, has there been extensive discussion on th is qu estion, you know, among the mem bership. MRS. JACKSON: Yes, I would say that. MR. EVANS: Well , what period of ti me has there been th is discussion? MRS. JACKSON: Well, we discussed it fairly th oroughl y for, well, the last year, sinc e we were preparing our last submi ssi on, which is a year ago. MR.

EVANS: So, what I would infer then is that the point of view that you're expres sing on behalf of these organizations, you r organization, is a point of view that very clearly represent s a consensus that does exist among most women who are at all alive to th is particular que sti on. MRS. JACKSON: Oh, I would say that, yes. MR. EVANS: Thank you. MR. CHAIRMAN: Any more que stions? Thank you. Thank you, Madam Jackson. MRS. JACKSON: Thank you. MR. CHAIRMAN: I call Terri Gr ay. I call Rosemary Turner. I call Ill S. ROSEMARY TURNER: Sorr y, I gave the main copy to the clerk, so I've got the fli msy.

This is a ery brief brief. I only heard last night that I would have an opportunit y to appear, so I typed it th is norning. I may say I concur with mu ch that was said by the previous speaker. I' m here in my capacity 1S Chairman of Human Rights for the Unit ed Nations Association in Canada. it 's nationally. Mr . Chairman, I do not regard this as a political matter, but a matter of hu man right s, equalit y of 1en and women before the law in fact as wel l as in word. Henc e, I speak in my official capacity, rather 1an as a private citiz en.

Some years ago, I was fortu nat e enough to be the only visit or at a sess ion of 1e Sen ate Committee on Divorce, as gu est of Mur iel McQueen Ferg uson, later to become Sp eakerof 1e Senat e. The main concern that day was wit h regard to the dif fic ult y of collecti ng fam ily 1aintenanc e in cases where the husband had moved to another province and the wife could not fford to move to the same provinc e to gain its su pport in enforcing the payment s. I mentio n th is to how that we do not come idly to this hearing. Mu ch th ought has been given to these matters over the ears.

I regret the waste of time and energy, to say nothing of the unn ecessary expense ent ailed by slaying the imple ment ation of the new fam ily law. What is to be gained by fu rther hearings after two 111 years of public hearings which preceded the draft ing of the three Acts involved. Excuses have been given about the wording of the Acts. Minor diff icul ties occur in most gislation and none of us are adverse to having some amendment s made from ti me to ti me as need ·ises.

Excuses have been given about confu sion over taxation involvi ng th e federal government. pparently the latter does not feel that there would have been any great problem. Protes tations have been made that the int ent of the Act will not be changed. I hope these are ncere. The choice of the committee member who came out publicly agains t the new family law ould te nd to make one doubt the sincerity. Man itoba led in allowing women to vote. Other

Law Amendments Monday, December 12, 1977 provinc es, and indeed other countr ies, look to us with envy just as they did in relation to the newly proclaimed family law in which Manitoba also showed leadership. I've been involved personally with the Man itoba government sinc e 19 71 when I requ ested its considerat ion of the UN covenants on economic, social and cultural rig hts and those on civil and political rig hts.

Man itoba again led the way in ratify ing these though it was several years before the other provinces had all acceded and the Canadian government was able to sign last year at the UN . it would be very disappointing to see the fam ily law delayed. it was disappointing too to read on the 10 th of December, Haman Rights Day, that this retrogressive step looked as if it would become a reality. People all over Canada are watching Manit oba's actions with concern and hope. Thank you. MR. CHAIRMAN: Thank you. Ques tions of the witness. Mr . Pawley. MR. PAWLEY: Mr s.

Tu rner, are you speak ing on behalf of the Un it ed Nations organization? Are you fam iliar whether or not many other ju risdictions have legislation which is sim ilar to that which was intended by the prev ious government, had been intr odu ced. MRS. TURNER: Not as yet, I think that some of them are in the works but I th ink that Manit oba was far ahead. MR. PAWLEY: Do you kn ow of any countries that had legis lation qu ite si mi lar to that which was passed in the last session of the legislatur e? .. MRS. TURNER: Not as yet that I know of. I don't speak as an author ity on this . MR. PAWLEY: Thank you. MR.

CHAIRMAN: Quest ions for Mr s. Tu rner ? Mr. Evans. MR. EVANS: Mr . Chairman, just a brief qu es tion. To what extent is this- 1 know your organization is concerned very muc h with human rights in all their complexities and the range of problems involved in seeing that hu man rig hts are exercise d-to what extent has your organization discussed this area of human right s, that is, exte nding of hum an rights to women? MRS. TURNER: Well as you know not long ago we had In ternational Women's Year, it's now being proclaimed as a decade. They felt that it was obviously necessary to keep the momentum going.

You can't just have a year and then stop dead. A lot of things were put entr ain as the previous speaker mentioned and I think that our organization did a considerable amoun t of study leading up tc Int ernational Women's Year and has done su bsequently. MR. EVANS: Is your organization, is this the Winnip eg organization or is thi s the Manitoba Br anch� MRS. TURNER: No, I'm spe aking for both national and the Winn ipeg organizations. MR. EVANS: Both for the national Un ited Nat ions Or ganization in Canada and the Winni pe� Br anch. MRS. TURNER: Yes. MR. EVANS: I see. MRS.

TURNER: I checked with our president locally this morn ing to see if she had any objection: to anything I said as going from the Winnip eg Br anch and she did not. They concurre< wholeheartedly. MR. EVANS: Yes, I see, thank you . So you general ly would end orse the position that's taken by th1 coalition on fam ily law. MRS. TURNER: Yes I cert ainly would. We are one of the organizations that suppor ts this coalitio1 and I rather resented the premier s implication that this was all a political front the other da: when w came to the leg islature. MR.

EVANS: Your organization is in no way conn ected with a politic al party? MRS. TURNER: No. We deal with everybod y from Mr s. Jacks on, here, many of whose member may be way out left unionis ts right through to the conservative. -(In t erjec tion)- Any othe qu estions?

Law Amendments Monday, December 12, 1977 mr. EVANS: So your view is, very briefly put, that th is bill th at's before us should not be passed . That the legislature should turn down this bill and allow the family law that was put into place-that was put on the statute books earlier this year- allow it to stand and be given a chance. MRS. TURNER: To go forward as proclaimed, rig ht. MR. CHAIRMAN: Mr . Jenkin s. MR. JENKINS: Thank you, Mr . Chairman, th rough you to Mr s. Tur ner. Are you aware that the family maintenanc e sec tion of the package of fam ily law has already been in operation for nearly a month? MRS.

TURNER: Yes sir. MR. JENKINS: Have you done any monitoring of that in your organization , how well it is working? MRS. TURNER: I got the impr ession that most lawyers were holding off until they could see whether this curfuffle would be over with because they didn' t want to get things half in and then have them resci nded. MR. JENKINS: We ll, we had lawyers here Saturday who have had cases under this

section of the package of the fam ily law legislation and they stated that it is work ing qui te well for your information. MRS. TURNER: Thank you very muc h. I might just mention, although I see the Bar Association c:ame out against our case, the women's lawyers are not with them on this. I th ink there is again a �ues tion of people not yet under stan din g what's involved. They don't seem to see the issues. They're st ill being a little chauvinis tic . MR. JENKINS: Well, Mr s.

Tur ner, for your information, we had member s of the Manitoba Bar !\ssoci ation here Saturday and the letter that you saw in the newspaper from one Mr . Mer cury was 1ot one that was passed by the Man itoba Bar Associa tion. lt seems to be a personal opinion. MRS. TURNER: Thank you . MR. CHAIRMAN: Are there any more que st ions of Mr s. Tur ner? Thank you for your presenta tion llrs. Tu rner. MRS. TURNER: Thank you, Mr . Chairman. MR. CHAie. AN: I call Ru th Br own VIS.

BROWNE: Good morning and thank you for the opportu nit y to appear before your commit tee. m sorry that I did not have enough time to have a brief prepared so that you all might have a copy. lt >my position that Bill No. 5 should not be passed. If it is we will return to the confusion and the lack of JStice inherent in the old laws dealing with famil y maintenanc e and marital property. Concern ing The Family Maintenanc e Act, it has been in operation for a month. Orders are being 1ade un der it. lt is working. I have heard no complaint from the judiciary and I have heard no omplaint from a lawyer who has used .

I'm not saying that there aie none, I haven't heard them. I have eard from several lawyers that The Family Maintenanc e Act works and works well. Why then return s to The Wives' and Childr en's Maint enanc e Act? A ret ur n to this law means that we regress to the dversary system in the pur suit of maintenanc e. And who is maintenanc e for? lt is mainly for children nd the person who is caring for the children.

The damage done by the forced assignation of fau lt is evasta ting to the parents and more espec ially to the childre n. lt has long been my contention that 1e adver sary system brings out the worst in people who find themselv es in the situation of marr iage reakdown. The fault principle leads to the possibili ty of a woman living off the fruits of vengeance •r the rest of her life or to the man skipping out on the supp ort of his fam ily. Neither of these tuations are beneficial to any of the people involved. Why not then encou rage the principle of !eking independenc e.

As sign the maint enanc e accordin g to the needs of those involved and �carding to their fi nancial situa tio ns. These princ iples were spelled out in The Family Maintenance ::: t. We mus t not return to the out-dated "me Tarzan, you Jane" concept ofT he Wives' and Children's ainten ance Act under which the wife owed se rvices in the home and in the bed and the husband r,ed supp ort. Mu tual responsi bility for each other and for the children will lead to a just msider ation of a very difficu lt situa tion.

Concernin g The Marital Proper ty Act, delay of implementation of the prin ciples outl ine d in this 11 would in deed be a retrog ressive step for Manit obans. Manitoba has been in the forefront in anting hum an rig hts for decades. This particular legisla tion is rig ht now being used as a model by veral other provinces in Canada, among them Alberta and Nova Scotia. If we accept the idea that

Law Amendments Monday, December 12, 1977 mariiage is an economic partner ship as well as a social one everyt hing falls into place. There are problems in the Act, there are problems in every Act. They are not insurmou ntable, the Act is workable. Dealing with Mr . Mer cier's let ter -people I presume, like myself, who had subm itted letters to Mr. Mercier's office -he outli ned what I would imagine to be the Cons ervatives objection to the bills or the ir immediate concerns with implementati on.

Ou r office, I work for the Federal Advisory Council on the Status of Women, our office has been assured by Ron Basford's office that The Income Tax Act reg ul ations concerning capital gains penalties will be amended so that these penalties will not be a detriment to the transfer of title under a Marital Property Act. The federal cabinet has come out in suppor t of eq ual rig hts for women in the person of Marc Lalonde and none other than the Honourable Pierr e Ell iott Tru deau, so I see that there could be no hesitation in this kind of impleme ntation being aided by the federal government.

The plight concern ing creditors having such transfers set aside has been made as an attempt to evade responsibil ity in a credit situa tion. I don't think that when suc h a transfer is made according to Manitoba provincial statute that suc h would be the case. However, if this would be so then we need to put in a single line in The Marital Property Act stating that suc h a transfer should not be considered an evasion for credit pu rposes. I don't feel th at this is an insurmou ntable problem.

An amendment to implement immed iate sharing up on federal government assuranc e and action concern ing the income tax and capital gains problem would prevent any possible difficulties in the income tax area. If we feel that we mu st not go ahead withou t the federal government action being written out, and I can see some point to that, then we can implement imme diate sharing of family assets to come into effect upon the federal govern ment stat ng such. And I would hope that Mr. Mercier and his department are reques ting such assuranc es from Mr . Basford.

The pr inciple would then be embodie d in the law of Man itoba without risk of pen alty due to federal law. Now there's been a mention made of classification of assets being difficu lt, for instance, pensions and life ins u rance. Pensions and life insur ance are incomepr oducing, to my way of thinking, whether the incomes produce now or in the future and income-producing assets are labelled commercial in The Marital Property Act. There's no qu es tion about it as far as the Act is written.

If the Canada Pension Plan can spli t funds I don't see any reason why other insu rance companies or pension companies can-not do likewise. Maybe they don't want to, it might be hard to do, it might cause a problem but it can be done. lt should be done to provide secu rit y for the non-earning spouse. In the past this non-earn ing n spouse has come out of a broke marriage without a job, often without marketable skills, without a pension, without insur ance, without savings and at the bottom of the pay scale if he or she does find a job.

The abject poverty of women le ft to care for children needs no amplification from me. These are the women who mu st be sup ported by the public pur se. Seventy eight percent of sole supp ort families are headed by women and 45.5 percent of these fam ilies live below the poverty level which is defined as having to spend more than 62 percent of your income on basic nec essities such as food, clothing and shelter. We mus t obtain more jus t set tlement for the dependent spouse leaving a broken marriage.

The Marital Property Act would provide that the partners would leave the marriage on a relatively equal footing financially. The contrib ution of work in the home to the accumulation of assets has always been und errated. Man itoba's Marital Proper ty Act recognizes this contri bution, artic ulates it in the law for the fir st time in the western world. This Act should be implemented as proclaimed . As for creditors; the Act clearly states that creditors shall be honoured except were where they participate in fr aud. Liability is between the spouses.

I can't see any cause for concern for thir d party liability. it 's clearly spelled out that where the thir d party is acting in good int erest, in good faith, then his rights are protected. In conclusion, the present goverent has stated that they supp ort the principles of equa l sharing in marriage. We have those princ iples stated now in The Family Maintenanc e Act and The Marital Property Act. Make the obvious amend ments now. Let the Acts work in the courts and make further amendments as they become apparent through use as is done with any other legisla tion.

Bill . 5 is unn ecessary. lt is retrog ressive and it will put us back into the confu sion and injus tic e of centuries olc common-law which considered women to be posses sions, not partners, that women mu st serve a ne men mus t pay. Thank you. MR. CHAIRMAN: Thank you. Mr. Doern. MR. DOERN: Mr . Chairman, to Ms. Br owne. Could you again clarify that point, that you ha< assuranc es from the Honour able Ron Basford that there were no income tax problems in regard t< this legislation? MS.

BROWNE: I didn't say that there were no problems, I said that he has assured us -and believe a member of your legislature - that the The Inc ome Tax Act will be amended t1 accommodate marital proper ty laws passed by any province. And I be lieve that there is in fact som doubt as far as capital gains applying to transfers that take place un der The Marital Property Act, a to whether or not they would be consid ered a disposi tion. MR. DOERN: So, I under stand that that would be a national amendmen t? lt wouldn' t be one jw

Law Amendments Monday, December 12, 1977 applicable to one particu lar province. MS. BROWNE: No, it would have to be a national one. MR. DOERN: Did you have that assurance verbally or in writing ? MS. BROWNE: By te lephone. MR. DOE RN: By te lephone . Do you think that you could obtain a written state ment or telegram? MS. BROWNE: I'm tr ying. If I get it I'll certainl y provide it for you. MR. DOERN: I think that if you could obtain that today or tomorrow it could affect the outcome of th is legisla tion. MS.

BROWNE: Well if this cannot be provided, what is wrong with providing for immediate sharing upon its passage by the federal government? I realiz e that the provincial government cannot force the federal government to act although I think they will be und er some measure of force if a province does pass this kind of legisla tion. They' ll have to deal with it. MR. DOERN: Well all I'm saying is that if you could atte mpt to obtain thi s in writing . MS. BROWNE: Oh, by all means. MR.

DOERN: . .. with in 24 hours it could affect the outcome of the legisla tion because the governm ent has indi cated thi s is a major cause for concern as to why they're introd ucing this legislation. Thank you. MR. CHAIRMAN: Mr . Chern iack. MR. CHERNIACK: Thank you, Mr . Chairman. Ms. Br owne in conne cti on with this Basford :tss ur ance, how long ago did you receive it? MS. BROWNE: I believe it was the end of - not this past week but the one before that so that's !pproximately ten days ago. MR. CHERNIACK: Do you know whether or not the Attorney-Ge neral has been made aware of rour receipt of such assurance?

MS. BROWNE: I th ink he has been made aware verbally. MR. CHERNIACK: Have you ascer tained in any way whether or not the Attorney-Ge neral has nade an effort to get that assurance? Ill S. BROWNE: In my letter I asked him if he would obtain such assurance. UIR. CHERNIACK: Did he respond ? Ill S. BROWNE: Not directly to that. MR. CHERNIACK: Have yu you any indication whether Mr . Basfor d's assurance woul d be ccepted by the Attorney-Gen eral as being sufficient to with hold? I'IS. BROWNE: No I haven't. �R. DO ERN: No. Well let's get to Mr . Mercier 's letter.

Is the letter you received a form letter entitled �e Family Law Leg isl ation"? I have a copy of such a letter and it sets out cert ain problems that he :>ses to which you directed your self but he does make the stat ement -which I will read, it's a shor t atement -"a spouse may obtain an order of separation und er The Family Maintenance Act without 1y reasons or gr ound s and then req uir e the other spous e to join in an accounting and equal ization • the commercial assets und er The Marital Proper ty Act. " I believe that's a correct sta tement, a meet des cription of the present law, do you agree with that?

IS. BROWNE: Yes, I think so. IR. CHERNIACK: What would you conclu de from Mr . Me rcier's state ment in this regard as to his vn belief relating to the no-fault aspect of The Family Maintenance Act?

Law Amendments Monday, December 12, 1977 ms. BROWNE: I would conclud e that they disagree with the right of a spous e to obtain that satisfac tion. MR. CHERNIACK: That they -you mean the government. MS. BROWNE: Yes. MR. CHERNIACK: So that this to me and I'd like your concurrence, in the letter which he sent, this to me is the one indication of an intent on their part which is contrary to one of the basic principles. MS. BROWNE: Yes, that's why I spoke at suc h length on the principle of fault.

I have heard from several Conser vative spokesmen that they feel some reticenc e about withd rawing fault as a basis for maintenanc e and for marital property sett lements and that's why I mentioned the points that I did concern ing fault. MR. CHERNIACK: Does that in any way shake your faith in the state ment s of the government that their only intent was to correct certa in obvious draf ti ng errors. MS. BROWNE: If my faith was really solid , I don't think I would be here at all. MR. CHERNIACK: Thank you, Ms. Br owne. MR. CHAIRMAN: Mr . Mercier. MR. MERCIER: Ms.

Br owne, you indicate, I th ink it is generally recognized that Mr. Basford is in suppor t of amendment s to the In come Tax Act which would not, in order that people who are affected by matri monial property reform leg islation would not be pen alized tax-wise. Are you aware, however, that any amen dments to the In come Tax Act come und er the jurisdiction of the federal Min ister of Finance? MS. BROWNE: Yes. MR. MERCIER: And are you aware that they are presently reviewing the income tax implications of this kind of leg islation? MS. BROWNE: Yes, I und erstand that the st ud y has been completed . MR.

MERCIER: And who inf ormed you of that? MS. BROWNE: Mr . Bastard's office, his executive assistant, whose name I can't recall at the moment but I could get it for you if you wanted it. MR. CHERNIACK: Have you got his phone nu mber too? MS. BROWNE: Yes. MR. MERCIER: I would say th at's contrary to the information that I have received . MS. BROWNE: Wel l, that's what I've been told. MR. MERCIER: .. . that this rev iew is not expected to be completed for two or three weeks. MS.

BROWNE: Wel l, it's at least a week sinc e I spoke to his office and his executive assistant saic that the stud y had been completed but the public annou ncement had not been drafted. MR. MER Cl ER: Are you aware that in concluding debate on sec ond reading to this bill, I advisec the ass embly that I had spoken to Mr . Basford -I don't have the exact date, I think it was a week frorr today -and he had ind icated that, gener ally, amendments to the Income Tax Act are int roducec through a Bud get Speech which would not happen un til the New Year? MS.

BROWNE: That's why I sugg ested that perhaps a clause would have to be ins erted into our bil because this fede ral action could n't be taken in sufficient time to mal<e it workable by January 1 but i seems to me a small price to pay for imme diate imple mentation of the bill to put this clause in tha immediate sharing would be conti ngent upon the federal government making the necessary change1 in the ir le gislation. I

Law Amendments Monday, December 12, 1977 III R. MERCIER: Are you a tax expert you rself, Ms. Br owne? illS. BROW: No. �R. MER Cl ER: So you woul dn't be aware of whether or not there are any tax implications even if 1ere is just deferred sharing. ,S. BROWNE: The only tax implication that I'm aware of and that I have done any find ing out about ; capital gains in the transfer of ti tle to property and my und ers tan ding was that it's not really too I ear that this would consist of a capital gain situa tion, this kind of transfer, but I re alize that it mus t be I ear. VIR. MERCIER: Are you aware, Ms.

Br owne, that I ind icated to the ass embly that the new overnment will be bringing in any amendments we deem su itable to the legis lation at the spring 3ss ion of the Leg islatur e? �S. BROWNE: Yes, I heard that. �R. MERCIER: Thank you, Ms. Br owne. �R. CHAIRMAN: Mr . Pawley. �R. PAWLEY: Ms. Br owne, when annou ncements are made as to intentions to amend the In come ax Act and then it is fol lowed up by the amendment itself, are the amendments gener ally not ltroactive to the date of the annou ncement by the government in qu estion? �S.

BROWNE: I think this has been done in connection with two or th ree th ings that I can think of 1 the federal instance. �R. PAWLEY: So you would concu r that if an annou ncement was made, or is on the verge of being tade by the federal governmen t that that annou ncement could effectively date the commenc ement f the tax change that is being sough t by the provincial government of Manitoba. illS. BROWNE: Cert ainly. III R. CHAIRMAN: Mr . Parasiuk. VIR. PARASIUK: Ms . Br owne, I just want to clarify this. Will you be prepared to supp ort the Jggestion of Mr s.

Goodwin of the Provincial Council of Women who does have access to a tax Kpert, that what should be done is that this legis lation should be deferred only with respect to the :>m muni ty property aspects and that the rest of the bill should be proceeded with? I think you r Jggest ion is very much simi lar to that. Are you prepared to ... �S. BROWNE: I would prefer my own sugge stion in that the whole thing be imple mented and that te immediate sharing aspect be contingent up on the federal government making the necessary c;commodation. 11R. PARASIUK: Right.

That is the type of sugges tion that she herself was making. Thank you . �S. BROWNE: But I would like the whole Marital Proper ty Act passed as such and then put in this der. iii R. CHAIRMAN: Mr . Eva ns. III R. EVANS: Thank you, Mr . Chairman. I wasn't clear on whether Mr s. Br owne represents the �deral advisory office on the Status of Women or whether you work for that office or whether you are lpresenting yourself. ns. BROWNE: I' m speak ing on my own behalf. I work as a researcher for the Federal Advisory ouncil on the Status of Women and I don't think I said anything that they would denounce me for.

I elieve that most of my positions are those taken by the Federal Advisory Counci l. 'MEMBER: These days don't be sur e of a th ing. �S. BROWNE: 1 have the ir defin ition of equ ity in marriage her e if anyone would like to look at it and th ink that every thing I've said can be substantia ted ther e. �R. EVANS: The Fede ral Advisory Off ice on the Status of Women, your organization is fund ed by a

women' s gr oup. Law Amendments Monday, December 12, 1977 MS. BROWNE: lt 's fund ed by the federal government. MR. EVANS: lt's fund ed by the federal government. MS. BROWNE: Yes, the Sec retary of States' office. MR. EVANS: I see. MS. BROWNE: We are not a government agency though. Win Loewen, I'm sur e most of you know, is the fi rst vice-pres ident of the Federal Advisory Council. I was just going to say that our position is not controlled by the federal government. Ou r office is to criticiz e federal policy and sugg est policy and suggest refo rm. Win perhaps would like to say a word about that. MS.

WIN LOEWEN: Wel l, I just wanted to assure this ass embl y that what Ruth has given to you has the full bles sing of the Federal Advisory Council on the Status of Women. I'm sorry that l have not had the time to appear before you. I was in Ottawa and was storm -stayed there and arrived home to find that you were in Law Amend ments and I gave Ruth permission to go ahead and submit her brief to you. The Fede ral Advisory Coun cil, our mandate is to advise the min ister in charge of the Status o1 Women, at the same time inform the public and that is a very large task.

We are certainly not restricted to criti cize any govern ment. We are formed to implem ent the recommend ations of the Royal Commis sion on the Status of Women and I am happy to say that over 50 percent of those recommend ations have been implemen ted but perhaps one of the most important pieces o1 legislation is the legis lation that you are dealing with now. The Federal Advisor y Council has been looking at it since its inception and the equ ity in marriage sta tement that Mr s. Br owne has given to you has been our policy from almost the inception of the Council.

I had an opportu nit y to travel all across this country with in the last six months and I mus t readily admit that I have not found an� pieces of legislation more progressive than this . The Ontario bill died on the order paper as 1 am sure many of you are aware. We did a critique of th at as a Federal Advisory Council; it was reintr oduced and faul t was brought back into The Maintenance Act and I believe, I'm not rig ht up on it, but I believe that it's gone now to deferred shari ng.

Alberta intr oduced a bill in the dy ing moments of the sess ion and I und erstand that the women's gr oups there now are preparing to make submis sions to the Alberta legislature when it reconvenes. We have taken a look at the bill and ther e's a great deal of ju dicial discretion in that bill. The Law Reform Commission of Nova Scotia has reported to their government and any day no\/\ they sh ould be introd ucing leg islation.

I mu st te ll you that the Law Reform Commission in Nova Scotia has been in direct contact with me several ti mes and has studied the Manitoba bills ver� thor oughly and I would expect simi lar leg islation coming forward in Nova Scotia. I don't know whether there's anything that you would like to ask me or whether I have ans werec your qu es tions. MR. EVANS: Mr . Chairman, again for clarification, is your organization associ ated with thE Coalition on Family Law for your . MS. LOEWEN: Yes, we are. MR.

EVANS: And ess entiall y ther efore the views of your organization has been represented and is being represented by their briefs and their particular position so there's no essent ial differencE between your organization and the Coalition as a whole. MS. LOEWEN: No, none whatsoever. MR. EVANS: There seems to be qui te a bit of una nimi ty among women in this province who arE concerned about these matters. MS. LOEWEN: Yes, there's a gr eat deal of unanimi ty, not only in this provinc e but all acros! Canada.

We've been workin g for a long time for this kind of leg islation and when it came about really I could n't believe that we were getting such progressive legislation and I want to thank the NDF government for introd ucin g the bills that were intr oduced.

I don't know of anywhere els e in Canad� where this kind of leg islation exists and I th ink probably the one point that I would re-emphasiz e tha· Ruth said to you was that the matri monial property bill embod ies a concept that women of Canad� have been workin g for for years and that is the recognition of the work that is performed in the home and for the fir st time, that is recogniz ed in law in these bills and I congr atulate you for that because that's a very progressive step to have taken.

We have talked for many years and we have tried to put � value, a dollar value, on the work of the mother in the home and it's been a very dif ficult thing to brin� about. I firmly believe that you only change att itud es by first of all changing laws and I really am ver) sorry that you cou ld not go ahead with the legis lation as proclaimed and then have it tested.

Law Amendments Monday, December 12, 1977 IIR. CHAIRMAN: Order. I have some problems. I don't have this wit ness on my list and I have 1other wit ness that comes before. I just wonder if the commit tee's agreeable that we proceed in this 1anner. (Agreed) Because I have one Leigh Halprin that's on the list who hasn't been heard yet. I Jn't have th is name. 1 MEMBER: Well, it's the same organization. IR. JORGENSON: Wel l, if it's the same deleg ation then it's simply a dupli cation.

There are people ho have su bmit ted th eir names as wanting to appear before th is committee and if we're going to �ve just sim ply a repeti tion of the pres en tati ons we had earlier, I th ink it's a little bit irreg ul ar. I'm not Jjecting to qu estion ing conti nuin g bat I want to know whether or not this is going to be a separate ·es entation or whether it 's the same one. �R. EVANS: Mr . Chairman, on a point of order, it seems to me that this is a presentation by an ·ganization and the official delegate, Mr s.

Browne, is being assisted in re plying to some of our Jestio ns and I look upon th is as one brief, that's what I would und erst and. �R. CHAIRMAN: I'm at your guid ance. IR. EVANS: And I th ink, you know, on the mat ter of du plication, it's an unf ortu nate thing that some :her women have told us , this is their th ird and fourth time around because we're se em ingly 1gaged in this bus iness of leg is lation three and four times around so I'm afraid du plication is almost 1e name of the game. I would observe this that there is not hing wrong, I would th ink, Mr .

Chairman, ; the matters that are being discu ssed are most relevant to the repres entation of the Federal dvisory Off ice on the St atu s of Women and there doesn't seem to be any und ue waste of time. IR.CHAIRMAN: I th ank the honourable memb er. I just th ought we were embar rassi ng the other itness whose name I have and hasn't been heard yet and ... Mr . Barrow. �R. BARROW: The brief is finis hed as such and all they're here for is to ans wer qu estions. The ·ief is done. I see no point in ... • R. CHAIRMAN: Okay, proceed. Mr . Pawley. III R. PAWLEY: ... Mr s. Br owne or to Mr s. Loewen.

In conne ction wit h commercial assets, ,ference was made to the Ontario and the Alberta legisl ation. Could you provide us wit h any advice ; to how their legi slation reads in respect to the discretion in the division of commercial assets. IS. BROWNE: I'm not too familiar with the Ontario one. I believe it was mostly judicial discret ion. lberta's is entir ely jud icial discr etion, there's noth ing in it that is n't jud icial discr etion. Noth ing is >elled out at all; there is no presu mption as to any kind of division and the poor judge has 19 factors , consider in the determin ation in the Alberta law. IR.

PAWLEY: Mr s. Browne, we've discus sed many ti mes the Man itoba Law Ref orm Commission's commend ations. The Federal Law Reform Commissi on's rec ommend ations, how does our gis lation compare to the recommend ations of the federal Law Reform Commis sion? •s. BROWNE: it 's more progressive in a couple of areas because of its immediat e sharing and anagement of family assets. The Federal Law Reform Commissi on didn't gr ant that. IR. PAWLEY: What about the no-fault aspect in conn ection wit h maint enanc e? IS. BROWNE: The Law Reform? IR. PAWLEY: Yes, the Federal Law Ref orm Commissi on's positi on. IS.

BROWNE: I th ink the Law Reform Commission didn't su pport fault in maint enanc e but the deral government st and on fault, which sti ll remains in the Divorce Act, is that they won't remove it 1til the provinces enact some kind of leg islation which will provide a protecti on for non-owning )Ouses so this kind of legis lation mus t come before fault will be removed from the Federal Divorce �t. Does that ans wer your qu esti on? IR. PAWLEY: Yes, it does. Un ilateral opting out , do you recall the positi ons from your reading of e Ontario and Alberta legis lation? IS.

BROWNE: No, I don't th ink there was any discussion of unil ateral opting out in eit her of them.

MR. CHAIRMAN: Mr . Parasiuk. Law Amendments Monday, December 12, 1977 MR. PARASIUK: I would like clarification of Mr s. Loewen's stat ement regardi ng Ontario's lett ing their fam ily law legislation die on the order paper. Was there any indication of what type of leg islation that would be that died? MS. BROWNE: Deferred sharing. MR. PARASIUK: lt was deferred sharing. MR. JORGENSON: Mr . Chairman, I th ink that que stion is out of order. What Ontario does is cert ainly not relevant to the bill that is before us. MR PARASIUK: I' m sorry, Mr .

Chairman, we've heard the govern ment indicate many times what is done in Ontario and Alberta is very relevant to what takes place in Manitoba. Ther efore, if in fact we hear that type of state ment from one of the witnesses, sur ely we shoul d be able to ask clarification. Now, you say it's being re intr odu ced? MS. LOEWEN: lt has been reintroduc ed, yes. I don't know whether they have started debate on it yet or not, I haven't been able to ... MR.

PARASIUK: And that would be a change in principle from the leg islation that exists right now that the Cons ervative governm ent is tr ying to change, that is, a diffe rence in principle -is that correct. MS. LOEWEN: Yes. MR. PARASIUK: That means ther efore, that if legis lation is brought forward with deferred shari ng, that that would be a change in princ iple from the present leg isl ation -if th is govern ment does bring forward legisla tion that does have deferred sharing. MS. LOEWEN: The Man itoba Cons er vative government? MR. PARASIUK: That's right. MS.

LOEWEN: If they changed fam ily assets to deferred shari ng, yes, that would definit ely be . MR. PARASIUK: That would be a change in principle. MS. LOEWEN: Yes. MR. PARASIUK: Thank you. MR. CHAIRMAN: Mr . Me rcier. MR. MERCIER: Mr s. Loewen, are you aware of the concern that was ex pressed by the Attorney Gene ral of Ontario with respect to the tax implications of their legi slation? MS. LOEWEN: I' m not too thor oughly aware of it, I und erstand that ther e was some discussion with respec t to tax implications, yes. MR. CHAIRMAN: Mr. Chern iack. MR. CHERNIACK: Thank you, Mr . Chairman. Ms .

Br owne, you made a stat ement about which I know noth ing, hardly anyth ing, and that is an attitude of the federal government in relation to the fau lt feature of this divorce legisla tion and its req uir ing the provinc es to express themselv es in the way already in the present act. Is that what you said? Could you elaborate on that? MS.

BROWNE: The present federal Divorce Act allows for fau lt in consideration of the settlement that takes place und er the Divorce Act, and that will not be removed until the provinces enact leg islation which will protect the non-owning spouse, because the federal government regards it as some measure of protection for particularly a woman whose husband makes off with all the assets in his name, and so on, that if he is then at fa ult, ther e is more leverage to atta in set tlement for her gr ievances.

You know, it's our aim to remove fau lt from all of the legisl ation conn ected with family law, and un fortunately it's split provinc ial and fed eral. So the federal government has said that this is a measure of protection for some women, and it's going to stay there unt il all the provinc es get bus y

Law Amendments Monday, December 12, 1977 md do someth ing about th eir fam ily law si tuation. MR. CHERNIACK: Now, under the Divorce Act, fau lt is only one of the possible bases; the other vas separat ion, on which there is no .. . MS. BROWNE: In marriage breakdown. VIR. CHERNIACK: Yes, in which there's no-fault feature. So you mu st be speak ing of that portion of he federal legislati on which deals wit h distri but ion of property. MS. BROWNE: That's rig ht . VIR.

CHERNIACK: And what you're sayi ng is that un til there is protection now in the provinces for ;pouses who have to allege fault in order to get their prote ct ion, that they will not remove that feature tt all from the federal legis lation. MS. BROWNE: They won't take it out altogether, no. MR. CHERNIACK: I see. MS. LOEWEN: If I might just add, th is has been one of the recommendat ions of the Federal \dvisory Council to the Min ister of Justice, that fau lt be taken out of the Divorce Act, and I believe the hree-year waiting period be reduced to one year.

This is the answer he has given us, that he feels that te cannot change the Divorce Act until all provinces have brought in new legis lation wit h respect to natrimonial proper ty, so that women will be protected. VIR. CHERNIACK: Well , is Manit oba the fir st and only one of the ten provinces that has complie d in hat regard? VIS. BROWNE: We' re the closest of all. There are others un der considerat ion, as we've ment ioned: Jova Scotia, Ontario, Alberta; I th ink Saskatchewan is ju st getting started, B. C. has done somet hing 1n it, and of course Quebec already has th eir separ ate acquisition, whatever it is.

VIR. CHERNIACK: But are you suggesting that Ontario's present leg islation - hazy as it is- and dberta's, do cont ain suf ficient elimi nation of fault to satisfy the federal government 's req uir ement s? VIS. BROWN: Yes, because there is an eventual right to property. VIR. CHERNIACK: I see, th ank you, Ms. Browne. VIR. CHAIRMAN: Any more qu estions? Thank you, Mr s. Br owne. I call Leigh Halprin. Ill S. HALPRIN: My name is Le igh Halprin. l am a Winnip eg lawyer, and I th ink it should be ev ident to 11 and for the bene fit of Mr s. Tur ner, I am a female lawyer.

I would like to deal wit h some of the points which I take issue wit h un der the proposed legis lation. >ection 1 (b)(

i) and (ii), I am of the opinion that that

section req uir es fu rther clarificat ion. That's the ection dealing wit h what is a commercial asset. Is a policy of life insur ance a fam ily asset or a ommer cial asset ? VIR. CHAIRMAN: Order. Order, please. Mr . Chernia ck. IIIR. CHERNIACK: The bill that the honourable member is refe rrin g to does not have a 1 (b) . . is he spe aking about the .. . VIS. HALPRIN: I' m refe rring to Bills 60 and 61, I believe. III R. CHERNIACK: You mean the present laws? VIS.

HALPRIN: As they were int ended to be proclaimed and have been proclaimed, The Family laintenance Act as proclaimed on November 14th, 1977, and the Marit al Property Act which was to e proclaimed on January 1, 1978. IIR. CHAIRMAN: May I caution you that you should try and relate your remarks to the cont ent s of 1e Bill that's un der discussion here today, which is Bill No. 5. Ill S. HALPRIN: Wel l, they are inextricab ly wound up. Wit h respect to clarification of what is a ommercial asset, again I say, is a policy of life insur ance a fam ily asset or a commercial asset?

Is a olicy of life insur ance which has been assigned to a comme rcial lender in consider ation for a loan, a

commercial or a fam ily asset? Law Amendments Monday, December 12, 1977 What are regi stered reti re ment savings plans, regi stered retirement pension plans, and regi stere1 homeowner ship savings plans? The last time I att ended before this commit tee, in I believe the end a May and beginnin g of June, 1977, I raised those

part icular issues. I was advised at that time that th i was not a problem. I might ment ion that a sem inar of approximately 500 lawyers met and dis cus se; th is

part icular issue, and were un able to reach agreement. it 's a vit al issue what these particula assets are, it has gr ave ramifications.

Section 1, sub

section (

d) of Bill No. 61- that is the

section which deals wit h the dissipating c assets. Now my qu estion is, if an asset has been dissi pated, when we decide if there has in fact been dissipat ion, do we look to see if the fina ncial security of the household was jeopardized at the time th assets were dissi pated, or is it relevant that the fi nancial security of the household is in jeopardy a late as a year after the assets have been squan dered? That is relevant and is going to lead to all kind of lit igation, so let's clean it up now.

Section 2, su bsection 1. "The Act seems to apply to everybody." That's a comment of th Manit oba Bar Association as endor sed by the Canadian Bar Associat ion, Manit oba Division. "Thi Act seems to have world-wide application." You come to Manit oba and spend the nigh t at the Holida Inn -seems that th is Act seems to apply to you, has to be tig htened up.

Section 2, sub

section 4- that's the

section which provides that if you were separ ated on May { 1977, the Act does not apply to you. I don't take issue wit h that principl e; in fact, I commend th previous government for at least having a cu t-off date. They worked very hard for a cut-off date. don't recommend that repeal, but what I do say is that as it is presen tly worded, it dis courage reconciliation. If that's not an important issue, I don't know what is, and it's enough for th is legislatio to be repealed so it can be corr ected. The reason it discourages reconc iliation is that if you d reconcile, the Act applies to you.

Now I know a numb er of client s- 1 have a numb er of client s- wh· refuse to go back to th eir spouses, eit her male or fe male, because they don't want this Act to applyt them. They don't want and order to affect their reconciliation, to enter int o an agreement that says th Act doesn't apply to them, and that's what's holding them back.

And I might ment ion that th Man itoba Bar Association endor ses what I see as a solut ion, and that is to say that individuals shoul be given a 90-day trial period to effect a reconciliation before the reg ime becomes applicable to therr That is the case un der the ex isti ng divorce laws- you do not lose your gr ounds if you try and effect reconciliation for 90 days. You st ill have your grou nds available to you. The Divorce Act in thatsens encou rages rec onciliation, and so should th is leg islation.

Give individ uals a trial period wher e the can att empt to effect that rec onciliation, and the Act will st ill not apply to them. If they choose to sta together after that 90-day per iod, then they're int o the Act, but if the reconciliation period results i the parties de ciding that they wantt o remain separated, that they want to go the ir separate ways, the they st ill have the protection of not having th is leg islation -falling wit hin th is legislation, that i! I might also mention, and this is a te chnical th ing that can be cleaned up very nicely, is th�

Section 2, subsection 4 says: "The Standard Marit al Regim e does not apply." Now, the Standar Marital Regime is

Part 1 of the Act, it's not

Part 2 of the Act, and what the Act should read is "Th Marital Property Act does not apply," not "The Standard Marit al Regim e. " Otherwise you have theoretical sit uation of individuals who are separ ated as of May 6, 1977 not havin g

Part 1 of the Ac the Standard Marit al Regime not applying to them, but

Part 2 of the Act does, and there ar ramifications for that, which I will deal wit h at lengt h in a few moment s.

Section 3, subsection 1 - that deals wit h the joint owner ship of marit al home;

Section 1� subsection 1 -t hat deals wit h family assets; and

Section 14, subsection 1 ... have the effect c invoking what's called "t he attri but ion rule s. " And I might ment ion that is not limit ed just to capit� gains. Att ribut ion has ra mific ations for not only capital assets, but for income producing asset! reven ue assets, income assets. Just because we decide that a

part icular asset is a family asset, and o that basis we have the federal government amend th eir legis lation wit h respect to the income ta trea tment of family assets, doesn't mean that the In come Tax Depart ment is going to view a

part icula asset as a capital asset as opposed to an income asset. Your definit ion of what is an income producing asset may be su bstan tially different from the In come Tax Departm ent 's definit ion of whE an income-generating asset is. In any case, those sections invoke the attri but ion rule s.

The result is that when an acqui rin' spouse disposes of his or her share of the acqui red asset, that is, that spouse rents or sel ls , th income or reve nue received in consequence is taxed in the hands of the transferer spouse, althougl the transferer spouse does not enjoy the bene fit s of the income or the reve nu e. Now, the las legislatu re att empt ed to cur e that inequ ity by int roducin g

Section 5, sub

section 4 and

Section 16, an' that was the

section which said that you shar ed the tax load in that case- your spouse became liabl for half of the tax; not to the government, of course, but to his or her spouse, the transferer spouse And my que stion is: "Why should the transferer spouse be liable at all for half of that tax at least? That transferer spouse sh ouldn't be re sponsi ble for any of it .

Section 3, S sub

section 1, ection 13, subsection 1, and

Section 14, su bsection 1, effectively avoi' existing plannin g schemes. This problem is going to be in extent cur ed, happily, by the repeal of th Succession Duty Act, but we st ill mu st contend wit h the deemed dis posit ios on death under th Inc ome Tax Act, and that's someth ing that's being ignored. I've heard a lot of women saying tha we're going to have a new tax treatm ent for capit al gains, but nobody's mentio ned anyt hing, and

Law Amendments Monday, December 12, 1977 aven't heard anyth ing from Mr . Bastard about what's going to happen on deemed dis positions on eath? Now if an ind ividual has gone ahead with a view to estate planning, and has had assets ·ansterred over to his wife, so that when he dies, there's not that deemed disposit ion, and then as a 9su lt of the reves ting, acquir es half of them back prior to any change, if ther e is a change un der the 1come Tax Act, then ther e's going to be a deemed disposition and a heavy tax load.

In divid uals have pent fortunes trying to elimin ate that problem , and you'r e sayi ng: "We'r e going to wipe it out. " Now, ven if they restart thei r estate planning, it's sti ll going to cost money.

Section 3, su bsection 1,

Section 13 , su bsect ion 1,

Section 14 , su bsection 1 may also prove to be a onanza tor cred itors, as in those cases where a spouse with a view to preser ving cert ain assets from reditors transfers or pu rchases some or all of the property in his wife's name. Now, that's not ncommon.

I'm not sayi ng that ind ividuals have creditors at that ti me, but they may anticipate reditors -they're going into a busi ness venture which makes them judgm ent prone or creditor rone -and that's not an uncommo n situation where an indi vidual speakes to a lawyer and the 9commendation is made that you put assets into the name of the spouse who is going to be creditor r judgment -free. Whe n the property revests in the debtor spouse, or the debtor spouse acquir es an 1terest in the assets, the debtors are going to be able to attack that form erly preserved asset.

Now, ou haven't helped women at all by having that kind of a situa tion. A woman who had the home in her ame now loses her home, if her husband has at that time acqui red a judg ment against him and the reditor decides to realize on that judgm ent. Now, as I've said, a contract ing-out may be vie wed as a scheme to de feat or defraud the creditors, nd may be set aside. I th ink some thin gs should be done there. Ms. Br owne sugg ested that possibly sec tion be enacted that say s any contracti ngout will not be viewed as a sc heme to de feat or defraud reditors.

I might have menti oned that was a suggestion that I made to Ms . Br owne.

Section 5, subsection 3 shoul d be amended to inclu de any liability to the other spouse under ection 5, su bsect ion

Section 5, subsection 4, su bsection (

a) shou Id be amende d to conclude any rior indebtedness, and Sec tion 5, Sub sec tion 4, Su bsection (c) , should be cleaned up. That is that 1e tax that becomes payable un der the attribution rul es is as a result of the dis position and not as a lsult of the acquisition. That sect ion has to be cleaned up as you may not have a spouse liable for alt of the tax liability unless you do so.

Section 3, Su bsection 1 may affect the rig hts of thir d parties. That's the fam ily home sec tion. Now articul arly in th ose cases where the marital home is held in joint tenancy or tenancy in common with thir d party, that is for example, the family home, it's owned by the husband but it's also owned by his ster. They bought it together. But it falls in the category of the marital home because it's occupied y the brother and his wife.

The acquirin g individual, I assume, the wife who is now an owner, would robably hold in joint te nancy with her husband as to his half share, and the sister would st ill have her alf share. The problem is that the sister now has a partner in owner ship which she never anticipated nd it can become more complicated in those cases where the husband predeceases his wife and the ,ster now owns with her sis ter-in-law and that can give rise to all kin ds of complications. What you've one here, you're just not accepting the rig hts of a man and a woman as a married couple.

You are ring ing in thir d parties as well, and that sect ion ignores the rights of th ird parties. lt says it's utomatic. You automatic ally get that. There is no dis cretion there. Nothing whatsoever.

Another further problem is this acquirin g spouse is not liable on the mortgage covenant, ss umin g the home's been mortgaged, and this is espec ially sign ificant in a case of a second or th ird 1ortgagee when ther e's foreclosure proceed ings under the fi rst mortgage and there's not sufficient mds to satisfy the fi rst mortgagee, then your only remedy is to sue on the mortgage covenant, but 1e wife isn't bound on the mortgage covenant, she didn 't sign that mortgage. So again you've ffected thir d party rights. You've affected the rig hts of the mortgagee.

A qu es tion that I have, is the marital home a that is not sub ject to the standard marital reg ime 1areable asset? Un der

Section 9, Sub

section 1, proceeds of the sale of the home orthe asset which . exchanged for the home are not shareable, but the home itself may be, and in some cases

Section 1 may even apply. That's the sect ion that says that if you use the asset during your marriage even 1ough it wasn't for merly share able, if you both use it, it becomes shareable. I might mention at this ::>in t that the Family Law Su bsection of the Man itoba Bar Association has recommende d that that lction be elimi nated. There are situa tions, as well, where a generous individual may have gif ted cer tain assets to his or 9r spouse. These assets may not be shareable because they fall with in , let's say,

Section 9, ubsection 1, Sub

section (a). They're gifts. They're not shareable. The result is that on an immed iate ls ting or an equalization situa tion, the doning spouse may be worth more than the donor. I believe 1at a distinc tion should be made un der

Section 9( 1 )(

a) between gifts made by an individ ual to his or 9r spouse and gifts to a spouse by a thir d party. So far it covers all kinds of gi fts whether it was given 1 you by your spouse or not. And the assets which are given to you by your spouse should be 1areable. I believe that Sec tion 37(1) and (2) , the dis cretion sections, aren't wide enough to cover lis particul ar situa tion, where you have an inequ ity ju st because you were gen erous, and you get 9nal ized because you were gener ous.

Section 11 would be basically a good sect ion if the Act weren't retroact ive. That's the sect ion hich says that the asset becomes shareable even though it wasn't formerly shar eable because it's ;ed by both parties. And that's a func ti on, I believe, of retr oactivity. For example, you have the tuation of the wife who says, "I never would have used the si lver tea service that I received from my

Law Amendments Monday, December 12, 1977 mother and used it when I had your boss over for din ner if I'd known you were going to share." it's a func tion of retroact ivity. In dividuals who are now contem plating marriage and enter into a marriage will of course be able to say, "This is min e. That's mine. That's yours." They' ll be able to put their position on the record. But individuals who've already contr acted marriage and have had tha1 painting hanging on the wall in their home don't have that solu tion available to them. And that's a function of retroact ivity.

And I'll say again that the family law su bsection of the Manitoba Bar has recommended that that sect ion be elimina ted. lt just creates far too many problems. I have another example of an individu al where you can see how it can create hardshi ps. it 's wher e an individ ual, a female person -it's a case I have in the office - came into marriage with a lot o1 furnitur e. A lot of women prior to marriage collect th ings, furnish thei r homes, furnish their apartments, and bring those particular assets into the marriage.

Hu sbands, prior to marriage, have a habit of collecting thin gs like some stereo eq ui pment, ba sically it's Salvation Army type furnitur e which isn't brought into the marriage, but they sometimes bring in assets, for example, like bonds, thi ngs of that nature. The inequ ity that is created is that those assets aren't shareable, because the� don't lend thems elves to necessarily being shared, those commer cial-type assets, the stocks and bonds. Bu t a woman's furnitur e which she brings into the marriage and is used in the home defin ite!� is shareable.

Section 13 (4) -I believe that's the joint management sec tion and fam ily assets. Assu min g that � policy of life insur ance is a fam ily asset - and we don't know - an acquir ing spouse coulc theore tically req uir e cancellation of that policy of life insur ance. A spouse would be very foolish to de that in some cases if she were the beneficiary, but if it was the type of policy where you could cance your spouse as bene fici ary and put somebody else in its place, that spouse may want that polic} cancelled so she can get half the cash su rrender value of that policy.

Now you may have an individua then who's been in the situation of being uni nsurable . I can foresee this happening, for example, ir cases of second marriages where an individual has placed life insur ance on his life and the beneficiaries are childr en of the previous marriage, and his new spouse isn't particula rly taken wit� the fact that he has his life insur ed and the childr en are beneficiaries by a previous marriage. She might then req uir e that that policy be cancelled. MR. CH AIRMAN: May I interrupt you for one moment. We have a problem for the commit tee.

The N ace is on the table, and we're supp osed to adjour n at 12 :3 0, and the witne ss sti ll has nearly 10 min ute� left. Could you return after? MS. HALPRIN: Most defin itely. Thank you. MR. CHAIRMAN: Well then, if you und erstand that the House opens at 2:30 p.m., and ther e' ll be E qu es tion period, and we'll, I gu ess, come in here after the que stion period. MS. HALP RIN: Very wel l. Thank you. MR. CH AIRMAN: Committee rise.

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-1-la7
Type	hansard
Volume / chapter	31st 1st hansardpdf la7.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	755478045e83f4bdbf39dabeedd81ab1900f7ca7

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