Manitoba Committee Hansard — Statutory Regulations and Orders Committee, Sitting 19 (30th Legislature, 4th Session)

30-4-sro19

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba HEARING OF THE STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Chairman Mr. D. James Walding Constituency of ST. Vital THURSDAY, June, 2, 1977, 8:00p.m. Printed by P.N. Crosbie- Queen's Printer for the Province of Manitoba

TIME: 8:0 0p.m. Statutory Regula tions and Orders Thu rsday, Jun e 2, 1977 CHAIRMAN: Mr. D. James Walding MR. CHAIRMAN: Order please. Gentlemen, we have a quorum. The committee will come to order. The next name on my li st of speakers is Laurie Alien . If Laurie Alien is here, would she come forward please. MS. LAURIE ALL EN: I'm appearing tonight on behalf of the Manitoba Association of Women and the Law. I'd lik e to say that I'm a practising lawyer, and many members of our group are either la wyers or law students. I'd li ke to start by stating that we support the basic principles behind this Act.

We bel ieve that marriage is an equal partnership and that society as a whole recognizes this principle and wishes to see legisla tive action taken to embody the rela tionship between the spouses into the laws of this province. We strongl y agree with the concept of joint ownership of the matrimonial home, instantaneous community of famil y assets, the retroactive nature of the definition of shareable assets, and the fact the Act does not permit unilateral opting out.

We have had some opportunity to look at the first set of amendments, I understand there are further ones out whic h we haven't looked at, but we're pleased to see that they seem to clear up some of the more obvious omissions in the original Act. The first area I'd lik e to comment on - this is an area that is an omission, in our opinion, in both the Act and the amendments - is the omission of income as a family asset. With the amended definition of "asset" read along with the

Section 18 (2) of the amendment, I think it makes it clear that the Legis latu re wishes to exclude income and any type of bank account as a family asset. We don't agree with the excl usion of income from the family assets, as in many famili es, the only asset is, basically, the pay cheque, with perhaps a small savings account. We bel ieve that it is contrary to the concept or the principles that are establis hed within the Act to say that, wel l, spouses have the right to usage, possession and management of famil y assets.

Once the asset is purchased, they do not have any right to participate in the decision of when or how, or with what to ac quire that asset. This is someth ing we woul d ask you to consider. Looking next to the question of separated spouses, I see several problems both through the Act itself and again the amendments. We feel strongly, as I believe most people do, that existing agreements or court orders dealing with famil y property of the spouses, cannot and should not be opened up at this time. If a couple have put their minds to the property issues or have fought them out in court, that should end the matter.

I'm sure this must be the intention of the Act, although the Act itself is si lent and the amendments themselv es are in conflict. The conflict arises through

Section 2(2) of the amendments and

Section 28(1 ). If you take a look at them ,

Section 2(2) states that the standard marital regime does not apply to spouses living separate and apart, pursuant to the order of a court. Then , turning to

Section 28( 1), it states that subject to Subsection (5) the st andard marital regime does not apply to spouses who have a subsisting separation agreement or court order where the order contains provisions relating to the disposition of marital home or any shareable asset. I think that

Section 28(1) seems to be more correct in trying to interpret the intention, but it does not prevent the opening up of separation agreements or court orders, because, as the

section reads, it's subject to

Section 28(5) . I think that we have chosen to emphasize the term that I have mentioned which doesn't appear in the Act, famil y assets, in these sections, famil y assets when looking at the question of property disposition. As it stands now, the operation of

Section 28(5) , as it reads, has the practical effect of reopening almost every separation agreement in existence. The reason fort h is is in the past, a wife had no right to share in her husband' s business, and therefore, the bargaining position of the parties did not start with that concept in mind. As the position of the parties then was so completely different from the sit uation contemplated under this Act, I doubt if there are any separation agreements that have considered these provisions of the standard marital regime with respect to commercial assets.

Section 28(5) states that if an agreement does not deal with a specific provisio n, the provision is presumed to remain applicable. Looking at a quick example of what could happen, if you had a husband and wife who separated five years ago, the husband owned a business and was also the owner of the marital home, on their separation, the husband agrees to give the wife the marital home as their property dispositi on. Now it appears that under

Section 28(5) she can apply to the courts, ask for and receive, a half share, or the value thereof, of his business, because their agreement was silent with respect to the disposition of commercial assets. She will keep the house because that is one provision of the regime that has been specifically contemplated . it's really kind of a Catch 22 · situation, because how could they contemplate something they didn't anticipate coming into force. So I think the problem with this

section is that you cannot deal with the same

section looking at agreements prior to the Act and agreements after the Act. Whether or not your intention is to say whatever agreement you've made, whether you've cons idered any type of property, the home or your furniture or anything else, you'r e bound by it, or whether the intention is to say, agreements that don't 367

Statutory Regula ti ons and Orders Thursd ay, Ju ne 2, 1977 deal with the new definition of family assets coul d be looked at again, must be made clear. At this point, it appears that alm ost every agreement could be reopened under this presumption on

Section 28(5) . That's something that we feel definitely should be clar ified because people are extremely concerned, people who felt that they had settled some of their differences, may, under the basis of these amendments, be having to look at it again. Looking at Division 2 of the Act, in shareable assets, I see with respect to

Section 9, amendments have been introduced that I would imagine hope to deal with the situation where one spouse has alr eady started making gifts to the other prior to the Act. I think that as the Act stood originally, in its first form, where a husband, through a gift, gave his wife half of something that was owned by him, immediately that half is exempt under the

definitions of sh areable assets. Therefore, with the coming into force of the Act, the wife receives half of his half, so suddenl y has three-quarters. Now the amendment to

Section 9 tries to deal with that, but I think it fails because in the amendment,

Section (

c) of the amendment of

Section 9, it states that where an asset has already been shared equally between the spouses otherwise than under those provisions it's not included. However, if you have a husband or a wife giving less than half of an asset to their spouse, there still is a problem, so I think that's just a question of wording but we would like to make it clear.

I think the intention is that sharing should take place equall y, and where a husband or wife has tried to share in the past by giving part or half of the asset, they shouldn' t be penalized now, if they were trying to bring in their own concept of equality of marriage prior to this Act. Looking at Division 3, Family Assets, as I've stated, we support instant community of property and we endorse in the amendments the recitals of entitlement. One thing that we feel is missing however, is that it should be made specifically cl ear that the half interest in the asset is a half interest in the equity of the asset.

Problems could arise both with family assets or the marital home, for example, where there are unregistered charges or a charge account situatio n, where a wife or a spouse could conceivably claim half of the value of the asset when it hasn't been totally paid for. So I think it should be made clear that what we are talking about is the equity, when and if you do come to the point of an evaluation or a trying to trade off on a separation. With respect to the commercial aspect of the Act and the deferred sharing concept there, I have alr eady mentioned our objections in the question of income as an asset.

I think the addition of

Section 18 , Sub (2), makes it fairly clear what is intended. However, we object to the principle behind that in terms of family income or family bank account. While I haven't had a chance to go through the amendments with a great deal of study, I think that some of the amendments in this

Section seem to clar ify some of the practical questions and problems and seem to elimina te some of the ridiculous examples that have been brought up in terms of if you take the Sections to their logical extension. I think we think that it is proper that the six-year-period for looking at dis sipation of assets and excessive gifts starts as of May 6th, 19 77. I would al so like to again emphasize our support of the principle of bilateral opting out. lt is our feeling that to permit any form of unila teral opting out would defeat the basic purpose, the basic principles of the Act.

One question that was raised quite often last night is, I think, the question of some of the tax implicatio ns. I would just like to say at this point it's our feeling that should the Federal Government be unwilling to amend sections which will penalize spouses, we certainl y agree that the liability, if it arises , should be shared between the spouses.

Looking now at the Family Maintenance Act, I don't think the amendments that I have seen, which are the first batch, cla rify a lot - they clar ify some of the original problems with that Act. lt appears from the intention of the Act that a spouse no longer needs to prove grounds for separation. If that is indeed correct, we feel that it should be clearly stat ed. With the amendments that have been brought forward,

Section 7(1), the new

Section 7(1 ), states when a person can apply for relief, and it does state where the spouse desires an order for separation, etc. However, nowhere that I can see in the Act or the amendments, does it say what a judge is able to do on such an applicatio n, what he is able to do or not to do. And I think that it should be made clear that it is not a question of proving fault in terms of going for your separation. I note that the amended

Section 8 dealing with orders, states that a judge may make an order saying the parties are no longer bound to cohabit, but nowhere in the Act is it really clear, if he could refuse if he wanted to or why he could refuse, and I think this is something that should be clar ified as wel l. Looking at the maintenance aspect of the Act and the criteria set out in

Section 5, as it stands righ1 now it is not our opinion that it is no-fault maintenance. I think that looking at

Section 5, Sub (1)( e), "the judge shall consider whether there is a domestic arrangement between the spouses and whether and to what extent each spouse is fulfilling domestic service obligations pursuant to the agreemen1 or otherwise." I think that that changes the situation somewhat, because the judge no long er basically is to look at how the parties treated each other, but to what extent they are fulfilling their domestic arrangements. lt could perhaps lead to more dirty laundr y in the courts, rather than less. 368

Statutory Regula tions and Orders Thursd ay, Ju ne 2, 1977 Because suddenl y vacuuming or the lack thereof, or things li ke that, may assume more importance as parties may try to persuade the judge that this factor is the most important factor in the list set out in

Section 5(1 ). lt is our position that

Section 5( 1)(

e) should be removed from the Act to truly provide for no-fault maintenance. The other area . . . MR. PAWLEY: Would you please repeat that, I couldn' t hear, 5(1 )(e)? MS. ALL EN: 5(1 )(

e) should be removed to truly make this no-fault maintenance. Someth ing that has been commented on before is the problem of trying to define "financial independence." And I think the absence of the definition is probably because it is impossibl e to define to fit every situation. Whil e the Act states that the factors in

Section 5 apply to a consideration, I would imagine, of whether or not a spouse has reached financial independence, several of those factors are inapplicable and I really am afraid I don't have too many things to offer as suggestions with respect to this point. I think it is very verydifficult to try and evaluate financial independence in a vacuum, and I think some of these criteria are correct.

The Act does seem somewhat unclear what a spouse must do if he feels his or her spouse has become financiall y independent prior to the dates, and that is someth ing that I think should be set out so that the procedures are clear. lt also doesn't appear from the Act or the amendments that I have seen that this Act provides for making of Consent Orders, where the parties agree between themselv es, but wish to have an order of the court.

I was unable to find it and as Famil y Court, in particular, is a court of statutory jurisdiction, it is definitely arguable, it should be there so the court does not have to go through a hearing if the parties are in agreement and wish it confirmed by the court. Basically those are all the comments that I have with respect to this Act. We tried to inform you of the basic principles that we supported and tried to pick out some of the problems that we see in the basis of the amendments that exist.

There are situations where there sti ll could be some inequities and I hope some of the points that I have raised will be consider ed in terms of drafting the Act so that the things that I have mentioned become clearer and less of a problem. MR. CHAIRMAN : Thank you. There are some questions. Mr. Wils on. you are representing the Manitoba MR. WIL SON: Yes' Association of Women and the Law, and I wondered if ...

You talked about removing some of the sect ions, but I wondered if you could explain to the Committee or certainly to myself, when we get down to the part where the onl y asset seems to be the family cheque. You talked about women's rights to be able to determine how the pay cheque was spent. Did you mean in equal participation in how that would be spent? You talked about the rights as how that pay cheque could be spent, could you sort of ela borate? I know it is only a small matter, but I just wanted to get your view. MS. ALLEN: lt is difficult to elabo rate because every situation is different.

But some examples that were raised to me more to show that there can be inconsis tencies is, for example, the situation where a spouse works and says, "I just do it for the fun of it" and you know, "All my money goes into clothes, that sort of thing. My husband should be looking after the famil y, purchasing the asse ts." So that on a separation there seems to be some unfairness there. There is no question that he can discuss is with his wife in terms of the situation as to a declaration or whatever that is in the Act with respectto that.

And then on a separation she becomes half owner of the family assets that he has used because he feels more responsible or whatever during the marriage, and all her money has gone into articles of personal adornment which are exempt. . The reverse side of that is, for example, where a husband goes and spends h1s money on whatever, but nothing tangibl e, and the wife is either having a great deal of difficulty looking after herself or he is using her money in the reverse situation .

That is sort ofthe kinds of fact situations you can dream up that show that really, the income, if it is treated as a famil y asset, in terms of practicalities what the husband is going to �ay to the wi�e or wh.ate�er I c�n't give you any ideas. on, but in terms of fitting with in the theory, I thmk that that 1s a log1cal mclus1 on. Personally speakmg, you know, 1 couldn' t imagine having my pay cheque made out jointly to my husband and myself but that is the logical extension of it so I have a li ttle bit of difficult y personall y speaking, but I can certainl y follow through the principle of it. . . MR.

WILSON: You tal ked about gifts and you said that the w1fe would get three-quarters of a g1ft. Are you talking about, say' a $5,0 00 set of wedding rings? What t�pe of a gift �i�uation? Co�ld you break that down into an example? When you talked about cred1t cards, spllttmg the equ1ty on a situation, what happens if there is a depreciation, say, on an item lik e a boat? Could you envision· what problem may arise there? MS.

ALLEN: Dealing first with the gift aspect, what I'm talking about is an asset that prior to this Act was definitely the husband's, whether it was purchased with his money, he decides he would lik e to give half of that asset to his wife, prior to the Act. He does so. That half as a gift is exempt from this 369

StatutQry Regula tions and Orders Thursday, Jun e 2, 1977 Act when it comes into force because it was a gift to the person. Now, he's left with his half and halt of that h�lf automatically becomes his wife's. Now, with the half example, I think that the amendments have corrected that, but if you are talking about gifting one-quarter to someone, or gifting a third, you haven't. So I think it's just a question of trying to reword that definition so that it doesn't read "equally" because there are situations where a person may give less tha n a half of something he ors he owns to their spouse. MR. WI I..

SON: On the evalua tion of assets bought on credit, who is going to determine the value of that? I talked about the example of a boat that was bought for $3,000; there is st ill $2,000 owing. Who determines whether the $1 ,000 is split equall y when the boat may be worth onl y $1 ,800.00? MS. Al..!.. EN: I don't think it's a question of who is determining the value of it per se, I think it just has to be clear that we are talk ing about the equity of it. lt' s the same as if it was completely owned and had depreciated.

You sti ll may be discussing the question of what the value of it is, but as it stands right now, if one person incurs the li abil ity or the debt with respectto the asset, I think it's conceivable - looking at the Act, it certainly is conceivable - that a claim could be made for the value of the asset, not the value of the equity. MR. WI I.. SON: My last question, Mr.

Chairman, is, as a lawy er - I appreciate as a Member of the Committee trying to get a free legal opinion -I wonder, do you see these bills as a windfall to lawyers and would you explain what the fees for a divorce are now and what they would be under a simple sharing legislation? In other words, if this Act is amended and it's going to be a sim ple shari ng leg isla tion, could you give me examples of what it cost now and what it would be? Is there a saving in these bill s for people separating , in legal fees, as compared to what it is now? MR. PAWI.. EY: Mr. Chairman, on a point of order. MR. CHAIRMAN: Mr.

Pawley state his point of order. MR. PAWI.. EY: Maybe the honourable member should be aware that this legislation would not affect the fees for divorce. MR. WI I..SON: Could the lawyer in front of us tell us what the approximate range of the cost of a divorce is now? MS. AI..I.. EN: No, I coul dn't really comment on that tonight but if the drafting problems in the Act are corrected so that things are clear, it is certainly our hope and feeling that it should have the result of less litiga tion and not more. MR. WI I..

SON: My point is this, the way it is now, it seems to me from the delega tions, that it is getting to be rather complicated. Do you anticipate- I'm asking for your own personal opinion, I know the room is halt -full of lawyers - but would you see these amendments in the bill as a windfall to lawyers as far as work goes? MS. AI..I.. EN: As the bill stands right now? MR. WI I.. SON: Yes. MS. AI..I.. EN: Wel l, I'm afraid to say yes, because I don't think things are clear enough. As the bill coul d be amended and as the amendments have started' I don't think it would be that situation at all. MR. CHAIRMAN: Mr.

Pawley. MR. PAWI.. EV: I wonder, Ms. Alien , if, in connection with the point that you raised re

Section 2, Subsection 2 of the Amendments to The Marital Property Act, if we made this change - I would lik e you just to foll ow it - if you think it would deal with the problem which you raised earlier in your submission. I woul d just read this : "The sta ndard marital regime does not applyto spouses who, as of May 6, 19 77 ... " then striking out all the words from "Upon" to "Act" in the second line thereof, then continuing on, "are li ving separate and apart from each other." Then the third line, we strike out the words from "pursuant" right down to the fifth line to "marriage," all the words there.

In other words, we are striking out the words "pursuant to the order of a court of follo wing the commencement of proceedings for the dissolution or annul ment of their marriage," and then we would be ending up with the words sti ll there, "and the standard marital regime remains inapplicable to those spouses for such period of time as they continue li ving separate and apart from each other." Do you feel that that change would deal with the concerns that you expressed? MS. AI..I.. EN: I think I lost you somewhere. MR. PAWI.. EY: Could I just reread it as it would read with the change? M$. AI..I.. EN: Yes. MR.

PAWI.. EY: "The standard marital regime does not apply to spouses who, as of May6, 19 77, are li ving separate and apart from each other and the standard marital regime remains inapplicable to those spouses for such period of time as they continue li ving separate and apart from each other." MS. AI..I.. EN: I would have to think about that a li ttle bit. MR. PAWI.. EY: Would you lik e to just think about that.

Let me just indicate to the Committee that in view of the submissions raised to this point- and I think it is fair to those who will be submitting briefs lat er - it would be my intention to change 2(2) alon g those li nes, to propose and move them. (Interjection)- Wel l, Mr. Graham, this is the whole purpose of receiving publi c submis sions, is it not? MR. CHAIRMAN : Order please. Members can debate when the time comes. This is the question 370

period. Statutory Regula tions and Orders Thu rsd ay, Jun e 2, 1977 MR. PAWLEY: Mr. Chairman, I heard one of the opposition members, "scrap the entire bill." This is what obviously the member woul d like to see done but we are meeting here to deal with proposals for changes. MR. CHAIRMAN : Mr. Johnston on a point of order. MR. F. JO HNSTO N: Let's not make the meeting a ... if the Minister wants to start arguing about what we have to say to one another ... which is a debate as to whether what party thinks of what now, if he wants to have it now, let's have it. Or rather, let's get to the heari ngs. MR.

CHAIR MAN: I would remind all members that this is the part of the proceedings for questions and not for debates. Mr. Pawley, do you have another question? MR. PAWLEY: Mr. Chairman, I thought I was attempting to be helpful to indicate a proposed amendment at this point so that time could be saved later. Ms.

Al ien, in connection with the reference to financial independence, I wonder if, in dealing with that, if a change was made in 5(1) to indicate and I don't want to go into too much detail on this - but si mply to indicate in determining whether financial independence is achieved or lost as the case may be that the factors outlined in

Section 5 woul d be considered for that purpose? MS. ALLEN: Wel l, I think that some of them are clearly inapplicable to the situation once you are looking at the question of financial (

e) independence. For example, 5(1 ) certainl y is. But I think those are the kind of factors that a court would have to consider, especiall y the first four, of course, in evaluating independence. I think it should be made clearer. MR. CHAIRMAN : Are there any further questions? Mr. Cherniack. MR. CHERNI ACK: Ms. Alien, I want to refer you to your discussion on

Part 1 ofThe Maintenance Act dealing with spouses and your concern that it is not clearly spelled out that fault shall not be a consideration.

I did not have quite the problem that you envisioned in understanding it because I assume that an order may be made whilst the couple is not separated and therefore I have read the first five sections and the sixth as well, to apply to the possibility - and it's not likely of course but it is a possibil ity - that during a marriage and whilst husband and wife are li ving whatever kind of life they choose to live together, that an application coul d be made for an Order for Support in accordance with the rights set out there, and that under those circumstances, then 5(1 )(e), it seems to me, would be relevant.

Then - if you are with me so far- then I go onto a reference later on that there may be a separation, under (

g) and (

f) where they are or will be living separate and apart. Then under those circumstances, I just read it that in the event that they wil l be living separate and apart, the ordershall be made and an application may be made which sets out the provisio ns of 8(2) which provide for, "No longer bound to cohabit or shal l not enter any of the premises," and those claus es that we al ready know that are required to determine the forthcoming relationship, or lack of, between the parties. So I didn't quite have your problem.

What one of the persons preceding you said about 8(1 ) is they thought that instead ofa judge may on application for relie f,a judge "may" - that it should be a judge "shall" make an order, that then meaning that he doesn't have discretion as to whether or not there should be an order but of course it is such relief as he deems fit where he does have discretion as to the extent or nature of the order. That's the way 1 read it and that's why I didn't seem to have the same problem that I think you had, altho ugh I admit to you I didn't quite follow your point. MS.

ALLEN: I'm trying to envision situations where the parties don't wish to live together. This isn't an application for maintenance while they are sti ll ma rried and I don't know that that is clear that that is available in the Act. The onl y place is 7(1 ) where it says, "Where a spouse desires an Order for Separation," that's the application for relief. Then if you turn back, you look at

Section 5, those considerations don't apply, I gather, for the str ict order of separation and the only thing you are looking to is the Order

Section which states what a judge may do and in

Section 8, it says a judge "may" and then, flowing through to 8(b), "order that the spouses be no lon ger bound to cohabit." Wel l, "may," if that part of it was "shal l," I think it would be clear. With respect to the other sections, I think the "may" should be in there. MR. CHERNIACK: Which other sections? MS. ALLEN: Well, the specific provisions that he has to consider

Section 5 for, such as maintenance and that kind of thing because, you know, there are considerations that he's bound to consider. But my original point was just that I don't think it is clear from the way these sections work together that if you want a separation, all you must do is apply to the court and advise them of your wish for a separation and your circumstances and you can get that separation order without dealin g with custody access and that type of thing. MR. CHERNI ACK: Let me ask you then what you consider is the purpose of a separation order or to get a separation if it isn't probably the essence of 8(2) (

b) on the question of custody? MS. ALL EN: 1 don't know, because I see people coming in to see me who don't want maintenance or their husband can't pay it or whatever. All they want is a separation order. What it means to them psychology, I don't know, but they want it. MR. CHERNI ACK: But does it really mean 8(b) ; is n't that really what it means? Is n't that the 371

Statutory Regula tions and Orders Thur sd ay, Ju ne 2, 1977 difference between a separation- an agreed upon written separation or order, isn't (

b) the essence of it? I don't know what else it coul d be. MS. AllEN: Wel l, I would li ke to see it spelled out clearly; that's my concern. While it says "may," if that's the onl y thing you were going for, could a judge refuse? How could he refuse? lt's just not clear enough, I think. MR. CHERN IACK: I agree with you; I think it should be "shall." MR. CHAIRMAN: Mr. Axworthy. MR. AXWORTHY: Mr. Chairman, I would just lik e to perhaps have more of an explanation on your suggestion that

Section 5(1) (

e) be removed. Was that done in li ght of the proposed amendments, the new

Section 5(2)? MS. AllEN: If those are the second set of amendments, I haven't seen them . lf it's the first set that you've got there ... MR. AXWOR THY: I'm not sure which set. I have as much troubl e as you have keeping up with them. I'm just more interested as to why you would object to that particular definition because the way I read it, it would mean that if there was an arrangement between spouses foro ne or the otherto take on certain arrangements, looki ng after the children, properties, or whatnot, that should be considered as part of the calcu la tion in making an order. l' m just interested why you want it removed. MS. AllEN: Wel l, I see it as being possible for

interpretation, that it's a question of whether the husband or the wife was a good husband or a good wife in terms of domestic service obl igations which are, you know, the various things with respect to the household, chil d care, providing family income and that sort of thing . I just see that that certainly le aves it open to people to come to court and say this was never done right, he never did this, she never did that. My concern is that that will become the overriding

section in the Act; that possibility is open. MR. AXWORTHY: I'm sorry, you seem to be talking about this as if it would be considered in the past tense as to what were the domestic arrangements. My reading of the

section is that these would be the guidel ines that woul d instruct a judge as to - if one of the spouses was all of a sudden having 1 to take on certain responsibil ities in relation to childr en, property, family, whatever, that that would be the criteria for determining the nature of the order that would be issued . Am I correct or am I wrong? MS. AllEN: Well, I see this basic

section as an order once the relat ionship has broken down, so then you are looking back to the marriage. MR. AXWORTHY: Oh, you do say it because I was reading it as if there was an arrangement that woul d be continuing and one partner or the other had taken on certain oblig ations in terms of sti ll maintaining certain requirements of family ... particul arly those rel ated to childr en, someone who was looking after a house with childr en in it and so on. MS. AllEN: Wel l, I don't real ly envision this

section coming into play when the marriage is ongoing. MR. CHAIAN: Mr. Spivak. MR. SPIVAK: In your presentation, you refer to the dis sipation of assets and then automatically went into excessive gifts. Now, I want to understand so mething. In your terms or in your undserstanding, do you consider the dis sipation of assets is really rela ted to excessive gifts or do you have another

interpretation of dissipation of assets? MS. AllEN: No, 1 consider them as being separate and the reason I mentioned them together is because the amendment deals with the time limi ts for wh ich you are looking at them and that's the reason I dealt with them together. MR. SPIV AK: I wonder-then if you can indicate what you would consider dissipation of assets. MS.

AllENl: Wel l, again, that is something that I don't know if it's capable of definition before the fact. 1 would imagine that one of the reasons there is no definition is because, you know, you can imagine a thousand different examples, depending on the type of business or the type of asset. MR. SPIVAK: Mr. Chairman, I would just lik e to ask, just by way of example, a few situations and then just see what your impression would be.

Assuming that within the six year period, the husband who was in charge of the commercial assets and operating them has become an alcoholic for a period of time and, as a result, the commercial assets in their management suffered in some way. Would that be considered dissipation of assets? MS. ALLEN: Well, on facts lik e that, it's hard to say but I think perhaps it certainly could be ifthere is an objective standard as to how to handle the type of asset that you are deal ing with in a specific situation. lt certainl y is evolved in other areas of law.

I think that certainl y could be considered dissipation if he was, you know, unable to manage the assets up to the objective standard. !t would certainl y permit someone to try and move in so that everything wasn't completely lost due to complete lack of any sort of of business judgment that the person had before. MR. SPIVAK: Let's take another example. A situation where a husband is invol v!;!d the spouse is involved in the managing of commercial asset or the busi ness or the profession - wel l, the 372

Statutory Regula tions and Orders Thurs day, Jun e 2, 1977 commercial asset itse lf which I assume would be part of the profess ional asset as well in terms of professional income earned - can I ask whether if he was during that period of six years subject to some psychological trauma which may or may not have required psychiatric care -(lnt er jection) Beg your pardon? We're going to come to the politicians in a few moments. But, would you consider that is a dissipation of assets? MS.

ALLEN: Wel l, I think again you have to look at what the person was doing prior to this intervening event that you're talking about. I don't think the Act is saying that everybody has to be a Nelson Rockefel ler or something in terms of business astuteness or anything lik e that, but if there is some sort of change that is affecting the person or they are doing someth ing differently so that there's problems in the business, I think that that's what it should cover. MR. SPIV AK: Wel l, let me take Mr. Axworthy's exam ple.

Let's assume that someone leaves the commercial field and enters politics say on the municipal level to the extentthat full time is devoted in this respect and the commercial assets in fact are used for part of the living during that period of six years. Do you consider that dissipation? MS. ALLEN : Your point is that you're saying that by going into politics or whatever and not staying to manage the assets, you don't have ... yes. Oh, I don't know. MR.

SPIV AK: Well, the point being with respect to the concern, is the concern real ly not that somehow or other during the period of time of the management when ostensibly the two partners are living together and that there is nothing done which would provide someone else, who is a third party to it, with an excessive gift, that would in fact be really part of the sharing that the two should be involv ed in. Isn't that really your concern as opposed to really an evaluation of whether there has been good judgment or bad judgment in the operation of the commercial assets over a six year period?

Isn' t that really the real concern, that there not be something done which would provide someone else a benefit as a result of during that period oftime which, in fact, woul d have the effect of decreasing the value of the assets itse lf. MS.

ALLE N: Wel l, no, I can think of examples that don't fall within that thing . lt is difficul t to sort of bring them up right away but, for example, take somebody who otensibly is going down to Toronto for a business trip every weekend and it's a drain on the company in some way taking these trips and it turns out that really he's going down to visit his girlfriend, for example, - this all comes out after the fact - that's something that I can see could objectivel y be lo oked at in terms of dis si pation. MR. SPIV AK: But that's fault. MS.

ALLEN: No, it's not a question of fault. it's a question of you're doing something for one purpose and reall y it's not something to do with the business, it's not as if you ... I don't know, that's just a quick example that comes to mind but I am sure there must be others. MR. SPIV AK: But, on the other hand, there is nothing that suggests that the other spouse who is not involved in the commercial assets who may very wel l be conducting herself in such a manner in which she is real ly utilizing part of the income for purposes other than the famil y unit, is in any way asked to in any way account.

Now, again, all I am try ing to suggest is that surely in terms of dissipation the issue of equity has to come in in terms of eval uating real istically what has happened. MS. ALL EN: Wel l, when you say equity, you mean in terms of fairness. MR. SPIVAK: Yes. MS. ALL EN: ell, I think that because of the fact that dissipation isn't defined, because of the fact that every situation certainly is different, obviously you're going to have to look at the situation In itself and assess it that way. I don't think it could be done any other way. MR.

SPIV AK: But really what you are suggesting though is that dissipation is really related to some issue of fault, somewhere. MS. ALL EN: No. MR. SP IV AK: it's not a question of judgment; it's not a question of bad management; it's not a question of lack of attendance to business for whatever reasons other than the specific reasons that you're talking about. MS.

ALL EN: Wel l, no, I don't think, for example, the person who becomes an alcoholic or has psychiatric problems is a question of fault but objectively looked .at, the business ability may certainly suffer so that it's not the same as it was before in terms of how the business has been run. MR. SPIV AK: You're prepared to let the court make the determinations with respect to dissipation and to set up the whole criteria and establish the rules under which this

section would be applied -I mean in terms of its whole

interpretation. There's no

interpretation of dissipation in the Act and without it, are you prepared really to allo w the court to set up its precedents for this and to establish what is dissipation and what is not? MS. ALL EN: Well , looking at the incredibly wide variety of things that can be commercial assets, you know, I think it woul d be extremely difficult to try and reach a definition to cover all that. MR. SPIV AK: Can you visualize a situation where the husband and wife have been married and find difficul ty. The marriage has not broken up but during that period of time, because of the difficul ties that they've had, the husband just does not attend to business. And, as a matter of fact, the 373

Statutory Regula tions and Orders Th ursd ay, June 2, 1977 resolution comes forward to separate. Would you consider that during that period of time the failur e to atten� to business basically is caused as a result of the rela tionship between husband and wife which'u ltimately led to their separation or divorce, would you consider that that action if, in fact, the values went down, is a dissipation? MS. ALLEN: Just on those facts I can't really give you a definite answer.

I think that, as with any sort of fact situation, the reason I think this is in there is because under the scheme of the Act, we're saying that you do have a deferred share of the commercial assets and the person who is the owner is the lll ,�nager in the meantime. So I think that that's property there in that

section following on from the principle of the deferred shari ng. Mft� SPIVAK: If a wife was to visit her mother in another town and take a trip using part of the income of the family but, in fact, see someone else, would you consider that there's any fault or anything that should in fact jeopardize her right to receive the 50 percent on a separation or on a divorce? MS. ALLEN: Wel l, I'm not sure what you mean as part of the income from the family. MR .

SPIVAK: Well, what I'm simply saying to you, you're suggesting that if, in fact, someone made a trip and the trip was for another purpose and it was charged to the commercial assets that there shoulcl be an abil ity on the part of the court to be able to determine that in effect those trips were in fact dissipation and therefore in the terms of commercial assets, the value should be increased accordingly. Now, I'm sim ply saying, where in effect the reverse situation takes place, do you st ill consider that the wife is st ill entitled as a right to 50 percent of the commercial assets? MS.

ALLEN: Wel l, I think the difference is that you are looking at a business and you can look in terms of dol lars and cents what's going on in the business. lt's the same as people coming back at directors or whatever for treating thems elves excess ively later on. I think that's the same type of principle in commercial law that can be follo wed through. MR. CHAIR MAN: Mr. Graham . MR. GRA HAM: Thank you, Mr. Chairman. Through you to Ms. Allep. Ms. Alien you are a practicing lawyer in the Province of Manitoba? MS. ALLEN: Yes. MR. GR AHAM : Do you do much of your legal work in the field of family law? MS.

ALLEN: Yes, a certain amount of it I do. MR. GR AHAM : In this proposeq leg isla tion, in particular deal ing with maintenance and

Part I dealing with spouses, I notice Sections 2 and 3 probably deal with the principle of maintenance and probably deal with it before separation and 4 and 5 deal with it more or less after separation. In your practical experience, do you find many cases which deal with maintenance before separation occurs? I\II S. ALLEN: You mean an applic ation for maintenance before ... MR. GR AHAM: No, I'm dealing in practical terms. Do you have many cases that come to your attention of spouses who want a court clarification and maybe even a court order deal ing with maintenance before separation occurs? MS.

ALLEN: You mean and the intention is to separate after ... MR. GR AHAM: No' I'm talking about intending to carry on with the colabita tion. MS. ALL EN: Well, right now it's not possible. A wife has the right to be supported by her husband in terms of necessaries which is a legal concept that is quite li mited in effect in terms of what she is entitled to purchase or not, or to have from her husband. MR. GR AHAM: Mr. Chairman, maybe for a matter of clarifi cation, I belie ve M- s.

Alien told us I can't quite quote her words-but I bel ieve she said that most of them were concerned about separation first and maintenance afterwards, that separation became the predominant factor rather than the maintenance. MS. ALLEN: No, no, I was talking about people who, for whatever reason, do not at any time want maintenance from their husband. I am talking about people who feel that they want to go off on their own and they're just concernee, or have been concerned in the past with actually having the piece of paper saying you're separated. That's all I meant by my earlier comments. MR.

GR AHAM: Wel l, then can I ask you that in your own personal experience in practising law, is that �. predominant feeling of those client s that have come to your attention? MS. ALLEN: No, it's not a predominant feeling but it certainly exists. Every situation is different . There are many many people who are extremely concerned with maintenance and custody and that sort of thing but my point was that the situation does arise where the person is not concerned with the other things, just the actual separation. MR. GR AHAM: Mr. Chairman, I would lik e to ask Ms.

Alien then, we are deal ing with various aspects of famil y law and is the concept of preservation of the family unit an important factor to be cons\Q�red or should we be concerned more with preservation of the individuals after .separation occurs? MS. ALLEN: Well, I think they're both very important. I don't know how much the Legislatur e can 374

Statutory Regula tions and Orders Thursd ay, Jun e 2, 1977 look into somebody's marriage that's existing very happily. Legislation usually comes into effect where there are trouble spots and so I think that they are both important but certainly the legisla tion has to look at reali ties and see what's going on in terms of marriage breakdown in an attempt to amend the law so that it conforms with people's ideas about it. MR. GRA HAM: Well, then, I would like to ask Ms.

Alien, if we pass this legisla tion that's before us plus the amendments that have been handed to us and the amendments that the Attorney-General talks about introducing further, in your opinion, will that expedite the breakdown of the family unit and faci I itate the separation and the preservation of the individual as a separate entity rather than as a married entity. MS. ALLEN : No, I certainly don't think it will have any effect on the rate of marital breakdown. MR. GR AHAM: Thank you, Mr. Chairman. MR. CHAI RMAN : If there are no further questio ns, thank you, Ms. Al ien. Marilyn McGonigle, please.

Come forward. MS. MARILYN McGONIGLE: Gentlemen, the Manitoba Action Committee on the Status of Women has for many years been actively seeking changes in the legal and social circumstances of women in Manitoba and in Canada, changes that will equalize the status of women and men, erase discrimination on the basis of sex and create an environment in which independence and self fulf illm ent of all persons is not hampered by cultur al, legal and social barriers and lack of support from government and community.

For three or four years, Manitoba Action Committee has been involved in assessing family law and recommending reform in Manitoba. We have followed closely the Law Reform Commission's reports and recommendations and wish to comment on the legisla tion. The Manitoba Action Committee is a member of the Action Coali tion on Family Law and generally supports Bills 60 and 61 and urges the passage of this legislation with appropriate amendments. The two bills deal with the three major areas of concern of M.A.C.

S.W. on which we expressed opinions to the Law Reform Commission in response to their interim report two years ago. Our three concerns were: 1. that the law articula te the principle of equally sh ared property and income in the ongoing marriage, 2. that an appropriate no-fault stan dard for determining maintenance for separated spouses replace current uncertainties and inequities, and 3. that serious enforcement of maintenance orders be made possible and be backed by government. To a limi ted extent Bills 60 and 61 rectify some of the injustices in existing family law. M.A.

C.S.W. is disappointed that this legislation does not articula te completely equitable ownership of property, or enact joint ownership and management of income in the ongoing marriage or effectively meet the maintenance enforcement needs of spouses and childr en. it was and is M.A.C.

S.W.'s position that without effectively enacting a right of sharing and management of income in marriage and effectively enforcing appropriate maintenance orders and agreements, any legisl ative change is merely a cad em ic, having declaration value only, and irrelevant to many wives and mothers, who are legal ly and practical ly helpless in their situations. Our comment and criticism is not that this legislation is so poorly drafted that it should not be enacted with appropriate amendments, but that it does not go far enough in crucial areas of concern to the large majority of Manitobans.

Here before Law Amend ments Committee our concern is that the changes that are intended by the Legislature do not create any injustice or unnecessary confusion. it is most important that no situation insofar as it is foreseeable is created that is contrary to the principles of equality and equity. The corrections of unjust situations that married women and men in similar, that is, reversed situatio ns, have found themselves without recourse in law in the past must not render any person the legislation is intended to assist, worse off than before enactment. Now, with regard to The Marital Property Act and

Section 2 Jointly owned Marital home - Specificall y,

section 2, for example, should not provide that a sole support parent or spouse, now separated, who has not received any or adequate support or maintenance, should now find her or his house jointly owned by the other spouse notwithstan ding the separation. Joint ownership should not apply to spouses who are separated at the time of proclamation except that each spouse should share equall y the equity and increased value of the home acquired during cohabitation.

This is to say that if the house that is owned by one separated spouse was owned during cohabitation, one-half of the equity and increase in value up to the time of separation is owing to the non-owning spouse. To impose joint ownership in such situations is to ignore the reality that mutuality and agreement is no · longer part of the rela tionship.

Furthermore, it should be possible for a separated spouse to challenge the above assessm ent of the portion owing to the non-owning spouse on the basis that maintenance was or would have been forthcoming to the spouse who owned the house, for him or herself and the childr en in his or her custody, notwithstanding that maintenance was not requested 375

at the time of separation. Statutory Regulations and Orders Th ursday, Jun e 2, 1977 With regard to this, in such cases interest shouldn't be deemed to accrue to the amount determined to be owing, nor rent or rent equivalent imposed for the years since separation. What this suggestion of ours envisages is the situation in which one spouse has now the custody of the childr en and is and has been earning the income and paying for the house, and during a separation, and because the house had been marital property, it will now become partly owned, half owned by the spouse that is not there anymore.

In the meantime that spouse may have gone out and bought a home that woul d not be sh ared because it isn't a marital home. Now we feel that that is an oversig ht but it might not be the correct

interpretation ofthe legisla tion as it has been amended. The second suggestion is with regard to separation agreements and I understand the amendment has partiall y taken care of this. The Act is unclear just how separation agreements and property of now separated spouses are to be dealt with. The Act should not nul lify all separation agreements. They should be challengeable on the basis that the distribution of property and maintenance order was inequitable and inadequate in the light of the principles of the Act. Otherwise separation agreement should remain enforceable if unchal lenged.

The standar d marital regime should apply on death of one's spouse. It is our position that the legislation should not create a situation whereby a person will be better off to separate from than to survive his or her spouse. The spouse who has onl y Dower rights for protection exists in a separate property regime with respect to commercial property and has no testamentary freedom with respect to assets which would be shared on marriage breakdown.

Whereas the spouses who separate must opt out, the spouses who stay married must opt in to deferred sharing. The anomaly would best be cured by applying the SMR to the marriage that ends by death of a spouse. Greater certainty and equity between spouses is assured for the non-owning spouse whether that spouse predeceases the other or not.

With regard to the Family Maintenance Act, the principle to be applieq here is equali ty during marriage and no-fault maintenance after separation based on need and rel ative standard of living of the spouses with a goal of economic independence as soon as reasonably can be expected. There is some confusion in the Act as to the very different circumstances of mutual obligation in marriage and maintenance on separation. The problem is with the word "contribution" in

Section 2; the definition of financial independence and the criteria in S.5(1 )(e). First of all it is absolutely necessary to articul ate in la w that "contribution" includes non-monetary inputs, as well as monetary - and I believe the amendment has included a definition of "contribution"- that the economic equality of the spouses legally arises at the time of the marriage commitment and subsists during cohabitation whatever form the contribution takes and whatever life style is adopted by the married partners.

Section 5 (1) (

e) is an anomaly in this respect- it articula tes a concept contrary to the principles of equal partnership. First it has never been recommended or intended in any submission or preliminary report of the Law Reform Commission or otherwise that the contribution be defined or examinable on the basis of domestic arrangements. Even those who would retain fault to vary the property and maintenance rights of non-earning spouses do not suggest that a new cat egory of behavior be added to the existing list of marital misdemeanors.

Secondl y, where in this Act is it open to challenge how much the earning spouse contributes monetarily? Can a wife say-that her husband shou ld have been a doctor and not a bus driver, should have earned $30,000 or $1 00,000 and not $1 0,000 earned at the preferred occupation? Who has ever suggested that "objective" criteria dictate that a domestic relationship even exist in marriage today? Not MACSW or any other group. Who is to define or challe nge the fulf illm ent of domestic service?

Section 5(1 ) (

e) articula tes a concept that implies that the role of the non-earning spouse is that of a domestic servant. While it is no surprise that some would consider it an improvement over the 19 th Century property or sl ave status of wives to ele vate them to that of domestic servant in the 20th Century, it is not a concept that is endorsed by women or men interested in defining marriage as an equal partnership.

Section 5(1 )(

e) should be dele ted and

Section 5(2) or the definition

section should define "contribution" for the purposes of the Act to include monetary and non-monetary inputs. Specific performance of personal se rvices is unenforceable in law. No definition of "contribution" should imply that obl igations exist or are measurable or enforceable in accordance with a definition of marriage that is like a contract for domestic services. Sectio ns 4, sub (2) and sub (3) and

Section 5( 1) (g)(

i) refer to the phrase "financial indel).endence." Financial independence is not defined in the Act and a great deal depends on the

interpretation put on these words by the courts. MACSW endorses the principle of financial independence as soon as is reasonably to be expected. However, it should be defined such that a 376

Statutory Regula tions and Orders Thu rsday, June 2, 1977 substantially similar standard of living is possible for both spouses after separation. This is particular ly important where there are childr en of the marriage in the custody of the dependent spouse or spouse with the lower income. lt is of equal importance where after a lengthy marriage and where the childr en are no longer dependent a spouse's earning capacity will provide a mere subsistence level of livi ng. There is no reason why either spouse should be subst antiall y better off than the other.

A person shou Id not be forced into menial employment to supplement maintenance or be subject to a reduction in maintenance dol lar for dol lar upon earning income whil e the other spouse is in a better financial position. The aim of financial independence should not create an onus on the less well off spouse to in effect subsidize the other's higher standar d of living or create the hopeless situation similar to the welfar e system or 10 0 percent taxation where extra effort toward independence is economically punitive. Comparable standar d of living does is not clearly articula ted in

Section 5 consider ations and MACSW urges the adoption of an equal standard of liv ing guideline (1) for the courts; (2) to equal ize negotiating power between spouses and (3) to encourage out of court set tlement of a couple's financial affairs. With regard to the enforcement of orders, maintenance enforcement, the Act does not adequately strengthen procedures for col lection and support and assistance for the dependent spouse. This matter will be dealt with by other members of the Action Coalition on Family Law.

MACSW urges this government to actively assist in the enforcement of maintenance orders by undertaking col lection of defaul t judgments and by providing financial assistance for women and children victimized by non payment of maintenance orders. MR. CHAIRMAN: Does that complete your submissio n? Mr. Sher man. MR. SHERMAN: Thank you, Mr. Chairman. Mrs. McGonigle, on page 3 of your brief you say that with respect to separation agreements your organization believes that the Act should not null ify all · separation agreements.

Such agreements should be chal lengeable on the basis that the distribution of property and maintenance order was inequitable and inadequate in li ght of the principles in the Act. Separation agreements should remain enforceabl e if unchallenged. I interpret this as being at least a sort of a tacit sanctio ning of the concept of retroactivity, or at least partial retroactivity which has been a major source of difficulty for many of us, I think, on the Committee.

Let me put a personal, not a personal but a specific example to you that I am personall y famil iar with, the case of a woman who has had an unsuccessful and an unfortunate marriage, whose husband is at fault for the difficulties that developed in the marriage, who has raised the childr en on her own, who has done a good job of that, who has paid off the house, who has put herself through university and who has, in general, acquitted herself as a serious and responsible parent and citizen.

Are you suggesting that the husband now should have, because there is no specific written agreement that I know of, alt hough there might be one, I don't think there is, thatthe husband should have a right under this legisla tion to half the house, and half the property which was part of the marital regime at the time that they were married and living together, or should have any right of action against that woman at all, for satisfaction of a financial or property nature? MS.

McGONIGLE: I think that what we were trying to get at here was an avoidance of just such a situation whereby property splitting would occur, notwithst anding a separation. In other words the Act as we read it was going to nul lify the separation agreements and apply the SMR to existing marriages including separations. And as a kind of compromise with the idea, there are two possibilities, you either include separated spouses or you don't, in which case obviously there's going to be an inequity either way.

The situation such as you have articul ated has been posed before and what we're trying to do is introduce equal ity during the marriage. And so what I mean by this is that for the period of time that the spouses were married there was sharing of property, that it would apply to that period of time that they were married if the property belonged to them then.

So that if a house were purchased in just such a situation you are talking about, a house was purchased in '63 and the couple separated in '67 and one spouse owned the house and owns it today, the sharing would be the value during cohabitation, from '63 to '67. Now I know you have an evalua tion problem there but it's a better solution than sayi ng that in 19 77 that house belongs to both spouses and that the last ten years in which there hasn't been a mutuality in agreement and they haven't been cohabiting in the house that it is shared. Now, when we say it shou Id be challe ngeable on the basis of ...

In a situation where the woman that you're talking about has childr en or shoul d have been receiving maintenance during those years that that shoul d be taken into conside ration if the non-owning spouse is suing for the value. Meanwhile you've got the opposite situation, a recent separation of a woman who is now without a · house, whose husband is living in the house. He owned it. He is li ving in it. She's elsewher e with the childr en and she should have had a share of the house.

If they cohabited in that house as a marital home for ten years and they have been separated for three years, the value during that ten years should be - she should have something coming to her on the basis of that. I don't know if I'm very clear. 377

Statutory Regula tions and Orders Thursday, Ju ne 2, 1977 MR. SHER MAN: I can see, Mr. Chairman, that the inequity certainly can cut both ways but just to refer again to the specific case that I raised The situation is a fairly recent one and the fact of the matter is that the husband and wife did own the house- together. Unde r the legislation we're considering right now, they would own it together anyway, but even notwithstanding that leg isla tion, they owned it together. MS. McGONIGL E: And when did that end? MR. SHERMAN: lt ended within the past two years.

Now what happened was, at that time they arrived at an agreement rather informal, I think, alt hough there might be a formal agreement, thatthe husband repudiated all interest in the house and went off on his own and said the house is yours. She also took on the responsibi li ty, as I say, for raising the chil dren and educating herself and is in the midst of that process and doing wel l at it, went into debt to undertake that responsibility.

Now, on the basis of the legisla tion we're lo oking at right now, that agreement - and on the basis of your recommendation, and I know the Attorney-General is suggesting amendments, but on the basis of your recommendation - that agreement under which the husband sa id, "The house is yours; I give up my half of it; I'm lea ving," coul d be chal lenged . He could now come back and say, "Well, half of all of that is mine." - on the basis of your recommendation. MS. McGONIGL E: Yes, and this is exactly ...

Now, whether or not we make a more limi ted challenge, the difficulty there is, in a situation, is that the Manitoba Action Committee is interested in the status of women and it is mostly women, let's face it, who are looking for more equity in this legislation and it is they whom we can't abandon, li ke the women in the situation you're descr ibing, who have made all the contribution, including all the monetary contribution.

Now, it is difficult to deal with this without dealing with situations where it is usuall y men and situations where it's usually women, but what I thought would be a reasonable thing, if that is chall engeable, so is the maintenance that she should have received and sort of an offset situation coul d develop whereby if there. is anything she has owing, he wouldn' t become half owner of the house but there would be something that she would probably owe him in the value during their cohabitation in it.

If she had maintenance and so forth coming to her on the basis of their circumstances since, then there would be nothing owing. Do you see what I mean? If we could develop a concept whereby it is not inequitable without opening up the whole bag of fault and li tigation. MR. SHERMAN: Wel l, I see what you mean but I think you'd need ideal conditions to ensure that that trade-off took place. I think there would be many women and I am sure theone that I am referring to would be one of them, who would say they woul dn't want to take their chances on maintenance.

What they want is to know that the property that they have supported and paid for and maintained is theirs and that there is no right of action to it by the other party. MS. McGONIGLE: Well, I think that that is possibly better yet if that's the case with all people. I am very concerned about people who are have separation agreements now, women, who had no bargaining power when they made their separation agreement. Their separation agreement was just whatever hand-out was coming and whatever would avoid litiga tion or fighting over chil dren.

They have more coming to them and that should be reopenablea nd I don't know how you can do it without saying , "For women we're going to do this and for men we're going to do that." Given that this legislation is really trying to correct inequities that trad itionally apply to women. Now, I wish there were a way and I thought that this might be a suggestion tor it. I don't li ke the idea of the legisla tion completely abandoning the people in separated situations that are unsatis factory by agreement because agreements have been heretofor very easily coerced. MR .

SHERMAN: Well, I appreciate your position and your explanation. I hope that you will also appreciate that many of us feel pretty strongl y about the retroactivity concept and require some persuasion before we would be in favour of retroactivity. MS. McGONIG LE: Wel l, the legislation is amending to the extent that they are not null ifying the agreements and the suggestion would be that ... MR. SHER MAN: But they coul d be chall enged. MS.

McGONIGLE: . . . is a chal lenge on the basis of the principles in the Act. lt would n't really change the equity you see, if inequity, the agreement should be changed , portions of it changed, in order to bring it more up to date. An agreement a year ago that gave a woman about one-tenth of her husband's income as maintenance, no property and God-kn ows-what, you know, very little and we can't abandon these women. There are a lot of them too and it is going to make it difficult tor some people but, on the other hand, a lot of agreements have been reached that are equitable and that neither party will chall enge.

People who haven't li tigated to death the whole thing, they've got agreements that are satisfactory and they've finished it and they don't want to reopen it and they wouldn' t have to. MR. SHERMA N: Wel l, it's obviously a tough question. Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Wils on. MR. WILSON: Fol lowing up on that, sin ce you represent the Action Committee on the Status of Women, I wonder if you cou Id help me by . . . brief here seems to general ize in a number of areas and 378

MS. McGONIGLE: Yes. Statutory Regula tions and Orders Thurs day, Ju ne 2, 1977 MR. WILSON: ... just to clear it up, I wondered if you could explain non-monetary inputs. Are you talking about the government and the courts wou Id put a value on such things as housework and community work? What do you mean by non-monetary input? MS. McGONIGLE: Where are you referring to? MR. WILSO N: Sec tion 5(1 )(e) . MS.

McGONIGLE: Yes, what we're looking for is a definition of contribution that is not as narrow as was articula ted in the Murdoch decision which was that it had to be money. ow, what we want lsa recognition that marriage is a 50-50 partnership or an equal partnership in all aspects and we want the definition broadened of the word "contribution" which is the stickler, one of the sticklers, In current law, because it requires a monetary contribution. We simply want that clarified and it Is not necessary to go into domestic relationships for this.

This is precisely a concept that we've been trying to get away from, the idea that we have a domestic arrangement, like a domestic service contract. And I really meant it when I said that in the 19th century wives were property or slaves and In the 20th century now we are going to articulate that they are domestic servants.

A marriage arrangement, a marriage concept, two people make commitments to each other that encompass all sorts of things and this is precisely why we want to get away from examining by articulating equality, that it is deemed to be an equal partnership, that they are both putting Into lt, and as long as that marriage subsists, that's the way it is defined. When it breaks down, you take a look at the criteria in

Section 5, which

section 5(1) (

e) detracts from but there Is no need for this, for

section 5(1)( e). There's no need for a domestic arrangement to be defined by legislation as "duties and responsibilities." And who is to define, who is to challenge? Obviously it's going to be a husband challenging a non-earning wife her fulfillment of domestic service obligations. I think that Mr. Axworthy and Mr. Cherniack were asking questions about it and, if I understood them correctly, they each had a different idea of what

Section 5(1)(

e) was referring to, whether it was referring to the ongoing marriage or the separated situation and that should be clarified too. MR. WIL SON: Yes. Wel l, woul d you clear up this other one for me then. You talk about a simila r standard of li ving after separation. Would you explain that? I envision about six people starting off and after two years they all seem to develop different types of stand ard of living. Is it up to the government and the courts to decide the standar d of living because you generaliz e here and I wonder if you could give me an example? MS.

McGONIGLE: Wel l, I generalize for the reason that the Manitoba Action Committee is dealing with principle and what we want to see in legislation and you've been looking for two days for a definition of financial independence and we're very concerned that it not be defined as say a welfare level or whatever a woman . . . If a woman has a job, a woman of say 50 goes out a gets a job clerking in a store, that she's financially independent after many years of marriage and with a spouse who has a substantial income.

That would not befairt o have a minimum definition put here and the fairest one that I know of is one in which neither spouse should suffer a greater drop in standard of li ving than the other and where there are smal l childr en involved, those chil dren have a right to the standar d of living of their better-off parent. How can you, you know the existing situation in wh ich childr en . are li ving at a welf are lev el, whatever their fathers are doing.

Now this is a situation in which the fathers are getting away without paying maintenance but even in court ordered maintenance, I've heard of a situation where a woman who pays $10 0 a month in child care has a $50 maintenance order and she makes $600 and he makes $800 or $1 ,000.00. What kind of maintenance is that? Is that equalizing things?

Now, there are other provisions here for the efforts to be made by the non-earning spouse to become financially independent, that is to reach a level of a financial independent standar d of li ving, and you haven't heard any women, I haven't heard any of the women complaining about that. In fact, we've been looking for that and loo king for an end to the li fe sentences on maintenance. Now, l don't know what standar d you want to apply but this is our suggestion for it. A relative equal ity with that goal of ending it. MR.

WILSON: Yes, but you talked about one-tenth of the income the way it is now and we can all agree that it is possibly unfair. What do you consider a simi lar standar d of livi ng? Are you considering that the working partner ... MS. McGONI GLE: I'm thinking of monetarily. MR. WILSON: ... yes, money know, I but the working partner pays what? Fifty percent of his net income? Or 30 percent? Or 40 percent? MS. McGONIGLE: If the non-earning spouse is total ly dependent and has childr en to rear and training to go through to become an earning person, a self-dependent person, then why not? MR. WILSON: How many years? MS.

McGO NIGLE: I think that that's determined under the other parts of the Act that you've got the needs of the spouses and childr en, the financial means and earnings, the standard of living, okay, that's the

section that you coul d bring that in. Some of these criteria do apply to financial 379

Statuto..Y Regula tions and Orders Thur sd ay, Ju ne 2, 1977 independence but it's circular because in

section 5(1) (

g) you have financiall y independent there so you c"ah't use this

section to define it if it's using the word. MR. WllSON: lt will have to be clarified, right. Okay. MS. McGONIGlE: I see that as a possible solution but it would be terminating as a woman becomes independent, as she begins to earn money but I'd hate to see a dol lar for dol lar reduction. That makes it so discouraging as in welfare situations. MR. WllSON: Yes. Okay. MR. CHAIRMAN: Mr. Cherniack. MR. CHERN IAC K: Thank you, Mr. Chairman. Ms . McGonical, you've made certain specific points, I think they're very hel pful and I think that we can benefit considerably by just being clear on those and I want to . . . MS.

McGONIGl E: Well, I try. MR. CHER NIACK: ... I want to try. You've made the contribution, I'd lik e to . . . MS. McGON IICAl: Understand it. I\II R. CHERN IACK: ... mainl y because I interpret what you're saying is that you want this legislation to pass; you want it to be improved, but passed, and on that basis I am trying to make the effort. Firstly then , your point about

section 2. I have reached the opinion as of this moment, subject to what's dis cussed from here on in , and much will be discussed, that we cannot cure problems and inequities way back. MS. McGON ICAl: Right. Okay. MR. CHERNI ACK: ... that existed - in the past tense, I have accepted for now; and I think it was in my mind at all times that where a separation is in existence and the date of May 6th was suggested as logica l, that a separation in existence as at and prior to May 6th shal l not be covered by the Marital Property Act. MS. McGONRCAL Any separation at all, not one with an agreement. MR.

CHERNI ACK: That's correct. MS. McGON ICAl: I see. MR. CHERNI ACK: I think that simplifies it but I'm not saying it for the purpose of simplicity; I'm saying it for the purpose of having something effective that we could work with. MS. McGON ICAl: Right. Okay. MR. CHERN IACK: And I wo ul d then say that any separation that takes place after May 6th is covered by the Marital Property Act, and by saying that, I think I think I elim inate the problems which you raised and which Mr. Sherman raised, both of which I think are valid problems. MS. McGONICAl: Wel l, you don't elimin ate them; you're going to ignore them.

MR. CHERNI ACK: I'm sorry. You're right. We don't deal with them. MS. McGONIIC Al: Right. MR. CHERNI ACK: You're right. I bel ieve you're right. MS. McGONIC Al: And I th ink that that is obviously the simplest way to handle it. My personal concern has al ways been that the legisla tion be equitable and I personally feel that I do not want to see it make anyone worse off if we can help it; if we can see it and do anything reasonable about it, we must. This is obviously not the simplest ... MR. CHERNI ACK: Well then , you're saying "not worse off" would apply to a separation that took place prior to May 6th.

They would not be worse off but they would not be helped. I mean, the inequitable situation would not be helped but they would not be worse off than they would be dealt with in a court . . . MS. McGONIGL E :W el-l, with respect to the home, they would be though. Where it is inequitable to shar e ... Oh, I see, you're not applying it at all to the separation ... MR. CHERNI ACK: I'm not applying it at all, and that's my inclin ation. I think some of the people who have al ready made presentations have agreed with that concept. MS. McGONIGL E: That's correct and ... MR. CHER NIACK: And I see now that maybe ... MS.

McGOINIGL E: But maintenance can be chal lenged under change of circumstances, but this is change of legis lat ion. MR. CHERNI ACK: Yes, I'm not ta lk ing about maintenance. I th ink that co ul d apply to any marriage where maintenance is now taking place. The new Act would replace the old Act for variations, for maintenance. MS. McGONIGl E: If it will take care of it. Some people think it will. I hope so. MR. CHERN IACK: Well, we can hope so. Next' on the question of the Dower Act, marital regime taking place on death.

I th ink I can see no objection to your point that the marital regime will term in ate on death and maybe optionally, either the Dower Act or termination on death. But frankly I don't understand the circumstances under which someone would rather go with a termination of marital regime than the Dower Act, because the way I read it, the Dower Act is li kely to cover much more than, and certainl y not less, than the sharing of assets on the marital property division. 380

Statutory Regula tions and Orders Thurs day, Ju ne 2, 1977 MS. McGONIGLE: The problem is in the principle of the Dower Act which was not enacted to be an equal shari ng situation. lt was enacted a long time ago for protection purposes and it doesn't give any on-going right or any testa mentary disposition to the non-owning spouse. MR. CHERNIACK: I don't understand what you're saying. MS. McGONIGLE: As I understand it, under Dower today, if the property's owned by the husband and the wife predeceasesshe never owns and never can will and never has anything to say about anything. MR.

CHERNIACK: Do you mean that the marital regime shal l terminate on the death of either and that there shall be a distri bution, even in favour of the ? deceased Is that what you're saying? MS. McGONIGLE: Oh yes, that the standard marital regime applies to all marriages, isn't just brought in on separation. MR. CHERNIACK: So you mean, that although you might lik e immediate vesting you will accept deferred vest ing providing that on death there will be a vesting between the two parties which may mean a vesting to the deceased's estate - through the deceased's estates, right? MS.

McGONIGL E: When it comes to commercial property, yes. I think that the regime should apply to existing marriages, however they end, so that there is equal property rights. lt doesn't seem to me that that happens, does it? MR. CHERNIACK: But, Ms. McGonigle, I confess to you I didn't think of the other way. I was thinking al ways of a death and the protection to the survivor, and therefore I felt that under The Dower Act, regardless of its histo rical purpose, that The Dower Act at 50 percent would protect the survivor to an extent at least as good as the sharing of the marital regime. MS.

McGONIGL E: Does the survivor under Dower have an election or something to choose between Dower and Devol ution? MR. CHERNIACK: Devol ution never takes place where there is a will, and where there is not a will, the Devolution Act itself provides an equivalent of Dower. MS. McGONIGLE: I think the problem there is that where there is a will, then the non-owning spouse, let's say the widow hasn't got any choice as to which property becomes hers, or is hers , it can be will ed according to the owner. MR. CHERNIACK: She can ele ct under The Dower Act to take one-half of the total estate. MS.

McGONIGL E: Yes, but what if the will gives her more than that, but not the proper .... The point is that it is not hers, it is never hers except by a disposition over after someone is dead. I don't understand why Dower is superior. You can leave The Dower Act for the personal property of their spouse. MR. CHERNIACK: Wel l, as I say, I could accept your proposal to provide for termination on death, knowing that in my opinion The Dower Act takes care of it.

But you are now saying that you would lik e the effect of the sharing to take place for the benefit of the deceased's estate as wel l, and that is a new concept to me. I will have to think about it. So let me go on, I don't want to take more time than I have have to to do it. On this question of contribution being non-monetary, I think I understand you and I do not see any reason why it cannot be clarified . In my opinion it was never monetary alone, but if there is doubt then I hope the note has been made and we can discuss that at the time. Now the S5(1 ){e), 1 really had no problem with that, and li ke Mr.

Sher man, I will give you an example which is very unusual, but many years ago I had cl ients, a couple who occupied the same house but never tal ked to each other, they never touched each other, and they li ved in the same house, one doing the domestic service work and the other bringing in some money. And because they each had pensions each had spending money, so somehow or other it worked out, even though they were separated in every sense except the geographical one. I think under those circumstances (

e) might apply. As well I think it might apply where there is no separation, but on the other hand I don't see any other need to have it in, and I am saying that because possibl y someone, knowing of your objection to having it in, might argue that it should be in, and I don't see the value of either having it in, nor of taking it out, assuming that a court would interpret it the way I see it. MS. McGONIGL E: I think that it is definitely open to all kinds of

interpretation, and what it means to me, what it implies is that there has got to be a domestic relationsh ip to give rise eithert o the .... When I say a domestic rela tionsh ip I mean an arrangement whereby services are performed for money, and also where you can challeng e the cal ibre of services, and yet there is nothing there that says you can chal lenge the income-earning power of the other spouse, and it is just not necessary. The other criteria takes care of it. MR. CHERNIACK: All right, I see your argument. When we come to it in Committee we will debate · whether there is any point to lea ving it in.

I no longer see that. MS. McGONIGL E: What it does is open the possibil ity and counsel will argue that, and then we will have "fault" again. MR. CHERNIACK: Yes. And you think courts might fal l into the trap of misinterpreting. MS. McGONIGL E: Judges may ask for someth ing on that, and the point being then that you are 381

required to do it. Statutory Regula tions and Orders Thurs day, Ju ne 2, 1977 MR , CHERNIACK: Okay. I do want to move on then, Ms. McGonical, to the financial independence of standard of li ving. When you say substanti ate some of the standard of living for both spouses would you say continuously that if the earning spouse acquires the financial abil ity to increase the standar d of li ving, then automatically the dependent spouse shall rise with him? MS. McGONIGLE: So that there is a continuing increase? MR .

CHERN IACK: So that there is a continuing compatibil ity between the two standards' even though at separation there may have been a lower standard. In other words would you say that there can be an expectation for a continuing rise even though there is a separation, and the desire in the Act, and the concept is that we want financial independence to be achieved? MS. McGONIGL E: Yes.

I think that that might well be incl uded, depending on the circumstances where, at the time of the separation perhaps, one party is unemployed .or onl y partiall y employed and then there is a substantial increase and the maintenance was not adequate as to the needs. MR. CHERNI ACK: I am sorry, when you said depending on the circumstances, I haveto ask you if you have any additional factors that you would recommend tor 5{1 )? Let's assume we have taken out {e). What else is needed to help a court decide? What other factors have been left outthat ought to be there tor a judge to consider?

Because there you do have financial needs, responsi bil ity tor childr en, financial means . . .. MS. McGONIGL E: I have not thought that others were necessary, and so it was simply a question of this "financiall y independent," which to me is, aside from 5{ 1) {

e) which, without that we haven't got a fault criteria, though we have got the other criteria. We had to st ill define "financiall y independent" to make it clear. lt says "The judge shall consider in 5{1) {

c) the standard of li ving and lif estyle," but it doesn't say what he has to do with that particularly. Maybe that implies a simi lar standard of li ving. MR.

CHERNI ACK: Well, it seems to me that we are going to be developing an awful lot of new law or case law on this, and by saying to the judge, "We expect you to apply these factors," we are indeed . giving him discre tion and yet making his decision subject to review by another court, which would not exist it it were onl y dis cretion and no factors, because an appeal court might say, "Well, the judge had discretion and he looked in the case and he made the decision , and si nce we don't see the people directly and the witnesses we will not change his decision because he used his dis cretion." Where we set out these factors we belie ve that an appeal court will have the right to, and will indeed look as to whether or not this judge did look at those factors.

And ha ving looked at them, then they will have a right to comment on the extent to which he was infl uenced by them, because we are not saying, "He may consider the following factors," we are saying, "he shal l," and we did that quite deli berately so that an appeal court could look over his shoulder and comment. That being the case, do you not think that much of your concern is taken care of, and if not, what more should we write in this? MS. McGONIGLE: Manitoba Action Committee and the Coalition are quite happy with the

Section 5{1 ) as it stands, with the exception of {e), which I have never seen suggested before, you know, to bring into the court the examination of the actual domestic arrangement. Now the question has been raised many many times in the last two days: What is financiall y independent? And a suggestion has been cal led tor, and that is what my answer is. Sinc e it isn't clear to everybody what financiall y independent means, I am suggesting to you that it means as near as possible an equal standar d of living for the two spouses as one can come to, and it would depend on the .... MR.

CHERN IACK: Okay, I accept that. Now would you mind clarifying what you mean when you say a person should not be forced into menial employment to supplement maintenance? You may have heard me ask earlier whether it is not fair to ask a dependent spouse to do whatever - let's say she, because usually it is - whatever she can to acquire income which would be a contribution to that standard of li ving that you and I would agree would be the proper one.

Now what is wrong, why call it menial if that is the best that she is able to do considering her background , being tied to a household , her inabil ity to earn a higher income? Is the word menial bad, or is it the income that comes with it? MS. McGONIGLE: I th ink that what I am suggesti ng is that in a situation of a longst anding marriage, 30 or 40 years, and there are some years left before the two are retired, and a standard of living is to be maintained, it does not make sense to me that the 55-year-o ld woman or someth ing shoul d be expected to go out and clean other people's houses to earn a liv ing. MR.

CHERN IACK: I agree with you. Don't you thi nk that 5(1 ) covers that? MS. McGONIGLE: lt may. MR. CHER NIACK: I mean all of it, all the factors, including the length of time the marriage has subsis ted, the abil ity .... MS. McGONIGLE: My statement applied to the definition of financiall y independent. MR. CH ERNIACK: I see. All right. I guess we will have to do some work on it. No, that's fine. Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Axworthy. 382

Statutory Regula tions and Orders Thursday, June 2, 1977 MR. AXWORTHY: Mr. Chairman, I don't want to go much longer, but I want to make sure that I full y understand the position of your organization on this question of the retroactivity. As I understand it, you accept the proposed amendment that we heard tonight, that those who are separated would no longer come under the standard marital regime. Is that a correct state ment, that you are prepared to accept that amendment that the Attorney-General made this evening in

Section 2(2)? MS. McGONIGl.E: Yes, in other words, the legisla tion won't null ify current agreements and it doesn't apply at all to separation. Yes, in my submission here I have suggested that there should be a chall enge, but our suggestions are based on the notion of having this apply equitably, and if we create more problems with an amendment and an exception than we cure, then we really can't do that. What I was saying before was that we don't want to abandon people to inequity. MR. AXWORTHY: That was the point I was coming to. I heard an exchange between you and Mr.

Cherniack and he said he had reached the stage where he is prepared to take the issue of separation and say that the Act should not apply, and I thought I heard you agreeing with him, and I was curious about that because you previously had said you don't want to abandon those who are separated and have had previous agreements . Now which is the more accurate portrayal? MS. McGONIGl.E: The more accurate is what I said on Page 3, Paragraph 2, which is that I believe separation agreements shou Id be chal lengeable and separation orders chal lengeable on the basis of this for the reasons that I have expressed. MR.

AXWORTHY: I see. Now you mean chal lengeable in the courts so that there could be some form of discretion applied by the courts to assets that are owned, and that there would be some settlement based upon that. Is that a co rrect

interpretation? MS. McGONI Gl.E: Yes, with that proviso that the spl itting applies for the duration of the marriage. Now, I know that makes things more complicated, but sometimes I see it as necessary to see that existing , separated spouses are treated equitably too. Challe ngeable might also have a value in that it woul d create a negotiating position for a spouse to create a better agreement. MR. AXWORTHY: Okay.

That same idea - that the assessment of assets under separation wou Id you carry it over and apply it to existing marriages for assets that are acquired up to the point of the proclamation of the Act, rather than going back in the six years and trying to assess each one, that there should be the same discussion applied in making equal value on it? MS. McGO NIGl. E: Say that again? MR. AXWORTHY: Woul d you take the same principle that you just applied to separation, and apply it to existing marriages? MS. McGONIGl.E: Oh, you mean put a limi t on how far back you are going to go? MR.

AXWORTHY: Well, or say that the property shari ng is based upon assets now held, and that there would onl y be a basis of discretion on previous assets, so we wouldn' t get into all these problems we have heard tonight about dissipations and everything else. That would be agreeable ... ? MS. McGO NIGl.E: If you are asking if there should be just existing assets, I th ink so. l think that's what is the conclusion we came ... Oh, you mean going back through to reopen?

On that dissipation, I think the reason I see that there is to prevent deli berate avoidance of sharing, which people who are anticipating separating will engage in, and I think that whil e they have control of the assets they are going to find some way to make them exempt, and I think that that really does have to be there, although they may have to find a definition for dissipation that narrows it to that. MR.

AXWORTHY: Yes. it's just not the dissipation I'm concerned about, it's that whole question of trying to trace back beyond the fact into time, from the date of proclamation, and the different evalu ation of values on different assets, and that we are sim ply saying that the property sharing should take place on those assets which are tangible now, and that there woul d be some discretion applied to those that were retroactive in effect. MS. McGONIGl. E: From the date of proclamation into the future, how are we going to deal with property? MR. AXWORTHY: Yes, that would be 50-50 sh ared. MS. McGONIGl.

E: I wou Id have thought that famil y assets, sinc e both parties have a right from the date of proclamation into the future, both parties have rights to that at the time of breaking up. it's the assets that exist in their possession that woul d be consider ed. The commercial question is the difference. I would think that sounds logical that it not ... There's a situation though, someth ing in the Act about a person being able to challenge the other party's disposition of an asset. MR. AXWORTHY: Okay. Thank you, Mr. Chairman. MR. CHAIRMAN : Mr. Johnston, Sturgeon Creek. MR. F. JO HNST ON: Ms.

McGon igle on this Maintenance, I want to be brief. lf one of the spouses, say the lady, leaves the husband and there's an order for separation, she has the right to maintenance in the standard of li ving that she has been accustomed to, which is what I bel ieve you have been

Statutory Regula tions and Orders Thursday, Ju ne 2, 1977 talking about. MS; McGON IGLE: No."l didn't mean in thes tandard towh ich youare accustomed. I don't think it's possible after separation, except in very wealthy circumstances, to maintain a stand ard of living for two people that separated that have lived together. -(I nterjection)- I'll just go ahead. I must have misunderstood you. lt seemed to me there was some discussion around the table and the standard they were accustomed to or . . . MS. McGONIGL E: No.

A sim il ar standard of living for each spouse is a guideline that I would consider applicable to the definition of financial independence. MR. F. JOH NSTON: Because, I was wondering, do you think we coul d get in quite a tangled mess financially with people when we come to

Section 12 (3), if the spouse, if the girl left the guy and the guy decided three or four months later to cohabitate or live common-law but is not married to the other person "has the obl igation during cohabitation to provide reasonably for the support and maintenance and education of any child." I find that in this situation there is going to have to be an awful spread around of money in some way, shape or form. MS. McGONIGL E: Yes, that is a problem that exists in law today and I don't know that we can solve the fact that men do this. MR. F. JO HNSTO N: Wel l, can we solve the fact that women do it, too. MS.

McGONIGLE: Wel l, they are the ones who can't get the maintenance if they are married to the guy who is doing it. MR. F. JOHNSTON: Well, I know some girls with pretty good jobs. In fact, I know some girls that are la wyers that have pretty good jobs. MS. McGONIGLE: Don't ask me why. MR. F. JOH NSTON: But I must say that I misunderstood you or somebody else when we were talking about the same standard of living. So, that's fine if you didn't mean that. MS. McGONIGL E: I did mean a simil ar standard of livi ng.

The wife and husband who are separated, neither should have a reduction in standard of living greater than the other. MR. F. JOH NSTO N: Greater than the other. MS. McGONIGLE: With regard to the factors in

Section 5(1 ) and the goal of financial independence of each spouse that the standards of living could be guideline d to go with financial independence. MR. F. JO HNSTON: Okay. MS. McGONIGL E: That doesn't mean that somebody has to be maintained at the level to which they were accustomed together because that will be considerably greater in most cases. MR. F. JO HNSTO N: Okay. MR. CHAIRMAN: Mr. Adam. MR. ADAM: Thank you, Mr. Chairman. Ms.

McGonigle, just on a matter of clarification on that point that you raised as to the guideli nes of financial independence on separation. ! belie ve you gave an example that the wife was earning $600, and that the husband, who was away separated now, was suddenly earning $1 ,000.00. MS. McGONI GLE: Well, whatever, yes. MR. ADAM: What would happen, I just want to clarify in my mind, if the converse was the case. Let's suppose that there was approximately $600 or thereabouts on separation but suddenly the reverse happened and he was no longer earning $600, but he was now earning $400.00?

What would the situation be there in your mind? What should happen? MS. McGONIGL E: Well, I belie ve that in the Act that is considered. You're talking about either a change in circumstances or what the judge shall consider and that is part of it; his means and her means and their needs. MR. ADAM: Not the maintenance but the financial independence, as I understand it. I belie ve that is what you are referring to; when you become independent of one . another on separation, and you're earning your way and he is earning his way and his goes up. I belie ve you would lik e to have that more equal ized.

Do I understand that correctly? MS. McGONIGLE: I'm not sure about whether the standard goes up and up and up, that each spouse catches up. But it certainl y shouldn' t be such a wide gap that it is inequitable. I'm just suggest ing a guideline that rather than look at something lik e a minimum wage, or a welfare leve l, let's look at financial independence as incorporating a similar standard of living, you know. MR. ADAM: Wel l, my understanding is that once you are independent you are on your own. You're doing your best to improve your standard of li ving and so is the other spouse.

But if someth ing happens to reverse that situation, you know, I'm just wondering where you contradict. MS. McGONIGLE: Wel l, change of circumstances is in the Act. I don't know what

section it is but a change of circumstance has always altered the maintenance situation. MR; ADAM: Thank you. MR. CHAIRMAN: Is that all, Mr. Adam? If there are no further questions, thank you, Ms. McGON IG LE. 384

Statutory Regula tions and Orders Thurs day, Jun e 2, 19 77 MS. McGoni Thank you. MR. CHAI RMAN: Monsignor Larabee, please. Come forward. LAR ABEE: I used to th ink that church law was quite co mplicated but si nce I have come here to attend these committee meetings, it is certainly not nearly as complicated as this. The Bis hops of Manitoba are not going to make any really specific recommendations to this Committee. Their concern, of course, goes really before a situation arises which is in the centre of most . of the discussion that is taking place.

They would li ke to see, of course, much more marriage education programs available, especially in the case of teenage marriages, to enable the young people to be fully aware of what they are getting into when they get married, and not have to face the terrible situation to have a separation or have a divorce. The church also lik es to make clear that marriage is a public affair and even though a man and woman get married in a very smal l church or in a room, it sti ll has social implications which are far reaching and far beyond the room in which they are. And I think this is lacking in our society today.

The church is doing as much as it can to try and prepare people for marriage but the state, I think, also has an obl igation. Considering all these laws that we are hearing about now, it certainl y is extremely complicated. I wonder how many people who do get married are aware of these terrible complications and implications of the marriage they are becoming involved in. So certainl y some form of counsel ling backed by the state certainl y woul d be of great help. Like it says here, "A married couple has a right to the support of society and how is this to be accomplished.

One, by drawing attention to whatever can weaken or undermine marriage stabil ity and thereby weaken society itself." So every marriage, then, affects society as a whole and the duty of the state, it seems to me, as much as possible is to try and prevent as many breakdowns as possible, for the betterment of the state and of the individuals, of course, by advocating measures that will support a healthy family lif e and contribute to the authentic development of all the members of the famil y unit. So this can come about, as I've said, by some form of marriage education - premarital education, that is.

As one reads the proposed leg isla tion, one wonders about its underl ined philosophy. What vision of marriage is conveyed to the people. Is it not possible- not to say desira ble- that good legisl ation should educate the people about the values the government places on it and that witness very strongl y to its priorities. lt seems to me that the way the legislation is given, or the way it's enshrined in the words, it should portray or reflect the philosophy of the government. We reaffirm our conviction that the famil y must alwa ys be a community of love, a teacher of values, and the foundation of society.

We affirm also that marriage is both a vitally important social contract and a sacred covenant of love between husband and wife. As such, it calls for a permanent commitment to one another for li fe and a level of communication which inclu des the whole person of each partner - emotional, intel lect ual, physical and spiritual. The laws of our province will continue to dictate the physical, moral and spiritual cali ber of famil ies and individuals and we bel ieve that our politicians must hear from, and be exposed to those who truly bel ieve in the nurturing and support of val ue of the family in society. MR.

CHAI RMAN: Thank you for your presentation. Mr. Adam. MR. ADAM: Thank you, Mr. Chairman. Msgr. Larabee, it would appear, as far as I am concerned as a leg isla tor, that it is quite difficult to leg is late how people will li ve together and what rela tionship they develop together. The two bill s that we are lo oking at this evening are, in my opinion, mainly disposition of assets and maintenance. But I understand your concern and I have read the brief that was presented by the Catholi c lad ies, and their concern appears to be that we do not have sufficient legis lation on reconcil iation.

I bel ieve that woul d be your prime concern. Am I correct in that? MSGR. LARAB EE: That's correct, yes. MR. ADAM: Then do you feel that our leg islation here is not adequate yet? MSGR. LAR ABEE: Wel l, in that regard, I don't think it is especially adequate there on the matter of concil iation. MR. ADAM: Perhaps as the Catholic lad ies have suggested such as the law that exi sts in Cal ifornia. MSGR. LARAB EE: Yes' a Concil iation Court. MR. ADAM : Yes. Do you think that that would be desirable legislation for our province? MSGR. LARAB EE: lt certainly would help a lot. I think it would improve a great deal. MR.

ADAM: Thank you very much, Mr. Chairman. MR. CHAIRMAN: Mr. Graham. MR. GR AHAM: Thank you, Mr. Chairman, through you to Msgr. Larabee. Father Larabee, first of. all, 1 want to commend you as being the onl y reli gious organization that has made a presentation to us so far in this ses sion . I woul d li ke to ask you if you have any particular field in the legis lation that is before us that you woul d li ke to see a greater activity on the part of the various religi ous organizations? MSGR. LARAB EE: I don't quite understand what your question there is. 385

Statutory Regula ti ons and Orders Thursda y, Ju ne 2, 1977 MR. GR AHAM: Wel l, Mr. Chairman, at the present time we appear to be, as leg isla tors, trying to dot the<"i's'' and cross the ''t's'' in' aiHhevarious fields of. intimate personal·rel ationships that exist in a marital endeavouL lsthere some field of this that you think that probably the legislation should not be involved and that the various reli gious organizations should be playing their part, rather than the leg isla tion on behalf of the state? MSGR .

LARAB EE: I think the desirabil ity of places whereby they can get premarital education is very important. I think perhaps the church could work together on that to see to it that couples who do get married receive all the possible indoctrination they can. I think it's extremely important that that be done and I think that the more that is done, I'm sure that will reduceag reat deal the number of breakdowns that we witness today in our society. MR. GRAHAM: Another question, then. Do you think the state is probably moving too far into the field of personal relatio nships in this respect? MSGR.

LARAB EE: Well, no, I don't think so. The church really does not propose to tell the leg isla tors what to do. They just want to make sure that their principles are respected and understood . Living in a pluralis tic society lik e we do, it's extremely delic ate and then very complicated to try and lay down a law that would appeal to all the people that we have in our society. MR. GRAHAM: I have no further questions, Mr. Chairman. MR. CHAIRMAN: Mr. Sher man. MR . SHERMAN: Thank you, Mr. Chairman. Monsig nor, my questioning is somewhat along the li nes of Mr.

Adam's and arises out of your basic contention that there should be much more done to support and strengthen marriage before we get into the types of situations that are being addressed in the bills in front of the Committee and the public at the present time. You mention, in response to Mr. Ad am, that you thought the concept of the Concil iation Court, for example, had some considerable features to recommend it.

I'd just li ke to ask you if you could expand in that area, not on the subject of the Concil iation Court, but whether you belie ve that there are more things that could be done and should be done after marriage to reinforce and salvage deteriorating marriages, apart from the concept of the Concili ation Court to which you have referred? Have you been able to come up with any ideas that would be helpful to Manitoba generally? MSGR. LARAB EE: Well, I don't think so reall y. Just apart from the fact that to try, as much as possible to assist them and to give them counselling and help.

I have nothing specific to say. MR; SHERM AN: You suggested that the kinds of things that are necessary should be state supported. How do you envisage the application of that kind of a philosophy that the state would provide the funding but not the direction? MSGR. LARAB EE: Wel l, I was thinking more of the church considering mostly the spiritual aspects of marriage and taking care of that aspect of it, and the state wou Id be responsible for giving this part of it. For instance, making young couples aware of their financial problems that might arise and the legal aspects of it all, and so on.

This ismo rethis side of it. And the church would take care of the spiritual implications. MR. GR AHAM: Would you care to comment on the main theme of the proposed legislation, as such. I recognize that your presentation to the committee- and it's a valuable one - has to do with a different aspect of the overall question. But do you have any views on the main theme of the legislation as such?

Are you concerned with any inequities that you might feel could arise from some of the features of this legisl ation or are you satisfied, from your knowledge of it, that it would achieve ess entially, you know, a desirable equity without imposing too many new inequities? MSGR. LARAB EE: I think on the whole there are many good things about it. There are thi ngs, I think, li ke the no-faul t cohcept which is someth ing that the church would rather not agree with, I don't think, and the unilateral opting out, I think, is some thing else. MR. SHERMAN: The question of opting out.

I just w want to get your position on that straight in my own mind. The legisla tion as it's framed at the present time advocates a mutual or bilateral opting out. Are you saying that the church's position feels that ... MSGR. LARAB EE: I thought it was the unila teral opting out that was being proposed .. Am I wrong on that? MR; SHERM AN: No, it's mutual opting .. . MSGR. LARAB EE: I misunderstood, I'm sorry. MR. SHERM AN: Wel l, what wo ul d the church's position be? MSGR. LARAB EE: I think that bila teral is acceptable. MR. SHERMAN : The church would favour the concept of bila teral rather than unilateral .

What has been considered here is a sixmonth period for opting out after the legislation takes effect . If unilateral opting out would be acceptable to the people whom we represent in this Legisla ture, it st ill would not mean that the universal law from that date forward would permit unilateral opting out; would be lim ited to a six-month period after the law took effect. Woul d that in any way affect the church's position ... MSGR. LARAB EE: I don't think so. 386

Statutory Regulations and Orders Thurs day, Ju ne 2, 19 77 MR. SHERMAN: I think that's the extent of my questions, Mr. Chairman. MR . CHAIRMAN: Mr. Wilson. MR. WIL SON: Wel l, the Member for Fort Garry has asked a number of quest ions that I was going to ask. However, I did have two other thoughts.

One failing government involvement in premarital education which the churches now seem to be heavily involved in, do you feel that possibly the printing of a pamphlet that is attached to the marriage li cense with the warnings of possible bad side effects - I know it's a love situation at the time of marriage - would that suffice if we coul dn't afford to get government involv ed? MSGR. LARAB EE: Well, I guess it would be better than nothing , but I don't think it's very satisfactory.

I wonder how many people would be bothered reading the pamphlet, but anything that's done that would enhance and help would be certainly of value. MR. WIL SON : In other words, anything is better than nothing. I wondered if you would care to comment on - the church doesn't seem to have any voice against the current fad, if I can use the expression, $8.00 Bishops and $3.00 Ministers which seem to be available through the mails - they haven't taken a position - these people can marry people it they can get a provincial li cense. I wondered it there was any thought of strengthening your opposition to that.

In other words, you're tal king about the churches being involv ed now in education and yet we're al lo wing people to marry people who simply can mail away tor a certificate to the United States. MSGR. LARAB EE: There's someth ing radically wrong there. MR. CHAIRMAN: Do you feel that is really relevant to the bill s before us, Mr. Wilson. MR. WILSON: it's for my information. MR. CHAI RMAN: Mr. Toupin. MR. TOUPIN: Mr. Chairman, I take it, Monseigneur Larabee, that we're dealing with what I would consider to be the whole person. Your concern will be with the part of the person that is not alw ays tangible.

Would I take it that you're advocating more preparation necessarily to marriages? MSGR. LARAB EE: That's right. MR. TOUPIN: That there be if at all possible some type of a partnership between different religi ons and different levels of government and whenever possible that those concepts of partnership be reflec ted in legislati on. MSGR. LARAB EE: I think that's a very good idea. MR. TOUPIN: But apart from that, do I take it equally that you'd want the Crown, the different levels to go beyond what can be reflected in legisla tion and deal with a better recognition of responsibi li ty at the school level, etc?

MSGR. LARAB EE: I think certainly they could do more there, yes. MR. TOUPIN: I know it's not necessa rily relev ant - I sti ll respect the questions of Mr. Wilson in regard to your presentation, and I appreciate your presentation - regard to what can be done pertaining to what is not necessari ly tangible in the three bills before us and exactly what could be done to attempt to rectify certain points according to your presentation, could you attempt to tell us what could be done in a more tangible way, either rela ted to the bill s or closely tied to the bills . MSGR.

LARAB EE: I wasn't prepared to go into all that. I can't answer that, I don't think, properly tonight. The point I wanted to make was that I think that we do need more premarital instructions, both from the church and I think from the state. I think that's really important, but as to how that is going to be done, I reall y haven't thought that all out completely. MR. CHAIRMAN: Mr. Axworthy. MR. AXWORTHY: Mr. Chairman, I'd lik e to suggest again, and cla rify in my own mind the position of the church in this respect.

Is it fair to say that it's your state ment that this particular bill we have before us, that by creating a more equal partnersh ip in the marriage in itself can help strengthen the marriage - is that a correct asser tion? MSGR. LARAB EE: Yes, that's true. MR. AXWORTHV: So the passage of this bill and the principles within it can in fact thems elves be a help in creating a stronger commitment to the marriage. MSGR. LARAB EE: Wel l, certainly, we'd endorse that wholehear tedly. MR. AXWORTHV: You would endorse that completely.

One other question then, when you advocate a greater degree of education, would you foll ow the laws in existence in some of our jurisdictions which either require two things: one, that the age of consent for marriage be raised; and secondly, that there be a certain time period between the application tor a marriage li cense and the actual time that the marriage takes place, that there is time for that counselling and education to take. place. Would those be two measures that. .. MSGR. LARAB EE: Very good, very good. MR. AXWORTHV: Thos e would be two useful thi ngs. Okay. Thank you, Mr. Chairman. MR.

CHAIRMAN: Mr. Graham. 387

Statutory Regula tions and Orders Thurs day, Jun e 2, 19 77 MR. GR AHAM: Mr. Chairman, I apologize tor getting into the act again, butthere was a question I woul d li ke to put to Father Larabee. We find in the legisla tion at the present time that before two people can opt out of any marriage arrangement that they have to have independent legal advice. Would you go so tar as to recommend that before any separation occurs that they should have independent rel igious advice. MSGR. LARA BEE: Wel l, I think it would be certainly very desirable.

I don't know how you could enforce that but it would certainl y be a good thing. I think by and large a lot of people do approach their minister or priest when marriage trouble comes up; they do approach their priest I think as a matter of course. MR. GR AHAM : One other question, Mr. Chairman. In your study of these two bills, do you see a possibili ty that there may be a greater tendency for people to go rushing to their la wyer for advice rather than going to their religi ous advis ers? MSGR. LARAB EE: I don't see why. MR. CHAIRM AN: Are there any further questions? Mr. Toupin. MR. TOUPIN: Mr.

Chairman, if I may, could I ask you, Monseigneur Larabee, to add a few comments pertaining to your opposition to the no-fault syste m. MSGR. LARAB EE: I think it leads to a bit of irresponsi bil ity. You can't have a si tuation where there is no fault, because obviously there has to be fault. If there's no fault then what's the problem. I can't appreciate this no-fault concept. MR. TOUPIN: Mr. Chairman, coul d I ask Monseigneur Larabee, as an example, if a couple are no longer in love without specifying fault, that to me would be an adequate reason for wanting to separate and null the marriage.

Now that doesn't mean that there should be proof of fault in court. Woul d you agree with that? MSGR. LARABEE: Yes, I'd agree with that; that would be acceptable. MR. CHAIRMAN: Mr. Henderson. MR. HENDERSON: Mr. Chairman, I'd lik e to ask Mr. Larabee, I think it's the same question as what Mr. Axworthy was aski ng. Do you really feel that this type of leg isla tion here where they can go to lawyers and opt out of the marriage and get settlem ents on this basis, really strengthens marriage and that it will not lead to more divorces and separations? MSGR. LARAB EE: I don't see why it should.

The questions you're discussing here are questions that happen once the marriage is broken. The church wants to go before that, anticipate this problem. MR. HENDERSON: I understand how the church wants to move, but do you not feel that legislation lik e this where they can get settlements lik e this, that it would probably cause them to go to their lawyer much sooner rather than try to make their marriage work out. MSGR. LARABEE: I don't think so. I think people by and large would li ke to see their marriage last wou Id do everything they can to try and keep it.

But it's a fact that you have to face, that marriages do break down, and once they do break down of course then we must try and find a satis factory solution, one which is agreeable to both parties. MR. HENDE RSON: If legislation such as this goes through, do you possibly see more marriage by contracts in the future? Would you not see it as such? Wel l, just a straight business arrangement in many cases - the rules laid out, they'd get married on that basis. MSGR. LARAB EE: Are you referring to common-law relationshi ps? MR. HENDERSON: Well yes, you could pretty near say that. . A MEMBER: A premarital contract.

MR. HENDERSON: Yes, a premarital contract, that's what I mean. MSGR. LARABEE: I woul dn't say that. MR. HENDERSO N: The other question is, how do the churches recognize marriage by a premarriage contract lik e that? MSGR. LARAB EE: A common-law relati onship you mean? The church doesn't really recognize them. They're there can't ignore them. They're present, but the church certainly doesn't approve of them and doesn't sanction them in any way. MR. HENDERSON: Do you know it there's any churches that don't recognize them? MSGR. LARABEE: I don't know. MR. CHAIRMAN : Are there any further questions? Mr. Jenkins. MR.

JENK IN S: Through you, Mr. Chairman, to Monseignor Larabee. I really think that the question - and I don't want to put words into the mouth of the Member tor Pembina, Mr. Henderson - but it's a known fact that in Europe there is a stand ard marriage contract drawn up with church sanction before marriage and it is recognized. Is that not a fact? MSGR. LARABEE: In some countries, yes. A civil marriage takes place first and then they have the relig ious marriage after. MR. JENKINS: That's right, and that's recognized by the church. MSGR. LARA BEE: Yes, that's right. 388

Statutory Regula tions and Orders Thurs day, Jun e 2, 19 77 MR. CHAIRMAN : Are there any further questions? If not, thank you, Monseignor. Bis hop Hacault please. A MEMBER: He's not present. MR. CHAIRMAN: Thank you. Robert Carr. MR. GOO DWI N: Mr. Chairman, my name is Goodw in. I'm the President of the Manitoba Bar Ass ociation. Mr. Carr has been kind enough to defer to myself and to Mrs. Myrna Bowman who is going to be presenting the formal brief on behalf of the Bar Association and its Family Law Sect ion. My function here tonight then is a very lim ited one and that is basically to introduce Mrs.

Bowman who, as I say, will present a brief. I wanted to make two state ments if I might; the first is a general statement and the second one is a specific state ment. First, generally, I'd say that the Bar Association is not here to debate tonight the basic principle that marriage is a form of partnership between the spouses and that there should be some equitable sharing of assets acquired during the duration of the partnership. We're here rather because of our concerns with some of the particulars suggested in the implementation of this prin

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Collection	Manitoba — Debates (Hansard)
Citation	30-4-sro19
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