Manitoba Committee Hansard — 13 July 1978 (Statutory Regulations and Orders Committee, Sitting 9, 31st Legislature, 2nd Session)

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Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba STANDING COMMITTEE ON STATUTORY -RtiLES ANB REGULATIONS o-.J. (Q ._....,�,.� Chairman Mr. Warren Steen Constituency of Crescentwood Thursday, July 13, 1978 8:00 p.m. Printed by P.N. Crosbie- Queen's Printer for the Province of Manitoba

Hearin g Of The Standin g Committee On Statutory Rules and Regulations Thursday, July 13, 1978 ime: 8:00 p.m. :HAI: Mr. Warren Steen. AN IR. CHAIRMAN, Mr. Len Domino: Order please. We have a quorum I believe. lt is after the hour f 8 o'clock. The Chairman spoke to me this afternoon and mentioned that he would be dela yed 1is even ing. He asked me to fill in for him as Chairman of the meeting. Do we have any objections? hank you. In that case we call Mrs. Myrna Bowman to come forward and answer questions on her submis sion tst night. The first person on my list is Mr. Mercier. IR. MERCIER: Mrs.

Bowman, I just have one question for the moment. I may have more later n. You made a submission with respect to the wording used in

Section 6(2) and 6(3) of The Marital roperty Act, which begin by saying, "n otwithsta ndin g Su bsection (1) ." Do you have the section? ubsect ion (1) of

Section 6 generally provides that "no provision of the Act vests any title to or tterest in any asset of one spouse, etc., to any order of a court to sell, lease, mortgage, etc." nd then Su bsection 2 goes on to say, "notwithstanding that Su bsec tion, spouses each have an qual right to to the use and enjoyment of their marital home," and then in

Section 6(3) "to the se and enjoyment of family asse ts." IS. BOWMAN: Yes. IR. MERCIER: Would you be of the view that

Section 6(2) and 6(3) as they are worded override ection 1, Su bsection () as to "the right to use and enjoyment of the marital home and the family ssets" and create perhaps an enforceable relati onship between the spouses? IS. BOWMAN: What you might call a veto power of some kind? IR. MERCIER: Yes. IS. BOWMAN: I think that it is unclear whether or not it does that and that is why we made the Jggestion that if tha t was not your intention to create that kind of veto that you should clarify so that there can be no question about it one way or the other.

Of course, if you intended to revent the creation of that kind of veto power or enforceable right, which would prevent or limit te disposal by the title-holding spouse, well that is another matter. We took it that you did not 1tend to imp ede the dealings of the title-h olding spouse with the assets. IR. MERCIER: Well, forgetting about what your presumptions were as to the intention, what would e your

interpretation of the actual words that are used? Is "n otwithstan ding" Su bsection (1) pretty ear? S. BOWMAN: Well, I think it was clear enough until you get to Su bsection (2) and I think that is not crystal clear. I think that ther e is an arguable case there that you might make, that there as some kind of a right created to the continued use and enjoyment which could impede the sposition of .. . I'm not saying that it does create that, I'm simply saying that it's un clear. R. MERCIER: That's the only question I have for now.

Just let me take the opportunity to thank >u and the Bar Association for the excellent brief which you submitted, and which I'm sure will 3 of some assistance to us in completing the final form of the legislation. 299

Statutory Rules and Regulations Thursday, July 13, 1978 MS. BOWMAN: I'm sorry I had to go through it so hurriedly last night, but I'm sure you will g to it in due course in detail. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Well, Mr. Chairman, may I assert the presumptuous position of also thankil Mrs. Bowman and the Manitoba Bar for presenting such an excellent brief. I seem to recall th we used sort of similar words in relation to Mr. Perry Schulman's presenta tion, and since I not1 some di sagreement, or seemed to think that there was some di sagreement between Perry Schulm: and Mrs.

Bowman, I thought I'd like to explore some of what appeared to be a di fference opinion. The submis sion by Mrs. Bowman started out on the basis of recom mendations of The Manitol Law Reform Commission, which I'm afraid, Mrs. Bowman, are sort of academic now and a matt of histor y, nevertheless, you revived histor y to point out that the reco mmendation involved no very narrow dis cretion of the cour t to vary the equal sharing of assets in marriage breakdown. A1 I jump to Page 2 where you refer to the fact that the Bill 38 does not recognize imme dia te sharil of the home. I'm wondering, Mrs.

Bowman, if there's some conclusion that we can draw in relation to tl apparent reluctance to recognize the immed iate sharing of the family home, and I do that, anc ask you - and I haven't asked anybody else, I think, mainly because you have been more involv1 than most people have in the very detailed study of the entire question, and I believe an effc to be objective about it - we have heard arguments, let me say on both sides of the House, th in most marriages, there is a recognized equal sharing of the family home in that, "m ost peo� own their homes as joint tenants." Do you, Mrs.

Bowman, with not just your experience, but with your extensive study of this proble1 understand why there should be any sort of reluctance, once one recognizes the right of mutL opting out, to recognize that the home during the marriage should be mutually owned? MS. BOWMAN!: lt's ha rd , Mr. Cherniack, to answer that question. I think you are asking me read the minds of unn amed people, and the only arguments that I have heard in favour of it a certainly arguments that I think are invalid, in terms of an inter ference with the private affairs married people. That, to me, is not a valid objection to this.

I think the basic reason why peo� object to it is, that those tha t have the title don't want to give it up, because it is a means of exertil power. MR. CHERNIACK: I think it's fair to say, Mrs. Bowman, that The Dower Act is a tremendo 1 interference in the private lives of a married couple. Is that a fair statement? MS. BOWMAN: I think it's a fair statement, it's just an in terference that we're accustomed MR. CHERNIACK: And is that the dif ference that we have grown accustomed to it, so we acce it.

Because really the government, last year's government and this year's government, have blithE proceeded to propose changes to The Dower Act from one-third to one-half and there have n been great protestations that I am aware of from anybody by this very substantial one-six transference of an asset.

And yet there seems to be a reluctance to continue the law which w passed last year to recognize that immediate sharing of the family home is a matter of right a1 should be recognized in light of the fact that The Dower Act, which precedes my time and obviow therefore well precedes your time, was an accepted , I guess socially accepted , principle. MS. BOWMAN: Was tha t a question? MR. CHERNIACK: I was just wondering myself whether or not it was a question.

I just came the conclusion it wasn't, so I better go on to indic ate that you seem, from Page 2, to ind icate th the dif ferent approach taken by Bill 3 is not acceptable to the Manitoba Bar and that is: " limi tle dis cretion without guidelines to vary the equal sharing of the commercial asset Now whem I sai "on behalf of the Manitoba Bar," may I ask you the extent to which you are speaking for the B rather than in your capacity. MS. BOWMAN: This is the brief that has been prepared by members of the Manitoba Bar. lt h been approved for subm ission to you by the Executive of the Manitoba Bar. Mr.

Jack McJann1 the President, was here in fact last night to verify that in fact that was the case. Unfortun ately is not able to be here tonight. 300

Statutory Rules and Regulations Thu rsday, July 13, 1978 IR. CHERNIACK: Well, I must say Ms. Bowman I appreciate learning that he was here to confirm , because his predecessor, I think, made some pretty outlandish statements about last year's 1gislation without ever coming here, and I believe through doubt on the rig ht, of you or any other )Okesmen who appeared on behalf of the Manitoba Bar, to express a point of view. I am correct 1at Mr. Mercury took a pretty strong objection to ... IS. BOWMAN: Mr. Mercury made some statements which were his own statements.

In fact last �ar at the time that these hearings were held, Mr. Bob Goodwin was the President of the Manitoba ar. He appeared before you and verified that the presentation I made at that time was made on ehalf of the Manitoba Bar Associat ion, and that brief also had the approval of the Executive of 1e Manitoba Bar Associa tion. iR. CHERNIACK: Thank you for reminding of that. I had forgotten that. Well, then let's go back , Page 2, where you speak in criticism of the enormous dis cretion of

Section 13(2) and again 1 LJote, "the enormous unfettered dis cretion of

Section 13(2)" and ask you whether you heard the Jbmi ssion of Perry Schulman. IS. BOWMAN: No. IR. CHERNIACK: Are you aware of Mr. Schulman's comments enough to comment on them. S. BOWMAN: I have heard them summa rized. I don't know how accurately. MR.

CHERNIACK: Well as I recall it, and I may be wron and I am sure other persons present who did hear him would correct me if I am wrong, that he seemed to find very little real di fference between 13(1) and 13(2), except he felt that there was a di fference in interpr etation between the term "in equity" and the term "un conscionable". lt seems to me that that is what he zeroed in on, and felt that that was not a big difference. Further, he sa id, that in his opinion the wording of

Section 13(2), which I will paraph rase, the judge, or the court, shall consider any of the circumstances including the following list of 10. That that to him meant, that that really excl uded any other circum stances other than th e 10, and that was his legal opinion. I have to ask you, what is your legal opinion about the wording of 13(2)? S. BOWMAN: legal opinion about that wording is that Mr. Schulman is wrong. R.

CHERNIACK: Well, you do say at the top of Page 3, that the dis cretion is so broad and 1restricted as to provide and permit lengthy and detailed examination and weighing of conduct 1er many years of marriage, including fault, quality of housekeepi ng, etc. Mrs.

Bowman, I have �ard it stated that there is nothing in 13(2) which would give the court the opportunity to deal ith conduct, that in reading 13(2) there's no reference to conduct, and that none of the 10 items 1fer to conduct, and that there would not be an opportunity to discuss conduct within the marriage ccept as it relates to the property in question, under 13(2). I think your subsection (

c) does not :cept that possibility. S. BOWMAN: I think that my reading of that

section is, that it is the broadest possible discretion , take into ac count just what it says, "any circum stances the court deems relevant," and it is )rtainly within my expectat ions, that some courts in some cases will deem conduct, fault or whatever rm you want to use, to be relevant. R. CHEIACK: Well, Mrs.

Bowman, assuming that you were appearing before a court, dealing with e division of commercial assets, and you were arguing on behalf of the spouse that didn't own 1y part of it, that there should be the equal sharing - and I won't use the words "fair sharing", I stick to equal sharing - that you would think that you could bring evidence before the court, 1ich might relate to the horrible relationship that existed between the parties because of the 1mplete abhorr ent activities or act ions on the part of the spouse that holds the property?

Would 1u think that you have the right to do that, and the court would listen? S. BOWMAN: Well, Mr. Cherniack, you kno w as trial counsel, I'm a hired gun. When I go to 1urt, I use whatever tactics I think are within the bounds of prop riety, and I use wh atever straw :an find to make as many bricks as I can construct. And I sure would try, if I thought it would lvance my client's case, then I think that I would get the evidence in. How much weight would ) given to it would depend on the court. 301

Statutory Rules and Regulations Thursday, July 13, 1978 MR. CHERNIACK: Exactly. I concluded my question by saying, "and that the court wot listen?" MS. BOWMAN!: They will listen. How much weight they will give it will depend on the court, a on the case. MR. CHERNIACK: Well, you are therefore assu ming that the court is bound to listen. I think th to me, is the very im portant interpr etation that I have to deal with.

Is the court bound to liste I know that the court is not bound to give weight to it, but if the court is bound to lis ten to condu then it seems to me that conduct becomes a factor contrary to the opinion that has been express by lawyers that conduct is not a factor. MS. BOWMAN: The general pattern evidenced in matrimonial cases is that the court listens all of the evidence and then they sort out afterwards, after it's all in, to what they wish to g1 weight and to what they don't.

Often you're really not sure what weight was given to various facto You must bear in mind that these cases under The Marital Property Act will almost certainly heard in most cases in conjunction with separation cases or div orce matters, where the questic of fault will, in any event, be relevant to other issues. So I certainly think that fault may be a relevl cir cumstance in the view of some courts in some cases, yes. MR. CHERNIACK: Wel l, that's a very im portant answer, to me, Mrs. Bowman, because what you saying is that ...

Well, let me put it in my words - I'm not inten ding to in terpret you. lt wo1 appear to me that even if the in terpretation that conduct is not a factor under 13 (2) is corre if that's a correct int erpretation, that the court will be hearing all sorts of evidence relating to cond1 because of the other matters that you referred to, custody or other factors, and then the co will make a decision based on its conclusions which may, in its own mind, affect conduct or n And then I'm worried about how a Court of Appeal would look at that kind of decision and to assess whether or not conduct was a factor.

What I tear is that a Court of Appeal migh t s "Well, the decision arrived at was not clearly one that excluded conduct and th erefore the co had a right to arrive at its conc lusion ," as com pared with some wording that might say to the co that we will now look at what the original court said, in order to decide whether or not cond1 motivated the court's decision and if it did, then we would rule it out. Let me just go to the next step which is that I believe, firstly, that what they ought to do "' 13 (2) is to cut it out comple tely.

Failing that, I think they ought to say that 13 (1) should apply 13 (2) which means cut it out comp letely. Or failing that, that they ought to say that it is cleE grossly inequitable and not all the other reasons. Fa iling that - I'm just descr ib ing to you all · steps backwards that I would have to take as I am defeated from position to position - to l the court shall consider the following circums tances and no other - I thought that migh t cle� remove conduct.

But then I was faced with Perry Schulman, whom I respect, saying, "But the court will not able to consider any other," and I begged Perry Schulman to agree with me that my wording carr out the same intent as the present wording. He wouldn't agree with me; he wouldn't agree tl it was better to change it to my wording: "the following and no other," because he kept argui "Well, it's the same thing." And really, Mrs. Bowman, I am now stuck by a legal inte rpretati not a logical one in English, because I think I und erstand English, but because of the interpr etat of this lawyer as to what it really means.

I now appeal to you to deal with this aspect of th1 various steps that I described to you of elimina tion of this

Section sayi ng, "clearly and gras inequitable," or just, "cle arly inequitable," or, "the following ten only and no others." Am I mak clear to you my concerns about the wording of that? MS. BOWMAN: We ll, you certainly make clear to me that you're concerned. First of all, let me reiterate that this brief which is on behalf of the Bar Assoc iation, and th< some thing separate from what I migh t personally say on the subject, is that if you don't have uni latE opting out, that you must have a broad di scret ion. We're not suggesting that the breadth of I dis cretion in

Section 13 (2) should be changed as affecting existing marriages unl ess there is uni lat1 opting out. So once you unde rstand that clearly, I'll try and deal with the concern that you h about the conduct and what is, or is not, included within 13 (2). First of all, the suggestio, that I under stand was made by Mr. Schulman was that this wore then really means that only items (

a) to (

j) may be consider ed by the court. To reach that conclusi a court interpreting this

Section would have to determine that you did not in tact mean what · said, which is tha t any other cir cums tances the court deems relevant includin g the following. 11 the golden rule, - I think I have it here - on int erpretation of statutes which has been . -(I nterjec tion)- Pardon? 302

Statutory Rules and Regulations Thursday, July 13, 1978 IIR. CHERNIA CK: I'm sorry. I was going to giv e you the Golden Rule but you've got your ,wn. liS. BOWMAN: Oh, well then if you know it, I won't repeat it. IIR. CHERNIACK: We ll, I mean the Golden Rule. liS. BOWNAN: No, that Golden Rule. it's been around almost as long, but not quite.

"In the onstruction of statutes, their words must be interpr eted in their ordina ry grammatical sense, unless here be some thing in the context or in the object of the statute or in the circums tances to show 1at they were used in a special sense or di fferent from their ord i nary grammatical sense." Now it appears to me, and I think that I can say that that would be the positio of most lawyers - I've not heard anyone else make the same astonishing subm ission that I und erstand Perry made - that in fact this

Section means just what it says: "Any circu mstances the court deems releva nt." the government determines that they want it to mean only those following subsections, then I 1ink that it ought to be amended to say so. lt is hardly satisfactory to leave a situation that one lwyer has one int erpretation and another lawyer has another and let some unfortunate couple spend alf of their family or commercial assets goin g to the Su preme Court to find out which one of us • right. So I think it should be clarified if in fact anyone else is in any doubt other than Mr . . chulman. IR. CHERNIACK: Thank you, Mrs. Bowman.

I do understand that you belie ve in unila teral opting ut as described in the Law Reform Commission. I am not debating with you your belie fs in the rinciple of this matter. I am concerned about your legal opinion, that of the Manitoba Bar. So will go quickly now. IS. BOWMAN: Well the legal opinio n I've given you is my legal opinion. I haven't had the opportunity > consult the Manitoba Bar about it. Unf ortunately that's the position of someone answering uestions. IR. CHERNIACK: But it is the same, it confirms the wording that, as I read it, of your submis sion . 's not in conflict with the submi ssion. S.

BOWMAN: No. R. CHERNIACK: All right, let's skip now quickly.

Section 11, you say that there is a dif ference etween "may" and "shall" in

Section 11 . Mr. Schulman says there is no dif ference and that "may" eans "shall" but that you would rather it said "shall" than be in terpreted to mean "sha ll." Is that ... ? S. BOWMAN: Well, if it means "sha ll," why should it say "may"? R. CHERNIACK: Right. -(I nterjection)- Pardon? Oh, we've just had a declaration of success 1 behalf of the Manitoba Bar. The Attorney-General says, "We'll change it,." S. BOWMAN: My fortune cookie was right. R. CHERNIACK: You can take credit because the word came at the moment you were discussing Moving quickly again, Mr. Shead, did you hear him? S. BOWMAN: Oh, I did, yes. R.

CHERNIACK: I don't want to review or remind any of us what Mr. Shead said on behalf of e Chamber of Com merce , but I am talking to a lawyer, and Mr. Shead suggested that where third party was inv olved and his personal affairs were involved, the court should listen to what lS available and decide which portion, if any, of that information the lawyer shall be permi tted pass on to his client. And it's my words, but I think that was his intent. On looking at your comments ,

Section 17 (3) where you don't even want camera hearings, would you, as a lawyer, comment briefly as you're able to on Mr. Shead 's suggesttion that a court should limit a lawyer from reporting his client or receiving instructions from the client on certain aspects of evidence. 303

' MS. BOWMAN: Indefensible. Statutory Rules and Regulations Thursday, July 13, 1978 MR. CHERNIACK: That's short enoug h, and clear eno ugh. Now, I want to deba te with you 01 point and that's your Item 21 where you are saying, "We are concerned that the

section may invol• a person receiving half the assets and then in heriting another half of the remainder under The Dow Ac t." Right? MS. BOWMAN: Yes. MR. CHERNIACK: Mrs. Bowman, don't you accept the fact that the first half is a matter of rig!' to the spouse and not any form of in heritance or sharing of the potentially deceased spouse's asset The first half, I say, is clearly and always was in the concept of equity, the right of the spouse acquire. MRS. BOWMAN: Yes, that's true. MR.

CHERNIACK: Wel l, then, if you agree with that, then I think we should deba te The Doll\ Act, whether a spouse has a right to claim any part of the other spouse's assets. MS. BOWMAN: Well, I think that you have to look at the circums tances under which a pers will have already obtained their division. The marriage will already effect ively have terminated.

T dower share would normally not go to someone who was in deser tion, if that had been the ea� or was living separate and apart other than for cause involving fault. lt seemed to us that wh the parties had, in fact, fina lized their financial relationship, at that point, it was not intended tt the dower share should still continue to apply. Now, if that was the intention then we ha mis construed it. MR.

CHERNIACK: Are you then saying that we should review carefu lly whether or not The Dov Act should apply at all in the case of persons who have become separated and thus divided 1 property, the assets of the marriage? MS.

BOWMAN: We ll, people may be separated and not have made that division, which I wo1 suggest would ind icate that the marriage, in the mind of one or both of them, was not yet terminat1 But where they actually have gone to the point of having the division, then it would appear tl the marriage is effectively termina ted and that you should look again at whether it is reasona in those circum stances for the survivor to get the full dower share that he or she would have be entitled to had they been co ntinuin g their married life at th j=! time of the death. MR.

CHERNIACK: But you do recog nize that the assets that are to be di vided with di screH li mited or otherwise, may not turn out to be equal, are only assets acq uired during the course the marriage,

whereas The Dower Act includes all assets ac quired by the deceased spouse thr Ol that pers on's lifetime. There is a much dif ferent ... You said it may mean th ree-quarters of assets, and in deed it may. On the other hand, it may mean an awful lot more than that. M dS. BOWMAN: Oh, yes, the estate on which the ower claim is based will be the larg pool. MR. CHERNIACK: Only one final thing, Mrs.

Bowman, dealing on Pages 12 and 13 , dealing v what you say about judges and courts, and I quote, "No consistency, no predictability." lt see to go counter to what has been stated by lawyers who have appeared before us, both within � without the comm ittee, that we should have no fear in leaving to the dis cretion of the courts im portant decisions that these bills do. Am I right in my int erpretation, Mrs.

Bowman, I mea1 in all seriousness, that you are sayi ng, contrary to what others have said, that the court's di scre1 is not predictable and that there is no guarantee of consis tency and predictability in the deci� of judges? MS. BOWMAN: Wel l, whenever you have a dis cre tion, you have the problem, although it is a flex approach to a problem, the appr oach of judges to the exercise of that di scretion varies with judge. That is a well-kno wn fact. That is not due to any evil intention on the part of judges. MR. CHERNIACK: No, I'm not suggesting that.

I would think that in order to counter what I tl is an obvious fact, which you have stated - you will pardon my saying that what you said is obvi 304

Statutory Rules and Regulations Thu rsday, July 13, 1978 - that it would take an awful lot of buildup of jurisprudence and appeals of a great numb er, and many jurisdictions, to start limi ting the judges to a greater extent than this legislation itself limi ts 1em. lt may take a long time before we get some pattern which becomes predictable. RS.

BOWMAN: And there is the additional problem which I know, as a lawyer, you recognize, 1at when you go to the Court of Appeal on a judgm ent which has been made on discretionary ·ounds, you have a very tough row to hoe, because the Court of Appeal says this is a matter 'r the judge's dis cretion and he has exercised it. Unl ess he has gone way off base, we're not going ' interfere. IR. CHERNIACK: Mrs.

Bowman, I have never seen a study, but I wonder if you are aware of any udy made as to the extent to which Courts of Appeal have been unani mous in their decision? ·aise that because it seems to me that so often there is a mi nority decision by the Courts of Appeal, I the way up, enough to indic ate that even the Courts of Appeal don't have such a clear and �rtain view as to how the law should be interpr eted in relation to the facts presented. Is that a ir statement? I don 't know any study that has been made, I'm sure there has been. S.

BOWMAN: I don't know of any studies either, but that's why we have the Su preme Court, suppose, because Courts of Appeal differ and when the Supreme Court differs, then you are just uck with it. R. CHERNIACK: Would you concur with me that that is the reason why the Privy Council never ated a numb er in majority and never showed a mino rity, because they thought that the final Court Appeal should appear to be unani mous even though it wasn't? I think that was the principle volved. S. BOWMAN: No, the Privy Council didn't confide in me; I don't know why they did it. R.

CHERNIACK: I think they did it because there is no appeal beyond them so it should appear ; if that is the end; they have all agreed on it. Thank you, Mr. Chairman. R. CHAIRMAN: Mr. Pawley. R. PAWLEY: Thank you, Mr. Chairman. I would just like to ask a few brief questions of you, rs. Bowman. I would like first to just have your comment in connection with the definition of marital >me as in Bill 38, in which there has been a substantial change in the definition from the definition at was in the former bill last year, particularly in reference to the farmstead. S.

BOWMAN: I don't have any comment to make on behalf of the Bar Association about that. would be glad to tell you my own personal opinion if I knew what it was you wanted to lOW. R. PAWLEY: What I am concerned about, Mrs. Bowman, is the fact that the farmstead will only � the house and the property imm edia tely surrounding same as "reasonably be regarded as �cessary to the use and enjoyment of the residenc e.

" I have enquir ed from other presenters as The Planning Act and the potential conflicts with The Planning Act, the unc ertainty of the ability r the property to be sold and ther efore for value to be established, and whether or not, therefore, is def inition, particula rly in the farmstead, was fair un der those circums tances, whether it should lt be the same definition as provided for in The Dower Act for home stead? S.

BOWMAN: Well, the argument, I suppose, that would justify the change would be that ther e no reason why a person should have a claim to a dif ferent area of property comprising the marital >me because they live in a rural area, as opp osed to a city area. The right of the farm wife to 1r dower interest in the home stead still remains, in addition to the rights under The Marital Property :t, so that it doesn't appear, so long as the definition under The Dower Act remains the same, at the farm wife is prejudiced in that sense. There could be difficulties in establishing value.

I 1agine you are going to have a lot of dif ficulties establishing value in the first few years of this :t. R. PAWLEY: I belie ve that is a major problem and if I could just relate to you the problem as >ee it, that with the home in town, it obviously can be resold for value. Location is not a problem ,d the law is not a problem . But insofar as the farm home detached from the balance of the acreage, ere is a problem becaus The Planning Act now prohi bits the sale of any land un der 80 acres, 305

Statutory Rules and Regulations Thursday, July 13, 1978 unless approval of the planning authority has been obtained. Sometimes it is given, sometimes is not, depending upon the circums tances. So in view of that, a farm home with an acre or two surrounding it might be worth very ve little, because it cannot be sold to a thir d party, or it cou ld, in fact, be worth a great deal, becau: they are in demand where the sales can be proved, particularly in the areas surrounding the Ci of Winn ipeg.

So, basically I see a serious problem in determ inin g value because of the provisiol of The Plannin g Act, and if I could just quickly relate to you the circum stance outlined to us I a farm wife the other nig ht, in which she ind icated their particular farm home is located exac1 in the middl e of the quarter sec tion, and therefore its value was very very small in relati onship the total farm, and of course co uldn't be sold to a third party under the circumstanc1 involved. MS. BOWMAN: I wonder - this is a new problem to me, Mr.

Pawley, so I will be speaking < the top of my head as I wa sn't familiar with that particular problem - but I wonder if you wouldr be able to argue there that the whole 80 acres, because of the restriction on sale, was inde ed tl extent of the property that was reasonably regarded as necessary to the use and enjoyment of tl residence. That might be one way in which the courts might approach it, or they may figure o another approach. MR. PAWLEY: Would we not be wise then to say "80 acres " right in the legislation, becau sometimes it can be sold, sometimes it can't be sold.

The court wouldn't know for certain unle there was an application being actually processed before the planning authority. So at the time the court hearing there would be no way that the court would know whether approval could I granted or not. However, I just wanted to explore that with you, and I appreciate that it is a nE problem which I'm confronting you with, and I oo appreciate your comment that possibly we shou define it as 80 acres, which is the minimum allowed under The Plannin g Act as an automa1 right.

I'm worried about your suggestion, and I certainly understand the reasons for it, on Page about opening up the court to the media. I would like just your im pression as experienced couns, as to whether or not media attendance in the court room might not intimida te parties, particula1 when they are dealing with such personal matters as would be involved in a family dispute? MS. BOWMAN: Well, I think you'll appreciate from the references in this brief that we are certair not in any way suggesting that the media should be encouraged to report the details of peoplE personal lives as revealed in the cases.

The media do, though, have a watchdog function, as I' ind icated to you, that I think they see how the law itself is operating, how the courts are operatin and I think that that is a public in terest that supercedes the occasional time when a party mig feel a little uneasy about it. There are not television cameras and flash bulbs going off, but as Y' know in criminal cases, the press is never barred from the court room, even when they are n permitted to publish what is going on for a period of time. I have never found it a problem, practisi1 in The County Court or the Que en's Bench, that the courts are open .

Sometimes a client express a little concern when they are approaching trial, but once they get there, in fact, almost no 01 ever comes in who is not concerned with the case, unless it's a lawyer coming to wait for the jud' to speak with him at a break. So that it does not turn out to be a problem in practice. MR.

PAWLEY: I just felt that in this particular type of case where the matters involved are ve very personal, that parties are very reluctant to dis cuss even in the best of circums tances, persor factors relating to sometimes a lifetime of difficulty and problems, that it could intimi date, not jL a few but many. MS. BOWMAN: Well there are eight or nine strangers, if you will, in the court room of necess in any event, between counsel, clerks, reporters - court reporter, that is - and so on.

So on the client has to accept that, and there's no way around those necessary attendances, one or t1 more people don't seem to make any dif ference. Once they begin to give their evidence, it's diffic certainly to tell those things to anyone, and it's difficult to tell them in a court room, but in divor cases and in custody cases and in property cases in the Queen's Bench and the County Court since the courts were established, these courts have been open.

Rarely do people bother to atter but it is open, and the fact that people can atten d, that the media can come in and see how thin are operating, whether they ever do it or not, has a very salutary effect, I think, on the condt of the courts. MR. PAWLEV: Yes, 1 gather that is your feeling and reason for the proposal, and yet I would concerned that although it is only one or two news men, as far as the parties are concerned in deali 306

Statutory Rules and Regulations Thur sday, July 13, 1978 vith their inti mate matters, those one or two reporters cou ld, in their minds, publish the information hat is being dealt with in the court room to the entire world, and they would be quite conscious >f that. illS. BOWMAN: Well, that has always been possible in the last 10 0 years, I guess, since there were :ourts in Manitoba, and in my lifetime it just hasn 't happened, because the news media fortunately 1ave had the good sense not to abuse their privileges in that way.

If they ever did abuse them in that way, then I would be right back here in front of you saying, 'Let's put a stop to this. " IIR. PAWLEV: I wonder ed on Page 12 , Mrs. Bowman, if you had read the English Case Law, which /lr. Mercier had provided us with on second reading of this bill, in which he provided us with a 1um ber of English cases, and on the basis of those cases he felt assistance in dev eloping a wording fhich he provided for us in his legisla tion. So, you've ind icated that you have seen thos e ases? liS. BOWMAN: Yes. IIR.

PAWLEY: Do you still, then, that those cases, when read, justified the position that you have :1ken on Page 12, rather than the view that was expressed by the Attorney-General as to the effect ,f those cases . . . tS. BOWMAN: Yes. IR. PAWLEV: . . . And I wonder ed if you could, ther efore, just elabo rate a little bit more then n those cases, as to where you see the problems? IS.

BOWMAN: Well, first of all, the wording in England is used ... it's not a legislative wording, 's one that developed in the cases beginning with the Wachtel case, where they said that one f the factors that could effect an award was gross and obvious misconduct. Now, that is somewhat ifferent from what is contained in

Section 2, Su b-section 2, in that that relates to conduct so nconscionable as to constitute a gross and obvious repudiation - that is somewhat different, and think may well be interpr eted somewhat differently by our court. As you know, they are not bound > follow the English decisions, but when you look at thos e English decisions, it's very difficult to nderstand ... well, it's certainly not possible, I think, to find that they are consistent in what they onsider to be a gross and obvious conduct. I could give you examples, if that's what you ant. IR. PAWLEV: Yes, if you could provide us with several examples.

IS. BOWMAN: For example, there was the one case where a couple had lived together apparently ' relative harmony for a numb er of years, and the husband determined to purcha se the new house , joint names for tax reasons. Before the trans fer was completed, his wife admitted that she had Jmm itted adultery, and he nevertheless continued with the transfer because he hoped that she ould stay, and a few weeks later, she left.

Now, he had put the property - and it was the family Jme, it wasn't some other investment property, it was the family home in joint names - and the Jurt found that that was such a terrible thing to do, that that was gross and obvious conduct, 1d took the whole thing away from her. Alright, now you might thin g that adultery would do it, Jt then you'll find another lady who had been married for many years, and was found by her husband , be committing adultery with a young boarder, and he then chucked them both out.

The court und that that wasn 't gross and obvious conduct, although it seems pretty obvious to me because l came home and found them, because they said the husband was no prize himself and the wife as not intend ing to break up the marriage, but merely to gratify her physical needs - and this rather encouraging - any reasonable husband would have forgiven her. Now if you can make sense out of that, I don't know. Now, remember the lady who had com mit ted lultery and thereby lost her half of the house, which had been given to her by her husband.

Then ere was a man who had been for eight een or twenty months guilty of brutal and unforgiveable mduct, but that wasn't gross and obvious they said because he had twenty years of good conduct : well, and so he got to keep his half. So I can 't make any rationale out of these cases looking at them as a whole. Wha t is gross 1d obvious conduct to one judg e is just the breaks of the game, as it were, to another, and what 1es come through quite clearly in looking at the cases is, in deciding whether one parties conduct gross and obvious they look to see how the other one has behaved and so they are weig hin g 307

Statutory Rules and Regulations Thursday, July 13, 1978 one agains t the other, which does not appear to be consistent with what we are told this sectio1 is supposed to mean. MR. PAWLEY: Well, Mrs. Bowman, you have sugge sted as you had previously in the Law Reforn Commission and to the previous government that the wording used should be simply that behaviou ought to be a factor to be considered. MS. BOWMAN: That is what the Bar Association brief says, yes. MR.

PAWLEY: In what way do you feel that would be an im provement. lt seems to me that ther, still would be a wide latitude for, in fact possibly wider than what the Attorney-General is attemptin to do here, if all behaviour could be examined. MS. BOWMAN: We ll, the main advantage that I see and as I say this is the position put forwar, by the Bar Asso ciation, it is not necessarily the one that would be my first choice.

But in any ever the advantage would be simply that the standard would then be consistent with the standard the is going to be applied to that same couple in the divorce courts, in terms of maintenance, an we have the jurisprudence indica ting, over some years, what weight conduct of various kinds shoul be given. For example, conduct following a separation, whether it be adultery or otherwise, is ne generally viewed as being of any great sign ificance to the issue of maintenance, and it appear to me from

Section 2, Su bsect ion (2) that it is really primarily the conduct of the wife that is goin to be at issue,

whereas in the more general statement in The Divorce Act, where it is the conduc of the parties, I think the court is going to look at the conduct of the applicant in the light of wh� provocation or mitigation may have been provided by the conduct of the other party. lt is a ver general standard, it is true, . but it is certainly no more general than what has been happenin under the English standard of "g ross and obvious conduc t." MR.

PAWLEY: Would there still not then be that balancing or that comparison as you suggeste would take place under the Attorney-General's definition, the conduct of one party as to th other? MS. BOWMAN: We ll, I am not sure if that is what the Attorney-General think s is going to tak place und er that definition. I am saying that that is what has happened in England. Our courts m< take a totally different view of what this

section means than either Mr. Mercier thinks they will tak or than the English cases have taken. That wording when I first looked at it certainly did n't mea to me bizarre conduct, which is really what the newspaper reports have sugge sted the governme1 intends. For example, it appeared to me from looking at that, that if a man left his wife and we1 to live with another lady tha t was as clear and obvious a repudiation of the marriage relationshi as anyone could ask for, but that doesn't appear to be what is contemplated. I don't know wheth• this

section is intended to mean that if he does that, and if it is gross and obvious repudiatio1 that she gets a 10 percent added on to her maintenance award because he is has been bad . just don't know how the courts are going to interpr et this, but I suspect that they will not interpn it as being only bizarre or very unusual conduct. MR. PAWLEY: So you feel there could be a puni tive factor that would be added to a findin� MS.

BOWMAN: Well, if you look at the Section, it appears that the gross and obvious condu on the part of either party is to be taken into account in the amount of maintenance, and if th is so, and if the gross and obvious conduct is on the part of the one who is going to be payin then you would think that he must have to pay a penalty for bad behaviour. Otherwise, what relevan< does his conduct have at all? Why is it there?

That, of course, as you know is quite contra ry the trend over many years in maintenance law where they say maintena nce is not pun itive, it to deal with means and need once you have established entitlement. MR. PAWLEY: Mr. Chairman, that is all the questions I have, but I would like to thank Mrs. Bowm• and 1 want to add also to the comments earlier. Mrs.

Bowman has been involved in the study Family Law, I believe, longer than probably anyone that is presently participa ting, involved the origin Law Reform Commission Study, and I want to say that although we have had our disagreemen1 that certainly we have always respected your point of view, Mrs. Bowman. lt has been always ve helpful, 1 am sure, to not only this government, but to the previous government. MS. BOWMAN: We ll, 1 am glad if it has been helpful but I would really rather not do it next ye again. 308

Statutory Rules and Regulations Thursday, July 13, 1978 IR. PAWLEY: You may have to four years from now. IR. CHAIAN: Mr. Spivak. IR. SPIVAK: Mrs. Bowman, as I understand it you have basically said that if uni lateral opting out : provided then the wide dis cretion is not necessary, but if in tact the position of the government : that there should not be unila teral opting out, then a wide discretion is necessary. •s. BOWMAN: In respect of existing marriages, yes. IR. SPIVAK: Yes. Deal ing now with the question of dis cretion and the comments of Mr.

Cherniack ealing with 13 (2), he asked whether you th ought that conduct would be a factor in the determination y the judge as to what is inequitable, having regard to any circums tances the court may deem 31evant, and you ind icated that would be the case.

I ask you whether if a lim ited discretion, as has been described, dealing with family assets in which equal shares would be grossly unfair or nconscionable having regard to an extraordin ary financial or other circumstance of the spouses, rould not also mean that conduct could be a factor and you, as one of the many hired guns who rill be arguing that, would not in fact argue on conduct under that particular clause. IS.

BOWMAN: lt is not beyond the realm of possibility that in a really bizarre case you might ,e able to squeeze some conduct into that sec tion, however, the standard of the dis cretion is really o restricted, grossly unfair or unconscionable, that you would really have to go some to achie ve 1arital misconduct on that scale. IR. SPIVAK: However, as a hir ed gun you would argue it, and until the case law is determined re coul dn' t be sure. �S. BOWMAN: I think that it is a pretty tar out argument, but if I was hard up I would try it, es. �R. SPIVAK: All right.

So we come down to the position tha t conduct will be argued, probably ntil there is the interpreation of law throug h a series of cou rt cases, until it is established what 1terpretation will be given to the dis cretion that is to be exercised, and so we come back to omething pretty imp ortant. Are you saying that if in fact there is uni lateral opting out, there should 1e no discretion? �S. BOWMAN: No, 1 didn't say that and I am not sure that I agree with what you said previously, hat it is not until the cases are decided that we will know whether conduct could be in cluded here •r not.

You could certainly determine whether conduct would be included here or not by saying 0. �R. SPIVAK: Well, do you belie ve then, I ask you di rectly, do you believe that if other circums tances hould be defined as other circums tances, but not conduct? �S. BOWMAN: Are you asking my opinion or the Bar Asso ciation? �R. SPIVAK: Wel l, 1 guess at this point the Bar has not discu ssed it, so I have to ask your tpinion. �S. BOWMAN: My opinion is tha t marital miscond uct ought not to be a factor in that liscre tion. �R. SPIVAK: All right. Would you agree with the words "g rossly unfair and unconscionable?" �S.

BOWMAN: I think that is reasonable, yes. �R. SPIVAK: And not includin g marriage misconduct? �S. BOWMAN: I am sorry, what was the. . . �R.SPIVAK: Well, I am asking whether you agree that in terms of dis cretion the use of the words grossly unfair and unconscionable should in fact be applied and I am saying that again with whatever 309

Statutory Rules and Regulations Thursday, July 13, 1978 definition of circums tan ces but not includin g marital misconduct. MS. BOWMAN: I would be satisifed with that, yes. MR. SPIVAK: We ll, okay, that's fine at this point, but you then still accept that only in the situatio where there is uni lateral opting out. MS. BOWMAN: In respect of existing marriages. MF SP IVAK: Yes. Oka y, now, if I can I would like to go back to the question of maintenance. On Pag 12 you say, "In our previous submi ssions we recommend the conduct of the party should continu to play some

part in the deter minin g of maintenance applic ations." And then on Page 14, you sa; "We therefore recommend that

Section 2 (2) be deleted and that the conduct of the parties b included as a factor in dete rmining whether and what amount of maintenance should be grante to a dependent spouse." So then in terms of the entitlement of maintenance, you believe conduct should be a facto That is some part. I wonder if you could describe what you mean by some part. MS. BOWMAN: Wel l, the position taken in the brief by the Bar Association is that it should 1:: one of the factors affec ting an order under

Section 5( 1) , simply the conduct of the parties. The would be consistent with what the Divorce Act has to say, which I quoted in the brief. The condUI of the parties and their means and other circumstances. MR. SPIVAK: No, but you basically sai d, "We therefore reco mmend that

Section 2(2) be delete and that the conduct of the parties be included as a factor in determ ining whether and what amow of maintenance should be granted to a dependent spouse. MS. BOWMAN: Yes. MR. SPIVAK: That is the entitlement and the amount. MS. BOWMAN: Yes. MR. SPIVAK: Okay, and you say that conduct should continue to play some

part in the determinatic of maintenance application. MS. BOWMAN: Yes. MR. SPIVAK: I want you to define for me what you mean by "some part". MS. BOWMAN: I thought that I had defined it. I have said that it should be one of the facto considered by the court in determ ining whether to make an order of mainte nance, and in wh amount. MR. SPIVAK: And in effect the Act before us now would in fact not be a factor as far as t1 entitlement, but would in fact be a factor as far as maintenance, as far as the amount. MS.

BOWMAN: I think that is the distinction without a dif ference, because if you are talking abo amount it can be a dollar or it can be a thousand dollars a month. So it really comes almost the same thing . MR. SPIVAK: So in effect what you are saying is that the Act amounts to the same thin g as wh you are sugges ting. MS.

BOWMAN: No, because we're certainly not suggesting that this standard set out in 2(2) a reasonable kind of a standard to include, because it is going to lead to all kinds of ridiculo legal arguments about whether conduct while gross is still not obvious or while obvious it wasr quite gross enough, or even so whether if one but not the other or both, it was repudiation of t' marriage relationship. MR. SPIVAK: All right, then I'm asking you to define what do you mean by "some part" of t determ ination. How would you refer to it, just as conduct? � MS. BOWMAN: As it is in the Divorce Act.

In most cases, conduct will be a very minor fact1 if at all, but in some cases it can play an impo rtant part. And the cases ind icate that, for examp as I have ind icated to Mr. Pawley, conduct occurring following a separation is really not consider 310

Statutory Rules and Regulations Thursday, July 13, 1978 oo sign ificant. Conduct that brings about the breakdown of the marriage certainly carries a lot more veight, but even so may not disqua lify a person from maintenance. �R. CHAIRMAN: Any further questions to Mrs. Bowman? Mr. Parasi uk. �R. WILSON PARASIUK: Yes, I just have some brief questions regarding enforcement of nainten ance. I see in your brief that you really don't have that much to say apart from saying that he filing of orders, that you sho uldn't use the Family Court as much as you had done in the past hrough using the County Court.

Are there any other proposals that you would make for the �nforcement of mai ntenance orders. Other people who have raised concerns have ind icated that naintenance orders aren't enforced, and your brief has very little to say about that. Do you have 1ny thing more that you would like to add on that? Any suggestions as to how this Act might be ightened in this respect in that people on both sides of the House have commented that the past �gislation and this legislation is weak in that respect? ,S. BOWMAN: Well, I think there is only so mucb you can expect of this legislation.

There are 1 lot of thin gs that it can 't do; it can 't cur e the common cold and I don't think it can cure the 1roblems of enforcement of maintenance. I belie ve that Mani toba probably has better facilities for nforce ment of maintenance than most other provinces. lt's a very difficult problem . There are no 1agic solutions. The Bar Association has inde ed made submissions through the Canadian Bar .ssociation for efforts which we suggested might be helpful through the Federal Government and 1rough federal-provincial co-operati on, and I believe the previous Attorne y-G eneral's files will isclose that ...

I think he has copies of those suggestions which had been put forward, but those 1in gs are lengthy things. There was a piece of legislation put forward in parliament last year on rhich we made some subm issions, which was to establish a federal-provincial comm ittee to work ut means of co-opera ting, in order to facilitate enforcement. The one thin g I did notice about this Act, and I think it was pointed out at the last set of hearings, ras that rather than toughen ing it up they have reduced by ten days the amount of jail time that an be given to a defaulter.

I don't know that that's a matter of great sign ificance, but it surprised 1e that they would reduce it. IR. PARASIUK: But you really don't see any great way of stren gthening this Act or strengthening nforcement through legislation. Some people have made the suggestion that 25(1) be changed to shall" rather than "may" require the person to deposit a specified amount in court or to enter 1to a bond. IS. BOWMAN: Most of the people with whom you have difficulty enforcing maintenance orders on't have the mone y to put up the bond or the security deposit. If they had the mon ey, then the roblem wouldn't arise.

They are primarily people on whom the maintenance order is either a severe r even a moderate financial burden and when faced when claims by the loan company, by the :�r payment people and so on, and the maintenance order, they give priority to the car payment 1 every ins tance and that is their difficulty is that the y have too many claims on the same amount f mone y. That's the chronic problem with maintenance laws. There is not enoug h to go around 1d the priorities are wrong in many cases. The person who has the money to put up the deposit the person who has got a steady job.

If he has got a steady job, you can collect from him by 1eans of garnisheeing orders, co ntinuing garnisheeing orders, which are quick and ine xpensive, and ) home should be without one. R.

PARASIUK: What about a system whereby the court ... lt is the court that decides the amount · maintenance and there have been some suggestions that the court should pay the maintenance, · to a certain amount, say a social assistance amount or Canada Manp ower allowance amount, 1d that the court should enforce the maintenance order. lt's said that the court is in a better position ' pursue the person who should be paying the maintenance. S.

BOWMAN: The court can and does ini tia te default proce edings for any person who wants register their order in the Family Court, or where the maintenance order is made payable to e Family Court. If there is default, the process begins automatically. As to having the government ty the money and then collect from the defaulter, I see some pretty difficult problems to grapple th there. If you have a woman who has an income of her own of, say, $900 a month, and her 1sband has quite properly been ordered to pay another 600 because he can well afford it, are ,u going to pay her 600 or 200?

You have another woman whose husband has been ordered to 1y her 10 0, and he doesn 't pay. Now, are you going to be in the position where you are paying e woman who has already got 900 the same amount out of the public purse as the woman who 311

Statutory Rules and Regulations Thursday, July 13, 1978 has only got 300 of her own? I mean, you have got some very basic problems there. What it boil down to, ultimately, I think is that you will have to look at it as a substitute for welfare and it ha got just the same problems. MR. PARASIUK: Okay, thank you. MR. CHAIRMAN: Any further questions? If not, thank you very kindl y Mrs. Bowman. Leigl Halprin. MS. LEIGH HALPRIN: Mr. Chairman, I see the Attorney-General isn't present at the moment. MR. CHAIRMAN: He will be back in a moment. MS. HALPRIN: Honour able Mem bers and Members of the Comm ittee.

I speak to you this even in as an indi vidual. I might mention, ho wever, that I am a lawyer involved in the practice of famil law and a member of the Family Law Su bsect ion of the Mani toba Bar Associa tion, and was a membe of the Su b-Commi ttee of the Family Law, Su bsection Structure Review Bill 38. Before beginning my comme ntary on Bills 38 and 39, I should like to applaud this governmer for its positive response to the criticisms of Bills 60 and 61, the present legislati on, made by man of my colleagues and myself as evidenced by the introduction of these two new bills.

The leg• profession is unique ly qualified to offer constructive advice in a forum such as this. Please not that I say uniquely and not solely qualified. While not discounting the contribution of the lay citizer whose personal experience with family law and the jud icial process has prompted his or her suppo1 of the previous legisla tion, my experience has been that many such indi viduals have a misconceptio of what actually happened in their particular case.

Often admittedly as a result of a com mun icatio breakdown between counsel and client, and the rights and remedies, if any, which the previou legislation - I actually should say the existing legislation - would have afforded them. For example, during the last session of Law Amendments and I imagine it was in consequenc of some press coverage of my submi ssion, I received a telephone call from a woman who expresse great outrage at my position in regard to the Acts.

After some discussion, I learned that this lad had a 19- year-old child, who still lived with her, and had just commenced his first year of univ ersi1 at the Univ ersity of Manitoba. Her husband had ceased making maintenance payments approximate! two years ago and maintenance, I might add, was payable pursuant to court order. She was no· desirous of obtai nin g a contribution from her husband to finance the child's education, and h refused.

The legisla tion, she believed, would assist her and she, of course, was plainly mistake! because under the legisla tion, which I will refer to as Bill 60 and 61, under that legislation of cours maintenance was only payable until a child was of the age of 18 years and then of course it ceasec as it is under the proposed bills. She did not understand the legislation, yet this woman gave her support to the legislation an vigorously resisted any attempts at constru ctive amendment because she believed that this legislatio would offer her a remedy.

And she belie ved that indi viduals like myself were attempting to der her that remedy and , presumably, the government in power was attempting to deny her the remedy.

I suggest that some of the support - and please note again I say "some" of the support - for the bills en acted by the previous NDP Government was and is not an informed support, ju: as some of the resistance to these bills, meaning Bills 38 and 39, is an unin formed resistancE Now, it's unfortuna te that some indi viduals, although fully acquainted with the realities of tt legislation, because of their own over-zealous commitment to the philosophy of equal sharing - and I don't want to comment on that philo sophy itself but because of that over-zealous commitme1 to that phil osophy - permit and even foster an ina de quate understanding of these two bills.

I believe that the previous government, the NDP Government, was cognizant of the fact thi many of those who supported the legislation did not understand the legislation, its ramificatior and the objections and concerns of those who advocated suspension and/or amendment. I belie ' that the previous government was also aware that many indi viduals who suppor ted the legislatic belie ved that the legislation, as enacted by the previous government, was a codification of tt proposals made by the Law Reform Commission.

We have heard selected quotations from tt Commission report, presumably cited to illus trate how this government, the Cons ervath government's bill flies in the face of the Commission's recommendations, yet which one of tl opposition here pointed out the Commission's reco mmendations were meant to operate as package.

And while inde ed the Commission rec ommended an equal sharing of commercial asse with no such dis cretion as we now find in this new bill, it also recommended deferred sharing family assets and uni lateral opting out, both of which proposals were absent from the existi1 legislation that was Bill 61. 312

Statutory Rules and Regulations Thursday, July 13, 1978 Under the new legislation there is, of course, no imm edia te sharing of family assets, and to my 1is tress, the recommendation of the unila teral opting out has been rejected and a di scre tion, )resumably adopted as a compromise by this government, between two opposing fac tions ins erted n its stead. May I suggest that had the previous government and the supporters of Bill 61 not adopted ;o inflexible and rigid a stance in regard to uni lateral opting out, this government would not have macted its dis cretion

section to deal with the obvious inj ustices which will arise when the legislation s applied retroactively to prior existing marriages. I migh t also mention that the family law subsect ion again reaffirmed its support for unila teral )pting out, but in the event this government chose to reject that submission, enthu siastically ;upported a di scretion as provided for in

Section 13, subsection (2). I think there is a general :onsensus that many of the di fficulties which were created as a result of legis lative dr afting have )een solved bylegislative re-drafting. I again say "ma ny," not all, certainly certainly this legislation s not flawless. Problems regard ing classification of such assets as lif e insurance and pension plans 1a ve been elimina ted, and a more comprehensiv e definition of comme rcial assets. I might mention 1t this stage that I agree with this government that such assets as insur ance, pension, superannua tion ;chemes and plans, should be defined as commercial assets, and this also is the view shared by he subsection.

Whereas the original Act seemed to apply and even to spouses who spent a night at the Holida y nn enroute to an extraprovi ncial des tina tion,

Section 2, subsection (1) of the new bill properly restricts ts application.

Whereas

Section 2, subsection (4) of what I'll again refer to as the previous Act, tctually seemed to di scourage separated individua ls from rec onciling - and that was a very, very mportant flaw with that piece of legislation -

Section 2, subsection (4) of the new bill allows ndividuals a 90-day trial period to effect a reco nciliation and is consis tent with the 90-day trial period or reconcilia tion permit ted under The Divorce Act.

The so-called deferred sharing of family assets in the marital home proposed under the new >ill also will cure many of the problems perceived by many of my colleagues and myself, and these ncluded the ev oking of the attribution rules and deemed dispositions on death, under The Income ·ax Act (Canada), aborting existing estate planning schemes and wills, negative ramification for :reditors, fina nces for creditors, and a significant change in the lending practices of financial nstitutions in this province, and on that point, I think I speak with some authority.

The firm with vhich I am associated repr\esents a major lendin g institution in this city, and had the existing egislation been proclaimed, every spouse would have been required to guarantee the obligations >f his or her spouse if that spouse took a loan from that particular lending institution. So, despite he objections of some indi viduals who have appeared before you and who discount it, the change n lending practices, I can assure you, that at least at that particular lending institution, which is 1 major one, there would have been a sign ificant change. Now to turn to the proposed legislation.

Section 1, subsection (a). I would reco mmend that the vord "jewellery" be included as an asset, as in my mind there is some confusion as to whether ewellery is in deed personal apparel.

Section 1, subsection (f): Although a pre-nuptial agreement may inde ed be a marriage contract, or the sake of clarity, 1 would also suggest that it be listed, and I also see no reason why one :hould necessarily restrict spousal agreements to written agreements. The Act seems to only allow m agreement in writing. In Mani toba, no cont ract need be in writing to be enforceable, although :ome cer tainly must be evidenced in writing.

Although a verbal cont ract would certainly create its :hare of evidenti ary problems, I believe that it should be open to the party assert ing that such an tgreement exists to demons trate it in a court of law.

Now, 1 don't have any particular problem with the definition of "m arital home," and I must say hat 1 hav en't had the opportunity to peruse the amendments to The Pla11nin g Act to which Mr. 1awley add ressed hi mself, but I migh t make this comment, that in regard to his situation in which 1e set up, where he envisioned a farm home being located in the centre of a piece of property, he argument that I would make was that the adjacent land was necessary to the use and enjoyment 1f the farm house. The next sec tion,

Section 5, subsection (3), is a

section that giv es me a great deal of concern. t's my fear that many agreements will be opened up, as most solicitors could not have antici pated ihen drafting an agreement, when ownersh ip of certain assets would ever be an issue. That's the ection which says that where one hasn 't specifically add ressed oneself to an asset, and how that sset is to be disp osed of, then presumably that asset is up for grabs, even though you have an .greement.

Now, for example, up until thi s legislation was proposed, in separation agreements, ,re-nuptial agreements, 1 never thought to include a provision to the effect that a husb and's business tas his own. We dealt with things lik e cars, homes, furniture - household chattels and the like - but never really actually dealt with thi ngs lik e busi nesses because we presumed that tha t would ever be an issue. Now, of course, it cer tainly is an issue. Th ings like pension plans were never ealt with; Canada Pension was never dealt with. Now these things are of course up for grabs. 313

Statutory Rules and Regulations Thursday, July 13, 1978 There's many agreements in existence where it was intended to be a final settlement between th parties, but there's a failure in those agreements to deal with each asset on an ind ividual basi We would have perhaps an agreement that was pages and pages and pages long, with

schedule listing those particular assets. So my subm ission is that where it's clear from a reading of tl' agreement that that was intended to be a final settlement between the parties - and often ther is wording to that effect in an agreement but even in those cases where it's not, if it appears 1 be from a reading of an agreement that it was intended to be a final settlement between the

partie then I belie ve that those agreements should not be opened up, and I believe that in fact there a wording suggested by Mrs. Bowman in her report that commends itself to me in th; connection. Now, the next sect ion I'm dealing with is

Section 7, subsection (4). That's the sect ion that sa� any income from, or appreciation or depreciation in the value of an asset acquired in the mann1 described in

Section 1, 2 or 3, those are those sections that deal with gifts, insu rance premiun and inhe ritances, where the Act goes on to say that those thi ngs are not normally shareable. goes on to say that income or appreciation or depreciation is not included either in an accou ntin unless it can be shown that the gift was conferred or the inhe ritance devised or bequeathed, ; the case may be, with the intention that the income or appreciation should benefit both spous e Now, I think tha t part:,cular

section is inconsis tent with

Section 4, subsection (3). That's the sect ic that says that where the Act doesn't apply to assets because - well, for example, they were acquirE prior to the marriage or while the parties were not cohabit ing. In those cases, the appreciation the value of the asset is shareable where it's used to acquire a family asset, so those sect ions a not operating along the same lines; they're clearly inc onsistent with one another. I would pref to see none of that shareable, but I think the impo rtant point is that they be made to be consiste with one another.

Now, the last sections, with which I take exception to, are Sections 13, subsection (1) , and Secti< 13 , subsection (2) but unl ike many of the individuals who presented briefs in the past, I find the: sections too restrictive. I share Mr. Schulman' s

interpretation with respect to these sections ar I belie ve that they'r e going to be interpr eted on a very narrow basis. Now, why do I believe tha We ll, at fi rst blush, I believe it on a reading of those particular sections. Secondly, because of n kno wledge of the law as regard presumptions in law, and thir dly, because we now have some judic authority out of the province of Ontario, which deals with a

section of

an Act which is substantia similar, couched in very similar language, to that found in the proposed Marital Property Bill. No I know that Mr. Schulman dealt with the presumption - as I'll call it - which he referred to the Law of Property Acts,

Section 90, and dealt with it most ably, but if I might be permitted refer to that again. Now tha t

section again reads that, "All joint tenants, tenants in commc mortgagees and other creditors having any lien or charge on, and all persons in terested in, to, out of any land in Manitoba, may be compelled" - may, that is - "be compelled to make suffer partition or sale of the land or any part thereof." Now, the way the language is couched, at first blush it would seem to be clearly dis cre tional and in fact it is a dis cretionary sec tion.

But quoting from the Szaba case, which is the leading ea in Manitoba on the law of partition and sale - at least it was when I went to Law School - is the decision, 19 65, of Mr. Jus tice Smith.

And he goes on to say at Page 551 of that case, "t right to partition is a matter in the dis cretion of the court but the court's dis cretion is a judic one and is governed by certain rules, prima facie the applicant is entitled to an order for partiH and sale or sale." Then the judge quotes from another case, the case of Szaba versus Szaba, which is an Onta case, and quoting from that case, he adopts the judgment of the trial judge in that case and sa: "When there is aprima facie right to partition or sale which the applicant seeks to enforce withc vexation or oppression and the applicant comes to court with clean hands, the order sought is right ." Now that is a decision based on a statute in which the language is permissive. lt says "ma as compared to legislation under Bill 38 which says that the right to have assets, people have right to have their assets divided in certain circums tances, not that the judge may choose to divi assets on a 50-50 basis, but they have the right to do it.

And the judge goes on to quote from the case of Roblin and Roblin. This is dealing with h1 the courts will constrain thems elves because in the law of partition and sale, one can only de an applicant's right to partition and sale if a court makes the finding that the applicant's applicati is vexat ious or oppressive. So those words must be int erpreted as the words "un conscionab ' and "in equitable" will have to be interpreted. The courts narrowly interpr et those words and conf the cases which they find to be vexa tious and oppressive.

In this particular case, the applici asserted that she had been forced to leave her husband by reason of ill treatment and lack of pro1 maintenance. The husband claimed that all the moneys expended to acquire the house had be provided by him and it was the husband who was resist ing the applica tion. He didn't want his h01 divided between them or the house sold and the proceeds divided between them. The husb� 314

Statutory Rules and Regulations Thur sday, July 13, 1978 :!aimed that all the moneys expended to acquire the house had been provided by him, that the tpplicant, his wife, had left him voluntarily and for no reason, that he was bringing up both the hildr en of the marriage, that the home would be broken up if the land were sold and that in the 'vent there was a strong probability that the mortgagee would foreclose or sell under his power >f sale. it's a hard luck story if I ever heard one. In my opinion that would have been oppressive >Ut no, said the court, tha t's not oppressive or vexatious, they said.

They said that was just a matter >f personal inconvenience and hardship and that was not enough to resist an applic ation for 'artition. it's my submission that that's exactly the way the courts are going to interpret words like unconscionable" and "inequitable," particularly in light of the recent Silv erstein case which is an nreported case and which I understand Mr. Attorney has referred to. If you will bear with me I 10uld lik e to refer to it again.

There the judge says, "lt seems clear to me that the intention of 1e Legislature of Ontario, when it enacted The Reform Act, was that family assets in Ontario are ) be di vided equally between the spouses on termination of their marriage regardless of who happens ) be the legal owner of the family asse ts. " Now under that legislation, they deal actually only with lmily asets. There are specific provisions where they can bring commercial assets into the common ool but the provision of their Act, which is almost analogous and which is almost identically couched 1 identical words, is the

Section that deals with family assets. "lt is my opinion that the Legislature 1tended to put an end, once and for all, to the interminable litigation tha t has been before the ourts of this province concerning the ownership of, or interest in, those assets which were jointly sed by spous es while living together as a married couple." The Legislature has provided that the cour t is entitled to make an unequal division of family ssets which it is of the opinio n that an equal division would be inequitable, just as our courts are oing to be given that power under this legislation.

But he continues, "H owever, the power to make n unequal division of family assets may onl y be exercised when such a division would be inequitable 1 the light of certain specific statutory criteri a." Then he goes on to say, "lt appears to me that court may only depart from the pr ima facie right of a spouse to equal division of family assets it is satisfied that because one or more of the criteria set out in paragraphs (

a) to (

f) are established, 1ere would be an equity in an equal divi sion. " I am convinced that the Legislature did not intend 1e court to be entitled to exercise any broad discretion to divide family assets in accordance with 1hat an indi vidual judge may think is fair and equitable on a particular case. The property law in lis province is of vital impor tance to married persons and, in my view, tha t law not only should e, but is in fact now clear and precise.

The rule of law - the rule of law - is that there is equal haring of family assets. lt is my opinion that a cou rt should be loathe to depart from that basic Jle and it should exercise its power to depart from that rule only in clear cases where an equity •ould result, having regard to one or more of the statutory criteria set out in paragraphs (

a) to ). 1 do not think that the property laws between spouses in this province is now to be vague and ncertain and dependent upon the sense of fairness of an individual judge in an individual ase. The Legislature is reponsible to the people of the province for the enactment of the laws that overn property rights. Judges do not share in that responsi bili ty. lt seems to me that the Legislature as spoken and expr essed its intent clearly and without ambig uity and I can see tha t my duty to pply the law in accordance with the obvious intention of the Legislature. Now based on that case, I have no reason to believe that that

Section will be interpr eted in ny different light than it was in the Ontario courts. Returning to

Section 13 (2), I belie ve it was during Mr. Schulman's submis sion that Mr. Pawley ueried what cases Mr. Schul man might envision might fall within

Section 13 (2)(h). I believe that's 1e nature of the assets. If I might be permitted to add ress myself to this sec tion, the kinds of tuations tha t I envision falling within that

Section might be, for example, the case of a windfall here clearly neither spouse could have said to actually have worked towards the acquisition of 1e asset, it wasn't acquired by either of their ind ividual labours or efforts, and that is inde ed the ay the Income Tax Department views windfalls as well. Another situation might be uni que assets, for example, such as a special wheelchair, a motorized heelchair where clearly that kind of asset would inequitable to share in those kinds of assets. Those ·e the kinds of situations that I envision falling within that Section. I think it's impo rtant to cover 10se particular situations. Now another comment that I'd like to make before leaving

Section 13 (2), I believe Mr. Pawley ade a comment about the presumption of advancement being rebutted in Si lverstein. Mr. Schulma n id made the point that pres umptions were rarely overturned and it certai nly was an uphill battle ' overturn a presumption and Mr. Pawley pointed out that wasn't it inde ed overturned in the case Silv erstein. If 1 may be permitted to read from that case again: "If I thought it necessary to decide ; the question of fact whether or not Mr. Si lverste in made a gift of the matrimonial home to his ife I would be inclin ed to draw the inference that he did." And then he continues, "I do not think 315

Statutory Rules and Regulations Thursday, July 13, 1978 that I have to make that decision in this case. I think that it was the intention of the Legislatun to remove this kind of issue from consideration in our courts by enacting

Section 4 of The Reforn Act." So in deed on a reading of that case, the presumption of advancement was not rebutted, i was consider ed irrelevant to the proceed ings before the court because even if a gift had bee1 established it was in fact irrelevant because even gifts came into that pool of shareable assets whicl had to be divided on a 50-50 basis. MR. CHAIRMAN: Ms. Halprin, you have used about 31 min utes. Do you expect to be mucl longer? MS. HALPRIN: No, not much longer, Mr. Chairman.

Finally, before I leave the Si lverstein case, there was also some mention about the fact that th judge in that case directed his mind to the income tax ramifications of awarding Mrs. Si lverstei the house, and that was somehow a prime consideration in his mind. That's been somewhat dis torte and I'd like to read from that case again. "The final statutory consideration is that contained in paragraph (f). Mrs.

Silverst ein 's evidenc is that she feels it a matter of great im portance to her that she remain in tha t home." She wa trying to resist a sharing of the house on a 50-50 basis and then a sale of that house. She testifie that not only is it her dream home and the place that she wishes to live until she dies, but als that it is admir ably suited to her needs.

"While I can readily understand and sympathize with her feel ings in wanting to stay in the hom1 I cannot accept that it is reason able for her to remain living alone in a large four-bedroom hom1 attractive and comfortable as it undoub tedly is, the house is obviously much larger than she coul reasonably need. While I sympath ize with her desire to use the house as her residence, I do ne see anything in her desi red use of it that would render it inequitable to an equal division of th1 family asset.

I can see nothing in the circumstances relating to the acquisition, dispositiOI preservat ion, maintenance or impr ovement of the property that would in any way render it inequitabl that the property be divided equally. In all the circumstan ces of this case, I can find no circumstanc within paragraphs (

a) to (

f) inclus ive that would render it inequitable that the matrimonial home b divided in equal shares between these spouse s." And then the judge di rected partition an sale. Now it was only after the judge made that decision that he went on to dis cuss the income t� ramifications. Hi s decision was not based on the income tax ramifications and any comments i regard to the income tax ramifications were clearly obi ter in that case. Now that concludes my submis sion with respect to Bill 38. I have just a few remarks in connectic with Bill 39, The Family Mai ntenance Act. I, too, take issue with

Section 2(2) but again, not for tt reasons put forth by the indi viduals who made previous submissions. Again, I find that

section f; too restrictive and I have difficulty envisa ging all but the most obvious and gross of behaviou1 being found to remove an individual or to bring an indi vidual within that Section.

I have examined some of the case law, although not in detail, and I find it terribly restrictiv Quoting from the case of Harnett versus Harnett: "In my view, to satisfy the test, the conduct mu be obvious and gross in the sense that the party concerned must be plainly seen to have wilful persisted in conduct or course of conduct calcula ted to destroy the marriage in circu mstances which the other party is substantially blameless." I think that there will be very few cases in whic these conditions will be satisfied. Quoting from the case of W vs. W: "What does gross and obvious mean?

The kind that wou cause the ordi nary mortal to throw up his hands and say, surely that woman is not going to t given any money or is not going to get a full award." As regards those concerns that the courts will backtrack and go back and dis cuss every particul detail and all kinds of conduct will be brought up, quoting from the case of Camp bell versus Campbe "lt is really impossible to go into the affairs of these parties ten years ago, certainly without a ve detailed enquir y, which in my view would be entirely wrong.

I di sregard any question of condu and while I appreciate that in some cases it is impossible, particularly with lit igates in person a1 often for counsel, to dis suade spouses or ex-spouses from pursuing conduct, I take the view th every thin g should be done by the court to avoid costly, inde cent, and ti me-wastil inv estiga tio n.'' lt is these very courts that people are criticizi ng, and yet they are doing exactly what you wa the court to do. lt is my submis sion that, because I believe that this

section will be interpr et' in much the same way as it has been in the English cases, and I see no reason why it should n be. lt is true that the English jurisprudence is not binding on our courts. As a matter of law, th are certainly a high authority and extremely persuasive, and inasmuch as it is the only case I; on those particular interpreta tion, it is definitely going to be considered in our courts. In light that, 1 would recommend that there be a definite listing of the types of conduct that may be consider 316

narital misconduct. Statutory Rules and Regulations Thursday, July 13, 1978 The only other real concern that I have in respect to this legislation is that

section dealing with he postponement of sale. ! see no reason why a family court should be permitted to postpone he sale, and in addition, I have some doubts as whether they actually have the authority to do ;o. In any case, if they do have such authority, if they do have the jurisdiction to make such an ,rder, I certainly take exception to them being given that power in this Act. I think that should be eserved to a Queen 's Bench judge on a partition and sale application. That concludes my comments. Thank you very much. ,R. CHAIRMAN: Are there any questions to Ms. Halprin? Seeing none, I thank you very .indly.

Eleanor Large. ,S. ELEANOR LARGE: Mr. Chairman , honourable members. I speak as a private citizen, also as 1 wife of 22 years, a mother of three, a deserted and battered wife. I do not come from the hig hest ocioeconomic group, nor do I come from the lowest socioecon omic group. I come from a decent tnd well-kno wn musical and li terary family. As a matter of fact, I went to school with Mr. Spivak's fife Myra. My husba nd's first cousin was a Conservative Premier for a very short period and my 1usband has a at least a nodding acquaintance with the Honourable Sterling Lyon.

I have never spoken to any group before and I do not have the expertise of the persons who 1a ve already spoken, but I have personal experience of the injus tices to wives and childr en when 1 marriage breaks down. My husband was a despot, not a benevolent despot; he controlled all 1oneys. He could always find money for a good set of golf clu bs, but not an extra $5.00 for groceries. le could find $600.008 to have a patent searched for an acquaintance, with the hope of becoming 1stantly rich, but he could not find $200.00 to have badly needed orthodontia work done on his on's teeth.

My mother paid for the boy's orthodontia work, as she paid for shoes, snowsuits, etc8 .s the childr en grew up. Over the years, my folks gave me bonds worth many thousands of doll ars, which I simply turned 'ver to my husband to pay bills. She bought the house I now live in. Even so, when a finance company 'honed me to say they wanted my sig nature on a form, it was because my husband wanted to )an more money, even though the first loan was not paid. My husband became enraged: How dare 1ey phone me. I have never known what my husba nd's salary was.

There was no such thing as joint ban k accou nt, and when he went into busine ss for hi mself I was never given a key to the hop nor the com bina tion to the th ree sates he has, in case anything happened to him. I was not 1 his will .m. Mr. Schulma n spoke of presumption? I found his brief to truly be an Alice in Wonderland piece f fiction. As for the Chamber of Com merce brief, Mr. Shead speaking, it was so indescribably naive s to be laughable. Actually, I felt sick.

When I look at the honourable members sitting here, I wish 1at each one of them could walk one mil e in my shoes, or in the shoes of the countless other eserted and battered wives. You see, I know that you gentlemen have never been physically abused nd have never had to beg for even the necessities of life. The fi rst house we purchased caused a terrible argument. My parents had mortgaged their home 1 order to enable use to buy a small house for cash. My husband fought with my parents and 1e until five in the morning as he wanted title in his name only.

My parents had never heard of uch an arrangement and of cou rse would not agree. We bought the house and title was in both ur names. When we sold it upon separat ion, we both got one-half the equity. The second house re had , after getting together again, was bought with the help of my husband's parents, and my usband had his way and the house was put in his name only. When that house was sol d, after ur second separat ion, I received nothing. The cars we owned were always in my husban d's name ntil we became a two-car family, and the second car was put in my name.

Seven years ago in Toronto, my husband decided to go into busi ness for himself after spending 7 years in his job. He took out his pension and used most of it to buy stock. Anyone knows that struggle the first few years of a new business, but when he became enraged and called me down ecause 1 asked him to pick up some deodorant and a very special med icine for my sick baby, had had enough. We separated. A separat ion agreement was signed and I came to Winnip eg in 972. Let me tell you a little of that separation agreement. We both used the same lawyer as I did ot ha ve money to pay a lawyer.

When I objected that $1 80.00 for three childr en and myself was ot enough maintenance, my husband said that if I didn't accept what I was offered I would not et one penny. My mother paid to have all my worldly possessions moved to Win nipeg. My husband lme to Winnip eg from Toronto in 19 75 and we got together again. I helped my husband find his .200 square foot shop, scrubbed all the equip ment he bought, while also working part-time and, f course, con tinuing to be a wife, mother, and homema 317

Statutory Rules and Regulations Thursday, July 13, 1978 ker. I have the feeling by thi s time you are asking yourself why I continued to go back to

m) husband time after time. My upbringin g has a lot to do with it. I was brought up a strict Catholic in a family that believed in the sanctity of marriage. My parents were responsi ble cit izens and marriagE was not viewed as it is so often today, as a shor t-term affair. My parents shared every thing equally the good and the bad. This is all I kne w, so my husba nd's attitudes, as formerly stated, were � shock to me.

Also, I am not career min ded , but love my home and family and its in herent duties Also, my husband was the natural father of my childr en and I did not separate from my husbanc at any time because of another man. These are some of the reasons I tried time and time agair to make a go of it. My husband left me in Decem ber, 19 76. One of the reasons he gave was that I had stoppec working and that I had said I would work until he got his busi ness going. I had been asked fo1 the second time, by the second di fferent employer, to get my nerves under control and then I coulc come back to work.

I knew I was not doing a good job. My bad nerves stemmed from the fac that my little son, who had been abusive to me when he was a teenager, had been allowed bacl into the family fold. My husband wished it; I wished to please my husband. Just a year after m: husband had returned to live with me in Winnip eg, the boy became abusive to me again and hi: father took his part. I later learned that the boy knew what my husband was up to and that's wh; my husband took his part.

When this boy assaulted me for the second time in one day and th• police were called, my husband said if the boy had to leave he had no other choice but to leavt also, and leave he did, with our son, and they both took up residence in hi s shop. My husbant would come home once a week for a shower and a change of clothes, clothes which I faithfull• washed for another six months. A shower once a week, you ask? This was always his normal routin e My husba nd's personal cleanli ness, or lack of personal cleanli ness, had always been a bone o contention.

For over five months, I would go to his office to ask him if he was coming back. His an swe was that he cou ldn't turn out our 20-year old son from his shop, a boy who was making $800.01 a month and drove a $5,000.00 car. Finally, he adm itted that he lik ed things the way they were lthen petitioned for a di vorce. As we had no separation agreement for a few months, he gave m $200.00, then he dropped it to $10 0.00 a month. For one and a half months he gave me not on1 penny, and when he was taken to court, the judge ordered him to pay me $200.00 August, 19 77 and $200.00 September, 19 77.

He paid, but in October he went to court and said if he had t1 continue to pay this he would go bankrupt and the judge ordered him to pay $75.00 interin mai ntenance. In November, 19 76, my eigh t-year old son and I moved into my husband's shop as my gas wa turned off. I was there for two days and received a beating severe enough to sustain a concussior With the aid of my elde st son, who told his father I would have to remain in the shop if I did ne receive more mon ey, my husband agreed verbally to give me another $75.00 per month until th di vorce.

As my husband became more and more involv ed with the woman he is presently living witt the extra $75.00 became harder to obtain. lt came late. Usually I ended up going to the office an arguing for it, then he refused to pay it at all. He said he simply didn't have it. You must all hav a fairly good clue as to why he didn't have it. With a few further clues, you will under stand mor fully why he does not have the money. The woman he lives with is 32 years old and has statement of claim and judgments against her by banks and stores for over $37,000.00.

My husband has close his shop on at least four occasions to attend court when she was charged when failing to tak a breath alyzer test, atten ding Autopac offices concern ing an accident, open ing his office late s he could drive her to various places, etc. He paid for insurance and repairs to the daughter's c� in the amount of $300.00. He takes this woman to eat at the best restaurants, to movies, etc. would not be standing before you if I was receiving decent maintenance. If one spouse has found another partner, there is nothing one can do about it, but be fair t the family you have left beh ind.

As previous speakers have mentioned, women do not want mon they just want to have an equal share. This very week, my husband and his friend are on holi days together and yet two weeks ag 1 was hit with a hammer and bitten on the arm hard enough to draw blood through a long- sleeve blouse by my husband's new partner. Why? My husband had refused to give me my interi1 maintenance and I went to where they reside to colle ct it. When I had told him he would be i contempt of court for not giving me the $75.00, he sa id, "Take me to court the n." Do you reali• what that would have meant to me and my son?

One of the first thi ngs my husband took ca1 of when he left me was to lower the insurance on his stock so that he could claim he did not ha\ much. He did this when he thought the legislation was going to be passed that said wives had � equal share of commercial assets. He said that since he had lowered the value of his stock n house was actually worth far more - the house my mother had bought me. Mr. Perry Schulm� and Mr. Shead, Chamber of Comme rce - so much for them. Daily, men can and do wipe the 318

Statutory Rules and Regulations Thu rsday, July 13, 1978 wives right out. The percentage of women who get their 50-50 share, or even 70-30 share, is so small as not to be worth men tioning. I know many separated and div orced women, and the justice they have received thr ough jud icial dis cretion is deplorable. I myself would rather have a jury of six men and six women; at least we would have some chance. The first separation I had, I received $70 for two childr en. My husband bought a car. The second separation, I received $15 0 for two childr en; my husband bought a better car and joined a coun try clu b.

The thir d separa tion, when I received $18 0 for th ree childr en - I can only go by my middl e son who told me his father lived very well. My husband spent $1 ,000 to have his teeth removed and new ones put in when he started in business in Winn ipeg. To lessen his burden I went to the School of Dentistry for two years to have a partial plate made. He would not give me the $20 I needed to pay for it. To further lessen the demands on his business I brought home at least five forms from the dental un it.

He always had an excuse not to fill this form out, because they want to know all about your business, your stock, your bonds, etc. After he deserted me, he said, "Now that I have left you can go on welfare, and you will be the head of the househ old, and you can fill in the blanks. " Of course, the blanks would be blank. This is the thin king of not only my husband but thousands of others like him. Perhaps you look at me and say, "She doesn't look as though she's been through so much." I can tell you, I owe my thanks for that to my wido wed mother, my family, my wonderful friends, my doctor and my psychiatrist.

I hope that Ms. Halprin does not make a marriage such as I did. She probably won't run into the same problems because she probably will have a marriage contract. But perhaps her child or grandchild might find thems elves in the same circumstances I find myself in; then she can think back to her submis sion of tonight, and I think she will regret what she stood for. She has never lived the horrors that so many of us have. As for enforcement of maintenance, the court should pay the maintenance to at least the amount of social assistance and then collect it from the defaulter.

Should I go on social assistance a lien would be placed on my home. Why is not a lien placed on my husband's stock? Finally, I thank you for listening to me, and I wish it were possible to have the opportun ity to have Mr. Mercier and Mr. Perry Schulman as my counsel in my divo rce case. Perhaps then I, at least, would see some of this fair treatment they are so sure the court gives to wives. Thank you very much. MR. CHAIRMAN: Are there any questions to the delega te? Mr. Cherniack. MR. CHERNIACK: Mr. Chairman, I don't want the opportun ity to go by without someone respo nd ing to Ms. Large.

We've been thanking various people who have come to give of their advice of experience to guide us in our deli berations. Mr. Chairman, it's no easy thing for a person to come and expose her personal problems and to talk about her very serious life and problems that were created in the past, and I think that we should recognize that Ms. Large has come here to talk about very personal thi ngs in order for us to understand it. So I, of course, express my appreciation, but I want to ask whether throughout all these periods of time I gather you have had an opportunit y to consult a lawyer or lawyers.

But you said you had - during the th ree separations, did you not have a lawyer? MS. LARGE: Yes, I did have a lawyer, but I had very poor - as a matter of fact, the last one 1 had in Toronto - which was my husba nd's lawyer - it was ins erted in that agreement that I �ould not cohabit with anyone; should I cohabit and not remain chaste and pure, all mone ys would �ease to my childr en. And they tell me that this is not the case. Now, I have never lived with a nan; 1 don't have men friends, but this was ins erted and I had to accept this.

But I knew myself :hat I didn' t need such a clause, but I had to accept it because he would not have given me a )enny had 1 not accepted what was in tha t separation agreement. And as I say, I had no money, md I used his lawyer. VIR. CHERNIACK: That clause dates back to something like the Mi ddle Ages, but it's still in some :�greements, I know. IllS. LARGE: Yes. I didn't even know there was such a thing as a legal separat ion. I only knew >f a separation agreement. III R. CHERNIACK: Well now, at this time, is there an order outstanding which your husband is 10t honouring? IllS.

LARGE: He honour ed it, with his lady friend beating me. Yes, he gave me the $75 that ligh t. 319

Statutory Rules and Regulations Thursday, July 13, 1978 MR. CHERNIACK: May I ask - I'm sorry to do this, and yet you've come here to tell us - did you lay a charge in connection with this assault? MS. LARGE: I started to lay one of com mon assault. The County Clerk believed it was criminal, but now it goes back to common assault as this is a domestic thing: My husband had let me into the house to speak with him. He was surprised to see me, albeit, but he did open the door and let me in, so this woman really had no right to go at me.

But because it's a domestic, ongoing thing, they will only take it now, I found out yesterday, as common assault. MR. CHERNIACK: Who told you that? MS. LARGE: A detective at Publi c Safety Building, and he got this word from the detectives of the Charle swood-Fort Garry police. MR. CHERNIACK: To the effect that, it being a domestic problem, that it is not a question of assault and battery by thi s pers on, and that is pretty recent advice that you received from the ... MS.

LARGE: Yesterday. it's funny, but he said he's had cases come in where the person has actual!� been knifed, but because it's a domestic thing - as I say, it wasn't my husband who beat me this time, it was the lady. MR. CHRRNIACK: A stranger. MS. LARGE: A stranger. it's still considered domestic because I went to ask for m-, maintenance. MR. CHERNIACK: I'm not aware that the bills we are now considering would help you at all ir that respect. MS. LARGE: No, I suppose not. There are lots of things ... MR.

CHERNIACK: But what we are considering is an equal division, a presumed entitlement tc equal division of assets acquired during your marriage, _during your lives together. MS. LARGE: My husband has hidde n many things, the safe is full of thi ngs, full of stock that i� worth much, but I have no knowledge of this particular type of stock, and I would have to hir E experts to come in and evaluate . MR. CHERNIACK: Have you di scussed this aspect with lawyers? MS. LARGE: Wel l, I simply don't have the money to do that, you know. MR. CHERNIACK: Have you been to Legal Aid? MS.

LARGE: I have a lawyer - well, he's on holiday right now - I have a lawyer right at thE moment. MR. CHERNIACK: Through Legal Aid? MS. LARGE: Yes. MR. CHERNIACK: And he is acting for you in this connection? MS. LARGE: Yes. MR. CHERNIACK: Thank you, Mr. Chairman . MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Ms. Large, I want to tell you firstly that I've asked a member of my departmer to look into the particular matter that you have raised with respect to the type of charge involve ' in this matter. Is there a separation order that is presently outstanding? No? 320

Statutory Rules and Regulations Thursday, July 13, 1978 MS. LARGE: He simply deserted because I had quit working. He said that I had said that I would Nork until his business got on its feet. Well, I know now that there would never be enough for this 11an. I would continue working the rest of my life - but that's not why I quit; I simply quit because 11y nerves were so bad over the actions of the son I had allowed back into the home, after many (ears. I was no longer able to work. III R. MERCIER: There is no separation order in existence, but there is an interim mai ntenance order n the divor ce proce eding?

IllS. LARGE: The judge knew we were going to get a divorce, and he sa id, "Get this div orce over �uickly," but some thing came up and it hasn 't been qui ck. I petitioned last Ju ne for divo rce. VIR. MERCIER: What was the - if you don't min d - what was the date of your last ;epara tion? IllS. LARGE: 1972, approxima tely Jul y of 19 72. We lived separate and apart; he in Toronto, 1 in Nin nipeg, until approxima tely September, October of 19 75, when he decided to return to me, and )rought his business with him. VIR. MERCIER: But the date that you last separated, has it been recently? VIS.

LARGE: With a separation agreement, was 19 72, but then we cohabited from 19 75 on until 19 76, of Decem ber, you see, we lived as man and wife. He came to Winnip eg; he brought VIR. MERCIER: You haven't lived together since then? VIS. LARGE: Since December 19 76, no. VIR. MERCIER: Thank you very much Ms. Large. III R. CHAIRMAN: Mr. Axworthy. III R. AXWORTHY: Ms. Large, I'm sorry I missed the first part of your prese ntation, but there were ;ome ideas you intr oduced in the latter part of your comments that I thought were inter est ing.

One vas you intima ted that you would prefer to have a jury look at your case than a judge. IllS. LARGE: Yes, I really would. III R. AXWORTHY: As I understand it, in the British syste m, in dome stic cases, there is that election hat can take place between judge or jury. Can you just elaborate a little bit as to why you would >refer your peers as opposed to one of those honoured, learned gentlemen, or ladies? IllS. LARGE: Well, at least you can have a hung jury, with six men and six women.

I mean, it could 1et awfully messy, you know; it cou ld tie up a lot of time, but at least they might get the point, hat women really aren't greedy. You know, I've had 22 years, off and on, and I made a darn good ry of it, and it didn't work. But, that's why I would lik e a judge and jury, because at least you 1ave six women, and hopefully, at least one of them would have been through the same thing I 1ave been through and could understand.

You gentlemen sitting here just have no idea whatsoever �hat women go through; you never will, because you're not the dependent spouse, in most - well, 10t you gentlemen here - you're not the dependent spouse. IIR. AXWORTHY: I wouldn't be too sure of that. liS. LARGE: Wel l, I know some men - their wives put them through school, etc., etc. I did things - I didn't put my husband through school, but I did without many thin gs so that I would not burden 1y husband. I had a big bill of $90 at Simpsons when my husband deserted me, and he hassled 1e, and Simp sons hassled me for it.

But I think when he learned that this lady he's living with ad $37,000 worth of debts outstanding, he paid the $90. I never heard any more about it. So you now, this is just the thing. IR. AXWORTHY: lt's the old cliche that "I cried because I had no shoes until I saw a man with 321

no feet." MS. LARGE: Right. Statutory Rules and Regulations Thursday, July 13, 1978 MR. AXWORTHV: Mr. Chairman, I was just wondering if the Attorney-General might take tha; comment tor advisement. lt might be useful to have some opinion on that particular proposal a: some point along in the proceed ings. In any event, the other question that you raised may be < more technical matter.

You said that in terms of the enforcement of the maintenance orders, tha• you would prefer to see - if I take your words correctly - that the court provide with maintena nce up to the social assistance level, but be responsible for the collection of that maintenance. MS. LARGE: I'll tell you why. MR. AXWORTHY: I was going to say, the other part was that because then the lien would go or your husband's property versus yours, is that the reason? MS. LARGE: We ll, no. I was asking - my mother bought a house and put it in my name. If go on social assistance a lien will be placed against my house. MR. AXWORTHY: Right.

I understand that's right. MS. LARGE: My husband should be giving my child and I maintenance. Why is not a lien placec on his stock? He doesn't own the building he's in, but he does own the stock. Why is it on me why is it not on my husband, who should be supporting - men ususally support their wives anc childr en. So why does the lien go on my home but not on his stock? And as tor putting it witl the courts, I have a girlfriend who maintena nce was ordered , and it never came through, and wher she tried to colle ct it from her husband, he would come over and beat her up.

This went on, anc she skipp ed around the country to so many places and he always found out where she was ever though she had unl isted phone numb ers - I don't know if he did it through the Manitoba Medical he had some contact.

And he would come, not even when it was over maintenance, and beat he up, until finally she simply went on social assistance and when they sa id, "Wel l, your husband shoulc be paying maintenance," she said, "I won't even tell you where he is because I don't want yo1 to bother him because he will come back at me." As a matter of tact, when she got her div orce he tried to run her lawyer and her down outside after they had left the cour t room. 1 mean, you don't know the madness and the angr y feelings in situations like this and if m: husband were giving me decent mai ntenance, I wouldn't be going down to where he lives.

I certain!' don't want to see him in that situation. This was a man and it never occurred to me that he woulc do such a thing, because he has a fairly good background, and you know, I still can't belie ve i1 I know it's true, but I can 't believe it. So I don't want to be in that situation. I would just like th• money to be given to me and I would run my own life and try and make a new life.

But my tamil and friends have literally been supporting me because they belie ved that there is a great deal o wrongne ss and injus tice done, not only to me but to other wives and childr en, so they have bee1 backing me so that I can continue on. MR. AXWORTHY: Well, there is really two questions that arise out of your remarks. One is tha the present system of having court enforced orders isn't working, but you can appeal to th court. MS. LARGE: Wel l, there are not enough people - th ree people trying to collect the maintenanc tor how many thousands of deserted wives or div orced wives? MR.

AXWORTHY: So you're saying that the ina dequacy is in . MS. LARGE: Absolutely. MR. AXWORTHY: .. . numb ers of personnel, but I gather that you would like to really see th courts become the primary collection agency and then redistribute the money to th ind ividuals. MS. LARGE: I'll tell you why from my own personal experience.

My husband, if the judge ha ordered him, when he had gone back to plead that he could not pay $200 from then on, if th judge had said, "Sir, you will pay your wife, I know you own such-and-such a business." If he ha ordered my husband to pay that money, my husband would have found that money even if he ha 322

Statutory Rules and Regulations Thursday, July 13, 1978 o take a second job, but I happen to know that he doesn't need to have a second job to pay ne even $200.00. But he would do it because his th row-back every time is: Well, that's all the judge old me I had to pay. I don't have to pay ... He has no heart for, never mi nd tor me, but tor 1is now 9-year-old son. I don't know, men seem to be able to wipe even their childr en out of their ninds and their hearts.

So if the judge had ordered him to pay $200, my husband would have lived JP to the court order, but when the judge very leniently gave in because this man came in crying hat he could only afford . . . the judge was worried, I guess, that they wouldn't be getting their )USiness tax from my husband if he went bankrupt and maybe it would have done something to he income tax people, or whatever. VIR.

AXWORTHY: Well, the other question that does arise thoug h, and it's one that's maybe even nore serious in the imme diate sense, is that you are suggesting that a numb er of women who are egitimately trying to enforce their maintenance orders are subject to a degree of abuse, both physical md otherwise, for which there is no protection avai lable under our present legal or judic ial ;ys tem. VIS. LARGE: Unle ss you get a court order, a restrai ning order, but I tell you so many women don't wen know about that.

This one particular friend of min e, she did not know, because she said to he policeman, "This man is not to be here. We have a separation agreement. We are living separate md apart." And he said, "L ady, that paper isn't worth the paper it's written on." And he said, 'it's a domestic affair." Now in Alberta, they have much stricter views on that type of thing. You don't need a rest raining >rder. If your husband whom you are separated from, comes to your door and you phone the police, hey'll take him away and they'll warn him and the next time he comes, he's plun ked in jail.

Now :he has been in Manitoba, she's been in Alberta, and she's been in B.C., and both in Al berta and 3.C. they are much stricter when a husband - it's usually a husband that goes to the wife. III R. AXWORTHY: So what you're really saying is our court system here is not performing the kind >f rigorous application and enforcement of the law that is required even under the present ules. illS. LARGE: Wel l, the policemen 's hands are tied ; the policemen 's hands are tied . I feel sorry tor hem because they can 't do it. IIR. AXWORTHY: Thank you, Mr. Chairman. I just raise a comment here. I think Mrs.

Large has aised some fairly critical issues I hope the Attorney-General will look at, not in respect to this �gislation, but in terms of the enforcement of the jud icial system frankly. IIR. CHAIRMAN: Mr. Pawley. IIR. PAWLEY: Well, the last comments that Mr. Axworthy raised are ones that I would like to express oo, and I wanted to just specify. The party, Mrs. Large, that refused to lay charges on the basis hat it was a do mestic dispute, did you say that was a Justice of the Peace, or was it a police tfficer? liS. LARGE: lt was a police constable.

He simply sa id, you know, he told the husband to go away tut this man is really, he's really wild, and she took beatings from this man while she had a separation greement because he was to pay her mainten ance and he did not want to pay maintenance.

I'll ell you, since she stopped asking him tor maintenance - she is on social assistance, she has four hildr en - this man is living with another woman, he doesn't have a family with her but thi s woman ad a family, he will talk to his former wife, they are divor ced now, he talks to her and he even :�.kes two of the childr en as long as he doesn't have to pay one red cent towards their upkeep. his is what I have found in my experience talking to wives who rely on maintenance from their usbands. IR.

PAWLEY: Going back to this particular case of yours, this wasn 't even your husband that ssaulted you, it was a friend of your husband. IS. LARGE: No, it was his friend, his lady friend. IR. PAWLEY: And with injury to yourself. Did the police officer advise you that you could make pri vate complaint and lay a private charge of assau lt? 323

Statutory Rules and Regulations Thursday, July 13, 1978 MS. LARGE: He told me it would be going before the Crown Attorney, and I didn't unde rstanc why. When the two policemen went down to inter view the other two my husband convinced therr that, well, I had been nagging him and was coming down to his office and asking him for mone1 and that I had really asked for what I got. But it had nothing to do with this lady.

He's still m1 husband, I have a marriage certificate that says he's my husband, and I wanted my maintenance lt was a long weekend, as a matter of fact, I had asked him to bring me some cash and I woulc give him a receipt because by the time he would get to me the banks would have been closed Wel l, as it turned out, he did not bring me any cash. When I got the $75.00 it was a cheque bu I was stranded for the weeken d. MR. PAWLEY: We ll, did the police officer advise you that he had referred this matter to a Crowr Attorney? MS. LARGE: He said it would, in his estimation, it would be. MR.

PAWLEY: lt would be, so then it is presently under review. He hasn't refused then, as of ye1 to lay this charge, the Crown Attorney is reviewi ng the case at this moment. MS. LARGE: No, it will not be going before the Crown Attorney because my husband and thi: woman convinced the policeman that it was simply a domestic dispute and that because I sustaine4 no broken head - she had hit me with the flat side of the hammer, not with the top or the prongs but with the flat side of the hammer, and had bitten my arm which I believe I have shown a fe� of you gentlemen . . . MR. PAWLEY: Yes. TF250 MS.

LARGE: it's no longer .. that I was just a nagging wife and you know, I got what I deserved . So nm MR. PAWLEY: Could 1 ask you, and I don't want to get into too much detail, maybe I'm gettin into too much, but you hadn't hit her or struck her first. ' MS. LARGE: Never, no. No, I was simply stunned when she . . . My 9-year-old son saw the whol thing. He did not see her pick up the hammer but he saw her attacking me with the hammer an it's not a very nice thing. My son goes weekly to a psy chologist; I go to a psyc hiatrist. My on son has made it - has fourth year Psychology and first year Medicine.

He seems to be . . . MR. PAWLEY: it's all in the family. MS. LARGE: Yes. He's lucky but we're seeing those people. He will be one of thos e people hopeful!� No, it will not be going to Crown Attorney, as far as I know as of yesterday, acc ord ing to the detectiv at the Publi c Sa fety Building. MR. PAWLEY: We ll, I'm very pleased that the Attorney-General has ind icated he is reviewin it. MS. LARGE: I am too, and it's very hard to come and lay out your dir ty linen. But I believe th1 what I have said here tonight will stir in the min ds of the members sitting here and make ther think a bit.

This is a really personal experience and, as I sa id, I come from a fairly decent famil: You know, I wa sn't brought up on welfare and it's shocking to me that in this day and age th< 1 have been so humi liated and so, you know, I'm a beggar, that's all really I am is a beggar, an I don't belie ve that women, or I myself, should be reduced to that state because we are huma beings, we are a member of the oppo site sex, but I believe we are equal. I thank you very much for listening to me. MR. CHAIRMAN: Thank you. Win nifred $ MS. WINNIFRED HAVELOCK: Thank you, Mr. Chairman.

I didn't expect to be back here for tt thir d time but here I am. I was listening to some of the speeches last week and I thought perha1 1 had a few things that I might contribute. Since I've spoken to the Commission before, I don't think I want to speak any more about tl dir ty linen except to say that I think I've put in 90 percent toward the financial and other aspec of our marriage and I would like to thank you for the opportunity to speak to you . 324

Statutory Rules and Regulations Thursday, July 13, 1978 First, I would lik e to make it clear that I do not oppose the rights of women nor the rights of :hildr en to the necessities of life or to a few of the luxuries. My own mother was probably one Jf the first in her own small town to assert the right, or to exercise the right to earn and also to nanage a large portion of the family income. As a member of the teaching profession I observe nany inequali ties in the opportunity to advance to managerial positions. Although thi s is not the :ase in my own school division I kno w it is so in others. There is, in our school, a course called Children's Literature which includes a

section on fairy :ales in which the couple is married and lives happily ever after. There seems to be a numb er of :hese marri ages in existence for it is almos t uni versal, it is assumed that it is a universal 50-50 nput in almost all cases. Unfortuna tely such is not the case in cases of separa tion, as you already <now. Because of the frequent inequality in the obl igations in the marriage which breaks up it would Je most unfair to a numb er of people who would be forced to accept 50 percent when they deserve nuch more.

Surely there is some way to evaluate the contributions of a woman who stays at home iO raise a family, some times to work as well, and to do all the extra duties which evolve from the position of a housewife and mother. In some cases, the woman deserves more than half - would say in many cases. Likewise, there are some men who deserve more than 50 percent too. The references to the unf::1irn ess of some decisions spoken of by previous speakers makes it �lear that perhaps more than one person should be in on the decision-mak ing.

The previous speaker somewhat stole my thunder in this respect, I did mention this on the occasion when I spoke before. Nhy would it not be possible to have a permanent group, or semi-permanent group, which would :lecide on a fair di vision of property in cases where there is a dispute about the assets? Decisions Nould be more consistent than now appears to be the case. If the case has to be taken to the Su preme Court many couples and/or indi viduals cannot afford thi s expense.

The one who has been treated unfairly would probably forego the option of appeal ing to the Supr eme Court because of the expense involved. Wha t the lower income families need is ::>roper enforcement of the mai ntenance settlements, not a 50-50 division of as

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Collection	Manitoba — Debates (Hansard)
Citation	31-2-sro9
Type	hansard
Volume / chapter	31st 2nd hansardpdf sro9.pdf
Language	en
Format	pdf
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