Manitoba Committee Hansard — 1 June 1977 (Statutory Regulations and Orders Committee, Sitting 17, 30th Legislature, 4th Session)

30-4-sro17

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba HEARING OF THE STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Chairman Mr. D. James Walding Constituency of St. Vital WEDNE SDAY, June 1, 1977, 8:00p.m. Printed by P.N. Crosbie- Queen's Printer for the Province of Manitoba

Statutory Regulations and Orders Wednesday, June 1, 1977 TIME: 8:00 p.m. CHAIRMAN: Mr. D. James Walding. MR. CHAIRMAN: Order please. We have a quorum, gentlemen. The committee will come to order. This meeting of the committee of Statutory Regulations and Orders is called to consider three bills: Bill 60, the Family Maintenance Act Bill 61, the Marital Property Act Bill 72,

an Act to Amend Various Acts Relating to Marital Property. Mr. Axworthy. MR. AXWORTHY: Mr. Chairman, I wanted to speak to a point of order on the committee. We had distributed in the House this afternoon two very weighty series of amendments on the Marital Property and Family Maintenance Acts, and in my quick digest of those over the dinner hour, I concluded that it substantially alters the bills in many ways, and I'm just wondering whether these hearings are really proper under the circumstances.

We have a number of people prepared to present briefs based upon the original bills, and considering the major alteration that takes place as a result of the amendments, I think that the ability of those who want to make public representation would be very much diminished. I'm wondering, Mr.

Chairman, if we should not, as a committee, undertake to change our orders of procedure to ensure that either the amendments are distributed to those who want to make representations, and that the committee hearings be held off for an appropriate time so that they can be properly digested, and we can therefore hear the representations based upon an accurate understanding of what the bills now contain as a result of the amendments.

Otherwise, I think that, frankly we would be wasting our time and the time of those making representation, because they would be speaking to a series of amendments of which they have no, or very little, knowledge. I think the importance of them really requires a proper digest. MR. CHAIRMAN: Mr. Pawley. MR. PAWLEY: Mr. Walding, first I would like to say to Mr. Axworthy that the amendments distributed do not deal with the principle of the bill. There are a number of amendments which are, in the main, of a technical or legal nature.

There is one important amendment, and that amendment deals with existing separation or judicial orders, agreements, etc., and insofar as that amendment is concerned, certainly that is an important one, but there was advance notice that we intended to introduce that amendment. The other amendments are of a legal nature and we could have, as we do with most other bills before the House, awaited the distribution of the amendments until after the briefs, but I do notthink that the submission of briefs will be interfered with, to any great extent, by the amendments that have been distributed. I trust, Mr.

Chairman, that those amendments have been distributed already to all those who intend to present briefs. But there is only one quite important, quite basic amendment that is included there that was not in the original bill before the House. The other amendments are of such a nature that I doubt very very much whether they would influence the submissions in the main that are to be presented this evening. MR. CHAIRMAN: Mr. Graham to the same point. MR. GRAHAM: Mr.

Chairman, dealing with that same point, I think I ought to point out to the Member for Fort Rouge that if we, in committee, do raise too much of an issue of this, that we could very well find ourselves in the same position we found ourselves in several years ago with the Farm Machinery Act, where the amendments became far more dangerous than the bill that was before us. MR. CHAIRMAN: Mr. Axworthy. MR. AXWORTHY: Mr.Chairman, I'm not too sure of the point of the last intervention, but I would say, in speaking to the point of order of the Attorney-General that I agree with him fully, that these amendments are legal.

That's what I thought the whole operation was about, to discuss changing thelaw. When he says that we are here to discuss basic principle, I disagree with him. We discuss basic principle on second reading. The point of this committee is to do examination of the details of the law. Frankly, 1 wouldn't want to make an argument with the Attorney-General. He obviously knows what is contained in these amendments much better than I, but my quick reading of them suggests that they are far more than technical in nature, that they substantially alter many aspects of the bill.

Obviously the government is going to proceed, but I really think that the importance of this bill and of these amendments really require a much more careful examination. I have no intention of unduly holding up proceedings, but I am more interested in hearing representations based upon -I would suggest that this is almost a new bill that we have before us rather than the old one, and that· therefore the representations should be based upon a real, full comprehension of what they represent, and then we can hear the representations based upon that. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr.

Chairman, I appreciate Mr. Axworthy's point, but my own view would be precisely the opposite. In our opinion, the proposed legislation that's in front of us is extremely 307

Statutory Regulations and Orders Wednesday, June 1, 1977 serious, with extremely serious ramifications. I think we've made that point. I think that we would like to hear from the general public so that we can determine whether the amendments to be proposed by the Attorney-General have any merit or not. Until we get the views of the general public, I think that the bills are unacceptable and I have no doubt that, in my view, many of the amendments would be unacceptable too. Once we've had those representations from the public, we'll be able to form that judgment. MR. CHAIRMAN: Mr. Spivak. MR. SPIVAK: Mr.

Chairman, I think there's a compromise that can be reached here. lt's probably unprecedented as far as our committee system is concerned but it may very well be that the legislative counsel should take each amendment and simply explain it so that in effect we will know by that I don't mean in terms of the specific detail- we will know whether in fact it alters or changes the specific sections involved in the Act, and in what way, so that we understand it.

The people who are presenting the briefs will understand it, and then at least they will know, in dealing with it, whether the matter has already been dealt with or not. MR. CHAIRM AN: If there are no further points of order, may we proceed, gentlemen. Names I have on the list of indicated speakers to the committee are as follows: Mrs. Norma McCormick, Mrs. Millicent Laird, Mona Brown, Carol Perch, Ruth Browne, Perry Schulman, Linda Taylor, Mrs. Wyrzykowski MR. PAWLEY: Mr. Chairman, I believe some are trying totakedown names. Maybeyou should go a little slower. MR.

CHAIRMAN: If you wish to take down the names, there are 42 of them. I'd be very pleased to let the honourable member have the list after it's been read. I have reached Jill Oliver, Mrs. Jean Carson, Mrs. Bernice Mayne, Mrs. Joyce Brazer, Ruth Browne, Georgia CorGeorgia Cordes, Sara Berger, Laurie Alien, Marilyn McGonigle The Bishops of Manitoba, Bishop Hacault, Robert Carr, Murray Smith, Ray Taylor, Mrs. Goodwin, Margaret Johnson, Terry Gray, Mr. Goodwin, Aleda Turnbull, Janet Paxton, Alice Steinbart, Ken Houston, Ms Bowman, Mr. Arthur Rich, B.

Hilton, Jill Oliver, Ruth Pear, Leigh Halparin, Charles Huband, Mary-Jo Quarry, Sam Malamud, Jim Stoffman, Norman Coghlan and Arnold Gardner. Are there any other members of the public present wishing to address the committee? If so, would you come forward to the microphone and give your name. If there is no one else present wishing to speak to the committee, I would call on A lice Steinbartto come forward please. MS. ALICE STEINBART: I'm Alice Steinbart and I'm speaking for the Coalition on Family Law. There is a written presentation which is being handed out to you now.

The Coalition on Family Law is composed of a variety of organizations and individuals committed to the reform of Family Law. Our recommendations have been endorsed by the following groups: The Council of Self-Help Groups; The Manitoba Association of Women and the Law; The Manitoba Action Committee on the Status of Women; Women's Place, Women's Liberation; The NDP Status of Women Committee; The Voice of Women; Congress of Canadian Women; United Nations Association; The Fort Garry Family Law Reform Action Committee; The Manitoba Teachers Society and the Manitoba Librarians Association.

The response that the Coalition has received is overwhelming. The family law must be changed. There is no evidence that Manitobans want this reform delayed, nor would there be any reason for delay. The reform is long overdue. lt has been studied for over two years by the Law Reform Commission, by this committee during its intersessional meetings, and by the public during two different sets of public hearings. And now again, this committee and the public is studying this matter. To advocate further delay is incredible. This legislation is excellent. No longer will one spouse be in a superior position to the other.

No longer will one have more rights than the other, or greater protection. Instead, there will be equality between the spouses. This is an excellent piece of legislation, with one proviso. There are four major gaps in the bill, and a number of drafting errors. The basic principle of these bills is that marriage is an equal partnership, but the Marital Property Act legislates only partial equality. Only property which is non-income producing is to be shared during the marriage. Property which produces income would only be shared on separation. Why is full sharing, full equality given only on separation?

Why not during the marriage? Why draw back from the principle of full equality? lt cannot be because instant community of property is unworkable or creates too many problems. lt does work. In several American states, including California, the wheels of commerce have not ground to a halt there. A number of examples have been given to show how the system could not possibly work. One example deals with the following situation: Betty and John are married, and own a number of assets, including a lawn mower, which John wants to sell, and a third party wants to buy. Does third party have to get Batty's consent as well?

No. The marriage partnership would operate very much like other partnerships. Under Manitoba partnership laws, one partner can act for the other. A third party does not need the consent of every partner in that partnership. So too it would be for Betty and John. 308

Statutory Regulations and Orders Wednesday, June 1, 1977 If Betty does not agree to John selling the lawn mower, then that would be between Betty and John, and not the third party. The same applies if the property is a commercial asset. If John is a manufacturer's agent and wants to sign up a new line, the third party does not need Betty's consent.lf the proposed legislation is not clear on that point, then change the drafting, not the principle of equal sharing. Another problem mentioned in respect to income sharing, is the income tax implication.

Under the Federal Income Tax Act there's provision that if one spouse transfers the property to the other, then the income, including capital gains, is still considered to be the income of the first spouse. lt is arguable, from the wording of the Tax Act, that this attribution rule does not apply to sharing imposed by the Legislature.

However, even if this tax rule does apply, then the answer is to have the Federal Government change the Tax Act to recognize equality in marriage, and not to deny this equality because of income tax questions. lt has been said that if instant community of property comes into effect it would void the estate planning that some couples have entered into. That is simply not so. If couples have planned their estates so that one holds all or some of the property then they have the right to continue this by bilaterally opting out for the standard matter regime.

The list of problems raised by those opposed to instant sharing goes on, but the problems, for the most part, are illusionary. The problems either do not exist, except in some people's minds, or they can be solved quite simply. The key point is thatthe system of instant community of property does work. lt is working in several American states. Our partnership laws in Manitoba give us some idea of how it would work in Manitoba.

The wheels of commerce would not be ground to a halt; it would not cause innumerable problems; it is not undue meddling in private affairs; it is not a bonanza to lawyers. lt is equality, and it does work. Instant community of property, in addition to protecting each spouse's property rights, also gives each spouse the emotional and psychological protection of knowing that they are fully equal in all respects, now, during the marriage, and not just after.

You had a woman appear before you at your last public hearing who told you that she and her husband had worked together for the 17 years of their marriage in the family business, and so long as everything went well the business was, as she said, "ours, " and as soon as problems began to develop then suddenly it was all "his". That woman had the right to the emotional and the psychological protection of knowing that that property is still "ours" during the marriage.

The equality that instant community of property will give is not just receiving your share on separation, but knowing that during the marriage you are a full partner, not a silent one. The legislation makes no special provision for family-run farms and family -run businesses. Since these are considered commercial assets they are shared only on separation, and yet, since they are family-run these couples are operating an instant community of property system, except in the eyes of the law. Why not recognize what these couples are themselves practising?

Family-run farms and businesses should be subject to instant, not deferred, sharing. Now, this paragraph has to be changed somewhat because ofthe amendments, but it still applies, to a certain extent. The legislation, with the amendments, states that income or salary will be shared only on separation. That means it's deferred sharing. There will be no instant sharing of family income during the marriage. To make matters worse there's not even a declaration in the Family Maintenance Act, that each party has the right to participate in deciding how the family income is spent.

There are many Manitobans who do not own a home, cannot afford a car, and so on, and whose only asset is their pay cheque. These people are excluded from the protection of these bills. Salaries should be a family asset and shareable as such. Under no circumstances must this legislation be passed without closing this major loophole. At the very least each party must have a right to participate in deciding how to spend the family income. Now, if family income is only to be shared on separation, there really is no income thereto be shared.

There may be one salary pay cheque coming in at the time of the separation and that's it. lt means that the husband, if he's the one who's out working and the wife is the one who's staying home, it means the husband will be the one who decides what happens to .that family pay cheque. And you've made no provision in either of these two bills for the woman to have some say in the income of that family. And that is a major gap, because for some Manitobans that's the only asset they have. This legislation does not provide for sharing on death.

The principles that each party shares equally in the assets acquired during the marriage is ignored. There is no recognition that the wife, for example, owns half of the property by right. Instead, the whole property goes into the husband's estate on his death. The wife will inherit at least half of the property due to the amendments in the· Devolution of Estates Act and the Dower Act, but in effect, she is only receiving her share, and really inherits nothing from her husband. There has been no change in this legislation in respect to the enforcement of maintenance orders.

The present law provides a number of ways, such as garnisheeing wages to enforce an order, but it is up to the person who holds the order, usually the wife, to find the husband, to go back to court, 309

Statutory Regulations and Orders Wednesday, June 1, 1977 sometimes again and again, to get the money and so forth. Unless you have been through this situation it is difficult to describe the delays, the frustrations, and the obstacles that occur. As a result of these delays, frustrations, obstacles and so forth, all too often the woman simply gives up. Seventy-five percent of all maintenance orders are uncollected and unenforced. That's not much of a system. The system is obviously not working and yet there is nothing in this legislation to change the system. The law is left the same.

There are a number of ways to improve it. The Coalition has suggested one method. If this solution is not acceptable, there are others. And yet you have made no attempt to find a better system. You are aware that if maintenance is not paid, then very often a woman and her children must go on welfare. This legislation must be amended to provide a better system. With these amendments and apart from some drafting revisions, this legislation is very good. In particular, you must be commended for the no-fault provision.

This legislation is also commendable in that it allows bilateral, not unilateral opting out. lt allows those who do not want this regime to apply to them to opt out bilaterally and it protects the lrene Murdochs of Manitoba from the James Murdochs. Those who favour unilateral opting out have argued thatthis legislation changes the rules of the game, and that people who are presently married are now going to have something imposed on them that they did not anticipate when they got married. That is quite simply not so. First, couples have the right to bilaterally opt out.

Second, if couples thought about property at all when they got married, then they most likely considered that they would be sharing everything. To them, marriage was, as they said in the ceremony, "To have and to hold, for better, for worse, for richer, for poorer, in sickness and in health." Couples feltthat they were entering into a life together, sharing their lives and their fortunes. So how is this legislation changing the rules of the game? Just what game did couples think they were playing, that what's mine is mine, and I owe you nothing?

Can it really be thought that when people got married, they felt that this was what marriage was all about? However, even assuming that the law is being applied retroactively does that make it unfair? Generally of necessity Family Law legislation has been retroactive. The Married Women's Property Act, the Dower Act, the Divorce Act are all retroactive to some extent. Those who favour unilateral opting out have concentrated on retroactivity as it affects property sharing. However, the Family Maintenance Act is retroactive in respect to maintenance.

The new bill proposes that wives will now be responsible for supporting their husbands during marriage and on separation. Up to now when women got married they had no obligation to support their husbands. They are changing the law. This bill now changes the rules of the game for women and yet there has not been one word of protest. Nothing has been said about unilaterally opting out of this provision, or even bilaterally opting out.

Women are willing to assume this responsibility to become self-supporting, to attempt to become self-supporting on separation, butthe reciprocal right to sharing of property, is that to be denied them? The legislation does recognize the reciprocal rights and obligations of the couple and attempts to establish equality, fairness and justice in the marriage and provided that the major loopholes are closed and some drafting errors corrected this will be excellent legislation. Now, I also have some drafting details that the Coalition wants to present. Some of them may be outdated now because of the amendments.

I haven't had a chance to read all the amendments. Starting off with the Marital Property Act,

Section 1 (

a) Definition of Asset. That's Bill 61. In the Definition of "asset" a number of things are listed, personal property, real property, chose in action money or an interest in any of the foregoing. There's a problem that if you start listing what is included in the terms of "asset" beyond real and personal property you may not have a comprehensive list. Real and personal property is probably sufficient to describe the term of "asset" if you start saying chose in action and money then it seems to suggest to the courtor tothe judge that there's more to it than real and personal property, it includes more than that and the list is not comprehensive. In the Definition

Section 1 (g) , Definition of Spouse. Definition of "spouse" is those people who are married to each other. This does not deal with a null and void marriage. If there's a null and void marriage, they are not married. lt's as simple as that. If there's going to be people who are in a void marriage such as- well I' ll give you an example. If there is a bigamy situation where the husband is married and then remarries before he has divorced the first woman, that marriage is null. In those types of cases the woman or the spouse would not be protected because that's not what the definition

section says. They would not be married. I think you do intend to protect that particularly in view of the fact that in

Section 34 (1) there's a mention there of decree of nullity. After one year after a decree of divorce or decree of nullity a spouse may apply for division of property. Well, if there is a null situation or a void marriage there is no spouse.

Section 16(1) (b) , this deals with Family Assets, Definition of Family Assets. A family asset which is not in Manitoba will not be caught within the definition of family asset unless, and then there's two exceptions. This is in subsection (b). Unless that asset was acquired within Manitoba or had been brought into Manitoba by a spouse while habitually resident in Manitoba. I don't understand why 310

Statutory Regulations and Orders Wednesday, June 1, 1977 there is that exception there. If you feel you have jurisdiction over property outside the province, and this paragraph seems to indicate that you do, then why does it have to be either property that's acquired in Manitoba or is in Manitoba or has been brought into Manitoba by a spouse which is habitually resident there. Let me give you an example. Take the old example of Betty and John. John being a truck driver goes to Saskatchewan and decides to buy an antique there and leave it with his mother at his mother's house in Regina.

He doesn't bring it into the province. Now an antique would be a family asset if it was in the province but he never brings it into the province. Now that is an exclusion. lt probably wouldn't happen too often. lt's a minor detail but I don't understand why it's there.

Section 21 deals with the events authorizing inclusion of assets and accounting of assets, like evaluation date. There's a number of possibilities set out there. There's nothing to state what would happen if a couple falls in say two of these possibilities. For example, there has been a case of say dissipation and then they have made an application for an order for separation, which date will apply? Will it be the earlier of the two? There's nothing on the law that states that. Now, under the Family Maintenance Act,

Section 4, subsections (2) and (3), dealing with when a spouse becomes financially independent and it says, after the expiry of three years. There's nothing to say whether this three year period must be continuous or whether it can be broken up into smaller periods. Is it a total three year period or does it have to be a continuous three year period. There is also nothing stating what you mean by financially independent. Does financially independent mean a minimum wage level? Does it mean a standard of living that the couple had before the separation or what? This is the Family Maintenance Act,

Section 4, subsection(2) and (3).

Section 6, subsection (1 ), Family Maintenance Act. This is the provision where one spouse has the right to know what the other spouse is earning or to know the debts and the assets of the other spouse. Now, there is an enforcement provision to know what the earnings of the other spouse are but there's nothing to provide the spouse with an enforcing mechanism to know what the debts and the assets are of the other spouse. For example if a spouse has, say a loan out with one of the loan companies, and the wife knows that the husband has got this loan but she doesn't know the amount and the husband won't tell her.

How is she going to find out? She should have the right to make an application to get that information from the loan company.

Section 8, same Act. This is with the amendments. There is nothing in that amended

Section 8 which gives the applicant the right to obtain an order. In other words the judge may if he . wishes grant the order. Presumably he has the discretion to say no, there'll be no order. That doesn't make sense because the Act itself seems to indicate that a person who does not want to live with the other spouse, if they want a separation should have the right to a separation, that it's automatic. And surely that should be in there as "shall " mandatory. The judge must grant an order of separation if the one spouse wants it.

Section 9, subsection 2, the right of a judge to postpone the sale of the marital home. Now this is not anything to do with drafting. I just wanted to point out that this is a very good section. lt's a change in the law and it can be useful to some people depending on the circumstances.

Section 11 deals with common-law situations. Again it has changed the law in that there is no time limit for common-law spouses to live together and that is a good reform. One point, it states there "man and wife." That I think is an archaic term. lt should be "husband and wife." I think those are the only problems that we have with the drafting of both bills. MR. CHAIRMAN: There may be some questions. Order please. (Applause) Under our rules expressions of opinion from the gallery are not permitted. Are there any questions of Mrs. Steinbart? Mr. Axworthy. MR. AXWORTHY: Mr.

Chairman, I'd just like to ask some questions. I was interested just in some of your final remarks and in particular about this question of financial independence when you said it's not defined. How would you define it? MS. STEINB ART: The Coalition has not really taken a stand on that. We think thatthere should be a definition to make it clear. MR. AXWORTHY: Okay, so you're throwing it back at us to make a definition. MS. STEINB ART: Yes. MR. AXWORTHY: Okay. Now just on the point that you made at the beginning of your remarks where you seem to be advocating a full community property sharing system.

Without reopening a lot of the debates, it seems to me that a lot of the assessment made by the Law Reform Commission here and in the Canadian Law Reform Commission indicated that while there were certain advantages there was also major difficulties in application enforcement of this and it led to a lot of problems in· terms of liabilities and how to separate out different kinds of property holdings and so on. Have you resolved those difficulties in terms of taking a look at how it would actually work and how the enforcement of it would be reasonably simple? MS.

STEI NBART: You're right, there are people who hav have raised questions about the difficulty of this system. The key point that I've been trying to make is that it works. If there are any 311

Statutory Regulations and Orders Wednesday, June 1, 1977 difficulties I think mostly they may be illusionary, something that you can say on paper it sounds good. Yes, it sounds like a difficulty but when it works out in practice, it's just tine. lt works in several American States. lt's working in California. A closer example that we have here in Manitoba would be the law of a Partnership. And even though some people say there are problems of the problems are either , illusionary or they can be solved quite simply. MR. AXWORTHY: Mr.

Chairman, I'd just like to ask, when you say that it has worked, I made some effort to try and get some evidence as to how it has worked in the American jurisdiction and it's difficult to come by. I wasn't able to put my hands on anything where there has been a fairly objective assessment of its working. Do you have that kind of evidence? Can you make it available so that we can see what in fact the impact of these community property sharing regimes have been? MS.

STEINB ART: There have been people who have done studies on it in the States and I think some people will be giving presentations on that and I'm sure we can make the evidence available to you. MR. AXWORTHY: Okay, thank you. Just one further question, Mr. Chairman. You also seem to take some real exception to the lack of inclusion of salaries. Would you care to elaborate a word or two upon that. You hit it and then sort of wentaway from it. How wouldyou bring that in as part of the assets and how would that be defined as part of this bill. MS. STEI NBART: There are two ways in which it can be done.

You can say either salary as a family asset and shareable as a family asset or if you don't want to go that far you can make a declaration in the Family Maintenance Act to the effect that each spouse has the right to participate in deciding how the family income is spent. Now if you leave out salaries from being a family asset, then it becomes a commercial asset. lt will be shared only on separation. Well what salary is there on separation? There might be one pay cheque, that's it. And that is a major asset for many Manitobans and you're leaving out a major asset from being covered by this bill. MR.

AXWORTHY: Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Pawley. MR. PAWLEY: Ms. Steinbart, in connection with the question of financial independence, I note that you have difficulty defining it and certainly we have too. Under those circumstances is it not just as well to leave that to the discretion of the court for it to determine within the circumstances provided to it just when a person becomes financially independent? MS. STEINB ART: Well, the court may come up with a definition that's unacceptable. MR. PAWLEY: But who might it be unacceptable to? MS.

STEINB ART: lt may be unacceptable to you. lt depends on what definition they come up with. Is it sufficient to say that if a woman can now earn a minimum wage and she has come out of a marriage, say where the husband may be working and earning $30,000 a year and she has maybe two children to take care of, will she be considered financially independent after that type of situation? Maybe she will, but would this be considered fair? I think you should consider this. MR. PAWLEY: Well' I would like to just pose a question pertaining to the 75 percent of all maintenance orders that are uncollected and unenforced.

I wonder if you could indicate to me the source of those statistics. Are those relating to Manitoba or to Canada as a whole? MS. STEI NBART: To Canada as a whole. MR. PAWLEY: You haven't obtained statistics in connection with Manitoba have you? MS. STEI NBART: No, we do not. MR. PAWLEY: Another area I'd like to deal with is the question of unilateral versus mutual opting out.

As you know rather than any favouring unilateral opting out per se, there is the proposal that there should be unilateral opting out for only the first six month period in order to deal with those that find themselves dealing with a standard marital regime that they might not have anticipated and providing for the courts to deal with the division of assets upon an equitable basis in the event that the couple do find themselves before the court after a unilateral opting out.

Do you see any instances or cases that would cause you concern if we did not proceed to unilateral opting out as recommended where there might be situations where people would find themselves in a situation that would be unjust and inequitable and very difficult for us to sustain, particularly when we're imposing, at this point, a law upon people that they wouldn't have anticipated. MS. STEINB ART: Yes, there's two problems with unilateral opting out. First of all, unilateral opting out leaves a gap, a wide gap in this legislation.

The Coalition has always maintained that if this legislation is good legislation then it should apply to all marriages and there should be no exceptions except where the couple themselves want it. One spouse should not decide for the other. Then this proposal that you are suggesting allows for judicial discretion. If there is judicial discretion that seems to recognize the concept that maybe unilateral opting out is not right and we should close it off. But why allow judicial discretion? If you allow judicial discretion you are getting a judge's biases in there and judges' biases may not be favourable.

I think that the Murdoch case is an example of that. That was a fact-finding situation. The judge could have found as a tact either way. Under the facts of that situation, the judge could have found either way, but he did not because I 312

Statutory Regulations and Orders Wednesday, June 1, 1977 believe it was his personal bias that somehow or other lrene Murdoch did not contribute sufficiently to that marriage because she was just a housewife. MR. PAWLEY: I'd like to pose to you an example that was given to me the other day on a program which I participated in. A lady called who indicated that she had been married for20 years and during that 20 year period she said that her husband had been quite irresponsible. She said that he was an alcoholic that she had skimped and saved and had put aside a little bit of money in the bank.

She had paid for all the necessities in the home. She had paid for the special lessons for children one way or another and she then said to me on the program that here I am coming along with this law, and I am forcing her now to divide her meagre savings, her meagre assets, with her husband, who, she said, had been very, very irresponsible during all this period of time that she was living with him. Now I would just like to present that example to you to hear your reaction to that because I am sure we will hear examples posed to us of that nature later. MR.

STEI NBART: There is no doubt there are some hardship situations. That kind of situation could occur after the bill, even if you do not allow unilateral opting out. Two years dowm the line a woman can coe up and ssy, "I've had an allcohlic husband; I have done everything and he has done nothing." HoW can you protect these kinds of people? You cannot have legislation that covers everything.

There are going to be some hardship cases' and it is just a fact of life. lt would not be correct to allow this large gap of unilateral opting out, or whatever kind of measure you want to take to help these kinds of alcoholic situations or typical situations like that. If you allow this kind of loophole so that you could protect these people, you are going to get other situations in there, such as the Murdoch case, which should not have gone through that kind of loophole. MR.

PAWLEY: Or the next type of situation that might be presented to you would be the wife in the same situation who would say, "My husband is an invalid; he has been in a wheelchair the entire 20 years and hasn't contributed towards the marriage. " That could be the next type of example that would be posed to you. MS. STE INBART: There are always going to be hardship situations. If she felt during those 20 years that she didn't want to go on with it, she could have separated at that time.

She cannot come after 20 years and say, "Look, I have been with him for 20 years and now I want to break up, and I want to change the whole thing. I don't want to share anything with him. " If you are going to allow that kind of argument, that you are not going to share on the breakup, then that can apply to every single situation. You can have men coming in saying, "Well, we are not compatible any more and I want to change the rules and I don't want to share anymore, and we are not going to sha�e.

" At some point you have got to have a cutoff line, and there are going to be hardship situations, but you cannot cover them all. MR. CHAI RMAN: Mr. Jenkins. MR. JENKINS: Thank you, Mr. Chairman, through you to Ms. Steinbart. Dealing with the unilateral opting-out

section which you are opposed to, we have had it said to us in debate that if we adopt the mutual opting out, we are going to cause more marriage break-ups than what we are trying to cure in this type of legislation, trying to make it more equitable. Is it the opinion ofthe Coalition of Women that this would happen? MS. STEINB ART: No. MR. JENKINS: Another question I would like to ask you, I am not quite too sure just what your objection was to in The Marital Property Act under the definition of spouse. You mentioned something about a bigamous marriage, and I don't know .. . MS.

STEI NBART: Your question is rather technical there. MR. JENKINS: .. . what kind of trinity was involved and who was a spouse or who was not a spouse. Can you explain that again for me, please? MS. STEINBART: In a void marriage the people who thought they were married to each other are not married. They are considered not spouses. Now, the definition of spouse here would not include a situation where there is a void marriage. This doesn't happen very often, but there are occasions. MR. JENKINS: How about the first marriage? Would they still not be spouses? MS.

STEINB ART: You are talking about a bigamous marriage? MR. JENKINS: Yes. MS. STEIN BART: Yes, they would be. MR. JENKINS: You were talking about a bigamous marraige marriage. MS. STEIN BART: Yes. In a bigamous marriage, the first wife and husband are married, the second 'wife " and husband are not married. MR. JENKINS: They would be common law. MS. STEIN BART: That's right. And there is no protection of common law relationships in respect to property. There is something on maintenance rights, but there is nothing on property rights. MR.

JENKINS: And the other point that you raised that I am interested in is on maintenance. You feel that we have not come up with a sufficient tightening up of the maintenance. And I know some of 313

Statutory Regulations and Orders Wednesday, June 1, 1977 the suggestions that were put forward by the delegations when we heard hearings, but how would you like us to tighten up even· more than what is in the Act on maintenance? MS. STEINB ART: I am not quite sure I understand the question. MR. JENKI NS: Well, you stated at some point during your brief while there was some tightening up of maintenance .... MS. STEI NBART: Oh, the enforce ment. MR. JENKINS: The enforcement.

You said that your group and other groups have put forward some ideas on the tightening up of this, and I was quite interested, I might say, about six weeks ago watching the Ombudsman on CBC the problem that-that, I believe, was in British Columbia, I don't know if you saw the program, but it was very pertinent to what we had heard before this Committee. MS. STEI NBART: Yes.

The Coalition put forward the recommendation at the last hearing that there would be an agency set up which would have a central registry to have all the maintenance orders filed at the central registry, and the agency would then pay out maintenance on these maintenance orders- these were child maintenance orders only- would pay up to a reasonable level of support. The agency would then collect the maintenance from usually the husband or the father and if there was any other moneys over and above the reasonable level of support which they had collected, then they would pay that out.

That was the Coalition's suggestion. lf that suggestion is not acceptable, for whatever reason, there are other alternative solutions, and the Coalition's point is that there has been nothing said about these other solutions. lt does not appear that they have even been investigated. Surely there must have been some desire on the part of this Committee to look into other solutions to this problem. MR.

JENKI NS: Would you not agree, though, that the enforcement of maintenance orders is in many respects beyond the capability of the Provincial Government, that it should be something that we should be working together toward with the Federal Government for enforcement of maintenance orders? MS. STEINB ART: lt would be a much better enforcement system if the other provinces and the Federal Government were involved, but that is not a reason for you not to get involved now.

You can do the enforcement of maintenance orders in the province. lf there are maintenance orders here to be enforced outside the province, then, yes, it is better for the other provinces to become involved, but that is no reason to write off what is in the province now. MR. JENKINS: But would that be just up to what we would be paying to, say, orphan children of one or the other of the spouses?

Because we then get into the predicament of a family or a wife whose husband has died and is receiving social assistance, and they can be living next door to each other, and in one case we wou Id be paying out, hopefully to collect, more than what the other was receiving. MS. STE INBART: That is correct. That was one of the problems raised, but the point is if the solution the Coalition presented was not acceptable, there are other solutions and they have not been looked into and they should be. MR.

JENKINS : Well, if we were to pay to the amount that social assistance would pay, and if we cou Id collect more than that from the husband or wife, whichever the case may be, if we could collect more, then that would be payable, but it we couldn't, and in many cases it is no easier for the province to catch up to this spouse who is taking off, jumping from hither and yon .... MS. STEINB ART: The province has the greater resources, it has got the greater ability, to chase after the husband than the wife does. MR. JENKINS : That may be true, but I .. . I don't want to argue. Thank you very much. MR. CHAI RMAN: Mr.

Spivak. MR. SPIVAK: On Page 2 of your brief, you mentioned- and I don't want to quote the whole paragraph, but I just want to refer to the paragraph and ask questions-another problem mentioned in respect to instant sharing is the income tax implications, and you point out, you say it is arguable that the wording of the Tax Act-you were referring to the Federal Tax Act-that this attribution rule does not apply to sharing imposed by the Legislature. But that is still a question for the courts to decide at the very best and that judgment may be wrong.

You say that some of the problems are illusionary, but I want to now deal specifically with the problems. If in fact there is a transfer of property and the capital gain aspect, as well as any recapture that would be involved, I guess, if it was a depreciable asset that was in fact transferred, would in tact become the income of the first spouse. Are you prepared to acknowledge that what the wife should receive is the net amount, half of the net amount, as opposed to halt of the gross amount, of the assets that are being equalized and being either paid out or upon which the payment is being made? MS.

STEI NBART: We are not necessarily prepared to operate under the same rules as the Tax Act. If the Tax Act is unfair or unequal, then change the Act. MR. SPIVAK: Well, the problem here, though, is that theActyou are talking about is a federal Act. MS. STEI NBART: That's correct. MR. SP IVAK: Let's be realistic about it. The Act we are talking about is a federal Act that may not be changed. 314

Statutory Regulations and Orders Wednesday, June 1, 1977 MS. STEINBART: Not by you, but it can be changed by the Federal Government. MR. SPIVAK: Well, maybe somebody would issue a request, but at this point the assumption would be that this Act would go in force probably before any change would occur within the federal Act, and the federal Act may never be changed.

So I am asking whether in principle, arguing on the basis of equity, which is the provision that you have been arguing here before us on all other matters, whether you are prepared to accept that in dealing with this, it realistically should be half of the net assets rather than half of the gross assets, recognizing that the tax implications are very much a part of this. MS. STEI NBART: Well, I am not a tax lawyer. I am not sure I understand completely what you mean by net and gross and what the difference .. . what would they lose exactly? MR.

SPIV AK: What I am simply saying is if the one spouse who is transferring because of the provisions of this Act is liable for the tax consequences of the capital gains aspect and the recoverable portion of the depreciation, that in effect in equalizing the figures and arriving at the amounts to be in fact apportioned, it should be on the basis of a 50-50 after tax, recognizing the tax obligation, unless the federal income tax is changed, are in fact to be borne by the one spouse who is transferring. MS.

STEIN BART: lt does sound fair, but I have to say that the Coalition did not look at that problem, and if you ask me for an answer, it would be my personal answer and not the Coalition's answer. MR. CHAIRM AN: Mr. Enns. You have a question, Mr. Enns? MR. ENNS: Mr. Chairman, I haven't been a member of the Committee that has listened to many of the briefs up to now, but certainly for anybody that is concerned, he has to express the concern that there is so little said about the children of the marriage.

We seem to be arguing so totally about the division of spoils between spouses, one or the other, in the case of marriage breakdown, and what concerns me from what little legal advice I have had is that under present legislation we have specific allowances made for the children of that marriage, under The Dower Act and other Acts that set aside certain divisions of a breakdown in marriage, and I must express a disappointment to you, Ma'am, that in the presentation made, indeed the presentation made and so much of the discussion made about this bill, so little has been said about the children.

I would ask you whatthe Coalition's position is with respect to the division of property in the case of marriage breakdown about the children in a marriage. As we are so hard in our fight about dividing the situation on an even 50-50 basis, what would it leave - 10 percent, 20 percent, or 30 percent- for the children of the marriage that two people who have come together, have procreated children and have raised them, and in my judgment, unlike my socialist friends, still believe the family unit has some responsibility for those MS. STEIN BART: You are quite correct.

The legislation- and unfortunately I think it is because the Law Reform Commission itself concentrated on two areas, maintenance and property-there is really very little about children -(Interjection)-Right. The Coalition in their last brief- and I didn't repeat it here, but in the last brief- said that one of the things that you should look at would be custody of the children, principles dealing with custody of the children. We have tried to zero in on enforcement of maintenance orders and we meant child maintenance orders. This was made very clear in our last presentation and it is the same this time.

There is very poor enforcement of child maintenance orders, and that definitely affects children because so often they end up on welfare. I mean that is very important to the children. As to property rights The Dower Act and The Devolution of Estates Act belong to Bi1172, which I don't believe is being discussed today. MR. ENNS: They are being abrogated, they are being out .... MS. STEIN BART: I didn't realize that. Well, as to the property rights of the children, the Coalition's position is that it is the two spouses who have built up the estate, and it is between the two spouses, and not the children.

The children have no property rights under the new Devolution of Estates Act. There were some property rights under the old Devolution of Estates Act. The new Devolution of Estates Act with the amendments is quite correct in that there should be sharing only between the spouses. But I am glad to see that you are concerned about children, and maybe then you will take up this enforcement of maintenance orders for child maintenance. That is a very very important area. MR. ENNS: That's fine, Mr. Chairman. That is my only question.

I only wanted to affirm that the Coalition that she represents doesn't have concern about the children. MS. STEIN BART: Well, that's not true. MR. ENNS: lt's certainly not here in your representation. MR. CHAIR MAN: Mr. Cherniack. MR. CHERNIACK: Pardon, Ms. Steinbart, did I hear you say just now that The Devolution of Estates Act the children get nothing? MS. STE INBART: Not under the present Act. Under the amendments as I read them, maybe I am 315

Statutory Regulations and Orders Wednesday, June 1, 1977 missing that amendment, but it seems to me .... MR. CHERNIACK: That's not the way I read it. But would you say that it is right that children should not be entitled to anything under The Devolution of Estates Act? MS. STEIN BART: The Coalition's position is that the spouses built up the assets and it is the spouses who must share them, not the children. MR. CHERNIACK: Well, then, may I ask what is the position of the Coalition in the event that a person wishes to make a will? There is no point to it, is there? I mean under your

interpretation, the way you report the Coalition, you are saying that there should be no need tor a will, that whatever the deceased has left should go automatically and completely to the spouse. MS. STEINBART: No. MR. CHERNIACK: If that's the case, then why a will, or why should The Devolution of Estates Act impose the will that itthinks the person should have made, had the person made a will? lsn'tthat what The Devolution of Estates Act says? MS. STEI NBART: Maybe I didn't make it clear.

The Coalition's position as I understand it is that the sharing should be imposed by The Devolution of Estates Act, meaning if there is no will, the spouse inherits the whole thing. If there is a will, obviously it is according to the will, except what The Dower Act says, and The Dower Act as amended will say a half. MR. CHERNIACK: Why are you saying that a person who leaves a will has the righttodecide that one-half of the estate shall go to children or to anyone else, as being, in my

interpretation, that half that was not earned by the spouse? That is my

interpretation. Why should that be different than The Devolution of Estates Act which all that it does, I think, historically, is say that in the event of the death of a person without a will, that it would be presumed that that person, having all his or her responsibilities in mind, would give a portion (a third up to now, a halt after now) to the spouse and the balance amongst the children? Why does the Coalition reject that? MS. STEINBART: The Devolution of Estates Act is in effect a will. lt is imposed if there is no will made by the person. MR. CHERNIACK: Right. We agree at least that far. MS.

STEIN BART: And if the testator decides that this will which is imposed by The Devolution of Estates Act, is not what he or she wants, they have the right to make their own will. But the law presumes that all Manitobans know the law, so the presumption is if a person comes and says, "I don't want a will, therefore I want the will under The Devolution of Estates Act, " then that is whatthe person has. They make that decision by not making a will.

They make the decision that they want the The Devolution of Estates Act, which we would like to see all property going to the other spouse, they make that decision by not making a will. MR. CHERNIACK: Ms. Steinbart, are you suggesting that with your experience that people who do not make a will make a deliberate decision not to have a will because they would rather rely on The Devolution of Estates Act? Is that your impression? MS. STEI NBART: No. MR. CHERNIACK: Well, that is what I think you just said. MS. STEIN BART: They do not make a will for other reasons.

However I would like to point out that the majority of people who do make a will usually leave everything to the spouse, and The Devolution of Estates Act should recognize that and say, "Well, the majority of Manitobans usually want this, so we will impose this, and if they don't want it, let them make their own will. " MR. CHERNIACK: That is the position of the Coalition which has discussed this question and has come to that conclusion? I am not asking you your opinion .. . MS. STEIN BART: Yes, -1 understand .. . MR. CHERNIACK: . .. I'm asking you, does the Coalition ... ? MS. STEINBART: As I understand it, yes.

MR. CHERNIACK: And that is your

interpretation? All right, I must tell you I see at least one head shaking sideways, I must tell you that ... MS. STEIN BART: Maybe I don't understand it then. MR. CHERNIACK: ... maybe you can'tsee thathead. All right, I want to go on, Ms. Steinbart. You were talking about income taxes. Did you now accept Mr. Spivak's suggestion that if there is a tax liability created because of the action of The Marital Property Act, that that liability should be shared? That's really what he said. Did you accept that? MS . STEIN BART: I don't think I answered his question.

I said that the Coalition hadn't discussed that problem and I would only be giving my own personal answer. MR. CHERNIACK: Well, then, are we to assume that the Coalition has not discussed the impact of taxation on this proposal? MS. STEI NBART: Not this particular problem. MR. CHERNIACK: Would you mind elaborating on what it did, because, and now I refer to your brief, you say that the answer is to have the Federal Government change The Tax Act. Are you under the impression that the Government or the Legislature of Manitoba could "have the Federal 316

Statutory Regulations and Orders Wednesday, June 1, 1977 Government change The Tax Act? " MS. STEIN BART: No, they can't. MR. CHERNIACK: Well, then, until we succeed in having them change The Tax Act, what do you think should take place? MS. STE INBART: The Coalition's position is that if there is any problem with the tax implication, the concept of equality in marriage, the concept of sharing during marriage should not take second place to income tax implications.

If there's an unfairness in the income tax implications, then that's unfortunate but it's going to happen and it's much better than to say there should be no equal sharing because of that. MR. CHERNI ACK: Are you aware that this could be damaging to both parties to a marriage? MS. STEIN BART: Now if we are talking just about this move for attribution, it does not apply ... MR. CHERNIACK: I haven't come to attribution yet. I'm talking aboutthe deemed capital gain and I think the deemed recapture. MS. STEIN BART: I think that would not apply to that many Manitobans. MR.

CHERNIACK: Oh, so since you say it doesn't apply to many Manitobans, the Coalition is not really concerned about that? MS. STEIN BART: No, we're not saying we're not concerned about that. We're saying that we would like to see The Income Tax Act changed. That's what should be done but in the meantime you should not destroy the principle of equality during marriage, of sharing during marriage, simply because of these income tax implications. MR.

CHERNIACK: All right, I want to suggest to you that the only reasonable position that you ought to be taking should be that until the law is changed, that there should be an absolute sharing of all the liabilities that are created as a result of the decision of one and indeed one party and the law to force a separation of assets. MS. STEINBART: lt seems to me that that's implicit in the bill and the Coalition has accepted .. . MR. CHERNIACK: lt's not in the bill, I'm sorry. MS.

STEINBART: Well, maybe I don't understand the question but it seems to me that liabilities, when you determine the commercial assets, the liabilities will be .. . MR. CHERNIACK: Potential, I'm talking about a potential liability created as a result of what happens. I just want to see whether you agree. I don't want to argue what the bill says. MS. STEI NBART: I don't understand the question- maybe if you could repeat it. MR. CHERNIACK: Well, I'll try again. Mr. Spivak started it. MR. CHAIR MAN: Mr. Pawley. MR. PAWl.EY: I just wonder if it would be helpful, Mr.

Cherniack, if I mentioned that at the request of myself, the Federal Government and the provinces meeting together at the end of June, we will be dealing with this very subject matter. The Federal Government has indicated at dif ferent times, their desire that there be equal sharing of property and Mr. Basford has been requested to include this on an agenda of Ministers of the Crown relating to justice provincially and federally. ln the meantime, we intend to do a very thorough analysis of the tax implications.

The impression that we had from the Federal Government is that they are certainly very anxious to look at any situation pertaining thereto because they have indicated general support in principle for the .. . MR. CHAI RMAN: Mr. Spivak on a point of order. MR. SPIVAK: Mr. Chairman, just on a point of order, is it Attorney-General suggesting that he is prepared not to proclaim this bill until the arrangements are finalized with the Federal Government? A MEMBER: He didn't say that. MR. SPIVAK: You're not prepared to say that, so in effect we have to deal with the Aetas it is now. MR. CHAIRM AN: Mr. Cherniack. MR.

CHERNIACK: Mr. Chairman, I was going to ask thatquestion as well of theCoalition. We can discuss this later; we have a few more people to hear from, I know. I just want to clarify that it seems to me that until we persuade the Federal Government to change The Income Tax Act, there is a liability created, a potential liability which is an actual payment out of do liars in taxation where there may not be any additional moneys thrown into the pot in any way and that that cost should, in my opinion, be calculated and deducted from the gross before the distribution is made.

But when The Income Tax Law is changed- hopefully the Federal Government will be persuaded to change it- until it does then surely it should be one of two things. Either you accept the principle of the mutual sharing of this cost, or you should ask the Attorney-General not to proclaim the bill until he is sure that there is no adverse effect. MS. STEIN BART: No. MR. CHERNI ACK: I thought so. So will you accept the first suggestion? MS. STEI NBART: Yes, but when you say "potential liability, " I would have thought that would have been covered when liabilities are included or deducted from ... MR. CHERN IACK: Ms.

Steinbart, I don't really want to impose on you to draw up the legislation. All I want of you is to accept the principle and we have professionally-trained people who draw up the 317

Statutory Regulations and Orders Wednesday, June 1, 1977 MS. STEINBART: I accept . . and the Coalition . . . MR. CHERNIACK: All right, then I'll move on to ask you about financial independence. I don't know whether again you are giving legal

interpretations, but let me give you mine. I read

Section 4 of The Maintenance Act to speak of financial independence. You say, "We don't know what is should mean but we think it should mean something that you say it means." In effect you are saying, "Well, you define it. We don't know how to help you. " So I accept your inability to do that because as Mr. Pawley said, it's pretty tough to do. But then wou Id you not agree that under

Section 5 where it refers to the order that is to be made, that indeed there they do speak of the financial needs and the financial means and the earning capacity of each spouse and the standard of living and lifestyle. Would you not say that that is already an indication to the court as to what are the factors involved which would include, to my mind, the standard of living of both parties at the time of the separation? Would you not be satisfied that that would take care ofthe problem? MS. STEINBART: We ll, that seems to say that the standard of living is the definition of financial independence.

Perhaps it does take care of the problem; perhaps that's the definition that should be used. it's not necessarily that clear. MR. CHERNIACK: I agree with you, but you can't help us? MS. STEI NBART: I can't give you an answer. I think it's up to you to make the decision as to whether it's first of all clear, what's financial independence, and if it's not clear, to decide what should financial independence mean. MR. CHERNIACK: But you cannot advise us on how to set that definition? MS. STEINBART: The Coalition did not make a decision as to what financial independence should mean. MR.

CHERNIACK: Did the Coalition discuss it? MS. STEINBART: They did, yes. MR. CHERNIACK: And could not agree? MS. STEINBART: Wel l, it's not that they could not agree; there was just simply not enough time to go over all of this material. MR. CHERNIACK: Well would you let us know pretty soon if you do come to some .. . MS. STEINBART: If we find the time. MR. CHERNIACK: All right.

Now, more important than what I have asked up to now; you said there has to be a cut-off at some time- I'm quoting you- there has to be a cut-off, we ha ve to agree that if this case of this woman whose husband was an alcoholic and did not contribute to the building of assets of the fami ly, that if she was prepared to live with this person under these circumstances for a period of time then that is how it happens. How far back do you feel you ought to go in your demand for retroactive recognition? MS. STEIN BART: Maybe I don't understand the question. MR. CHERNIACK: All right, let me elaborate on it.

You have a case of a sixty year old couple who have lived together for 40 years and, under your recommendation -w hich I support I might say they are continuing to live together and I believe that we should recognize that whatever rights she acquired should include the building up of the assets. Now, suppose there was- 1 will give you the other extreme- a separation 25 years ago, by court order, no divorce but the parties are separated, and they have each gone their own way, would you go back to that marital regime and recognize the rights of both of the parties? MS.

STEI NBART: lt seems to me, from my reading of the Act, that would not be ... those who had separated 2 years ago, they would not be covered by this because present separations are not covered by this Act. Now if the Act doesn't say that, then it should because we ought not to go back in the past and look at people who have been separated and have a separation order or agreement. MR. CHERNIACK: I gave you the extremes and again I am not looking for you to interpret the Act, I want to know what the Coalition feels about it.

You are saying that what has happened in the past is cut off but you are talking about a present marital relationship which is existing now and which should therefore recognize the accumulation of the assets for the time from the marriage until there may be a break-up. MS. STEINBART: No, peop le who have separated before this Act comes into force are not protected by this Act. But, if there is a continuing marriage situation now, then they should be protected by the Act. MR. CHERNIACK: Thank you, Ms. Steinbart. MR. CHAI RMAN: Are there any further questions? Mr. Sherman. MR. SHERMAN: Mr.

Chairman, I would just like to ask Ms. Steinbart two questions. One, would you agree Ms. Steinbart that the Coalition on Family Law, which you represent, has taken an active participatory role in the studies that this particular Committee has been engaged in on the particular subject in front of us for the past six to eight months and that your role has probably been substantially wider than that of many other segments of the community? 318

Statutory Regulations and Orders Wednesday, June 1, 1977 MS. STE INBART: That's a nice compliment, yes. MR. SHERMAN: And would you allow me to remind you that, under questioning from Mr. Cherniack, you said that with respect to arriving at a definition of financial independence your position was not that the Coalition was not prepared to advise the Committee as to what to do but, I think your wording was that there has not been enough time to go over this material.

In the light of that I wonder if you would be prepared to revise or amend your contention on Page 1 of your brief that to advocate delay for further study of this bill is incredible. MS. STEI NBART: The concept of financial independence was only first presented in these bills now before the Legislature. We have been going on for several months, that's true, but we did not have that concept befor e us for several months. The bills were only made available to us, I think, in May. The fi rst reading came before that, but printed material did not come out to the Coalition until May, I am not quite sure when in May.

I know we did not have enough time to go over all the details. MR. SHERMA N: Wo uld you agree with me on one fu rther point, because you have been very helpful and very active in these Committee hearings since last November, as I have suggested, that, at almost every meeting of our Committee there have been new concepts, new questions, new difficulties that have been posed, that have arisen such as has just happened now under the questioning of Mr. Spivak and Mr. Cherniack, and that there are enormous, complicated problems that still have to be studied and considered. MS.

STEI NBART: No, the main points have always been- I really shouldn't say always, but have been there for quite a long period of time-it is time these main points were passed: the equality in marriage, equal sharing, maintenance-there is no fault, and so forth. These have been there. They have been studied and studied. lt is time they were passed. lf there are details, most of the details can probably be cleared up now. If they are not able to be cleared up now, then they can be done after the Act. This happens in many cases with many Acts. Acts are continually being amended, but it is time the Act was passed.

Reform is long overdue and it should not be delayed because of details. MR. SHERM AN: Even when those details have the kinds of effects that have been suggested in the previous question. MS. STEIN BART: That's right. I don't think the details should hold up this reform which is long overdue and well-studied. MR. SHERMAN: Thank you, Mr. Chairman. MR. CHAI RMAN: If, then, there are no further questions, thank you, Ms. Steinbart. MS. STEI NBART: Thank you. MR. CHAIR MAN: Mrs. Millicent Laird, please. MRS. MIL LI CENT LAIRD: Mr.

Minister, honourab le members and guests, I don't think the recognition of women's rights is quite the universal cry that its proponents would have me believe. The married woman is concerned about the sharing the of the marital property. A career woman has more interest in equal pay practices and promotional opportunity than the woman who has chosen famil y-home management. I am weary of hearing about the alcoholic husband. What about the alcoholic wife who relinquishes her rights?

What about the husband who has suffered a serious injury which has incapacitated him, who, upon discharge from the nursing home, discovers that he has been deprived of all his financial assets without his consent or knowledge his wife? He has the option to remain at the nursing home or else go live with a relative. Should the wife be entitled to equal sharing of the property which she never helped to contribute to financially and in labour in the acquisition of the property? I suggest for more judicial discretion to vary 50-50 sharing arrangements.

The horrendous divorce statistics, 1 in 3, the plain fact is that also today an increasing proportion of marriages are performed civilly in what amounts to a little more than a two-minute ceremony. Holy matrimony is much more than a civil marriage contract. I oppose Bill 61. There appears to be no ethical values upheld by this new Marital Property Act. Thank you, Mr. Minister. MR. CHAIR MAN: Order please. MRS. LAI RD: I have been very brief and to the point. MR. CHAIRM AN: For that the Committee thanks you. Are there any questions from members of the Committee? Hearing none, thank you, Mrs. Laird. MR.

CHAIR MAN: Mona Brown, please. MS. BROWN: First of all as I am going to be speaking mainly on instantaneous community property, I have a list of thirteen books at the Law Library, Mr. Axworthy, that are on community property, if you would like to look them up, particularly on the United States law. I wanted to explain I am giving a personal opinion. ! want to explain that I live in rural Manitoba. My husband and I own a farm together in joint ownership, and I have spoken to numerous groups out in · rural Manitoba, have presented a petition to Mr.

Pawley on community of property, and that petition was signed by mainly farm couples. I would like to emphasize that although I am speaking as an individual, I know that I have an awful lot of rural people from south-central Manitoba behind me in what I am saying. 319

Statutory Regulations and Orders Wednesday, June 1, 1977 I wo uld firstly lik e to state that I agree with the fundamental conc epts ofthe proposed legislation. 1 recogn ize that there are certain drafting changes, drafting errors, and I under stand that some of these have been cleared up by the amend ments, which I haven't had a chance to go through and that mor e of them, I'm sure, will be brought to your attention ton igh t and perhaps tomorrow ni ght if you have to meet again. I would li ke to say that I espec iall y agree with the concept in Bill 60 that spouses should become financiall y in dependent.

I espec iall y agree with the con cept that they shou ld abol ish the concept of fault, and I especially agree with the fact that Bill 60 does not allow for very much judic ial discreti on. With respect to Bill 61 , 1 would li ke to say that the concept ofcom mun ity of prop erty applying to all marria ges with bilateral contrac ting out is exce llent. I think th at's good. l th ink, however, that that was necessary in order to have any real fundamental prope rty law change. However, my proposed amend ments are to make the Act stronger and I feel that it is deficient in some respects.

I believe strong ly in the concept of communi ty of prop erty and suggest that the entir e concept of instantaneous comm unity of proper ty be instituted instead of differentiating between the family and commercial assets. A com mun ity of proper ty system is not radi cal. A large number of people who have just started to look at the proposals wit hin the last couple of months seem to th ink that this is a very radical concept. True in fact, this system has been prevalent in our world for centuries. Specific countries have had them for num erous centuries and I can name countries.

All the Scandina vian countries, Germany, Ho lland, France, Spain, Mexico, eigh t states in the Un ited States including Arizona, Californ ia - sinc e 19 51 has been revised to include join t management - Idaho, Louisiana, Nevada, New Mexico, Texas and Washin gton . Also a version of commun ity of prop erty exists in the Province of Quebec under the Civil Code. So I don't think that the concept of com mun ity of pro perty is new. lt's not radical and it's not new.

I really feel that the Law Reform Com mis sion didn' t look closely enough at it, and I presented a petition earlier at public hearings and a petition to Mr. Pawley saying that I really feel that instantaneous com mun ity of pr oper ty is really showing what equal partner ship is.

I feel an instantaneous com mun ity of proper ty system would recog niz e the partnersh ip element in a marriage. lt would meet the com pl aint that the present law is unfair to a spouse who has no earn in gs or assets and with the inc orporation of the joint management system it would also be an affirmative action type stim ulus to making each spouse more financially aware and in dependent. By that I really mean ... and I am sure you all know what affir mative action programs are. For an example, and this could apply to men as well as women , but I have seen women who have never written a cheque.

Sudden ly their husband di es. They don't know anything about the estate, etc. I would really li ke to see women be able to take a more active role and a more managerial role in the affairs of the famil y farm, family business, etc. and I th ink this is really im portant. I th ink we can have this affirmative action type program by in stituti ng in stantaneous commun ity of proper ty with joint management. lt would also gi ve the spouse who has li ttle or no assets, or no earn in gs, a large measure of securit y and certaint y. I th ink Ms. Stein bart made the position on that quite clear.

I won't repeat things. lt would no longer be necessary for that spouse to rely on the court's discretion to secure an in terest in the famil y assets. Thus we would ensure that Mur doch will never happen again. I' ve heard people tell me a number of times, "Oh, Mur doch is never going to happen again, anyways." Mind you , I was reading a case from Eng land by Lord Dennin g, who happens to be one of the judges I respect the most, but in that specific case, Lord Dennin gs saw fit to award two-thirds of the proper ty to the husband and one-thir d to the wife.

The rationale or the reason was that the husband, when he came home at ni ght, would have to hi re a housekeeper, etc., to look after hi s house, to do his laundry, his di shes, etc., wher eas the wife knew how to do this already and had been doing it for years, even though both were working, so she only needed one-thir d. Wel l, if that's jud icial di scretion, I don' t want judicial di screti on. And that's one of my favourite judg es. Alternatively, if the Commission and the Leg islature are not will ing to accept my submission, I would li ke to propose two amend ments.

One is that the defini tion of famil y assets be widened to incl ude "a famil y farm or business which both spouses have contri buted either financial ly, physically -a s in the Mur doch case - or managerially through joint decision-making and that the onus of proof should be on the par ty who is trying to disprove that these assets are famil y assets to so prove." Mean ing there would be a presu mp tion that assets, in cases of li ke say a farm owned by husband and wife, or perhaps in title of the husband but run by the husband and wife, would be a family asset un less the husband could prove that hi s wife had not contrib uted physically, managerially or financi ally to that farm, as an exam ple.

That is the petition that I presented to Mr . Pawley that had the signa tures of a large number of rural couples on it. My second amendment would be to add to Bill 61 , Div ision 4

Section 19 . I wo uld suggest that Sectign 19 read

Section 19 .1 as it is. I haven't seen the amend ments so I'll have to go by the old di visi on. 1 (

a) through (

e) and then 19 .2 that it should be automatically upon the death of a spouse. I th ink that this is an imp ortant concept. lt's inc orp orated , che cking through the com mun ity of 320

I Statutory Regulations and Orders Wednesday, June 1, 1977 proper ty estates, whether they have deferred com mun ity of proper ty, instantaneous commun ity of property, or a co mbi nation of both, such as is suggested in thi s bill, every one of them incl udes death as a reason for di ssolution of the marriage. Death is incl uded in everyone of them . And I think it shoul d be incl uded her e as wel l.

This would also solve some of the problems that I' m sure are going to be raised with respect to estate pla nnin g because the problems that I' ve heard people raise are that people who have already done estate plan ning, that that estate plannin g migh t be me ddled with and tampered with and very much confused because of the new Act that's com ing in to force. This way, if you el imi nated the int erspousal transfers from succession duties, there would be no problem. And so you would elimi nate that whole problem and you would elimi nate possibly a lot of drafting problems, etc.

Along with this, I th ink that the main reason why I would lik e to see death incl uded is because, as the bill presently stands, it encou rages separation . If you separate, you are entitled to one-half the assets under the standard marital reg im e. If you do not separate but stay married to your spouse until his or her death, you mi ght have to pay succession duties on that estate. So as the bill presently stands, it would seem to me that lawyers will be advising their cl ients, on their deathbeds, to go ahead and get that separation order so that they can avoid succession duties.

And don' t be li eve they won't be doing it. So I would really strongly maintain that death should be included, upon death or di ssolution of the marriage. I th ink this will also encom pass the problem whic h I am specifically speaking to, of a famil y farm. Exam ple, my parents have been married for twenty-six years. My father holds title to the farm. Twenty-six years ago, that's the way it was done. He was probably advised so by an incom petent lawyer.

My father would be the first to agree that my mother should own half of that farm and yet, unde r the present system, because that farm is succession dutiable, my mother, if she owns half the farm, then give her half the farm, either upon death or I would say right now. Gi ve her her half of the farm and then, if there is succession duties to pay when my father di es on hi s half the farm, that's fine, she'll pay succession duties. But she shouldn' t have to pay succession duties on the half that's supposedly already hers.

Someone who separates is getting an advantage over someone who is married and I don 't see that that is fair. So I don' t th ink that you are recogn izing an equal partnersh ip in that aspect un less you inc lude death as one of the categories. I don't th ink that Bill 72 accomplis hes this because it doesn't elim inate int erspousal transfer for succession duties. Ther e are just a couple of th ings that I wanted to answer, having heard the last two submissions. I wanted to give my own perso nal opinion on a coup le of things there. One was the question of a will that Mr.

Chernia ck was raising and I would personal ly - this is my personal opin ion and I belie ve it would be the opinion, as I di scussed it, with the people that I was talking to - is that the will should be half and that the other half you can gi ve to who mever you lik e which mi ght very well be you r wife or your spouse. But that's my personal opinion. With respect to the Tax Act, I was going to say exactly what Mr. Pawley said. When I was in Ottawa at a conference in Janu ary, it was made specifically clear by Mr.

Basford that they were wanting these changes very badly - the equality in marriage and the proper ty changes - and they were pushing the provinces right then. And I questioned him on it quite specifically. Of course, he's not Min ister of Fina nce, he is Minis ter of Justice, but I th ink that he can speak for the Federal Government and I' m sure they are going to be co-operative. Mr. Spivak is no longer here, but in the event that those changes do not come into effect until after our bill comes in to effect, wel l, I would agree that any detriment should be shared jointly.

With respect to the hardsh ip situation, I know that a lot of people are going to stand up here and advocate judic ial di scretion . The case of the drun ken spouse, or one spouse that does noth ing. I've been gi ven the exam ple a nu mber of ti mes of a woman who marries a fairly wealthy man. He doesn't want her to work, so she doesn'twork and she hir es a housekeeper to do all her clean ing. She doesn't have any childr en. What does she contri bute to that marriage? Well, first of all, there is psychological suppor t.

Second of all, there is the fact that he didn' t want her to work due to prestige or someth ing. But more than that, I th ink there will be some cases ... If you are going to put a 50-50, there will be cases, and we have to recog niz e it, where it will be unfair for one partner to get 50 percent. But if you recog niz e marriage as an equal partner ship, that's the only way you can do it. If you allow for judi cial di scretion , perhaps you will get some very good decisions.

But perhaps you will get some decisions lik e the one 1 told about of Lord Dennin g when they opted for judicial discr etion in Gr eat Britain. Pertaps you will get some decisions lik e Mur doch. I don't think that we can risk that and that's why I am very much in favour of the bill as it stands now. The final thing I would like to say is that I feel ... The Commis sion spent two years on it; we've . spent another year on it since then. There has been two sessions of publ ic hearings that people should have been aware of. If they weren't aware of it, it was due to their own negl igence.

I've tried to make as many people aware of it th rough speaking thr ough out the coun try and the city on this thing . I have talked to people and asked people thei r op ini o . As far as I know, there is a great deal of suppor t for th is bi ll and I th ink it would be very unj ust to delay this bill. If there are matters that need to be 321

Statutory Regulations and Orders Wednesday, June 1, 1977 cleared up, clear them up, either now throu gh amendmen ts -I haven't read all the amend ments -o r clear them up afterwards but don't pr ocrastina te and delay this bill any longer. People have said to me, "Oh , it's long overdue. lt's long overd ue." And then everybody says to me, "They want it delayed. They want it delayed ." Wel l, I say don't delay. We have had enough delay. Put the principl es in, the principl es everybody says they agree on. Put the princip les in. If we need to change them, we wi ll change a few thi ngs afterwards. Thank you. MR.

CHAIR MAN: Thank you . Order ple ase. I will rem ind the audience again that expressions of opin ion ar e not perm itted under our rules. Mr. Che rn iack. MR. CHERNIACK: I was just thin king of women's rig hts to applaud when they lik e to. Mr. Chairman, I would lik e to ask Ms. Brown .... I don't recogn ize that right, I just see thatthey assert it. Mr . Chairman, I must tell Ms.

Brown that she brought her father in to the picture so I have to comment that I thought that six or eigh t months ago, whene ver it was that you came before the Comm ittee, you told us that there was something being done about correcting that injus tice of some twenty-five years. I am di sappoint ed to hear that it's still on its way. MS. BROWN: lt is being done. lt's being done very slowly. Through the gift tax impl ications, my father can gi ve my mother $5,000 a year. l believe that's being changed now. Let me see, he will be 10 0 and what, 65, by the time she gets all that. MR. CHERNIACK: Wel l, then, Ms.

Brown, you will be glad to know that there is a bill you may not have seen and that's Bill 84, wh ich deals with changes to the Gift Tax and the Succession Duty Act. Have you studied that? MS. BROWN: I have seen it. MR. CHERNIACK: Wel l, then , would you not agree that under that Act mone ys that pass from one spouse to another in accordance with the entitlements under the Fam ily Proper ty Law would be tax free? MS. BROWN: I didn' t th ink that it in cl uded the commercial assets. MR. CHERNIACK: Yes, yes. MS. BROWN: lt does. MR. CHERNIACK: Yes, if you look at it you will see that the

section describing prop erty does not includ e an exception or an exclusion of the commercial assets. MS. BROWN: Okay, if that's clarified. But I don' t see why that one little clause "upon death" could not be put into the bill. lt certainly isn't goi ng to harm anything and I don't see why it couldn' t be put into the bill anyway. I see no reason for not putting it in. MR. CHERNIACK: Wel l, under The Dower Act, we are providing that a spouse is entitled to one half of the estate. MS. BROWN: Rig ht. MR.

CHERNIACK: Wh ich is much more, in many cases, than would be the amount of entitlement under The Marital Act. lt's not less than . . . . MS. BROWN: That's rig ht. But I don't see why one-half still could not go into th is Act. The more insurance the better. Let's put it that way. MR. CHERNIACK: Yes, well I know yo ur concern . But surely if you do make provision for one-half of the total estate passing , and you and I know that that is probably more than the entitlement under The Marital Proper ty Act, then surely it's covered. MS. BROWN: Okay, but The Dower Act does not encom pass any succession duty. MR.

CHERNIACK: Well then I refer you to The Su ccession Duty Act, wh ich does recog nize that portion wh ich you and I ag ree is the entitlement of the spouse, that is a share of the marital assets. Is that right? MS. BROWN: If the int erpr etation of the bill is such that it will include the family farm, the business, etc. MR. CHERNIACK: No, you di dn' t hear me then. What I say it in cl udes is that portion ofthe estates of a person which has incr eased dur ing the marital regime. Noth in g before the reg ime started, noth ing after. it. MS. BROWN: Right. But if ... MR.

CHERNIACK: But if the family farm was brought in durin g the regi me, then of course it covers MS. BROWN: Okay. MR. CHERNIACK: Okay? I don't want to misle ad you in to thin king that the question ... MS. BROWN: No. I di d not read the Act that way. I guess I wasn't looking for ... MR. CHERNIACK: I wish you would, I would apprecia te it. If you don't agree with the in terpr etati on, it would be good if you'd let us know. But that is my int erpreta ti on, not one-halfofthe estate but one-half of the marital proper ty tax free. MS. BROWN: Right, okay. I di d not read

section ... MR : CHERNIACK: In addition is the exem ption for a spouse. MS. BROWN: My point would st ill be that I don't see it's going to hurt to put this in to this bill. 322

Statutory Regulations and Orders Wednesday, June 1, 1977 MR. CHERNIACK: That's tine, thank you , Mr. Chairman. MR. CHAI RMAN: Mr. Axworthy. MR. AXWORTHY: Mr. Chairman, I' d just lik e to ask Ms. Bro wn, on the issue that you raised about the question of di screti on. Without using it as the overrid ing princ iple, would you see it as appl ied to certain cases wher e ther e are excep tional cir cumstances as was recom mended in the dissenting report in the Law Reform Comm ission? MS. BROWN: No I wouldn' t. I wish that we cou ld do it that way. I really wish we could but I personally cannot say.

When I had to decide whether I would opt tor judic ial discretion in some cases as was the di ssent, or whether I would want a straight 50-50 wi th no judi cial di scretion, from looking at the judg ments and reading over judg ments I personally have to say that I would opt for straight 50- 50 and I'm sorry about the cases but that have created hardship. Ther e have been a gr eat many cases that hardship s have been created in the past and it's been very inequ itable as wel l.

I mi ght point out too, that everybody seems to notice that half of what woul d normally be consider ed male proper ty - the husband's proper ty - is being transferred to the wife, but people don' t seem to pick up that in Bill 60 the wife is now having to become financiall y independent. The wife is now having to help sup port the childr en , that husbands are not going to be saddled with alimony payment s for the rest of their li ves anymore. That's a big step forward for men too. We're looking for equal ity for all people. MR. AXWORTHY: Ms.

Brown, I ve just been reading the report on Fam ily Property that the Canadian Law Reform Comm ission put out. If I just may quote to yo u, it says "A di scretionary proper ty system as opposed to fixed rules are probably the most di fficult reg ime under which to unfai rly avoid shari ng. Where fixed rules exist, it may be possible for a married person by careful man ipu lation of those rules to so arrange his or her affairs as to avoid sharing prop erty with a spouse. Fixed rules tend attract the lay of the law wh il e di scretion brings forth its spi rit." Are you saying you r onl y objection ...

In other words you agree with that in principle and your on ly objection is you just don 't really trust the courts. Is that right? MS. BROWN: That's probably a corr ect statement as you put it there, that if we have judges, all judges - and I shouldn' t condemn all judges, the poor judges - but I just cannot say right now that I have enough faith in the judi ci ary that we now have. The majority of the Supr eme Court, if not all of them ' are st ill the same member s that decided Mur doch, and they are the hig hest court in Canada.

I can honestly say that ... is usually in the minorit y and I do not have enough faith in the jud iciary right now to want to advocate jud ic ial discre ti on. MR. AXWORTHY: Could I suggest this and I suppose judges can learn lik e everyo ne else does, but it the leg islation carries wit hi n it the basic formula of equal shari ng, a 50-50 basis, that provided for an option of judi cial di scretion where there are extraordinar y cir cum stances then the gu idelines would be very clear in the leg islation from which the courts could learn and the refore exercise their judgment. Would that be reasonable? MS.

BROWN: We ll, it could be reasonable it the judges are will ing to accept that. l' ve seen judges go out of their way to not accept th ings lik e that. The problem there, I think, is also that you'r e going to create massive li tigation because everybody is going to think thatthey have a special case. Wel l, what are you going to say? "Well, my wife vacuumed the house once a week, or my wife only had two ch ildr en in stead of th ree ch il dren , or my husband went out drin ki ng with the boys once too many times." What is going to be the except ional case? Where are you going to draw the li ne?

You'r e going to have exactly what you ha ve in the Un ited Kingdom where you get one-thir d, two-thirds because she al ready knows how to do the cooking and the washing. MR. AXWORTHY: I was wonderi ng, seeing as you were good enoug h to provide me with references on the Cal ifornia Com mun ity Property, maybe you could provide me with the same references on how it works in Eng land to see it the same degree of litigation or extensiveness of it works in the same way. MS. BROWN: The Eng lish system hasn't been in for as long as the California system.

California has been in, and a number of the other jurisdictions tor, some of them for hundr eds of years and Californ ia sinc e 19 51 . The Eng li sh Law Reform Comm ission Repor t onl y came out in 1971 and thei r's has onl y been in for a couple of years. But, I'm sure if you look under Commun ity of Proper ty in the index cards of the Law Libr ary or the Law Courts Building that you'll be able to find them. MR. AXWORTHY: Thank you. MR. CHAIRM AN: No further questions. Than k you Ms. Brown . MS. BROWN: Than k you . MR. CHAI RMAN: Carol Perch pl ease. Is Carol Perch present please? Mr s. Perch is not here.

Ruth· Browne. Would you come forward ple ase? MS. BROWNE: Good even ing. I wish to commend the Honou rable Attorney-General and the Govern ment of Man itoba for the intr oduction of Bill 61 , the Standard Marital Reg ime, and Bill 60, Maint enance. And I under stand Bill 72 is also being consider ed tonight, wh ic h I wasn't aware of .. The principl e stated in these bill s will, if enacted, provide Man itoba with the most prog ressive 323

Statutory Regulations and Orders Wednesday, June 1, 1977 legislation on matri monial pr oper ty in Canada. I com mend you on the phi losophy inc orpora ting the pr incipl es of equal ity between spouses and marriage as an interdependent partner ship of shared responsibili ties. This legis lation takes a major step in recog ni zing the contribution to the family and thereby to society of the spouse who chooses to work with in the home. I have heard some criticisms of this bill to the effect that it will in troduce problems of admin istration.

True, changes will have to be made to accommo date the effects of this new law, however, as has occurred with many other pieces of legislation, such as the Dower Act, we antici pate future amend ments will be able to deal adequately with flaws that will appear as a result of appl ication of Bill 61 . One serious om ission of Bill 61 , as I see it is the om ission of inc ome in money form as a shared asset. The th ree main family functions are inc ome earn ing, home management and child care. Whether these th ree functions are shared or not shou Id not affect the income of either spouse.

If one spouse does not, in effect, contract to take over the home respon sibili ty the other is not free to earn income. Ther efore the income earned should be shareable with the homemaker spouse as payment for home management. If one spouse did not do the work inv olved with family and home care, studies have shown that the family would have to pay in the neigh borhood of $13 ,000 a year to have it done by outside help.

And if you wish to have some verification of that figure -I did n't just pull it out of the air- Catherine Walker and Willi am Glo gger have written a brochure called, The Dollar Value of Housework. I've seen this estimated as high as $20,000 and as low as $8,0 00 so you can pick a figure somewhere in the middle. For example, it costs a fami ly $25 a day to have a house cleaner for six hours. This does not in clude laundry, meals, child care, etc. In many famil ies, income is the only asset. If it is not shareable, where is the equitable partner ship ?

Another area that this leg islation has not adequately covered is that of the famil y farm and the uninc orpor ated family businesses. Un paid work by one spouse in a business owned by the other spouse should be recog niz ed as an equal contribution to that business, and ther efore the spouse of a farmer, fisherman, rancher, etc. should be entitled to one-half of the assets of that business. Man itoba farm women contribut e a great deal to the economic uni t known as the famil y farm. I consider it a gr eat gr ave injustice that these women do not have equal rights concern ing ownership of all farm proper ty.

The unin corpo rated business, which in many cases could not exist without the contribution of both spouses, I see as being in the same category as the family farm. I ther efore recommend to the comm ittee that these economic un its, the family farm and the uninc orpor ated family business be instantaneously shareable. I endor se the concept of retroactivity as appl ied to marital property, with one imp ortant except ion . I feel that undue hardship would be worked on many couples if existing contr acts are neg ated.

I ther efore submit that, retroactivity shall apply to existing marriages, with the exception of existing contr acts, whether separation contr acts or marriage contr acts. Retroactivity should defin itely apply to existing marria ges with the above exceptions. Adequate provision is made in the bill for opting out. I am pl eased to note that opting out shall be only upon mutual consent and after ind ividual legal counsel has been obtained and a written verification of such counsel provided. In Bill 60, the Fam ily Maint enance Act, I support the idea of

Section 4(1 ), i. e. "the onus of self support after separation . .._ lt is my feeling that the dependenc y created by never-ending alimony is at least as harm ful to the recipi ent as to the donor. Reaching for, and being suppor ted in the search for independence, should do a great deal to end the bitterness and ran cor wh ich is mai ntained between separated or div orced spouses. I am also pleased to see some provision for each spouse to obtain financial information of the other spouse.

I feel that there should be some provision made for com mon-LAW MARR IAGE BRE AKDOWN, WHE REBY JUDIC IAL DI SCRETION COULD MAKE ALLOWANCE S IN EXCEPT IO NAL CIR CU MSTANCES.

I am thinki ng particularly, in this case, of comm on-law marria ges of long standing, wher e the ch ildr en would be grown, wher e the dependent commo n-law spouse would be just as di sadvantaged as a married spouse. lt is my opini on that Bill 60 fails to make adequate provision for the enforcement of mai ntenance orders. lt is a fact that 75 percent of mai ntenance orders are in default, resulting in the mai ntenance of many famil ies being a public debt. I strong ly feel that the provinci al governments, along with the federal govern ment should provide whatever mechan isms necessary to trace defaulters.

The court system shou ld then enforce the collection of these debts -not leave the tracing and colle ction to the dependent spouse, who is usually a woman and who is trying to care for one or more ch ildr en . Si nce the debt of caring for the 324

I I Statutory Regulations and Orders Wednesday, June 1, 1977 famili es of defaulting parents falls on the state, the state should take over the respo nsibili ty for collecting the debt. I urge you to add to Bill 60, an amendme nt, placin g the colle ction of maint enance orders in the hands of the court system. I further recomm end that a central regi stry of court decisions from all jurisdictions of Canada, which have regard to maintenance and custody of child ren of separated or di vorced parents, should be established and mai ntained by the Government of Canada.

And I realize that you have no power to enforce th is but I would hope that you r govern ment, when you are in consultation with the Federal Govern ment, would recomm end this. Now, I have a short note on Bill 72 whic h isn't incl uded in the papers that I passed out. I would lik e to read it tho ugh. I feel that Bill 72 is a step in the rig ht dir ecti on. However, in

Section 2 referring to The Devol ution of Estates Act, I reco mme nd that 50,000 should be changed to $10 0,000.00. 1n today's society $50,000 is a very small estate if we consider the value of a home or a famil y farm. I note the absence of reference to the abolition of int erspousal taxation. If inde ed marriage is a mutuall y suppor tive ec onomic uni t, the survivor of this partner should not be taxed, nor should transfer of assets between spouses be taxed. The time for taxation of the estate, jointly buil t up by two people, should surely be on the death of the surviving spouse.

Tax has been paid on money earned by the partner ship as it is earned. Taxation of the estate when it passes to the surviving partner is doub le-taxation in effect. I ther efore reco mme nd the abolition of taxation of in terspousal gifts and ofthe estate passing to a surviving spouse. I am pleased to see the change in The Dower Act enti tling the wife to one-half of the husband's estate instead of one-thir d of the estate. Agai n, may I congr atulate the Gover nm ent of Man itoba on their efforts to remedy the ine quities existing in the present family law.

The passage of these laws will be a momentous step in the hi story of famil y law in Canada. lt is to be hoped that it will serve as a model for famil y law reform in all the common law provinces of this country. I hope that these bills are gi ven speedy passage in the Leg islature and early proclamation as the Law of Man itoba. Thank you . MR. CHAIR MAN: Thank you . Are there any questions? Mr . Cherniack. MR. CHERNIACK: I'm having di fficulty with this proposal of including inc ome as a shared asset.

The theory there's no problem with and I suppose - not I suppose - ! know there are many homes in whic h it is treated as a shared asset. Could you pl ease pi cture for me the stabil ity of an existing marriage made more stable or mor e secure for either party in the event that income is a shareable asset. MS. BROWNE: As I see a sharing of in come, in most marriages it isn't a problem even now. We get along all right and ... MR. CHERNIACK: But where it is a problem. MS. BROWNE: Wher e it is a problem , I think the action provides some recourse.

In other words, if one spouse is earn ing the income and absolutely refuses to share it with the other I th ink the spouse who is di sadvantaged should have some recourse. MR. CHERNIACK: Could you pic ture for me what happens to the salary cheque after the one that was compu lsorily di vide d . MS. BROWNE: Are you mean ing' if there are two salaries in the famil y? MR. CHERNIACK: No, no.

I' m saying that at a certain stage in li fe, the non-earning spouse says, "Okay the law says that this inc ome' this cheque that you got today belongs to both of us." Picture for me what happens the next time the payday comes ar ound? MS. BROWNE: I don' t th ink I under stand. MR. CHERNIACK: Wi ll there be a just a hand ing over of half? Will there be consu ltation between an unwilling spouse and a demand ing spouse? MS. BROWNE: 1 th ink it's when the spouse is unwill ing that there has to be some protection . MR.

CHERNIAC K: Well, I'm asking you, what will happen to the stabili ty of thatmarriage once one person asserts that rig ht? MS. BROWNE: I cou ldn' t possibly im agine what would happen to the stabil ity ofmost marriages. l would submit that the majorit y of mar riages that are wor king and are existing today, this is probably happ ening to some deg ree. All I' m saying is that it should be a right. MR. CHERNIACK: I'm suggesting to you that that righ t wo uld force a separation all the more quickly. MS. BROWNE: Wel l, I don 't agree with you . MR. CHERNI ACK: You don' t agree.

You th ink that the non-earn ing spouse would assert the right to share against an unwilling spouse who is the earn ing spouse and that that will not adversely affect the stabil ity of the marriage. MS. BROWNE: My contention is that if things are at that state in that marriage, the marriage is in trouble anyway and th is law won't make it any worse. 325

Statutory Regulations and Orders Wednesday, June 1, 1977 MR. CHERNIACK: Wel l, then you and I agree, because I th ink that once it is necessary to assert the powers then that marriage is pr etty we ll on the way out anyway and there would probably a separation and a splitting of assets and a maintenance order rather than just a simplis tic th in g of saying that cheque belongs to both rather than to one. MS. BROWNE: lt does gi ve the wife some righ t whic h she does not now have. MR. CHERNIACK: We are now speaking about a wife who up to now has not asserted herself although she could. MS.

BROWNE: Because she had no backup if she wanted to. What is there to do today if you want mone y and you r husband won't gi ve it to you, you wou ld go out and get a job or whatever. MR. CHERNIACK: Or you walk out. MS. BROWNE: That's right. With no money. MR. CHERNIACK: Wel l, you walk out and you get your maint enance order. MS. BROWNE: With no money. MR. CHERNIACK: We are talking about income, aren't we? MS. BROWNE: Yes. MR. CHERNIACK: You pi cture the famil y farm wh ic h I can visual ize as apart from the large farm that is ope rated almost li ke a . . . . MS. BROWNE: An inc orpo rated .... MR.

CHERNIACK: Inc orpor ated is not necessarily descriptive of a non-family farm. You could have both an inc orp orated famil y farm, you cou Id have it un inc orpo rated no n-family farm wher e the family may well be living 40 mil es away from the farm and it is oper ated as a business. But the uninc orpo rated fami ly business: What is a family business? MS. BROWNE: A business which is ope rated by a man and wife together. MR.

CHERNIACK: So now you are saying that, although the title may be in the name of one of them, the other spouse is requir ed to co ntinue to work there if that other spouse doesn't get equal sharing? MS. BROWNE: I am saying that wher e they are wor king together, it shou ld be recog niz ed as an instantaneous comm un ity property. MR. CHERNIACK: -(I nterjec tion)- Mr. Gr aham asked: What if they are not working together? I assume you mean where they are not working together, it should not be shareable. MS. BROWNE: An un inc orporated famil y business.

To me, the family business infers that they are workin g together. MR. CHERNIACK: So your answer to Mr . Gr aham, I assume, would be that if they are not working together, then it is not a famil y business, then it is not covered . MS. BROWNE: I wouldn' t see it as such , no. I am thi nking ofthe corn er grocery wher e the mother and father run it and perhaps some of the famil y, and this kind of business is not shareable. MR. CHERNIACK: You are quite right, because I gather we have just saved that family business from going under. Thank you. MR. CHAI RMAN: Mr. Lyon. MR. LYON: Mr.

Chai rman , th is question mi ght better have been asked of the Coali tion, but I would ask Ms. Browne in any case because it arose during the di scussion with Mr. Chern iack: Have you in the cou rse of your consider ation of this matter- the question of spl itting of inc ome and so on - had occasion to di scuss with the banks, the caisses populaires and so on the frequency or the inc idence of joint bank accounts as between husbands and wives? MS. BROWNE: I have di scussed it. I am not sure what you are getting at. MR.

LYON: My impr ession , in the absence of any statistics or any statistical informat ion, would be that a goodly number of marrie d couples in effect establish joint accounts to whic h each has equal access, so that in effect you have in practice a sharing of the income or inc omes th rough that instrument ality at the present time. MS. BROWNE: You are really agreeing with me, then, it wouldn' t hurt to put it into law. MR. LYON: What I am merely saying is that it is happen ing in practice. If it is happ ening in practice, then why leg islate it. MS. BROWNE: Then let's leg islate it. MR.

LYON: Well , why legis late it? MS. BROWNE: Because then it is a guaranteed right, not just the goodwill. MR. LYON: Well, then , would you prefer to see the leg islation say that there should be a joint account to whic h .... MS . BROWNE: I wo uld have to th ink about that. MR. LYON: Okay. MR. CHAIRM AN: Mr. Graham. MR. GRAHAM: Ms. Browne, could you give me a defin ition or what you consider to be a fami ly farm? 326

Statutory Regulations and Orders Wednesday, June 1, 1977 MS. BROWNE: To my th inking - and I am not an expert, I don' t profess to be - a fami ly farm is one that is run by a husband and wife and perhaps thei r childr en, together and jointly, wher e each is contributing to the production of that famil y farm, whether it be by feeding the ch ickens or running the tractor. MR. GRAHAM: And in that you feel that the one spouse shou ld be entitled to half of the assets of that business, is that what your brief says? MS. BROWNE: Yes. MR.

GRAHAM: I consider myself to be one who does opera te a fami ly farm. lt is my son and myself that ope rate it. Would my wife under your provisions, should she get one-half of the operation of that? MS. BROWNE: Does your wife live on the farm and help you on the farm? MR. GRAHAM: No. MS. BROWNE: Perhaps not, then. MR. GRAHAM: She has great di fficulty findin g it. MS. BROWNE: I don't know. That perhaps, then, doesn 't fit under the definition of a family farm. MR. GRAHAM: I just wonder ed what yo ur defini tion of a famil y farm was. MS. BROWNE: Wel l, you've got it. MR. CHAI RMAN: Mr. Pawley. MR. PAWLEY: Ms.

Browne, I should lik e to just have your comme nts in connection with the issue of uni lateral opti ng out versus mutual or bi lateral opti ng out. MS. BROWNE: I am in favour of bilateral opti ng out only. MR. PAWLEY: Wou ld you gi ve me you r reaso ns? MS. BROWNE: I th ink uni lateral opti ng out would destroy the value of your bill. MR. PAWLEY: What if the provision was for the opting out to take place on a uni lateral basis for the first six months of this legislati on, and to be based upon di scretion given to the courts based upon some equitable guid el ines? Do you feel that ... ? MS. BROWNE: I di sagree.

MR. PAWLEY: Would you just specify what would be the reason that you di sagree with that? MS. BROWNE: I th ink that the prov isions that you have put in to your bill as it stands cover the situation very wel l, and I th ink you will remember that I accepted separation cont racts and existing contracts, marriage contr acts. So if a couple does not wi sh to follow the marital reg ime that you are propos ing, presumably they are doing it by agreement, and if they are not agreeing, then it is my feeling - and maybe I am wrong, I don't th ink so, though - that one spouse is to be di sadvantaged. MR.

PAWLEY: What about the argument that a spouse now finds him or herself with an arrangement that we are leg islating that they di d not foresee and ther efore we are legislating retroactively affecting them in a way that they did not foresee, imp osing a legal reg ime on them that they would not have in tended to accept when they were married . MS. BROWNE: I am not sure what you mean . MR. PAWLEY: That we are imp osing a legal reg ime upon spouses. MS. BROWNE: I don 't th ink that that is such a hardship.

I feel that if the spouses agree to opt out, that this should cover the cases where the arrangement is equitable. Uni lateral opting out will provide opportun ity for inequ itable arrangement s, and that is what we are talking about isn't it, to make it equitable. MR. PAWLEY: So you don' t feel that the court wou ld make it equitable? MS. BROWNE: Wel l, I share Ms. Brown's suspicion of jud icial discretion . MR. CHAIRM AN: Mr . Jen kins. MR. JENKINS: I have just one question, Mr . Chairman, through you to Ms. Browne and that's deal ing on Page 3 where you are dealing with mutual consent on the in di vidual ....

Oh, I see. I beg your pardon. I never notic ed that you said "i ndependent legal opin ion ." You favour that as it is in the Act? MS. BROWNE: Yes. MR. JENKINS: Thank you . MR. CHAI RMAN: If there are no further questions, thank you , Ms. Browne. MS. BROWNE: Thank you . MR. CHAIRMAN: Perry Schulm an, please. MR. MARK SCHULM AN: My name is Mark Sch ulma n and I am appearing in conne ction with the submission prepared by both of us. I am appe aring also as a pr ivate lawyer in practice and concerned about th is bill.

I have prepared the writ ten submission whic h I believe has been cir culated or is to be ci rculated . Has it been ci rculated? MR. CHAIRM AN: Not yet. lt will be if you left it with the Cler k. Proceed whene ver you are ready, Mr. Schulm an . MR. SCHULMAN: Yes ' I have several comments. I wish to digr ess from the writ ten brief because 327

Statutory Regulations and Orders Wednesday, June 1, 1977 of the amend ments wh ich I have had an oppor tunity to read thro ugh. I wish to take issue with one amendment wh ich has been proposed and wh ich I th ink is contrary to the principle of the Act, and that is the pro psoed proposed amend ment whic h is to be described as

Section 2(2) . In yesterday's amen dm ent, I belie ve it was described as

Section 2(2) also. Fir st of all, I think that this bill has been pr oposed to redress long-standing gr ievances, and 1 would think it would make a farce out of the bill to allow unila teral opti ng out, because in those cases wher e the gr ievances exist, the party who has benefitted from the unjust arrangement will simply opt out. Now I think , secondly, that it would be com ple tely unc onscienable in

an Act wher e unila teral opting out is not permit ted not to make this regime apply to marriages wh ich have partly disint eg rated already. In fact this

Section 2(2) is just ridiculo us. lt says that "the standard marital reg im e does not apply to spouses who, upon the com ing in to force ofthis Act, are li ving separate and apart from each other pur suant to the order of a court; or following the commenc ement of proceed in gs for the dissolution or annu lmen t of their marriage; and the standard marital regime remains inappl icable to those spouses for such period of time as they continue living separate and apart from each other." Now first of all, why are you picking on people who are separated pursuant to a cou rt order and depri ving them of their rights under this Act?

Fi rst of all, ther e are people separated under many circum stances. Some are separated because one spouse has deserted the other. In fact ifthe wife has walked off, un der the present law, un less the relatively rare proceed ing of jud icial separation is taken , the separation will be without a court order. Secondly, the separation may be due to mutual agreement whether in writing or verbal. Now in any of those cases, or even wher e there is a court order, there may have been no arrangements for proper ty settlement at all. Why are those people not entitled to the benefits of this Act?

For example, who is separated in this province under a cou rt order? I would suggest to you that the onl y people are those women who have had to make appl ication under The Wives' and Childr en' s Maint enance Act because they have been beaten up by their husbands; because their husbands have deserted them, and possibly walked off with the family assets- those people are depriv ed by this provision of any appl ication for their rights under this Act. On the other hand, if a wife has not obtained a court order, but simpl y deserted her husband, she will be able to benefit from the rights under th is Act.

So I repeat, if you are going to exclude from the Act people who are separated, it should be all peopl e who are separated, not just people who are separated by court order. I th ink it is comp letely unfair to exclude from the operation of this Act people who are separated and who have not settled their proper ty di fferences by agreement. Mr . Cherniack referred to a case where they had been separated for 25 years and this Act comes in. Now first of all, there may be a tacit proper ty settlement in that case. If nobody has done anyth ing for 25 years, one can assume that everybody is happy.

Why should that affect people who were separated last month or a person who got a court order last month and didn' t get a proper ty settlement? Why should a person be depr ived of applying under this Act? Now even worse is this provision to exclude people who have commenced proceed ings for divorce. This is merely a uni lateral opting out. A husband who doesn't lik e th is Act, in the next six months before it comes into force next January 1st simply has to leave his wife and start divorce proceed ings, and th is Act does not apply to him. Is that not ridicu lous?

Now I don 't see any reason to exclude this Act from persons who are separated and who have not made agreements to settle their proper ty, no matter when that separation has taken place. But if you are going to recogni ze separation as a reason for excluding the Act, it shou ld only apply to obviously stale situations , and you wou ld have to pick some arbitrary time, lik e a separation that took place 25 years ago for exampl e, or 10 years ago, wher e there is no question that there is no need for this Act.

Surely you should not make th is Act not apply to marriages which are currently in the course of di sin tegrating. I should also point out that th is proposed

Section 2(2 ) is comp letely inc onsistent with the amend ments under

Section 28(1) and 28(5) . 28(1) provides that there will be recogn ized any prop erty settlement by agreement made prior to May 6, 19 77. And

Section 25 provides that where that particu Jar agreement has been made, the marital regime will apply to the extent that the agreement is silent. So here you have a clear case. People have separated, they have made a partial pr operty settlement, and the in tention is that the marital regime will apply to that portion of the proper ty that is not covered by the agreement that was made before May 6. Now it seems to me that is comp letely incons istent with

Section 2(2), wh ich comple tely exclu des people who have been separated by court order. The intention under 28(5) is to make th is law apply to all people who have not settled th eir proper ty di fferences as of the date this legi slation comes in, whether they are separated or not, unless they have already made an agreement. And that's the way it should be left. Otherwise you should simply allow everybody to opt out of th is Act. Now certainly I want to comm ent on a few of the prov isions of the bill. Fi rstly, on the manner of 328

Statutory Regulations and Orders Wednesday, June 1, 1977 dealing with marital homes, I th ink it is quite surprisin g that ther e is absolutely no pr ovision in the Act makin g a spouse who acquir es a vested inter est in the marital home, a joint interest, not jointly liable for any debt incu rred in connection with the acquisit ion of the home. Now I am particularly concerned because this leg islation is retroactive and there are many people who ordered their affairs not know ing that this Act was going to come into pl ace.

For example, I th ink that probably this legis lation contemp lated a standard situation where one spouse has bought the home and has taken out a mortgage to acquir e it. In that case, obviously, when the other spouse acquir es a joint in terest, they are going to become lia ble for the mortgage also because it is against the house. But ther e are in stances, first of all, where the cash to buy the house has been financed by a loan wh ich did not get registered byway of a mortgage against the house. The mone y may have been borr owed from a parent without taking a mortgage.

The title may simply be hypothe cated at the bank without a mortgage being registered. The emplo yer may have loaned the mone y, or ther e may be a mo rtgage, but the spouse borrowed the equity. Why should the other spouse who is acquir ing an int erest in the house not be requir ed to share the debt? I make this point not onl y in connection with marital homes, but with famil y assets. The car may have been bought by way of a bank loan and the bank did not take a mortgage on the car. and If the spouse is going to acquir e half the car, why shouldn' t she be lia ble for half the loan?

Ther efore, I submit that these provisions shou ld be amended to provide that where a spouse acquir es a vested joint inter est of the marital home, as I have set out here under Paragraph 2, or equally under the sharing of famil y assets prov isions, that spouse shall thereby become jointly and equally li able with the other spouse for any debt incu rred by the other spouse to acquir e, construct or substantiall y rem

Document details

Collection	Manitoba — Debates (Hansard)
Citation	30-4-sro17
Type	hansard
Volume / chapter	30th 4th hansardpdf sro17.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	9de0b913f623de3cd87e6f5f3648a92694449281

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