Manitoba Committee Hansard — 5 June 1980 (Legislative Affairs Committee, Sitting 2, 31st Legislature, 4th Session)

31-4-la2

Manitoba — Debates (Hansard)

ISSN 0542-5492 Fourth Session - Thirty-First Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE ON LAW AMENDMENTS 29 Elizabeth 11 Published under the authority of The Honourable Harry E. Graham Speaker THURSDAY, 5 JUNE, 1980, 10:00 a.m. Printed by W. T.Matwichyna. Queens Printer, Province of Manitoba

MANITOBA LEGISLATIVE ASSEMBLY Thirty - First Legislature Members, Constituencies and Political Affiliation Name ADAM, A. R. (Pete} ANDERSON, Bob BANMAN, Hon. Robert (Bob} BARROW, Tom BLAKE, David BOSTROM, Harvey BOYCE, J. R. (Bud} BROWN, Arnold CHERNIACK, Q.C., Saul CORRIN, Brian COSENS, Hon. Keith A. COWAN, Jay CRAIK, Hon. Donald W. DESJARDINS, Laurent L. DOERN, Russell DOMINO, Len DOWNEY, Hon. Jim DRIEDGER, Albert EINARSON, Henry J. ENNS, Hon. Harry J. EVANS, Leonard S. FERGUSON, James R. FILMON, Gary FOX, Peter GALBRAITH, Jim GOURLAY, Hon. Doug GRAHAM, Hon. Harry E.

GREEN, Q.C., Sidney HANUSCHAK, Ben HYDE, Lloyd G. JENKINS, William JOHNSTON, Hon. J. Frank JORGENSON, Hon. Warner H. KOVNATS, Abe LYON, Hon. Sterling R. MacMASTER, Hon. Ken MALINOWSKI, Donald McBRYDE, Ronald McGILL, Hon. Edward McGREGOR, Morris McKENZIE, J. Wally MERCIER, Q.C., Hon. Gerald W. J. MILLER, Saul A. MINAKER, Hon. George ORCHARD, Hon. Donald PARASIUK, Wilson PAWLEY, Q.C., Howard PRICE, Hon. Norma RANSOM, Hon. Brian SCHROEDER, Vie SHERMAN, Hon. L. R. (Bud} STEEN, Warren URUSKI, Billie USKIW, Samuel WALDING, D. James WESTBURY, June WILSON, Robert G. Constituency Ste.

Rose Springfield La Verendrye Flin Flan Minnedosa Rupertsland Winnipeg Centre Rhineland St. Johns Wellington Gimli Churchill Aiel St. Boniface Elmwood St. Matthews Arthur Emerson Rock Lake Lakeside Brandon East Glad stone River Heights Kildonan Dauphin Swan River Birtle-Russell lnkster Burrows Portage la Prairie Logan Sturgeon Creek Morris Radisson Charleswood Thompson Point Douglas The Pas Brandon West Virden Roblin Os borne Seven Oaks St. James Pembina Transcona Selkirk Assiniboia Souris-Killarney Rossmere Fort Garry Crescentwood St. George Lac du Bonnet St.

Vital Fort Rouge Wolseley Party NDP PC PC NDP PC NDP NDP PC NDP NDP PC NDP PC NDP NDP PC PC PC PC PC NDP PC PC NDP PC PC PC lnd NDP PC NDP PC PC PC PC PC NDP NDP PC PC PC PC NDP PC PC NDP NDP PC PC NDP PC PC NDP NDP NDP Lib PC

LEGISLATIVE ASSEMBL V OF MANITOBA THE STANDING COMMITTEE ON LAW AMENDMENTS Thursday, 5 June, 1980 Time - 10:00 a.m. CHAIRMAN- Mr. J. Wally McKenzie (Roblin). MR. CHAIRMAN: Shall we proceed? We're still short a couple but is it okay if we proceed? (Agreed) BILL NO. 14 -

AN ACT TO AMEND THE LAW SOCIETY ACT MR. CHAIRMAN: I'll call Bill No. 14, D. H. Olson. I'll call Edward Lipsett. MR. EDWARD LIPSETT: My name is Edward Lipsett, and I'll be speaking on behalf of the Manitoba Association for Rights and Liberties. MR. CHAIRMAN: Proceed, sir. MR. LIPSETT: The Manitoba Association for Rights and Liberties would like to make several observations regarding Bill 14,

An Act to Amend The Law Society Act. We recognize the very legitimate aims of the proponents of this bill to maintain high standards of legal practice, and to protect members of the community from practitioners failing to meet these standards. However, this valid public interest must be reconciled with the rights of the individual to reasonable security in his professional or occupational status and freedom from undue intrusion into his personal life. lt is respectfully submitted that some aspects of Bill 14, as currently proposed, pose dangers to the latter values.

If it is considered necessary to empower the Law Society to remove or restrict a lawyer's professional status for incompetence, we respectfully suggest that it is incumbent upon the Legislature to define that concept. The term incompetent, standing alone, is vague and uncertain and could potentially give the Law Society open-ended or unrestricted power. We have no doubt that the Benchers of the Law Society or its committees, and the Court of Appeal, would exercise the utmost good faith and care in interpreting this provision.

Nevertheless, the danger of overextension, which is inherent in the term itself, could be greatly reduced if the Act were to contain some limits to this concept and to provide some guidelines to the Law Society and the Courts regarding its

interpretation. This definition should make it clear that some wrongful acts or omissions in the course of practice are a prerequisite to a finding of incompetence. Possibly a definition could state that for a lawyer to be found incompetent it would be necessary to prove that on numerous or repeated occasions he has been guilty of seriously substandard practice; possibly adopting the terminology of the Legal Professions Act in British Columbia, as amended, a member has incompetently carried out duties undertaken by him in his capacity as a member of the Society would be an improvement.

Though 23 leaving incompetent undefined it still leaves no doubt that wrongful actions, rather than a subjective evaluation of a lawyer's condition, are a condition precedent to adverse actions being taken against him. Perhaps more suitable terminology is appropriate, however, fairness to the practitioner concerned requires that some boundaries be provided if the concept of incompetence is included in the legislation. lt is respectfully submitted that the proposed subsection (4) of

Section 45.1 is particularly dangerous to the lawyer's personal liberty and privacy and should not be enacted. lt unnecessarily opens, or perhaps expands, the · way for the Law Society to investigate, interfere with, judge, or penalize a lawyer's private lifestyle and personal matters.

Although such personal intrusion is obviously not the purpose of this subsection, indeed the proposed wording appears intended to restrict such inquiry to cases where practice is affected, the mere inclusion of alcohol, drugs, or mental illness in such a context creates at least a danger or possibility of overextending beyond practice and into one's private life. The wording of this subsection leaves too many ambiguities. lt doesn't even require that such impairment cause substandard service or damage to the client. How could impairment be proved without speculation? What would it mean? In proposed wording in

section 45.1 subsection 4, is there not danger that even absent substandard work, or other wrongful acts or omissions, the Law Society might speculate that because a lawyer drinks too much, for example, his work might be jeopardized, or that even if services are satisfactory, it might have been better, but for the drinking problem? Even if such

interpretations would be rejected by the judicial committee of the Benchers or by the Court of Appeal, and the lawyer would be ultimately exonerated, we respectfully suggest that the investigation by the Law Society into such matters could well constitute an unwarranted invasion of his privacy and personal freedom. As the law now stands, if a lawyer's drunkenness, ill health, or similar factor leads to professional misconduct, or conduct unbecoming a barrister or solicitor, he is liable to professional discipline, but it is his wrongful actions, not his condition which is punishable.

Numerous American judicial decisions have held that mental illness or alcoholism do not exonerate a lawyer from disciplinary liability for hs misconduct, although some cases have held them to be mitigating factors to be considered in assessing the penalty. If special provisions are deemed necessary for such cases, more appropriate alternatives are possible. The Act could be amended to provide for probation as an additional sanction which the Benchers could impose against a lawyer found guilty of professional misconduct, or conduct unbecoming.

To avoid uncertainty it might be advisable for the Act to provide specifically that where a member is found guilty of professional misconduct, etc., and that it

Thursday, 5 June, 1980 became apparent that alcoholism, illness, or similar factor, was a causative or contributing factor for such miSconduct. the Benchers could require therapy, medical evidence of recovery, or abstention from alcohol as terms of probation or conditions of reinstatement.

Even this isn't without some danger to a lawyer's privacy, but it is less drastic or dangerous than including alcoholism and similar factors as separate grounds for discipline; and in a case of proven misconduct, could provide a less severe alternative to disbarment or lengthy suspension while providing certain protection for the public from practitioners with such problems. We, therefore, respectfully recommend that the grounds in proposed

Section 45.1, subsection 4(

a) should not be enacted. Regarding

Section 45.1, subsection 4(b), Mental Incapacity or Infirmity,

Section 29, subsection 1.1, paragraph 9 of the existing Act, already allows for refusal of practising certificate to a patient in a hospital within the meaning of the Mental Health Act.

Possibly it might be appropriate to expand this to include a person declared mentally disordered person by Court of Queen's Bench pursuant to the Mental Health Act. lt might also be advisable to enact amendment providing for medical suspension from Law Society or from practice in cases where a lawyer is hospitalized or declared a mentally disordered person, pursuant to the Mental Health Act, subject of course to reinstatement upon release from hospital or court superseding its declaration of mental disorder. However, proposed

Section 45.1, subsection 4(b), by empowering the Law Society to investigate a member's mental health, independently of the Mental Health Act, provides for unnecessary intrution into that person's private life. We, therefore, respectfully recommend that proposed

Section 45.1, sub 4(

b) should not be enacted. We now move to other matters raised in Bill 14. Re:

Section 8 of Bill 14,

Section 46, subsection 1, should be further amended to provide an appeal to a barrister, solicitor, or student from any adverse decision or sanction under

Section 45, or

Section 45.1 if enacted, including refusal to admit students to exams, or deferral of student's call or admission, order of costs, or any new sanctions, if enacted. An appeal should also be provided from finding of guilt of professional misconduct, conduct unbecoming, or finding of incompetence if enacted, irrespective of penalty or sanction.

Section 5 of Bill 14, repealing

Section 37, is a positive step, and we welcome it. We would also respectfully request the honourable members to consider several provisions in the Law Society Act which, though not referred to in Bill 14, we submit might be appropriate for amendment.

Section 36, which refers to the Oaths of Office and Allegiance, should be amended to give a person a choice of taking affirmations instead of oaths. Perhaps it should be re-examined whether

Section 36, subsections 2 and 3 are really fair or necessary. These are the ones which require a non-citizen to become a citizen within four years, and on failing to do so, to face disbarment. They seem to run counter to the spirit of the Human Rights Act which prohibits discrimination on the basis of nationality, as well as ethnic or national origin. 24 I respectfully thank you for listening to the brief and I'd be prepared to answer any questions. ' MR. CHAIRMAN: Thank you, Mr. Lipsett. Any questions from the committee? Thank you for your presentation, sir. BILL NO. 1 -

AN ACT TO AMEND THE MANITOBA EVIDENCE ACT MR. CHAIRMAN: Bill No. 7, I call Deborah MacAulay. MS CHERYL HALL: Deborah MacAulay is unable to be with you this morning. My name is Cheryl Hall, I'm appearing in her place. I appear on behalf of the Family Law Subsection of the Manitoba Branch of the Canadian Bar Association. lt is my understanding that the proposal, Bill 7, the idea came from the Family Law Subsection initially; it was subsequently ratified, in fact, by the Manitoba Bar Association· there have been certain recommendations made by the Law Reform Commission, and it stands in bill form at this stage.

The Manitoba Bar Association, at their annual convention last June, passed a resolution amending

Section 9 of The Manitoba Evidence Act. The effect of that was basically to repeal the privilege accorded to a party, or any witness in a proceeding, with respect to their giving evidence relating to adultery. The resolution, as I've indicated, was first passed by the Family Law Subsection, was forwarded to the Attorney-General's Department, and in the fall of 1979 was considered by the Manitoba Law Reform Commission. The Law Reform Commission made certain recommendations; they recommended wording that was slightly different than that proposed by us, but the effect is basically the same.

The effect is that while the law now says that no one can be asked or' is bound to answer any questions tending to show that they have committed adultery, both proposals are that should be abolished in one form or another and that a witness should now be compelled to answer any such questions. The reasoning behind our proposal, and I believe the same reasoning is behind the proposals of the Law Reform Commission, is twofold. There are two compelling reasons that we see why the amendment should be made. The first is that the rationale for the rule no longer exists.

The second is that the retention of the privilege is an impediment to the administration of justice. With respect to the first matter, the privilege dates back to the Ecclesiastical Courts in England. At one time adultery was thought to be a crime, was thought to be very severe behaviour, both civilly and through the church, and as a result of that it was thought very important to protect people from being compelled to give evidence that would show they've committed adultery.

The privilege was really rooted in the rule against self-incrimination, it was akin to the criminal rule against self-incrimination and, as I've said, adultery was deemed to be, in effect, a crime. The first position that we take is that the rationale for that no longer exists. Adultery is no longer considered to be that serious, it's still a matrimonial offence, admittedly, but I don't think it's viewed any

Thursday, 5 June, 1980 more serious than any of the other matrimonial offences such as cruelty and that type of thing, so the rationale no longer exists. Social circumstances have changed over the last several hundred years and we don't see any reason for the retention. Now the fact that conditions have changed and there are no positive reasons for the retention may not be reason enough to do away with the privilege, but when you couple that with the second reason which I have mentioned, I think that together there is a good reason for doing away with the privilege.

The main reason for our wanting to do away with the privilege is the fact that it is an impediment to the administration of justice. There were three main incidents whereby adultery was questioned in court - there are many other minor ones but I will mention the main three. The first one was under the Wives and Children's Maintenance Act.

If a wife applied for maintenance and it could be shown that she had committed adultery she was barred from receiving maintenance for herself, although not for the children. lt was claimed that she should not be obligated to give evidence, in fact, against herself with respect to adultery. That Act, as we all know, has now been repealed. The new Family Maintenance Act has no such

section in it, which means that a separation is really now as of right and we don't have to concern ourselves with that particular incident anymore. The second major incident, major court proceeding, whereby adultery would be raised is that of affiliation proceedings, that of a putative father, if the putative father is married he is not obligated to go to court and admit that he has committed adultery with the mother-to-be.

We suggest that's a clear impediment to justice, it's a matter of weighing certain goals and we feel that the more important goal is that of maintenance for children; children should be maintained by their father, legitimate or otherwise, and that is more important and is an overriding principle than protecting the adulterer. Another factor is with respect to divorce proceedings, probably the most common place where this would occur, and we feel that the retention of the rule is really an unfair bargaining tool.

If a wife petitions her husband for divorce on the grounds of adultery, he may have admitted it to her many times, in fact he may flaunt it in her face - I'm just using this example, of course it could work either way. The husband refuses to waive

Section 9 of the Evidence Act, which he now must do if he's on the stand before he can be questioned on his adultery. If he refuses to waive that the wife has two choices.

She can either hire a private investigator, at much expense to her, to try and seek evidence so that she can prove adultery independently and that, in itself, is really not desirable because it leads us to the conclusion, I suppose, that the rich can get a divorce based on adultery but the poor can't. it's very costly to hire a private investigator and that is really her only source other than the admission of the adulterir.g parties in certain circumstances. The other option that the wife has is to wait three years and we see no reason why she should have to do that.

Parliament has given her the right to obtain a divorce based on adultery, the same as a divorce based on cruelty or any other act. What in fact we're doing, by keeping the 25 privilege in, is giving a privilege to the ground that is already the hardest to prove. Adultery is a very private act, independent proof is very very difficult and we're giving one additional privilege to the party who has committed adultery and we feel that is unwarranted. One further point is that adultery may become very relevant with respect to corollary relief in any proceedings, be they separation or divorce.

Custody, if a mother is claiming custody and is living with someone, someone who is undesirable, for example; as far as raising the children, we are not allowed at this time to ask her about her living arrangements, to ask her who she's living with and what their arrangements are for raising of the children and that is a very important point. Custody issues - it's very important the living arrangement of the spouses. Secondly, with respect to corollary relief is the issue of maintenance.

Again if a wife is living with someone and is being supported by him or that person is contributing to her support, why should the court not be allowed to know about that so that they can make a better determination with respect to maintenance. What's happening right now is that we are obligated to play games in court, in fact, and we're obligated to try and skirt around the issue and ask questions that really try to get at the issue of maintenance and yet all we really want is to come right and ask, are you living with someone, is he contributing to your support? In that way it is very relevant as well.

I've looked over the minutes of the arguments in the Legislature of April 16th, certain concerns were expressed at that time and perhaps I can just direct myself very briefly to the concerns raised at that time. lt was suggested, I believe, by the Honourable Mr.

Sid Green that one of the reasons perhaps the privilege should be maintained and perhaps why it came into existence in the first place, was with respect to. perjury; to prevent perjury, i. e. the marriage is such an important institution that a person might prefer to take the witness stand and tell a lie to save his own marriage rather than appreciate the sanctity of the oath that he has taken. With respect to that we simply feel it is a totally irrelevant point, I don't think that we should be passing legislation with a prime goal of limiting perjury.

I think that we have to go beyond that and assume that perjury may or may not happen under any circumstances and I don't think that should be the one major aim of the Legislature. To draw that to a logical conclusion I suppose would be to say that we should do away with the oath altogether because then we would certainly be doing away with the strict legal concept of perjury.

Another point that has been raised is that adultery differs from other matrimonial offences in that it involves a third party and I think that is the one thing that we would give the most credence to. it's true that you may be breaking up another marriage or another relationship and that is not a desirable thing to do, but again, I would submit that it is a matter of weighing pros and cons; how important is it to save that marriage and how important is it to give a wife or a husband their rights, which have been given to them by the Divorce Act to obtain a divorce based on adultery.

Thursday, 5 June, 1980 There's one other

section in the Divorce Act which involves another party, that being homosexuality; no privilege is given there and I think it is pointed out in the Law Reform Commission Report that they at least are aware of no abuses with respect to that section. The fact that another party will have to be named, I think, must be looked at in light of the fact that the Rules of Evidence will still be applicable; that the evidence must be relevant to be admitted by the judge.

So that is the overriding principle if the information with respect to the adultery is not relevant it will not be admitted in the discretion of the trial judge, if the concern is to prevent fishing expedition. In fact, we wouldn't like to see petitions where a wife puts down six female names, taking a guess that her husband has committed adultery with one or all of them. If the concern is to prevent a fishing expedition, again, the general rule is that the evidence has to be relevant before it will go in, and if it's not relevant, it won't go in.

With respect to the fact that people will have to be named, that will happen anyway. If you have a divorce petition based on adultery we are now naming the eo-respondent. The fact that that eo-respondent is obligated to come to court and admit her adultery, I don't think changes that at all. The name still has to be named and will be a public record, in any event. With respect to the putative father, again, the identity of the parties and the naming of names is there in any event. The father is summonsed to court and he is named whether he is obligated to give evidence as to his own adultery or not.

Lastly, we consider that the paramount consideration with respect to all of this is the paramount consideration in all legal proceedings and that is to get to the truth of matter. Evidence should be allowed in to get to the truth of the matter as long as that evidence is relevant and I think that all other considerations should fall by the way. I think that consideration is more important than the interests of the third party.

I think that it is not really of major concern that adulterers, or people engaging in this type of behaviour, should be protected at all costs, at the costs of the custody of children, maintenance of children and those issues. Thank you. MR. CHAIRMAN: Thank you, madam. You are prepared to answer questions? MISS. HALL: Yes. HON. GERALD W.J. MERCIER (Osborne): Miss. Hall, firstly let we thank you for taking the time to come down to Law Amendments Committee on behalf of the Family Law sbsection of the Manitoba Bar.

I had indicated part way through your presentation that I wanted to ask a question and I think you actually answered the question that I was going to ask. But I would like to confirm it for the record because it has been raised during debate in the Legislature on this bill.

The point is, and I would ask you to confirm, that a question requiring a witness to name a person with whom he or she has committed adultery would only be allowed in situations where that type of evidence was relevant to the proceedings that were under way and 26 probably most likely, in most cases, only would be associated with a separation or a divorce proceeding or affiliation proceeding. MISS. HALL: I think that is definitely the case. 1 think that, as I've indicated, the rules of relevancy apply to all proceedings, the rule of relevancy is really one of the paramount rules of evidence.

In many cases, people would have to name names, people would have to indicate to the court publicly who they have comitted adultery with, but that would be only if that was relevant to the particular proceedings and that would have to be left with the discretion of the trial judge, as are all matters of relevancy at this time. MR. MERCIER: Can you think of any other proceeding where such a question would be relevant, other than separation or divorce proceedings or affiation proceedings? MISS. HALL: I can think of none. MR. MERCIER: Thank you very much. MISS. HALL: Thank you. MR.

WILLIAM JENKINS (Logan): Thank you, Mr. Chairman, through you to Miss. Hall and you have partly answered the question but I would like to put the question to you in this respect. Should the person who is involved be forced to name the person or persons with whom they may have committed

an act of adultery or would the subsection of the Law Reform Commission be prepared just to accept the act of admission of

an act of adultery? Why I am asking this question is we can have a snowballing effect because if someone is named as a person or persons who has committed the act of adultery with the pers0n involved in the case we can, in some way, start a series of separations or divorce cases and I'm not wanting to see the law society winding up with a whole bunch of law suits breaking up, in some cases, what are happy marriages, even though there may have been some philandering one way or the other. I would put it to seriously, do you really want people named or would the fact that under oath a person would have to testify that he or she had committed

an act or acts of adultery? MISS. HALL: The answer to that would depend upon the nature of the proceedings. Firstly, with respect to a divorce brought on the grounds of adultery - I'm limiting my comments specifically with respect to divorce at the moment - the eo respondent would be named at the outset. There is very limited scope in the Queen's Bench rules to do away with naming someone and it's very rarely done. So the petitioner is going to have to know from the outset who her husband is committing adultery with and name that person. Okay.

That's number one and when she goes to court she is basically limited to proving the grounds in her petition, which is that her husband committed adultery with a named respondent. So the respondent is already named and he would be obligated at that time to say, yes or no, I did commit adultery with that particularr person or no, I did not. That's the scope of divorce

Thursday, 5 June, 1980 proceedings. I see the abuses being a little wider with respect to separation proceedings because there does not have to be a eo-respondent named, and I'm suggesting an application could be brought under the Family Maintenance Act for separation and adultery is only relevant as far as custody and maintenance. We have not discussed it in the subsection specifically. I can give you my personal views on it but not those of the subsection.

My personal views are that if all we're after is getting to the bottom of the custody and maintenance issue, I see no need to name the person that you're living with. If a person is prepared to get on the stand and say, I'm living with someone, he's supporting my children or he's helping support my children, I would think that might be enough. I don't know how the judges would view it. I think in the proper circumstance a judge would agree say, no, there is no need for me to have the name of person; it's been admitted that he provides X number of dollars per month. MR. JENKINS: I thank you, Mr.

Chairman, through you to Miss Hall. But there is nothing within the bill that is before us dealing with a case where it would be in Family Court. You say it would depend on whether the judge would or would not accept that type of evidence.

My question to you is this, do you feel that, within the Manitoba Evidence Act, it should be set out that in cases of separation in the Family Court that the naming, and I think if we're going to change the Manitoba Evidence Act - I realize it's only your personal opinion, it's not that of the Law Society - but again I think we can then wind up, if we start, in the Family Court of naming a person or persons where with whom acts of adultery have been committed, we'll start another further breakdown of family life.

I think that if we're going to accept - I agree with you that in the Court of Queen's Bench a eo-respondent has to be named - but in the Family Court, I think if this Evidence Act will apply equally in either court, and I see you're nodding. Therefore I think that there should be, I'm asking you, if you don't believe that there should be something within The Maitoba Evidence Act that says in the Family Court that there should be this proviso, because otherwise, we're just leaving it to the whim of the judge of the day and I can see that there can be perhaps more court cases.

Maybe that's what the Law Society is working for, maybe business isn't big enough, I don't know. But nevertheless, I think that there should be some consideration given to this. MR. CHAIRMAN: Miss Hall. MISS HALL: I would have to disagree with you on that point.

The reason I don't think it could be provided that in Family Court no respondent has to be named or no person with whom the husband or wife has committed adultery has to be named, is that in some circumstances that would definitely be relevant. .For example, if a person gets on the stand, a wife gets on the stand and says, I live with someone and he contribues 50 a month to my support and the support of the children, he gives me 50 a month to help me purchase groceries; you might very well need to know the name of that gentleman if you wish to subpoena him to find out his earnings, if that is not voluntarily forthcoming, or if you want to ask him questions with respect to his financial status.

Because all we're talking about in Family Court mainly is the financial status of the husband when we're talking about the relevance of adultery to maintenance proceedings, so that you may want him to come as a witness. Under the proposed change we would now be entitled to subpoena him and ask him, not only if he's living with the lady but also his financial circumstances. If his name were kept a secret in all circumstances, we would never be able to verify any of his circumstances, be they financial or other. MR. CHAIRMAN: Any further questions? Thank you for your presentation, Miss Hall. MISS HALL: Thank you.

MR. CHAIRMAN: Are there any other citizens here today who would like to speak on Bill No. 7? If not, I call Mr. Wiens on Bill No. 18. Then we move to Bill No. 20, and I call Mr. Hlady or Dr. Shack who is going to speak on this. DR. SYBIL SHACK: Thank you, Mr. Chairman. Mr. Hlady isn't able to be here this morning. MR. CHAIRMAN: Proceed. 27 BILL NO. 20 -

AN ACT TO AMEND THE CHANGE OF NAME ACT DR. SHACK: I'm speaking to Bill No. 20,

An Act to amend the Change of Name Act on behalf of the Manitoba Association for Rights and Liberties .. Subsection 2(7) of the present Act states that an application which affects a change of name of a child over 14 years of age requires the written consent of the child. The proposed amendment, with which we agree, to subsection 2(7), provides that an application to change the name of a child over 12 would require the written consent of the child, and here's where we disagree, except where an application is made by the Director of Child Welfare.

Under subsection 2(12) the Director of Child Welfare or the society, as defined, whichever is the guardian of the child, may make a direct application to the Director of Vital Statistics for a change of name of the child where it is considered to be in the best interest of the child. lt appears that under this clause the child's consent would not be required. This seems to us a contradiction of the spirit of the Act. Because a child is under the control of or under the guidance of Childrens Aid Society or the Director of Child Welfare, does not mean that child should have no say in what happens to his name.

The name is a very precious thing to a child and he or she is certainly entitled to know, not only to know, but to give his consent to such a change. On studying legislation from other jurisdictions it was found that Saskatchewan has similar provisions to those found in The Manitoba Act. But the main distinction between the two Acts arises from the fact that while a Director in Saskatchewan may apply for a change of name it must still be accompanied by the consent of the child.

Thursday, 5 June, 1980 Now we understand that there are certain circumstinces where it might not be possible or desirable to obtain the consent of the child at age 12, but these circumstances would normally be very limited. Offhand I can't think of any except the case of a severely retarded child who would not really understand what the change of name meant. The Saskatchewan legislation does not provide the power to dispense with the child's consent in the event that the child cannot understand the nature of his actions due to mental illness or retardation or for any other reason.

If it is felt that the child's consent should not be required in certain cases, then regulations or guidelines setting forth the terms for specific exceptions should be spelled out, and I think we would rather see the terms spelled out in the Act than in regulations. The Manitoba Child Welfare Act provides a precedent for this type of legislation.

The Director of Child Welfare under that Act may place a child for adoption but the written consent of a child who is over 12 is required - and here is the provision that protects the child who isn't capable perhaps of making a decision - is required unless the judge of the County Court makes an order dispensing with the consent of the child. The judge may waive the consent requirement where, in his opinion, it is in the best interest of the child to do so.

We recommend that a similar procedure to that provided in The Child Welfare Welfare Act be incorporated in The Change of Name Act. 1 perhaps should add here that one of the concerns seems to be that adopted children, if their consent was asked, might then be able to trace their natural, their birth parents. As a matter of fact, of course, adopted children take on the names of the adopted parents and don't require the aid of The Change of Name Act. Thank you, Mr. Chairman. MR. CHAIRMAN: questions? Mr. Doern. Thank you, Doctor. Any MR. RUSSELL DOERN (Eimwood): Mr. Chairman, I wanted to ask Dr.

Shack, in general, whether she has any observations about the decision-making ability of children at 12 or 14. She has taught school, has been a principal, has written on education and so on and so on, I just wonder if she could make any remarks about the rational capability of a child in regard to making a decision of that nature at that age. DR. SHACK: Yes, I think a child is quite capable of making that kind of decision.

In fact, in my own personal experience, if I may speak to that, I have found many children who have made informal change of name, children in foster homes, for example, who have lived in a foster home for a number of years and feel that they are members of the family, feel isolated from the family because their name is different, have come to the school and asked that the name be changed on the school records.

In almost every case that I can think of, we acceded to that request in the school, but that kind of informal change cloesn't stand the child, when sbe becomes an adult and requires a passport, a visa, a social 28 insurance number and so on. So I have no doubt about the ability of children, even children of limited mental ability, to make that kind of decision for themselves. If I may give an illustration of this kind of thing from my own experience again, I know the case where there were two children of divorced parents, both parents had remarried.

The custody of the children went to the mother but the divorce was an amiable one and the f<!ther and the children got along very well. One of the boys was very anxious to take the stepfather's name; the other child wanted to retain his father's name. The older child wished to retain his father's name; the younger child wanted to take his stepfather's name, and a change of name was effected on that basis, very amicably as far as all parties were concerned. So, yes, to that question. MR. CHAIRMAN: Mr. Doern. MR.

DOERN: assume that earlier, and I sense comparably, that when the age of majority was dropped from 21 to 18, you supported that measure. DR. SHACK: Pardon, I'm sorry, I didn't hear you. MR. DOERN: I'm just saying you are now supporting a measure to reduce the age from 14 to 12 and I'm saying that earlier, when there was legislation introduced to reduce the age of majority from 21 to 18, so that adults would be designated as 18 years old, I assume you supported that as well. DR. SHACK: I did support it, yes. MR.

DOERN: I would also ask you, again, whether you think that even children under 12 could make decisions .. . DR. SHACK: Some children under the age of 12, Mr. Chairman, I think could make this kind of decision, yes. Because this is something that affects them very very closely. it's an emotional rather than a rational matter, and children have feelings much earlier than the age of 12 and they have a sense of identity much earlier than the age of 12. This being called by their own name is very important to them and the name by which they are called is very important.

I would think - I don't know whether I would legislate this - that any humane parent or foster parent or any Director of Child Welfare or social worker would certainly take into account the feelings of the child into asking for a change of name. MR. CHAIRMAN: Mr. Doern. Thank you, Doctor. DR. SHACK: Thank you. MR. CHAIRMAN: By the way, Doctor, are you going to speak on these other bills on behalf of the association? DR. SHACK: On the Social Welfare Administration Act. MR. CHAIRMAN: Are there any other people here wishing to speak on Bill No. 20?

Thursday, 5 June, 1980 BILL NO. 21 -

AN ACT TO AMEND THE SOCIAL SERVICES ADMINISTRATION ACT MR. CHAIRMAN: Then we'll proceed, while you are there, Doctor, with Bill 21. DR. SHACK: May I get my papers? MR. CHAIRMAN: Right. Proceed. DR. SHACK: Mr. Chairman, I am speaking to Bill 21,

an Act to amend The Social Services Administration Act. This is the bill which proposes to improve the standard of residential facilities used as halfway houses for mental patients. The Manitoba Association for Rights and Liberties believes that there is little substance to this bill in terms of improving that standard. Since the regulations are not set out in the bill, there can be no assurance that adequate support services will be provided.

Even if the regulations do provide for certain support services, the new section, 11(2)(4), provides that a facility may still be granted a letter of approval or licence if the licensing authority finds that the facility is reasonably safe in a physical sense and regardless of whether it complies with

Section 11(2)(3) on meeting the requirements of the Act and the regulations. This provision is unacceptable and undermines the purpose and scope of the Act, which is to provide residential care facilities for those suffering from disabilities and disorders. At the very least, a minimum standard of care should be assured for these people, including such things as food service, medical and nursing services, proper dispensing of prescribed drugs, personal care and room care. lt is also necessary, we believe, to assure access to the premises by doctors, nurses and other public health personnel. A

section covering these minimum standards and assuring access for necessary personnel should, we believe, be written into the Social Services Administration Act. lt concerns us that matters that we believe should be in the Act are left to the regulations. MR. CHAIRMAN: Thank you, Doctor. Any questions for Dr. Shack? Thank you very much. DR. SHACK: Thank you. MR. CHAIRMAN: Has Mr. Wiens showed up? Apparently not, eh? MR. CHAIRMAN: Bill No. 28, The Sanatorium Board of Manitoba Act, and I have the Manitoba Association for Rights and Liberties, Mr. Arnold or Mr. Hlady?

Is there somebody else here who wishes to speak on that? DR. SHACK: I'm sorry, Mr. Chairman, which Act was that? MR. CHAIRMAN: No. 28, the Sanatorium Board of Manitoba. No, okay. MR. CHAIRMAN: Bill No. 35, then,

an Act to amend The Legal Aid Services Society of Manitoba Act. No? 29 BILL NO. 43 -

AN ACT TO AMEND THE FAMILY MAINTENANCE ACT AND THE QUEEN'S BENCH ACT MR. CHAIRMAN: Bill No. 43,

an Act to amend The Family Maintenance Act and The Queen's Bench Act. Alice Steinbart. MS ALICE STEINBART: Hello again. I'm speaking on behalf of the Coalition on Family Law. We support the intention of Bill 43 to make the principles governing the remittance or cancellation of maintenance arrears more equitable. Currently, we have a principle of law called the one-year rule which means that if a spouse who must pay maintenance and, usually the husband, does not pay, then those payments which are one year in arrears generally cannot be collected.

The reasoning behind this is that arrears can add up to substantial sums of money and be a real hardship on the husband to pay or, as some judges have put it, wipe out his nest egg. This is one-sided view because the reason the husband have his nest egg is because he has not paid his maintenance or fulfilled his obligation to support the children.

In fact, the law should be equally concerned that the wife has not been able to acquire her nest egg because all her money went to raising the children or that the children are not being supported at a standard they should expect, since their father is accumulating his nest egg. The Law Reform Commission of Manitoba gave another reason as to why maintenance arrears - and in this case they were dealing with all arrears not just arrears over a year old - should be cancelled at the judge's discretion.

The commission said that husbands often neglected to enforce their rights to apply to court to have maintenance reduced. That, in fact, is the case, they do often neglect to do that. Currently if, for example, there is an order where the husband must pay maintenance and there has been, say, a change of circumstances, such as he has lost his job or his income has been reduced, then he has the right to say to the court, I can't pay the same amount of money as I had been ordered to pay, and the court probably would reduce his maintenance.

What happens in quite a number of cases is the husbands, just on their own, decrease the maintenance payments or stop paying it altogether. The wife then has the right to enforce those arrears, and at that point, the husband can ask the court to remit or cancel those arrears. So that, in effect, the husband is seeking a retroactive variation of maintenance. While we are not necessarily opposed to that right, because we feel that there may be some instances where it should be cancelled retroactively, we oppose the double standard that it creates.

Often women as well do not enforce their rights to obtain maintenance or to enforce arrears. For example, if a woman today decided that she wanted to separate and she has children and she leaves, by the time she actually gets her order for maintenance, if it's contested it may be several weeks or even a couple of months. Now the judge, once he makes that order, makes the order from that date and it does not date back to the date of the separation, when she actually had the need for

Thursday, 5 June, 1980 the maintenance. So a woman does not get her maintenance in the past, only maintenance for the future. The law's position in the court's attitude is that she must suffer the consequences; if she does not enforce her rights she must suffer the consequences and receive no relief; thus there are no retroactive orders for maintenance and only orders. for future maintenance. The one-year rule itself is an excellent example of the fact that if women did not enforce their rights they lost them, so this is a double standard.

Bill 43 does not eliminate this double standard but it does make it more difficult for a husband to get remission of arrears. There seems to be an implicit belief, and this is most recently found in the Law Reform Commission's report, that men can only be pushed so far when it comes to the subject of maintenance and its enforcement. This is usually expressed by the cliche, You can't get blood out of a stone. Interestingly, nothing is ever said about how far can you push a woman with children to care for.

Do we say, we don't want to risk pushing him so far that he will quit his job; but in fact, ignore that if she does not receive maintenance she will not be able to care for herself and her family. Maybe she will give up and become passive like an automaton, just going through the motions; maybe she will have a nervous breakdown from the pressures of trying to raise children and make ends meet; maybe she will take her anxieties out on the children and everyone else she comes in touch with. Why is nothing ever said about how far she can be pushed?

This bill attempts to remedy some of the problems of enforcing maintenance arrears. lt is another step in making Manitoba the most progressive province in Canada for enforcement of maintenance. We know that you have step by step, gradually plugged some of the loopholes which, in the past, allowed 75 percent of all maintenance orders to be unenforced. We urge you to continue and we urge you to continue to press the other provinces to follow our excellent example. Thank you. MR. CHAIRMAN: Thank you, Alice. Any questions? We thank you very much for your presentation. MISS STEINBART: Thank you. MR.

CHAIRMAN: I have the Family Law Subsection of the Manitoba Bar Association wishing to make a presentation on Bill 43. Is there anybody present? Are there any citizens wishing to make presentation on Bill No. 4,

An Act to amend The Fatal Accidents and The Trustee Act? Bill No. 5,

An Act to amend The Public Trustee Act? Bill No. 6,

An Act to amend The Wills Act and The Mental Health Act? Bill No. 9,

An Act to amend The Limitation of Actions Act? Bill No. 18,

An Act to amend The Surveys Act? Bill No. 25,

An Act to amend

An Act to Incorporate the Sinking Fund Trustees of Winnipeg School Division No. 1? Bill No. 26, The Suitors Money Act? Bill No. 27,

An Act to amend The Liquor Control Act? Bill No. 33,

An Act to amend The Public Libraries Act? Bill No. 36,

An Act to amend The Highways Traffic Act and the Tortfeasors and The Contributory Negligence Act. 30 Is Mr. Olson present? Mr. Wiens? Then, members of the committee, that is all the . . . The Honourable Member for St. Boniface. Did you wish to make a presentation, sir, you just came in? MR. LAURENT L DESJARDINS (St. Boniface): No. MR. CHAIRMAN: That is all the names that I have for the members of the committee, so you wish to proceed going through the bills clause by clause? BILL NO. 2 -

AN ACT RESPECTING

SECTION 23 OF THE MANITOBA ACT MR. CHAIRMAN: (Sections 1 to 8 were read and passed.)

Preamble-pass; Title -p ass. Bill be reported. BILL NO. 3 - THE POWERS OF ATTORNEY ACT MR. CHAIRMAN: (Sections 1 to 7 were read and passed.)

Preamble-pass; Title -p ass. Bill be reported. MR. CHAIRMAN: The Member for St. Boniface. MR. DESJARDINS: May I suggest, if it is accepted by committee, that we do pass page by page, and of course if there is a clause on a certain page that has to be amended or discussed they can call it. MR. CHAIRMAN: Agreed? (Agreed) BILL NO. 4 -

AN ACT TO AMEND THE FATAL ACCIDENTS ACT AND THE TRUSTEE ACT MR. CHAIRMAN: Page 1- pass; Page 2- pass.

Preamble- pass; Title-p ass. Bill be reported. BILL NO. 5 -

AN ACT TO AMEND THE PUBLIC TRUSTEE ACT MR. CHAIRMAN: Page 1-p ass; Page 2- pass.

Preamble-pass; Title- pass. Bill be reported. BILL NO. 6 -

AN ACT TO AMEND THE WILLS ACT AND THE MENTAL HEALTH ACT MR. CHAIRMAN: Page 1- pass; Page 2- pass.

Preamble -pass; Title-p ass. Bill be reported. BILL NO. 7 -

AN ACT TO AMEND THE MANITOBA EVIDENCE ACT MR. CHAIRMAN: Page 1-p ass.

Preamble- pass; Title-pass. Bill be reported. BILL NO. 9 -

AN ACT TO AMEND THE LIMITATION OF ACTIONS ACT MR. CHAIRMAN: (Pages 1 to 8 were read and passed.)

Preamble-pass; Title -p ass. Bill be reported.

Thursday, 5 June, 1980 BILL NO. 14 -

AN ACT TO AMEND THE LAW SOCIETY ACT MR. CHAIRMAN: Page 1- pass; Page 2- pass; Page 3- pass.

Preamble-pass; Title-pass. Bill be reported. BILL NO. 18 -

AN ACT TO AMEND THE SURVEYS ACT MR. CHAIRMAN: Page 1-p ass; Page 2 - the Honourable Attorney-General. MR. MERCIER: Mr. Chairman, I indicated when introducing this bill that I would be making an amendment to provide this notice when this bill reached Law Amendments Committee. I believe the amendment is being . . . MR. CHAIRMAN: The Honourable Member for Radisson. MR. ABE KOVNATS: I would move: THAT the proposed subsection 12(1) of The Surveys Act as set out in

Section 2 of Bill 18 be amended by re-lettering clauses (

b) and (

c) thereof as clauses (

c) and (

d) and by adding thereto, immediately after clause (

a) thereof, the following clause: (

b) cause a copy of the notice to be mailed by registered mail to any registered owner of land whom the surveyor or the Registrar-General has determined may be prejudicially affected, to the address of the registered owner on record in the Land Titles Office for the Land Titles District in which the land is situated; MR. CHAIRMAN: Any discussion on the amendment? (Agreed) Page 2 as amended- pass; Page 3-p ass.

Preamble -pass; Title-pass. Bill as amended be reported. BILL NO. 20 -

AN ACT TO AMEND THE CHANGE OF NAME ACT HON. GEORGE MINAKER (St. James): Mr. Chairman, I wonder if we could hold that. I would like to have a chance to review that if it's fine with the committee. MR. CHAIRMAN: Okay, hold Bill No. 20. BILL NO. 21 -

AN ACT TO AMEND THE SOCIAL SERVICES ADMINISTRATION ACT MR. CHAIRMAN: Page 1-pass; Page 2- pass; Page 3-p ass.

Preamble-pass; Title-pass. I'm sorry. Mrs. Westbury. MRS. WESTBURY: I was concerned about the points raised by Dr. Shack here and I wonder if ... I don't know what the procedure is in this committee and presumably I am allowed to speak on the briefs that are submitted. I wonder if we could have a response by the Minister on the points that were raised by Dr. Shack relative to Bill 21. 31 MR. CHAIRMAN: Mr. Minaker. MR. MINAKER: Mr. Chairman, with regard specifically to

Section 11.2 subsection 4, the reason that particular

section is written the way it is is that in the case of where there might be a very minor item that's not specifically meeting the code or the regulations that are set up, but in no way risks the health or the safety of the occupants of that guest home, then we would give consideration under that

section to providing a letter that they could continue to operate until that item was repaired or fixed up; but it would be on a minor item, not on a major one. lt was recommended that particular item be included in the Act so that we have that option. With regard to a minimum standard of care be assured for food services and medical and nursing services, etc., they will be included in to the regulations that will be developed by the Executive Council. MRS.

WESTBURY: And also included in the regulations will be the personnel, the training, the numbers of people in charge of the facility, and that sort of thing; that will all come in the regulations, and do we get a chance to look at those regulations? MR. MINAKER: After they're approved, yes. You have to be a Member of Cabinet. MRS. WESTBURY: After they're approved. Thank you. Is that an offer? Mr. Chairperson, so they are approved by Cabinet and then they come to the House, to here. MR. MINAKER: They are put in the Manitoba Gazette, Mr. Chairman. They'll be listed in the Manitoba Gazette. MRS.

WESTBURY: Where do we get a chance to discuss those regulations? MR. MINAKER: Well, I guess you can get a chance, Mr. Chairman, to discuss them through the media, if you wanted, or you could also discuss them with the Minister, but if you wanted a public forum to discuss them it would be in the estimates the following year. MRS. WESTBURY: So, in other words, an MLA doesn't have an opportunity to contribute in any way to the regulations, except in criticizing through the estimates? MR. MINAKER: Mr.

Chairman, all MLAs have a chance to take part by giving suggestions to the Minister, and I'm open to suggestions, so that would be one way of getting the input into the regulations. But the actual decision of the regulations is made at the Cabinet table and that is the way regulations are established. MRS. WESTBURY : Oh dear. Thank you, Mr. Chairperson. MR. CHAIRMAN: Proceed to page 2- pass; page 3-p ass; - the Honourable Member for St. Boniface.

Thursday, 5 June, 1980 MR. DESJARDINS: Excuse me, Mr. Chairman. I think adding something to this, the regulation though, it has to be understood, and I think that might help the Member for Fort Rouge. The regulation can go contrary to the principle of the bill, which has been done at times; I'm not saying any government has brought in a new principle that wasn't in the bill at all, that's stretching things so, you know, the rest is certainly up to the Cabinet. MR. CHAIRMAN:

Preamble -pass; Title-pass. Bill be reported. BILL NO. 25 -

AN ACT TO AMEND

AN ACT TO INCORPORATE THE SINKING FUND TRUSTEES OF THE WINNIPEG SCHOOL DIVISION N0.1 MR. CHAIRMAN: Page 1-p ass;

Preamble-pass; Title- pass. Bill be reported. BILL NO. 26 - THE SUITORS' MONEYS ACT MR. CHAIRMAN: Page 1-p ass - Mr. Schroeder. MR. SCHROEDER: Thank you, Mr. Chairman. I don't have the bill in front of me but, as I recall, there was a clause excluding from the provisions of this Act funds paid into court by an individual, the purpose of which funds are to ensure his attendance at court at some later date and I'm just wondering why those kinds of funds would not also have interest payable to them in the event that the individual does show up for his trial. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: I think the member has a copy of the bill now, could he refer to the section. MR. SCHROEDER: Yes,

Section 2 (b), For the purposes of this Act, moneys paid into court do not include (

b) money deposited in court for or on behalf of a person required to deposit the money as a condition of his being released from custody. I assume that that is a situation of interim judicial release pending a trial and if a person pays in say 1,000, which 1,000 theoretically says that he will be back for his trial, I'm just wondering why he wouldn't receive interest on those funds in a similar manner to a suitor paying money in on a civil case. MR. MERCIER: Mr. Chairman, there was, of course, a Private Members' Resolution that dealt with this concept and I indicated at that time that our department was . . .

I gave certain figures with respect to the kinds of moneys we were talking about. We are reviewing that aspect now within our department and the review is not completed and wasn't completed in time for the drafting of this Bill. lt's something that we have under consideration and I believe I expanded on that when I spoke on the Private Members' Resolution, Mr. Chairman, so there is a possibility that it could come forward next year. MR. SCHROEDER: One other, this is on Page 3, is it okay to go ahead? MR. CHAIRMAN: Proceed. MR. SCHROEDER: On Page 3,

Section 8(3) this deals with a situation where, after 6 years, an individual comes along and says, hey, I forgot about my money, I want it out. Once he establishes a right to his funds, will he be entitled, first of all, to interest from day one to year six and, secondly, interest from year six until the money is actually paid out to him? MR. MERCIER: Mr. Chairman, the advice I have from Legislative Counsel on those two questions, the answer is yes to the first one, from day one to the end of year six; the answer to the second

part is probably, no, it's something we'd have to perhaps give some further consideration to, but the money is then transferred into the consolidated fund and not dealt with as an interest bearing account. 32 MR. SCHROEDER: Under this sub-section, is there any limitation period that would be applied from any other Act? MR. MERCIER: No, Mr. Chairman. MR. CHAIRMAN: Mr. Jenkins. MR. JENKINS: I just wanted clarification on the statement that the Attorney-General made, there is no statute of limitations for recovery? In other words, 25 years from now, if someone had paid in, he can . . .

But he would only be paid interest from day one to year six. MR. MERCIER: The answer, for the record, Mr. Chairman, is yes. MR. CHAIRMAN: Proceed. Page 2- pass; Page 3- pass; Page 4-p ass;

Preamble-pass; Title pass. Bill be reported. BILL NO. 27 -

AN ACT TO AMEND THE LIQUOR CONTROL ACT MR. CHAIRMAN: Page 1- pass; Page 2-p ass; Page 3-p ass;

Preamble -pass; Title-pass. Bill be reported. BILL NO. 28 - THE SANATORIUM BOARD OF MANITOBA ACT MR. DESJARDINS: Mr. Chairman, while you are getting your copy, I'd like to ask a question of the Attorney-General through you. When there's an amendment on a bill that's been printed in French, is that translated later on or what? MR. CHAIRMAN: The Honourable Attorney- General. MR. MERCIER: Mr. Chairman, our practical difficulty on that is that as soon as we have legal translators available they will be in committee and would attempt to provide the translation immediately. This bill is a bit different in that you'll notice that some of the bills, for example Bill No. 2, has the

Thursday, 5 June, 1980 French and English in the same bill. This one was, I take it, translated; it's available in both French and English. The French was done after the English Bill was introduced and that's the reason for that difference. MR. DESJARDINS: I'm satisfied, you say that later on, though this caused no problem but it could. Later on you'd have somebody here presenting both. MR. CHAIRMAN: Proceed. Page 1-p ass; Page 2-p ass; Page 3- pass - the Member for Radisson. MR. KOVNATS: Mr. Chairman, I move, that sub

section 7(1) on Bill 28 be amended by striking out the word March in the first line thereof and substituting therefor the word May. MR. CHAIRMAN: Page 4 as amended-pass; Page 5- pass; Page 6- pass; Page 7-p ass;

Preamble pass; Title-pass. Bill be reported as amended. Mr. Balkaran. MR. BALKARAN: Mr. Chairman, I wonder if I might ask the committee's permission to make two corrections on Page 4 in Clause 7(2)(

d) the word their be changed to his and in Clause 2(

e) before Union of Manitoba the word the should be included. Do I have the permission to include those two words? (Agreed) MR. CHAIRMAN:

Preamble-pass; Title-pass. Bill be reported as corrected and amended. BILL NO. 33 -

AN ACT TO AMEND THE PUBLIC LIBRARIES ACT MR. CHAIRMAN: Page 1-p ass; Page 2- pass;

Preamble -pass; Title- pass. Bill be reported. BILL NO. 35 -

AN ACT TO AMEND THE LEGAL AID SERVICES SOCIETY OF MANITOBA ACT MR. CHAIRMAN: Page 1- pass - Mr. Tallin. MR. TALLIN: Mr. Chairman, well I don't know if you want to treat it as an amendment or as a correction. On Page 2 it refers in the second line of

section 3 to subsection (1) and it should be subsection (8) (Agreed to the correction). MR. CHAIRMAN: Mr. Schroeder. MR. SCHROEDER: I believe that one of the purposes of this amendment to the Act is to require lawyers who are acting for clients on legal aid certificates to pay funds received on behalf of clients to Legal Aid, is that correct? MR. MERCIER: Yes. MR. SCHROEDER: And currently that is not happening? That is if a lawyer receives some funds, say on a family matter, there may be an agreement to pay several thousands of dollars, or whatever, to the wife's lawyer.

The wife's lawyer is on a Legal Aid 33 certificate. That lawyer is not under an obligation to send any funds to Legal Aid, is that correct? MR. MERCIER: Mr. Chairman, if you refer to my notes on introducing the bill. The amendment to Subsection 15(2) is to clarify that it is only moneys received on account of fees or disbursements where the solicitor furnishing legal aid is required to pay moneys received to the society. The present

section would require a solicitor furnishing legal aid to pay moneys to the society which should directed to the client. lt' s a clarification. MR. CHAIRMAN: Mr. Schroeder. MR. SCHROEDER: I see. So under the existing legislation, if a lawyer receives, say, the standard 250 of the court on a divorce action, he's required to pay that in, but he is not required to pay in the 10,000 on the house settlement and, under this amendment, would he be required to pay in the full 10,000 of the house settlement as well as the 250 court costs? MR. MERCIER: No, Mr. Chairman, just fees and disbursements. MR.

SCHROEDER: My understanding from what the Attorney-General said was that currently the amount paid on fees and disbursements is to be paid in. That is, if the lawyer gets that 250, he is required to turn it in to Legal Aid. Under the amendment he is required to turn that in as well as money paid by someone else on behalf of his client. No? MR. MERCIER: Mr. Chairman, it's the opposite. At the present time he would be required to pay, say, the 10,000 plus the fees and disbursements. Under the amendment he only has to pay the fees and disbursements. MR. SCHROEDER: Thank you. MR. CHAIRMAN: Okay, Mr. Schroeder?

Page 2- pass, as corrected;

Preamble -pass; Title-pass. Bill be reported. BILL NO. 36 -

AN ACT TO AMEND THE HIGHWAY TRAFFIC ACT AND THE TORTFEASORS AND CONTRIBUTORY NEGLIGENCE ACT MR. CHAIRMAN: Page 1-p ass;

Preamble-pass; Title- pass. Bill be reported. BILL NO. 43 -

AN ACT TO AMEND THE FAMILY MAINTENANCE ACT AND THE QUEEN'S BENCH ACT MR. CHAIRMAN: Page 1-pass; Page 2- pass; Page 3- pass;

Preamble -pass; Title-pass. Bill be reported. Bill No. 20 will be held over until the next meeting of the Law Amendments Committee. Any further business for the committee? Committee rise.

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-4-la2
Type	hansard
Volume / chapter	31st 4th hansardpdf la2.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	9e855a789a4f34fb2694148095822ac4f4bb4faf

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