Manitoba Committee Hansard — 10 July 1978 (Statutory Regulations and Orders Committee, Sitting 4, 31st Legislature, 2nd Session)

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Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba HEARING OF THE STANDING COMMITTEE ON STATUTORY REGLLL.ATIONS AND ORDERS Chairman Mr. W•rren Steen Constit.,uency of Crescentwood Monday, July 10, 1978 2:30 p.m. Printed by P.N. Crosbie- Queen's Printer for the Province of Manitoba

ne 2:30 p.m. Hearing Of The Standing Committee On Statutory Regulations and Orders Monday, July 10, 1978 t. CHAIRMAN, Mr. Warren Steen (Crescentwood): Committee come to order please. On Saturday afternoon, when this committee was rising, it was generally agreed that persons m out of town would be given an opportunity to appear this afte rnoon. I can't find it on my list, t I understand there's a Mrs. Maude Lelond from Miniota, representing the Women's Institute. she present? We will accept her presentation at this time because of the distance that she has veiled to be with us.

I might mention to you Madam, that the committee has a rule which we try to adhere to, and 1t is that presentations be not longer than 30 minutes in length. lS. LELOND: Mr. Chairman, Mr . Mercier and committee members, I appear here as a member the Manitoba Women's Institute and I am presently Chairman of the Standing Committee for izenship and Education of the W.l. Provincial Board. Allow me to introduce Kay Hamblin, the President of the Manitoba Women's Institute and myself, 1ude Lelond.

First, before presen ting the W.l. brief, I would like to commend the present government for mges and/or modifications which they have sug gested in their proposed family law bills. First, are pleased that you appear to have dropped the very chauvinistic one-sided unilateral opting 1a for mutual opting out. That is good. Also you have included a clause wherein all assets can be shared on a 50-50 basis.

One must ·efully weigh the shelved family law bill of May 1977, which set a 50-50 sharing basis against 1 now propo sed bill which has no basis of sharing except by Court decision, but as I say you ie included the possibility of 50-50 sharing. We commend you for deciding that the new law, when passed, will apply to all marriages. for The Dower Act, we commend you in introducing the half division of the home rather m the third, and I've included here in handwriting, you will note my uncertainty of The Dower t when I present the brief. And, of course, when I have those uncertainties, I hope Mr.

Mercier I have the kindness to possibly fill me in eh? And now I'll read the brief. This brief was prepared in conjunction with a petition signed by delegates at the W.l. 11vention in June 1978 in Brandon. The petition stated: We the undersigned do hereby indicate r support for The Marital Property Act and The Family Maintenance Act embodying the lowing principles establishing marriage as an equal partnership. (1} Immediate sharing of family assets. (2} Deferred sharing of commercial assets. (3} Limited judicial discretion. (4} Mutual opting out, and (5} No-fault maintenance.

Before beginning my discussion of the five principles in the W.l. petition, I would draw the mtion of this committee to the fact • that in the proposed Marital Property Act of May 1978, re is no

preamble stating that marriage is an equal partnership and contribution of each spouse �qual to that of the other. Possibly you do not believe in equal sharing? I appreciate this opportunity to speak in layman's language and will begin with No. 1 - nediate sharing of family assets. How can a man and wife ever join in marriage as an equal partnership if there is no immediate 'ring of the home and such family assets as do not produce income? Certainly proposed Bill discourages any immediate sharing ideas. Spouses have two recourses if accounting is :essary.

Go to court and break up their marriage or prove dissipation. Women, by and large, be the spouses having to apply for their rightful share - a share of the home, a share of furniture, maybe the camper trailer - any assets that were bought for the mutual benefit )Oth. Family assets which should immediately be shared as marriage partners if tbe woman 109

Statutory Regulations and Orders Monday, July 10, 1978 is not just considered a mere chattel. No. 2 - The W.l. supports the deferred sharing of commercial assets. This does not render 01 principle of equal sharing invalid. A married couple, benefitting by the income of commercial asset are sharing them in a happy marriage. However, in the event of a marriage breakdown there shou be a fair division of these assets with no hardship to either party. As we are mostly rural womE I think of a farm division.

One-half of the incr ease in the value of the property acquired by a spow or equal division of proper ty acquired during marriage, at present value, less all debts, with tin allowed to pay his or her spouse as the case may be. looking at clause 13(

a) and I am, of course, referring to the bills, which I don't have with m Discretion to vary equal division. lt looks like a lawyer's heyday, especially the last two parts, weighir the value of domestic resp onsibilities against the ability of the other spouse to acquire, manag maintain operate and improve any commercial asset.

Gentlemen, can you really weigh in court the value of a woman (in rural areas it would be woman), who has borne children, trained them and raised them, been cook, housekeeper, moth and gofer - on the farm it's gofer this and gofer that - yes, can you really weigh all this in moneta value against the ability of tbe husband merely to make mone y. My husband said, "Are you goir to weigh the raising of a purebred bull against the raising of a son and a daughter?" Think of your own mothers. Is that the way you would value what they did for you?

I hope ne If Bill 38 goes thr ough as is I wonder how many Murdoch cases we are setting up Manitoba? No. 3 - Manitoba W.l. supports limited judicial discretion. Another lawyer's heyday. This p� of Bill 38 insures that every settlement must go to court. I'm wondering, in some instances, if tl couples will have anything left to fight over after they pay the court expenses.

Seriously, if marria! is an equal partnership, and certainly a 1978 revised Family law Bill should accept equality of mt and women, then it follows automatically that equal sharing is the right of both marriage partne1 Equal sharing should not be a right dr afted by the courts through broad judicial discretion. If the basis of our new family law were 50-50 sharing, then the non-wage earner, generally tl woman, would be considered a partner, not a dependent, at the mercy of the judge's decision. square one was 50-50 sharing, only limited judicial discretion in division of property would I necessary.

With the wide judicial discretion allow ed in Bill 38, spouses determ ined to keep th1 partners from having a fair share should have little trouble doing so. The W.l. women also stand by No. 4, mutual opting out. No fair minded man or woman cou support unila teral opting out. Was that evasion of equal sharing suggested at first to give tl impression that the present government had made a concession when they abandoned it? How unf; that one spouse should not know what his or her assets were until faced with the distress of marriage breakdown, then to learn that his or her fate la y in the mercy of the courts.

Unilate1 opting out is legal gross injustice. Before going on to No. 5, no-fault maintenance, I would like to briefly mention The Dower A changes proposed. The present Dower Act is by no means perfect but the limiting of the definiti1 of the marital home as outlined in the proposed Marital Property Act, Bill 38, is a further limiti1 of the farm wife's right to equal sharing.

Now, we discussed this - I'm breaking from the br' for just a minute - we discussed this at our board mee ting and I felt there were some here th would like this enlarged and discussed further and certainly it's far beyond my limits to prese or discuss it, so that's why I'm asking quest ions instead of saying some thing. Do you really mean to limit the pr ote ction in the present Dower Act as to the rights to the 3: acres in case of death or selling property? In other words, does either party still have the rig to limit sale?

I hope you'll observe those ques tions. lastly, No. 5 in the Institute brief - no-fault maintenance. We support the principle of no-fa maintenance. We take except ion to

Part I, 2(2) Condu ct of Spou ses. Now possibly you mean w by this cla use for extreme cases but can you not visualize the court cases that could result. AdultE will again be the court accusa tion and what else to get out of paying financial support to the erra spouse? Fault is generally on both sides to some extent in a marriage breakdown. Maintenan is necessity to survive and should not hinge on conduct that may or may not have been causr by the incompatibility of the marriage partners. Maintenance should be based solely on need and ability to pay. And that's a ques tionable lit thing there. Maintenance should not be a weapon of revenge or re tribution.

Part 1, 2 (2) sort of by-passes 2(1), because we ha ve no idea what a court might interpret gross misconduct or what the accused might have to answer undei such an

interpretation.· The appears to be a double standard in this conduct clause. Now, that concludes the Manitoba Institute brief and Kay and I will discuss any part of the br you care to quest ion and Kay will also contri bute her thoughts. Did you want to now Kay or later? Okay she'll say just a few words now and then w1 110

Statutory Regulations and Orders Monday, July 10, 1978 R. CHAIRMAN: Will you identify yourself before you speak? RS. HAMBLIN: I'm Kathleen Hamblin from St. Jean, Manitoba. I'm the President of the Manitoba omen's Institute. R. CHAIRMAN: Thank you. RS. HAMBLIN: Mr. Chairman and honourable members. The Manitoba law-making body was the st in Canada to give women the vote in 1916.

I would like to just add that I feel certain that 1at we are asking will come to pass, whether it be now, or left to the future policy makers. 1 would e to think once again that the Go vernment of Manitoba would wish to be a leader rather than !agger in setting fair policy for all people. Thank you. R. CHAIRMAN: Would you two ladies permit questions from the various members of the 1mmittee? Mr. Mercier is first. R. MERCIER: Mrs. Lelond and Mrs. Ha mblin, I'd like to thank you for travel ling so far to present 1ur brief. Perhaps starting on Page 4 of your brie f, point no. 5.

I assume from that paragraph that you e in agreement that in extreme cases, a small minority of perhaps bizarre cases, you are in 1reement that in those cases misconduct could and should be a factor in limiting maintenance. that correct? RS. LELOND: Well, I would rather say, Sir, that we were at a loss to interpr et what this very oss misconduct might be that would disallow a 50-50 sharing. R.

MERCIER: If I told you that it was only intended to refer to a small number of cases in which ere was - to follow the word ing of this sect ion - "A gr oss and obvious repudiation of the arria ge ", but that in the vast majority of cases it's recognized that there is fault on both sides, 1d in those kinds of cases maintenance should be determined sol ely on the basis of need, and at this sect ion is only intended to refer to a small minority of cases. Would that satisfy you and e position you've taken? RS.

LELOND: Well, our position is that in any case you should start from the 50-50 basis, not ove up to a 50-50 basis. The sole crux of it, is that we feel that your bill starts anywhere, and at the Women's Institute feel that you should start at 50-50, and if there is one case which shoul dn't 1ve 50-50, well then search it out, but don't start down here somewhere and question every body 1ether they should get 50-50 or not. Now maybe we've misinterp reted the bill. IR. MERCIER: But we're talking here, Mrs. Lelond, about The Family Maintenance Act, not The arital Property Act, and under The Family Maintenance Act ...

Pardon me? RS. LELOND: Yes, this is Family Maintenance, I'm sorry. Well, in Family Maintenance, no matter 1at she or he did, we woul dn't want them ruled out entirely from support. R. MERCIER: The clause reads that maintenan ce can be limited in these very extreme 1ses. RS. LELOND: Yes, but we wouldn't want it limited to such an extent that the errant spouse and e childr en weren't physically fed and clothed and so on. R. MERCIER: Perhaps just to answer the questions you've raised in the top paragraph on Page Mrs.

Lelond, the right of a non-titled holding spouse will continue under The Dower Act so that 1e will continue to have the right to have to consent to any sale or mortgage or lease of the property at is stipulated in The Dower Act, the 320 acres. Does that answer the question you've raised paragraph 4? RS. LELOND: Well, there was also a question ... Oh, now where are we? Are we still on 111

Statutory Regulations and Orders Monday, July 10, 1978 MR. MERCIER: The top paragraph on Page 4. MRS. LELOND: We weren't sure about this 320 acres at all. MR. MERCIER: The rights under The Dower Act still continue. MRS. LELOND: That's still left in. MR. MERCIER: So that if that pr operty were in the name of the husband and he owned 320 acre she would have to consent to any sale or disposition of that property. MRS. LELOND: Yes, tha t's fine. MR.

MERCIER: On Page 3, you state, "If square one was 50-50 sharing, etc. ," are you aware th. the presumption in The Marital Pr operty Act is that there be 50-50 sharing, equal sharing, and th that is the presumption and it is only in clear cases of inequity, which is already an interpretatic in Ontario that 50-50 sharing would be varied, but you start with a 50-50 sharing. Are you awa1 that there is first of all an presumption of 50-50 sharing in The Ma rital Property Act? MRS. LELOND: Yes, I'm aware there's a presumption but I feel that it doesn't start necessari there, there's just a presumption.

You have to fight it out in the courts yet. A woman wouldr automatically think that she got 50-50 without, you might say, fighting for it. Do I interpret th properly? MR. MERCIER: No. There's a difference of opinion, MRS. LELOND: Well, I guess then it's all in the way you read it then? MR. MERCIER: Yes. MRS. LELOND: Can Kay speak? MR. MERCIER: Sure. , MRS. HAMBLIN: We felt that from wha t we had gathered that this presumption of 50-50 sharir was not so. We felt that when you go into the court you weren't getting your 50 percent of tl assets. Now you say that you do. MR.

MERCIER: Well, I say that you start from the presumption of 50-50 sharing which is wh you stated in your brief. MRS. HAMBLIN: Well, on how many cases then would the judicial discretion come into it? Y< know, what percentage of cases would you ... Are you going to have judicial discretion in eve case that comes up then? MR. MERCIER: 1 would suggest not in the vast majority of cases. MRS. HAMBLIN: Well, 1 think this is a concern that it can waiver quite rapidly downwards for tl women. MR. MERCIER: Or upwards. MRS. HAMBLIN: Well, we would n't ask for over 50. MR. MERCIER: Why not? MRS.

HAMBLIN: Because I feel that the man has his place in this picture too. I don't want rob him blind. MR. MERCIER: One for us. MR. CHAIRMAN: Mr. Spivak. 112

Statutory Regulations and Orders Monday, July 10, 1978 R. SPIVAK: When I go over your brief again and this will just be on the point that Mr. Mercier's �en mentioning. On Page 3, you say: "Equal sharing should not be a right dra fted by the courts ro ugh broad judicial discreti on. " But the Act actually states, "Spouses each have the right to 1ve their assets divided equally between them in any of . the following events of cir cumstances ," 1d deals with the marriage brea kup. That will be the law once this Act is passed. The law will �.

"spouses each have the right to have their assets divided equally between them in any of the llowing events or circu mstances ." Then there's discretion with respect to family assets and scretion with respect to commercial assets, but the presumption will be equal division and that ill be the law, not the court's

interpretation. You say equal shari ng should not be a right dr afted 1 the courts. The courts will not be drafting any thing. The courts will be interpreting the question discretion, which in the case of family assets will be gr ossly unfair or unconscionable, or in the 1se of commercial assets inequitable.

Now, are you aware that in law there are other presumptions in which there are statements of Jislative will, which is the law, which gives a presumption in which there is a right for a party go to the court to vary that presumption on the basis of a discretion of the court, and are you vare that in most cases the court will not vary that presumption? That, in fact, is the rule.

And ' I say to you, why do you believe that in this particular situation, the courts in interpreting what e presumption will be, will vary in their course of action when the history has been not to go 1ainst - unless there is except ional circumstances and in a minority of cases - to go against e presumption in law. RS. HAMBLIN: Well now, I am far from a lawyer but just in general read ing, I understand that )men get 12 or 13 percent and Mr . Mur doch broke his wife's jaw and kicked her around a bit 1d still she didn't get very much . I mean, so what is gr oss misconduct? R. SPIVAK: Well, can I ask some thing?

There was no law of presumption there of equal 50-50 1aring at the time that the Murdo ch case came on. RS. HAMBLIN: No, that's right. R. SPIVAK: And I'm saying to you that once the la w is stated, do you not believe that the courts 11 interpret the law as to what the presumption is, exercising discretion, when I say to you that all the other cases where there is a presumption of law, the courts very rarely go against that esumption.

The onus is upon the person claiming that the presumption does not exist, to be able prove it to the satisfaction of the courts and unless you can cite me experience which is different an the experience that I am aware of, the courts will not go against presum ption. In effect , what 1s happened to you and I think to a number of other people is that you have been misled to llieve that based on the judgments of the past that the courts ... R. PAWLEY: Mr . Chairman, on a point of order. Is this a question or a statement of position r Mr. Spivak. R. CHAIRMAN: I wou ld think that he's qu es tioning. R.

SPIVAK: I'm question ing, I think, Mr . Chairman. R. CHAIRMAN: it's no different than some of the other members have been doing. R. SPIVAK: I think in the same manner as Mr . Pawley and the others have ques tioned.

What I'm saying to you is that although I believe that you've come here with the best of goodwill 1d you are basing your judgment on the Murdoch case and what has happened in the past, I .y to you and 1 ask you whether you do not realize that in effect the change in the law which 11 come about as a result of the passing of this Act, which will give the presu mption of equal aring which is stated in the law, will in fact become the law and the exception will only be the ,se where the discretion will be exercised. RS. LELOND: Well, I can only reply, Mr .

Spivak, that I have had a little dealing with the courts 1d lawyers - I'm not a divorcee and this is mostly wills that I'm talking about. I'm afraid I don't 1ve too much, what it is I lack in belief in the power of the courts, so that's fine. ft SPIVAK: So really what we are talking about here is not the legislation in its dr afting, but 1w the courts will interpret it? 113

Statutory Regulations and Orders Monday, July 10, 1978 MRS. LELOND: Right, exactly. MR. SPIVAK: And therefore you want us to be in a position to either not allow a discretion, < to legislate how the court will act, or legisla te what's in the judge's mind? We can't do that. VII can only go on the basis that they will interpret the law as it actually is. MRS. LELOND: Well, do you need to use the word "presu mption"? Can you not start straigl at a 50-50, and then let the presumption be, that if anyone wants to come in and declare that th person is not eligible for it, instead of starting out with a .. . MR.

SPIVAK: Presumption is a term that we use; there is no such word as presumption in th Act. The Act states "spouses each have the right to have their assets divided equally between the1 in any of the following events or circumstances," and then the events deal with the marria� breakdown. That's what the la w will be. MRS. LELOND: That's fine. Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Pawley. MR. PAWLEY: Well, Mr s. Lelond and Mrs. Hamblin, if I could follow up on Mr .

Spivak's la st seriE of questions or statements to you, I would assume that one of the very valid reasons for whic you dr ew your opinion that this was wide open legislation insofar as discretion was concerned commercial assets, would be Clause 13(2)(j). We have 10 factors listed, and the very final fact< 13(2)(

j) is a general catchall clause, "any other circum stance relating to the acqu isition, dispositio1 preserv ation, maintenance, improvement or use of the asset ." That after listing a nuer of other factor such as the date of acqu isition of assets, the nature of assets, I suppose you would ask, Mrs. Lelan1 if the desire is really to provide for equal sharing, why does this Legislature wish to propose sue a list of factors and such a wie open catchalls to the court? MRS. LELOND: Yes, and it's also very confusing. I did mention twice in my brief that it is a heyd� for lawyers, and that's exactly what I mean.

Well, in the case of any sort of family troubles, peop naturally are very worked up and it's not the kind of a bill that you feel is helpful to you. You a1 more liable to get seriously confused. Well really, in my heart, Mr . Spivak, I can't feel that thm claus es help the bill. MR. PAWLEY: Mr s. Lelond, would you feel more satisfied, and the organization feel more satisfie1 if 13(2) provided for the presumption of equality, then went on to indicate that that presumption wou remain un less a greater inequity would be created, rather than listing 10 catchall factors? MRS.

LELOND: That's exactly what I'm trying to say in my poor English. MR. PAWLEY: Now, Mr s. Lelond or Mrs. Hamblin, I'd like to deal with the question of the 3:1 acres, and Mr . Spivak's questions again relating to that. The Dower Act provides for the 320 acrE being the homestead, and indicates that in the event of death or sale, then consent has to be obtaine for the sale of that 320 or a lifetime interest. Here what we are doing, Mrs. Lelond, is in this legislatic reducing what is the traditional understanding of the homestead to the matrimonial home, whic is the house and a small amount of land around the house.

I can only assume it might be an acr' two acres, three acres, which is quite a differential from the traditional nature of ho mestead . S 1 would like to ask you ladies, as rural women familiar with farm values, if the farm home with a acre or two around the farm home, if that was considered to be family assets and to be so value1 and if that family home could not be sold as a result of the restrictions in The Planning Act, becam that now requir es planning authority, if the value of the family farmstead would be very significa1 in your opinion? MRS.

LELOND: I saw that in the Free Press, and I was going to bring it with me to quote it, an then 1 thought I'm not going to quote newspapers because they are not really always authenH and I'm sure even the committee will appreci ate that. But it said, and I thought how utterly ridiculm - I've been living on a farm for nearly 40 years, and it said, "so the wife would be better off wi1 the house, than the non-profitable 320 acre s, " and of cou rse I thought, well that can only be tt Winnipeg Free Press. Surely it isn't Gerry Mercier and I hope I still am right?

Certainly there no comparison with the value of the home and 320 acres of farmland today. MR. PAWLEY: Well, Mrs. Lelond, are you aware that now in rural areas you have to obtain approv 114

Statutory Regulations and Orders Monday, July 10, 1978 ,f The Planning Authority, i.e. the municipality or the province, to split the house and the acre or NO around the house. �RS. LELOND: No, I'm not. tR. PAWLEV: So, if I advise you that that is the case, what would your opinion be now? IR. CHAIRMAN: Order please. IR. CHERNIACK: Mr . Chairman, can we finish the question and the answer, you don't have to Jsh them. IR. CHAIRMAN: Can you hear through all the noise of the bells? IRS. LELOND: No, I can't hear. IR. CHERNIACK: I can hear through the noise, but not through the talking. IR.

CHAIRMAN: The delegate claims that she can't hear. I would recess the committee for a vote 1 the House. Mr . Johnston. IR. JOHNSTON: Could I make a suggesti on, that if four of us were to stay here; four from the ov ernment's side and four from the opposition's side - un less they specifically want to have the ote recorded? IR. CHAIRN: No, and I have four more persons on my list who wish to question the two ladies, o we can't finish it. So would you ladies plea se stay around, and we hopefully will be back in ten linutes time and we will reconvene the meeting? Committee recessed to the House for a Standing Vote.

MR. CHAIRMAN: Committee come to order please. Are the two ladies still present that we were talking to prior to the recess? Mr. Pawley you weie talking at the time that you were interrupted by the buzzers.j1$ IR. PAWLEY: Yes. Mr s. Lelond we were discussing the new definition of marital home, and that ew definition of marital home we agreed reduced the usual home stead definition from 320 acres own to the house and the immediate area surroun ding the house. I was in the pro cess of qu estioning :>u, Mr s.

Lelnd, being from a rural point, as to what would be the value of a farm house, an acre nd a half around that farm house, in itself, all on its own, without any of the land attached to 1at farm house? IRS. LELOND: Well, it's quite easily under stood that a house in the country is not valued the �me in any way as a house in the city. In fact, when they used to sell farms, they never used ) value the property. They used to sell the land by the acre. Now with new homes, they are valuing 1e houses, but a $40,000 house or $50,000 in the city, would not come near that value in the :>untry.

But the 320 acres - like the Free Press said, the non, not non-profit, I forget what word 1ey used - but the 320 acres, I think land has incr eased in value in some areas 100 percent. wouldn't even compare the value of 320 acres with a house. But the qu estion has arisen, and )me of the la dies in this room belonging to the Women's Institute, would like a direct answer. Now, you say the farm home and not the 320 acres, but does the farm home not be a commercial 3set, thereby halved and you may or may not, at the discretion of the court, get half of the 320 �res.

Am I twisting things up worse than ever or how do you interpr et that? IR. PAWLEY: Are you wishing Mr. Mercier to ... IRS. LELOND: Yes. They would like Mr. Mer cier to answer that directly. 1R. CHAIRMAN: I ha ve Mr. Mercier on the list for further questions anyway. R. PAWLEY: If I could further just deal with that, and then Mr. Mer cier that question. I was lmmenting to you about the provisions of The Planning Act which can prevent the trans fer of the rmstead to a third party. In other words, that house would be locked in. 115

Statutory Regulations and Orders Monday, July 10, 1978 MRS. LELOND: With the 320 acres? MR. PAWLEY: With the 320 acres. How do you see the value of the farmstead in a situation sue as that? Where no approval is granted by the planning authority to split off, by way of title, th farms tead? MRS. LELOND: Well, I don't know because I wasn't aware of . . . My son has just gone on th Council and I know he's telling me different things, but he hasn't told me that. So, you are askin me what the value of the house would be in that circums tance? MR. PAWLEY: Yes, if the house cou ldn't be sold to a third party. MRS.

LELOND: lt wouldn't be worth a gr eat deal. I .know a boy that's just moved one into m town and it's a .two-bedroom home and I think he bought it for $4,000 over at Hargra ve and move it over to Miniota, and I can cite instances in the country of hous es being bought like that an moved . So tha t's the value of that house if she could move it off . . MR. PAWLEY: Mrs.

Lelond in The Marital Proper ty Act, there is the family asset discretion, whic is qu ite limited to the court, and the commercial asset discretion, which is much wider, much broade Would you be satisfied if the discretion that was provided for the commercial assets, was the sam limited discretion as is provided for in the family asset

section of the legislation before us? MRS. LELOND: Well, I think so. I don't think that we can go for broad in one and limited in tt other, but I know my brief sounded a little bit like that, but it was not meant to be. I think 50-� is the basis . . MR. PAWLEY: With limited discretions such as that provided for under the family assc section? MRS. LELOND: Yes. Yes. MR. PAWLEY: Thank you. MR. CHAIRMAN: Mr. Parasiuk. MR. PARASIUK: Mr. Chairman, through you to Mrs. Lelond. We've had a lot of rural MLAs S< in debates of second read ing of this Act, that this is not a gr eat problem in rural Manitoba.

The Women's Institute, does it have representation from different areas of rural Manitoba? [ you feel that the Women's Institute is quite representative of rural Manitoba? MRS.: There's over 2,093 members in rural Manitoba, I HAMBLIN/ and some in Winnipeg, b they're mostly rural. MR. PARASIUK: So you ha ve representation as well geog raphically from most parts of rur Manitoba then? MRS. HAMBLIN: Yes. Our W.l. is divided into the same divisions as the Department of Agricultur eastern, central . MR.

PARASIUK: Have you had an opportunity to discuss the whole matter of family law witl1 yo members over the last year or two years in order to come up with brie fs like this, because tt brief is a very good brief in terms of looking into pieces of legislation in some detail. Have ye had a chance to discuss this matter with your representatives or your members? MRS.

HAMBLIN: Well, since the very first time that family law was brought forward, we have hi this at our conventions, we've had a study paper last winter on it, and at our June convention tt year we spoke about it, and then just the past week, at our board meeting in Winnipeg, we broug forth this brief and have discussed it. MR. PARASIUK: So, in your opinion, as president of this organiza tion, you would say that this inde' is a matter of concern to rural Manitoba, and to rural women in particular? 116

Statutory Regulations and Orders Monday, July 10, 1978 �S. LELOND: Yes. I would say so, and we also had a petition, and I don't know if it was brought ward here and you have seen it or not, but there's quite a few signatures on it and the concern there. �. PARASIUK: Thank you, very much. �. CHAIRMAN: Mr. Mercier. �-MERCIER: Mrs. Lelond, would you not agree that the land on a farm, other than the marital me, is in actual fact a commercial asset. �S. LELOND: Absolutely. t MERCIER: Thank you. �-CHAIRMAN: Any further questions to the two delegates? Mr. Pawley. �-PAWLEY: I would like to, just so that qu estion of Mr.

Merci er's is not jus t left at that point you, however, feel that commercial assets should be divided on a 50-50 basis with very limited ;cretion? flS. LELOND: Yes. I left the question for Mr . Mercier to answer. Whether it's half of the family m home or half of the 320 acres? You see, you say the farm home to the woman, but then in a commer cial assets they would be 50-50. So she gets half the house and maybe half the 320 maybe none of it, according to judicial discret ion? fl. CHAIRMAN: Mr. Mer cier. fl. MERCIER: Well, it would be half the value of the family home.

I'm not sure, perhaps you could swer this question, and I really don't think you can flS. LELOND: I doubt it myself. Fl. MERCIER: lt occurred to me that there would be a limited number of iances in which a wife ight want to retain the ownership to the family home without actual ownership of the 1mmercial act. What would happen is that a sort of an inventory is taken of the value of all sets.

Let's assume some adjustments were made and was a 50-50 sharing of all assets, but 1der the 50-50 sharing the husband had the ownership, or perhaps the bulk of the farmland, would seem to me in those cases the wife would not want ownership of the home but would mt ownership to other assets of equal value. RS. LELOND: Well, okay. We're very tied up; I think we 'r e tied up in this worse than anything >e. R. MERCIER: So are we. RS. HAMBLIN: I think that the sharing of commercial assets 50-50 is proper and right.

What 'ncerns me is, we have all these 13 headings, or 12, I haven't counted them, things that can vary at. Another thing that really concerns me, and I haven 't had a straight ans wer from anybody yet, how you determine the value of commercial assets, and I'm talking about farmland. I know that rmland could be bought 10 years ago for $200, the value is now $600 an acre. Now, how do ,u come to the point of what you say the value of the land is so that a living could be made >m it? R. MERCIER: lt would be market value at the time of division. RS. HAMBLIN: And who is to decide the market value? R.

MERCIER: Well, generally if the parties don't agree thems elves then it would have to be, ppose, by way of appraisal. RS. HAMBLIN: Have you considered the possibility tha t farmland is being sold very rapidly to reigners in our country at a price far beyond the reach of our Manitoba families, and it's . only 117

Statutory Regulations and Orders Monday, July 10, 1978 under the chance tha t .a farm boy is living on a farm, and handed down the farm by his father that he is able to continue farming. Now, when it comes to the sale of that land, and this is wha concerns me, is what is the proper price? Is it a pr ice that a man can go on farming, or is it price that you could sell to a foreigner? You see, it's two different prices, isn't it? So who determine the market value, and who determines the price that that land should be? MR. MERCIER: Generally, it would be market value.

The Minister of Agriculture is attempting t deal with the other question, purcha se by foreig ners. MRS. HAMBLIN: I heard that there was something to do with looking back on your income ta to find out how much money you are making off that land. The produc tive value - is there anythin along that idea whatsoever - on production off that land? MR. MERCIER: Well, it would have to be by market value. I am not aware of all the intricacie of developing an appraisal, but there are restrictions now with respect to the sale to foreig nen I don't think that would be the price at which a farm would be valued. MRS.

HAMBLIN: Well, I know that in our part of the country that the land prices have gone u extremely, and I know that this is a concern either way. MR. PARASIUK: Through you again to both presenters. You have raised a concern with 50-50 ne being applied to commer cial assets in the same way that it is being applied to family assets.

Th1 is a concern that virtually every group presenting to this Committee so far has made, and 1 ar wondering if you would feel more comfortable, and if you felt that the government's statement th1 really they're treating both the same way essentially, would you feel more comfortable if the sam wording was used for family assets as is used for commercial assets? I'd take a look at the wordin on 13(1) with respect to discretion to vary equal division of family assets, and it's a one paragrap statement.

And then I'd take a look on 13(2), discretion to vary equal division of commercial asset: and it's a one paragraph statement with ten other additions. And I am wondering if you would fe1 more comfortable if the government did unde rtake to use the same wording for discretion for fami assets as they did for commer cial assets, if in fact they've said that they were applying the 50-5 principle to both categories of assets? MRS. HAMBLIN: I would like to see, as you suggest, that both the commercial and the family assel were divided along the same lines.

I think after reading these different circums tances that you coul hardly escape from one or the other. I know that in business, if two men are in business togethe when they divide up I don't think they're questioned on the length of time they have been togeth' in business, the nature of their assets, and all these things. There's no qu estions asked there, there, what they've been doing in their spare time? MR. CHAIRMAN: Order please. Any further qu estions to the delega tes? MR. PARASIUK: Not from me. I think Mrs. Hamblin has ·made the case very well. MR.

CHERNIACK: I almo st am inclined to ask a repetition of what went on since I was talkir to Mr. Miller and missed what brought about some response, however, I'll go on. You asked certain questions of Mr. Mer cier; you got some answers which is pretty good. Ther is one question you asked. How can a man and wife ever join in marriage as an equal partnersh if there is no immediate sharing of the home and such family assets as do not produce incomE That's a pretty strong statement. You asked a question, and I don't think you were given an answ1 by Mr . Mercier.

But you go on to say, family assets should be immediately shared as marria� partners if the woman is not just considered a mere chattel.

One of the members of this Committee has made statements something like, "I don't wa1 anybody interfering in my business, my wife and I don't need anybody to help us in our affairs un we're fighting and separat ing." That seems to be in cont rast to what the Women's Institute is sayin and 1 am wondering whether it is a matter of principle, or a matter of pra ctical application, th prompts the Women's Institute to say this is what is right and proper, and that is immediate equ sharing. MRS.

LELOND: 1 don't think we're being biased against a man when we say that the women ha• taken the short end of the stick in all legal dealings. I can cite one instance that I know of whe a women got 50 percent, but as I repeated before, 12 to 13 percent is the average that wom' are receiv ing, and that is a pretty poor show for a woman that's worked 20 years on a farm, ar 118

Statutory Regulations and Orders Monday, July 10, 1978 don't think that she should have had to get out on that tractor to be equal in partnership. 1 never d it, and if I walked out tomorr ow I'd expect half. I did raise five children, and 1 feel that those te children and my contribution to the home was equal to anything that my husband did. He's )t poor, and he's not wealthy, but he also could be here giving a brief, and I think that's one istake; the women don't ask the men. My husband partly wrote this brief, and he says, those en are chauvin ists that wrote this bill.

He actually does believe it, and he has a farm, and he's illing to give me half of it. Of course, as old as we are we' re going to give the thing away pretty >on anyway, so that's not a big generous thing. But at the same time he does see that women l.ve earned that; he feels that I'v e earned it, and I talk as much at home as 1 do here. R.

CHERNIACK: Well now, the point I was making about immediate equal sharing of marital ;sets, which was the principle in last year's legislation which is now being set aside, is contrasted r the statement made by a Conservative member that, "I don't want anybody to interfere between y wife and me. We can settle things very we ll. " Now, you say that you feel entitled to it.

The question I have in my mind, and since I believe >u speak mainly for rural and farm domestic arrangements, whether the wife is consulted normally decisions that affect the household possessions, like furniture, like the fridge, the stove, the change the house, or wha tever like that. Do you feel that it is necessary to ha ve it in the law? RS. HAMBLIN: May I speak to that? R. CHERNIACK: Please. RS. HAMBLIN: My marr iage has been going on for 32 years on the farm. I've worked on the :�.ctor. My husband is with me here today. He may be the only man sitting back there but he's lre.

And we have been a partner throughout those 32 years. Our decisions have been in partnership, I our buying has been that way. I have had my name on land and so I am not fighting for me. :tm fighting for the odd ones that you hear that do not, and are not, recogni zed as I am.

I never ought for one minute that I was very privileged to have this in my home and on the farm but >parently I am because there's many women, as I talk to them in W.l., that are not privileged is way and men do not all think along the same line tha t you are a 50-50 partner in marriage, decision-making of comme rcial assets, of every thing that you do, and why should it not be? R. CHERNIACK: Mr s.

Hamblin, you just lead me into asking you about the claim that is being ade, has been made, by some Conservative MLAs, that it would be damaging to the business 1ccess, to dealing with creditors, to dealing with a bank when loans are needed , to have equal vnership wherein the wife might arbitrarily say, I will not go along with a decision of the husband do or not do some business aspect.

Now, you've described your arrangement in such a way . are you aware whether that's a real objection, that this is a valid contention that women should >t be included in the decision making of comme rcial assets dur ing the marriage and that it might lversely affect the success, the financial su ccess, of the couple? RS. HAMBLIN: That's very simple to answer. Because they wouldn't be the success they are thout us. R. CHERNIACK: Thank you. Well now, let me go on. When you dealt with discretion to vary the 1ual division and you talked about comme rcial assets and you know that Mr.

Mer cier and his '!leagues have a distinction in their minds between the degree of discretion as between family sets and commercial, now when you were talking about commer cial and you mentioned the long t, the ten opportuni ties given to a court to exercise discretion to vary, Mr . Mercier said, "lt is :ended that it should only vary if there is a clear inequity. " Now, you notice that is not in the Jislation.

If there were that - and I hope to persuade him to say at least - not that I will be tirely satisfied but I think it should help a lot the concerns you'v e raised - to persuade him say that the court may vary the principle or presumption of equa lity if it is satisfied that a division those assets and equal shares would be clearly inequitable period, instead of going into all these rious circumstanc es.

Now, you're not judges, you're not lawyers, but you are people who un derstand the problems between husband and wife and I'm asking you whether youthink that would be more helpful. 10uld I continue to try to persuade him to say, to use his own words, "clearly inequitable " rather m give all the se ten opportuni ties to . . . :tS. LELOND: Yes, that's what I meant when I said if square one was 50-50 sharing, that's what nean by that. 119

Statutory Regulations and Orders Monday, July 10, 1978 MR. CHERNIACK: Well, I must point out that Mr. Spivak and Mr. Mercier contend strongly tha square one is 50-50 sharing and indeed the bill says so but then it gives all sorts of other thing: that might interfere in that principle. MRS. LELOND: Wel l, you see, I don't interpret the bill that way. I interpret it as saying it can b1 divided. I don't interpret it as 50-50 sharing. You see, the word "can " is there ... MR. CHERNIACK: Yes, okay. MRS. LELOND: . .. and that's what bothers me. MR. CHERNIACK: I'm certai nly not arguing with your

interpretation nor with that of the court One other point, another point, Mrs. Lelo nd, when you talked about the no-fault maintenanc1 and you said maintenance should not hinge on conduct that may or may not have been causec by the incompatibility of the marriage, I think it was there that Mr. Mercier said, "lt's only intende1 to refer to a small minority of cases." I'm really not clear on whether he intended that descriptio! to apply to sharing of family assets or to the maintenance, but he did use the expression "bizarn case s. " I don't know if you and I and Mr.

Mercier could agree on what is bizarre but can you conceiv1 of the kinds of things that might be in a court's mind or in a judge's argument, knowing as yo1 do the relationship between husband and wife, as to what could be considered not his word a bizarre but words like "grossly unfair or unconscionable, " just what that could mean in the mind of the average person. MRS.

LELOND: Well naturally, when I was writing this brief and I did write it myself at home an1 presented it to the Women's Institute, when I was writing it, I talked to my husband about it an1 his sort of idea is that there was a time when the man played around and sort of did what h1 liked and the women put up with it or hid behind a screen of "not knowing, " and he feels nm that it's sort of joint, they both play a little if they want to. And this is not funny. This is the societ that we live in. So he interp reted it that the woman better not be caught playing around, that' all, and that was his

interpretation of it, because anything so gross as, well, hurting somebody s1 badly they'd be crippled for life or someth ing, I don't interpret that in it at all. I interp ret it as mor� conduct. But maybe, maybe I've interp reted it wrongly. MR. CHERNIACK: You're saying that

an act of adu ltery could be interp reted this way. MRS. LELOND: Yes. MR. CHERNIACK: Or breaking the jaw could not be. MRS. LELOND: Yes. MR. CHERNIACK: Or habitual breaking of jaws might not be, that's sort of .. . MRS. LELOND: Well, there's more abuse than you real!ze, you know, even in the country. MR. CHERNIACK: Yes, but when Mr. Mercier used the expression bizarre, I'm just wondering 1 that has any meaning that . . . MRS. LELOND: No, it doesn't tell me a thing because bizarre conduct is ... MR. CHERNIACK: Unu sual and . . . MRS. LELOND: lt's unusual, yes. Maybe Mr.

Mercier would like to respond with what he think bizarre would be. MR. CHAIRMAN: Well, to the two women that are here as delega tes, I might point out to you an anyone else, that the committee is here to hear submissions from people and then if the two persom like in your case, wish to answer questions from the committee rela ting to your submission, fin and dandy. What we will be doing when we've heard all the submissions is we will be going throug it clause by clause.

I am quite confident that the Opposition has a number of amendments an 1 do think that even the government has some amendments so there will be much time spent o this bill on a clause-by-clause nature and that will be the time that Mr . Mercier will be answerin 120

1e questions. Statutory Regulations and Orders Monday, July 10, 1978 IR. PAWLEY: Mr. Chairman, on the point of order. R. CHAIRMAN: lt's not a point of order, it's just an explanation. R. PAWLEY: Okay, if I could just ask a question ... IR. CHERNIACK: lt's not an explanation from Mercier is it? IR. CHAIRMAN: No, what I'm trying to get across, it's not for the delegations to come and ask Jest ions to the various members of the committee, whether it be the Attorney-General or any other ember. ,R. PAWLEY: Mr.

Chairman, last June when we had prepared amendments, the government had ·epared amendments, we distributed those amendments so that the delegations wculd know what pe of amendments were being pr oposed by the government. There has been indication by you 1at you think the government has a number of amendments to propose. R. CHAIRMAN: No, I just said that there may be some. R. PAWLEY: Well, then I would ask Mr.

Mercier, because certai nly last June we distributed the nendments so that the delegations would know. lt may be that points that the delegations are �aling with will be covered by the amendments that the government pro poses to raise. R. CHAIRMAN: Mr. Mercier. R. MERCIER: Well, Mr. Chairman, I think it would obviously be more appropriate to hear the �lega tions, to hear their submissions and representations before any final decisions were made ith respect to amendments.

I would think that tnat would be more democratic than telling the �legations as they appear that these are the ame ndments that we propose, do you disagree or Jree with them? R. CHAIRMAN: Mr. Cherniack, further to your ques tioning of the delegates. R. CHERNIACK: Yes, I want to question, although I do marvel at the thought that it's more lmocratic not to tell people what is in the minds of the government. lt seems to me the sooner ey know the quicker they can respond with reasoned advice knowing what may be in the mind the Attorney-General rather than not knowing. However, that's his business and, Mr.

Chairman, he doesn't want to ans wer questions, I'm sure he could make that assertion without the need the Chairman's protec tion. R. CHAIRMAN: Mr. Mercier on a point of order. R. MERCIER: Mr. Chairman, I'm sure it should be obvious that no final decisions of any kind 10uld be made on amendments prior to hearing all of the delegations. I wouldn't want to commit yself until we've heard all of them. R. CHAIRMAN: And furthermore, to the members, I didn't say the government had amendments, ;aid they may have some. Governments often have amendments on legislation. RS. LELOND: Well, Mr .

Chairman, are there any more questions? ft. CHERNIACK: Yes. ft. CHAIRMAN: Mr. Cherniack, do you have further questions? ft. CHERNIACK: Yes, Mr. Chairman. I just want to clarify the problem that would be posed the ty Mr. Mercier seemed to describe it in case of the marital home on the farm. The way I gather ·. Mercier con ceives of what would happen is that on a separa tion, assu ming that the wife does t get half of the commercial assets, that she would get half of the marital home and then she �uld be in a position of offse tting her half of the marital home against wha tever she might be titled to on the farm.

In other words -(Interjections)- Well, Mr. Mercier is disagreeing with my 121

Statutory Regulations and Orders Monday, July 10, 1978

interpretation of what he said. lt's not really what he said I'm concer ned about. lt's the problerr Suppose the wife on a farm who acqu ires half of the marital home which is limited now to the hous and some land around it but does not include the out buildings, I think that's clear from the definitior she acquires a half interest in that and then the courts would be in a position of deciding ho1 much she is entitled to have of the commercial assets, and arrives at a decision, would then b bound to either establish that the wife owns half the house and she owns half of or a portion c the commer cial assets, then there would have to be some form of evaluation which would determin how they are going to separate it.

You can't cut a house - no one is going to be a Solomor even the wisest judge - to cut the house in half or cut pieces out of the farm. What value - and that's the point that Mr. Pawley, I think, was getting at - what value could you assert if yo owned half the house on a farm as compared with trading it off for some part of a right that yo may acquire under commercial assets?

I want to confirm with you my impression that the perso who would be left with the home would be left with an asset worth very little and if trading o· that half an asset, would have very little bargaining strength because of the inadequa cy of home. What I'm getting at is, is there a market for that home on the land or must the home be dea with as you described where somebody buys the house in order to move it off? Where is the marke in a home situated on a farm? MRS. LELOND: Well, that would depend how close you were to a large centre.

That home migt be quite valuable if it was in say a five mile radius of Brandon. You would get a lot for that hous because there are lots of people looking for it. But 70 miles out, where I live, you would have t· value that house so that the cost of moving and every thing to get it to some centre, it wouldn' be worth very much. MR. CHERNIACK: Well now, a woman who would acquire a half interest in a home to the exter that it is described as a homestead, that is the 320 acres, would that be a viable saleable piec of land and house almost anywhere? MRS.

LELOND: Yes, if you left the house there and the land, it would be viable. MR. CHERNIACK: Thank you, Mr. Chairman. MR. CHAIRMAN: Any further questions? Seeing none, thank you ladies. MAUDE LELOND: Mr. Chairman, we wish to both thank you for your kind attenti on. MR. CHAIRMAN: Next person - Maxine Prystupa. MS. PRYSTUPA: Mr. Chairman, I can come back this evening, but the person who is next on th o list after me cannot, that is Ms. Winnie Fong from the Family Services of Winnipeg, and I hav' agreed to switch places with her if the committee so agrees. MR. CHAIRMAN: All right, agreed. Is this Miss Emery? MS.

WINNIE FONG: No. I'm taking the place of Lois Emery. I'm Winnie Fong, I'm the Executiv' Director of Family Services of Winnipeg, and I'm here to speak on behalf of this agency. We have worked in the city serving families since 1937, and many of the families wtlo have com to us over the years have come to us at a time when their marriages are breaking apart and the are in distress, and it is out of our experience partnering the se people that we would like to speal to you toda y, Mr. Chairman.

We have discussed this with the board of our agency, and we ha v' shared our experiences among our workers, and it is out of this that we speak. I would like t1 read the brief to you, and if you have any further questions I will be pleased to try and answe them. Mr . Chairman, Family Services has served Winnipeg since 1937. Over the years and through sucl services as marital and family counselling, homemaker service, family day care and family lif, education, we have helped families with the challenging tasks of growing, living together ano sometimes separating.

Our experience has shown us that families exist as families before and after separation; tha there is pain for all members of the family when marital breakdown occurs; that this pain can h exacerbated by laws that seem unfair or no longer fit the realities of today's families; that sucl · laws can continue to affect families adversely long after the legal separation has taken place. 122

Statutory Regulations and Orders Monda y, July 10, 1978 In this context we would like to comment on certain aspects of the proposed Family Maintenance et and The Marital Proper ty Act currently before this committee. We are concerned because several ·inciples we have supported as a result of our experience with families may be abroga ted by the ·oposed legislation. We believe that marriage is a partnership in which there should be mutual responsibility and 1aring. We do not believe that the equal sharing of family and commercial assets should only become cplicit and real at the end of the marriage.

We realize that there may be legal complexities related 1 equal sharing during the marriage. However, we do not see the current proposal of deferred 1aring of all assets as a solution to such pro blems. Instead, deferred sharing appears to maintain 1e current inequity and encourage the dissolution of the marriage before even family assets can 3 shared. We are also concerned that the circumstances under which the courts may exercise judicial scretion to vary the division of family and Commercial assets, in other than equal shares, are so !-inclusive as to undermine completely the principle of equal sharing.

Moreover, the se provisions 1r "extenuating circums tances" will actually encourage fault- finding and lengthy litigation around 1e division of assets. Far from facilitating family re-adjustment these fault-oriented provisions will �riously undermine it. Our experience has shown that if the et of legally dissolving the marriage ·eates anger and stresses beyond those already present it can only damage all mem bers of the tmily, perhaps irreparably, and I speak particularly to the childr en that we are in touch with. We believe the concept of fault has no piece in today's family law.

To continue to dwell upon tult or to have to prove fault in order to obtain adequate and extended spousal maintenance, or larger share of assets, can only impede the effective re solution of. the marriage that has ended. urely the only consideration should be the needs and resources of both partners with the aim, herever possible, of the ev entual, economic, self-sufficiency of both partners.

We are particularly concerned about The Family Maintenance Act's "limited fault" provision in 1e determination of spousal maintenance: "a course of conduct that is so unconscionable as to mstitute an obvious and gr oss repudiation of the marriage relationsh ip." This provision may be 1fair to and penalize certain people because of their age, lack of educa tion, or work experience, · illness. Will the person for whom economic self-sufficiency may be an unrealistic goal be re quir ed 1 prove or deny fault if he or she wants to end an unha ppy marriage with some hope for future �onomic survival?

Finally, we are still concerned about the issue of enforcement of maintenance orders. We thought 1e previously proposed Family Maintenance Act inadequa te in this regard and The Wives and hildr en 's Maintenance Act even more so. Howeve r, the "Enf orcement of Orders" sect ion of Bill � does little to improve the existing, inadequa te procedures. We urge that new procedu res be aveloped to ensure that maintenance is payable and collected via a public agency associated with 1e courts for all recipients who so wish.o Family Services apprecia tes the opportunity to present this brief to you.

As a social agency, whose Jrpose is to enha nce, restore, sustain families, we are very much aware that good family law is cornerstone of all aspects of family life. Thank you for your attention to our submission. IR. CHAIRMAN: Mr . Cherniack. IR. CHERNIACK: Thank you, Mr. Chairman. Ms. Fong, you are a professi onal in the field of dealing ith family problems? S.FONG: I am a social worker, yes. R. CHERNIACK: In the work you do now, and I don't know what you did before you were with lmily Services, you must be involved with, I would guess, the largest proportion of broken marriages lower income people?

Is that a fair statement? IS.FONG: Yes, I would like to answer that, Mr . Cherniack. All families that we serve - we serve 1ything from 3,000 to 5,000 families a year in Winnipeg. Most of the people who come to us are !If-supporting families. An average income is more like $8,000 or $9,000 for each partner that's orking, and now-a-days the two partners are mostly working because, as you know the cost of ring increased, and so forth, and people are no longer working for the second car, they are working , maintain their home and their childr en.

So a lot of the families we are working for do not have at much , many of them I would say - you aren't talking about commercial assets these are salary 1rners, wage earners. When the home breaks up, as in any home, when you share and have to aintain two families all over again there is very little to share. We meet up with many wives, in lot of instances - again I don't need to repeat what you ha ve heard through all these presentations 123

Statutory Regulations and Orders Monday, July 10, 1978 - these are people who have contributed to their home. If they have a job or recently had a jot mostly low-income earners newly started, tey are not in a position to be able, independently, t1 maintain their family apart, so that the question of maintenance becomes a very importan one.

Very often, when we meet with these people, and very often it is at a time when the y are separatin! or ha ve separated, the whole question of what maintenance they are getting becomes a real problerr and very often at that point of stress, when the marriage is un happy, and in many cases - l'n not sa ying that this is representative of all broken marriages, but certainly is representative of man of the people we come in touch with. These are women who have, quite often, been battered an1 abused emotionally, and quite often, physically.

They are people who want to get away and ver often would want the protection of the law, and get away, and if they have sometimes the assurano that they will be protected they are quite ready, sometimes, to give up on the very shor t-term kin1 of consideration, any asking for maintenance or any reasonable, liveable maintenance from thei spouses. This is wher .e we are extremely concerned. They are also people who have no resources, legal! � to go and ask a lawyer to represent them in great depth.

Even if they had the use of Legal Ai' facilities, for instance, they are not people who have very often the kind of content and comfor with social services, and even less so with Legal Services, or the know how to have entree int' that.

So very often we come across situations where these people have, in fact, no maintenanc and if they have gone through Family Court, for instance, the enforcement mechanism is really wea� If the y have to go back to court time after time to collect, if they are starting on a job, if the have to go home and look after a family, these are the people who do not benefit from the fac that there will be judicial discretion, that the y can move through litigation. They don't have th resources, neither do they have the entree to these resoures. MR. CHERNIACK: Thank you, Miss Fong.

I am going to go back because I am going to corn to maintenance aspect, I want to still deal with the assets. lt has been sug gested to us - you said the commercial assets are not a big problem for man of the people you deal with - but it has been suggested to us, and I think I agree with the concep that commercial assets that are bank account savings, say some bonds purchased , governmer bonds, a second house that may be owned by the family, a pension - these are all commerch assets under this bill.

Would you say that you don't have a significant nuer of cases that corn within your orbit or your view that do have at least that kind of limited commercial assets? MS. FONG: I would say, talking for the families that we are talking about, and we are talking abm many broken marriages, that there would be rare exc eptions where they would ha ve a second hom1 maybe they might have a cottage, for instance, that they might have acquired years ago for ver little. Generally speaking, I would have to say that they have a car five years old, or older.

Talkin about bank acc ount, we are talking about people who are trying to keep up with being able t live by having a lot of credit payments to meet, and we are really not even talking about what i considered commercial assets, I would say no, that is not the kind of families we are talkin about. MR. CHERNIACK: All right, that clarifies the group of people you're dealing with. Now, you spea about instant sharing as compa red to deferred sharing of family assets, that is the car you mentior that would be the furnitur e, that would be the house, if the y own a house, with the mortgage o it.

Do you see that there would be benefits if the husband and wife had equal owner ship of thl acquired during their marriage rather than after the separa tion? Can you picture the difference really makes? MS. FONG: Yes, let me perhaps describe the situation that we come across very often, and I thin it does make a difference.

When we talk about supporting the family, as we are working with th families, we are also working with the family on an ongoing basis, sometimes very early on in th marriage, and it seems to me from my contact with families that it is important for them to begi with an attitude where they are open with each other about what their financial accou ntabilities an or what their liabilities are.

We quite often come across families, and I would venture to say th; it is pretty indicative of We qu ite often come across families, and I would venture to say that it is pretty indicative ' the kind of tradition that men and women are still living under, where our wives do not know ho much their husband earns, do not really know how much is in the bank acc ount, all the things th' have been bought, have been bought out of the husband's pay cheque and paid for, and so no sudden ly, we have been quite distressed in terms of the principle of equal sharing right from tt start. lt seems to us, if the only time you get to know where you stand in terms of the partnersh 124

Statutory Regulations and Orders Monday, July 10, 1978 relation to what you have accu mulated, is at the time when there is a breakup, then that is not, my mind, a positive attribute to ascribe to a marriage. A marri age is an equal partnership right )m the start. R. CHERNIACK: Well, Miss Fong, what you have stated is what you think is desirable. What some lople would say, and I ha ve quoted a member of this committee who has said something to the feet that, government has no right to inter fere in my business, and my wife and I don't need anybody se to help us make decisions until there is a breakdown.

Now, what you said is desirable, and think no one would question the desirability. The question is, should government say that that the way it ought to be, and then enforce it by saying - let's say furniture acqu ired for household ;e shall become immediately equally owned. S. FONG: I would like to use the analogy, because I'm a family service worker, of, 1 see the lVernment very much like sometimes, the educa ted parent, for its citizens.

I know you are lmocratic representa tives of your constituents, but I think very often government can be forward inking and can be providing the atmosphere whereby your citizens begin to think in a certain ay and manner, and it is that we look to when we look to family la w or any other piece of legislation. ) in my mind, I would say that of course it would be ideal, and I think I, along with the rest of any other people, would say, "I would like to manage my life, I would like to make my �cisions. '' I also know that at times I look too for support, whether it's from my relatives, from a social orker sometimes on the odd occa sion, from, you know, my friends, and very often when one speaks , you is when you're in distress, when you have acc umula ted pain and suffering and anger over long period of time, and finally it goes to the court.

That is not the time when I - I will speak r myself - when I am at my most reasonable, and I can be depended on to think through with irness and with conside ration for the partner who, at that point in time, I feel has damaged me. ) in that sense I am saying, if the law right from the start establishes the fact that it stands in 1pport of equality and conside ration and caring for each other in a marriage, I think that you would 1ve done some thing to uphold families. R. CHERNIACK: Thank you.

The Mainten ance Act now, I would like to come to. lt says that when e judge makes an order, whether or not to make an order, he can deal with many circumstances, long list of ten different aspects of it. And although I read this to mean that the court may not ake an order if it feels that certain factors of a conduct nature, adversely affect one pa rty or another, r.

Mercier has stated that is not the intention, and that they intend that an order shall be made, Jt the amount of the order may be influenced by the judge's determination having regard to a >urse of conduct that is so unconscionable as to constitute an obvious and gr oss repudiation of e marri age rela tionship. I have to assume that your experience being much more extensive than ine, say, in viewing conduct between couples, that you might have some speculative educa ted 1derstanding of what could be conduct so unconscionable as to constitute obvious and gross pudiation.

Would you care to speculate on that or do you want me to give you examples? IS. FONG: Let me try to answer this in terms of saying that it is important, and I guess we place value, working with people as we do, on need overrid ing conduct. I guess to exercise a judgment, >u know, I would not attempt to specu la te what a judge, or you and I, in that position, would rem gross an d unc onscionable. All I know is that we have heard many sad stories of how, when marri age goes bad, people have done very harmful, painful things to each other.

I would not want ' be in the position, and because of my philosophy and training, to gage that in a monetary kind ' manner; I do not stand for even gaging it from a personal value point of view, because my personal ilue - I can only speak from understand ing at that point in time, I guess all we need to do is ok inside ou rselves - when 1 hurt, I hurt back. lt is very easy and it is a very human thing to ). To judge who started the hurting and who ended it and what was done that was worse than e other party, becomes quite a problem. Let me give you an illustration perhaps of what may seem gr oss behaviour.

I think we have seen times unha ppy marriages, where in some instances one of the spouses ha ve become - there no other word for it, an alcoholic - that the drinking has become so extensive that, and let e at this point use an illustration. This is a makeup composite; not a particular story I am telling 1u, but you know, the kind of circumstances that we see very ofte n. When, at that point in time, you see tha t woman at that point you would say there is no way that I can appro ve of the behaviour this woman who is drinking all day, not looking after her children, and so on.

Now, is that the ne when you judge and deem that that is the kind of behaviour that she is being and that she >es not deserve support, or whatever? So, in my mind, just to say, you know, behaviour in my ind doesn't tell you what is underneath all that, because that also could be a react ion to wha t 125

Statutory Regulations and Orders Monday, July 10, 1978 is happening through many years. This woman could well be, you know, quite a number of ye� ago, for instance, a person who has really done and contributed a lot to the marriage. I find tt to go to court at that particular point in time, and then to assess it, the court in all its wisdc is still after all, human, and it is very time limited in how much time the courts can go into discussi what is and what is not at fault. In the long run, the practicality becomes whoever has the me adequa te representation will get heard. MR.

CHERNIACK: Miss Fong, there has been a recent case of a man being convicted of rapi a babysitter. That could be attributed as obvious and gross repudiation of the marriage relationsh If that were the case, and I think that that is not an unreasonable specu lation, this

section suggel that the court might incr ease the amount of maintenance that he has to pay, because of his cour of conduct. Would you see any sense to that? MS. FONG: I do not personally, and I would say I'm speaking for my colleagues. I think if I coL just use that as an illustra tion, that act in and of itself, does not mean that the partner necessar wants to repud iate the marriage, for instance. Spouses have, you know, and you talk about m1 or female at this point, have at times accepte d, and I will use the word "forgiven" behaviour whi in another party's eyes, seem unconscionable and unreasonable.

Well, sometimes I really feel th know each other far better than somebody read ing five lines in the newspaper. I want to separ� the two things, and say if what you are saying is that the judge viewi ng this particular act, m vary the order, and increase the maintenance, it does not make sense to me the connectedne of it. MR. CHERNIACK: Okay, let's try the other side. We have a wife who has left her husband, a1 has started to live with another man, and she applies for maintenance for herself, bearing in mi that she is expected to arrive at the stage of supporting herself, and is making an effort to acqu a skill.

Would you say that that could be interpreted - I'm not asking for your opinion of he you react - but would you say that it would not be unr easonable to expect that society woL interpret that as being conduct unconscionable and constitutes an obvious and gro repudiation? MS.

FONG: If you are mentioning the fact that this woman has decided to form another relationsh 1 would like to say to you that I hope, for goodness sake, that the fact that one marriage or o relationship has not worked out does not mean that this person, whether it is a man or worn� shall stay pure and chaste, and depri ved of caring rela tionships after that. MR. CHERNIACK: I'm sorry, Miss Fong, I wanted to take you to what I think could be consider a more extreme case.

We know that our society now has become much more liberal than it w1 Miss Fong, I am thinking now, with the liberal society that is becoming more and more liberal actual we find situations where couples live together for many reasons that need not be a long lasti relationship contempla ted. lt may be a matter of convenience of kind, or a friendly rela tionship tt may grow into something, but we do know tha t it can happen, and does happen, that a marria breaks up, a wife may leave her husband, she may not leave her husband in order to establi another rela tionship, but having left him, having lived alone for a while, then becomes associat with a man in a common-law - no, let's say in a sharing of a home and is still in need of maintenanc She may have a child with her, she may not, she may be going to school, she may not.

I believe, and now I'm suggesting to you, I believe that there are people who would say tt that is conduct that is repudia tion of marriage, and I think maybe it could be, should that disenti her to maintenance, with your experience? MS. FONG: I am impressed with many sections of the present family law as it has been presentE and in parts of it, what it in fact is, gives consideration to for instance, some of these circumstance I do not think, however I am - fault finding is something - the matter of definition, I would agr with you, Mr.

Cherniack, I am sure there are, and there always will be, people who would deE certain behaviour as gr oss or unconscionable, and that is precisely where I feel, when two peo1 come and join in a partner ship, and they took vows to share, that is what I thought this sociE sanctioned legally or religiously. lt does not make sense, therefore, at that particular point in tir at the dissolution of marriage, that suddenly this is no longer a principle that is held. MR. CHERNIA CK: All right, I want to move to two specifics, Mr. Chairman. One specific.

I ha sug gested to the Attorn ey- General, and I am dealing now with un married cohabitation, that I ha learned that in a common-law relationship there are occasions when there is a separation and t woman usually has to appeal to the police to protect her from her former common-law husba 126

Statutory Regulations and Orders Monday, July 10, 1978 ho wants to ha ve access to the premis es she occupies as her home, and that the police will not ve her that protection saying it's a domestic problem. The bill before us suggests that a woman luld have an order made, if they have lived together for a year, and there is a child of the union. have sug gested that there may be a need for an order to be made protecting that woman from lr former common-la w husband even if they have no children at all or ha ve not lived together r a year.

Am I informed correctly that there is a protection needed in that kind of a case which ould justify an order for prohibition to enter? S. FONG: I would support that very strongly.

I would have to say though, that we know of rcumstances also, and it goes back to the enforcement, where among married couples, where domestic disputes, that although there is this order, that women have found it very hard to have enforced and I do not think that I would include the common-la w couple in this, but I would still �e to stress that this is something that many women fall danger to at this particular point and at an order is an order.

Until you get a policeman there, it doesn't work and because there are l many disputes, domestic disputes, and I think you are aware that it is not the most easy matter r policemen to deal with. There is quite often when we ha ve felt that women ha ve had nowhere , turn, not even to the police, in spite of the fact that they are legally married and the y are talking )OUt a settlement that has been reached in court. R. CHERNIACK: Thank you.

I want to move now to my final question dealing with the enforcement 1d the provision for a se curit y deposit or bond. lt has already been sugg ested to us that where e bill reads: "An order made under this Act may require a person to deposit money or enter to a bond," the suggestion is that it should be changed to "shall require." And then it is sugge sted person may not have the money to deposit. Secondly, a bond may not be of any use if that person prepared to abscond and if there are no sureties.

Would you still support the word "shall" instead "may" and would you add to it - and this is my suggestion - a requirement that whatever lsets are owned by that person, be it a car or furniture or T.V. set, should be mortgaged or pledged ' the court in lieu of money in court or surety? Would you see that that would be of any additional ;sistance in the enforcement of the order? S. FONG: 1 would suppor t that and again reiterate that there is need for an enforcement agency , establish this. R. CHERNIACK: Thank you very much. S. FONG: Thank you. R. CHERNIACK: Thank you, Mr. Chairman. R. CHAIRMAN: Mr . Green. R.

GREEN: I'm sorry, I didn't get your name. What is it again? S. FONG: lt is Winnie Fong. R. GREEN: Mr s. Fong? S. FONG: Yes. R. CHAIRMAN: Miss. R. GREEN: 1 took it from what you were saying that many of the problems that you are dealing th are from lower income families, working families, and I would even include families that ha ve ' income at all, but are living on welfare. S.

FONG: No, there will be very few families who are on welfare because we are a United Way pported agency and we would naturally generally refer people who are on assistance to the city partment and the provincial department. lt GREEN: 1 see. So that excluded from your considerations would be all the social welfare cases, 1ich 1 imagine would also be a considerable number of family breakdowns. S. FONG: Of course, of course. 127

Statutory Regulations and Orders Monday, July 10, 1978 MR. GREEN: Although it would not be a straight line rela tionship, I would think that th� percenta� of family breakdowns would be higher in the lower income groups than the y would be in the uppt income groups, because money is sometimes the problem. MS. FONG: Based on my experience and I would like to expand a little bit about the people 111 serve. While the majority of people we serve I would call - and don't ask me to define it too clear - your lower middle-class. MR. GREEN: Right. MS.

FONG: We also have people who are profess ionals who come to us for help. We have tt odd lawyer, the odd law professor, you know, they come too because ... I guess what I'm tryir to say is yes, financial stress is one of the stresses but I'm sure you would be aware that that not the only cause of marriage breakdown. MR. GREEN: I think that I said that and I concede the odd lawyer. There are odd lawyers.

I real wanted to deal with the question because I want to see whether my. own experience is similar I yours dealing with marriage breakdowns and I'v e had many, many in my practice, that I general dealt - generally, not exclusively - generally dealt with lower middle-income groups. Now the other thing is that you indicated that you are a ... Mr. Cherniack put the questic that you are an expert and you said you are a social worker; you qualified it. I would think th; you have no knowledge - and I'm not criticizing this, I want to find out - about the relationsh between partners, commercial partners.

You are not an expert on partnership. MS. FONG: I am not an expert. I do not like the word expert. MR. GREEN: Are you familiar with . . . MS. FONG: lt is a matter of qua lification. MR. GREEN: Yes, are you familiar with commercial partnersh ips? MS. FONG: I am not. MR. GREEN: You wouldn't know the problems tha t partners encounter with one another. MS. FONG: I will only speak to it to the fact tha t when things go well between two people wt have decided to throw their lot together, they can arrive at many agreements and they would t quite free to share and give to each other.

When they break up, as you well know in your situation the tangible, symbolical battlefield is money. MR. GREEN: Right. MS. FONG: There is no other reality at that point because the emotional togetherness has brokt down. And you would be aware from your practice, Mr. Gr een, that in most instances it is the husbar who has been the chief bread winner who has knowledge of the commercial assets and has contr of the financial situation. In that case, I would say that in 80 percent of the cases, the woman not the expert comparative to the man who is more of an expert. MR.

GREEN: Well, the reason I'm asking Miss Fong the question, and perhaps I can be more explic is tha t when you talk about marriage being a partnersh ip, you are using the partnership in a sen: which you are really not familiar with as to how partners get along and the problems that partne have. MS. FONG: 1 would say that I would be using it in the manner that most of the citizenry of Winnip1 would use it, that the partnership is the marriage vows that we exchange with each other in fro of the community. MR.

GREEN: You 'r e not then relating it to the term "commercial partner ship," you'r e using tl term partner as being like a buddy, an equal companion. MS. FONG: 1 will use the word "partner" .in again saying tha t when two people choose to li 128

VLClLU \UI J nV�UICl LIVI IU CII IU \JI UVI .;J Monday, July 10, 1978 id share their life and to bring up childr en, they both contr acted to share. R. GREEN: But the reason I'm doing this, Miss Fong, is not to challenge you but 1 would hate relegate to marriage what I know to be the situation in partnerships which are not marriage 1rtners hips but commercial partnerships. S. FONG: Yes, and I would accept that and in effect would say that most people that we have et have never entered the marriage viewing it as a commercial partner ship. R. GREEN: I said that I would try to compa re my own experience with yours.

My experience the law business was that a couple in this difficulty, regardless of how they got there, generally :her rented a home and ther efore had no home, or if they had a home, they had it jointly. Is at correct? IS. FONG: I think in quite a few instances there are still, until recently - it depends when people ere married, Mr. Green. R. GREEN: Well, I'm talking about within the last 20 years. S. FONG: I would say that there would be still people who have no joint ownership of their home R. GREEN: Yes. S. FONG: ... Meaning that the wife has not been the joint ... R.

GREEN: Well, of the cases that you have dealt with, and I have had over 300 of them, and 1ave never had the couple not buy the home as joint tenants nor have I had a couple separated here they were not joint tenants. What percentage would you say exist in these - and I'm talking >out the lower income groups - in what percentage is the husband the sole owner of the >me? S. FONG: I am not able to give you a figure. I can only tell you of circu mstances.

I also want · say thoug h, in most of the families, I don't know whether it is true of your experience, in most the famil ies where they jointly own the home, mostly what they own between them is a very g mortgage. R. GREEN: Exactly, I agree with you entirely and I was going to say that your experience and ine are exactly the same, that this couple own a home that may be able to be sold for $35,000 id has a mortgage of $30,000, but they own it jointly, in the large majority of cases. That they 1ve furniture, some furniture, which there may be a debt against which the y may still be making 1yments on.

There may be a five-year- old car which is what you described, and there may be small amount of money in the bank account or there may not, as you ha ve indicated. That is y experience with the large majority of marriages. Would that be your experience as wel l? S. FONG: Yes, very much so. R. GREEN: Okay. That when they break up - and now I'm going to give you my experience that generally there is not a great deal of argument with the home.

If there are children the isband generally says that the wife can occupy the home with the children, or the equity of the 1me will be sold and divided between them, but that the first is more likely the case than the cond, that the wife will continue to occupy the home. S. FONG: I think that is where your experience and ours depart perhaps because the people n resolve it in the manner that you have spoken of . . . ft. GREEN: Yes. S. FONG: ... and do not have as much difficulty as the people who cannot.

Some of the families at we encounter are into situations where there has been a very painful situation going on for 1ite a lot of years, that the only way at that point for the marriage to dissolve is for the wife to t out. 129

Statutory Regulations and Orders Monday, July 10, 1978 MR. GREEN: All right. In that case, she has the right to 50 percent of the home. If it's owm jointly, she has the right to 50 percent of the home. MS. FONG: Very often these are women at that particular point in time who ha ve not worke becaw they have two or three young childr en in tow; they are on welfare or they may be into starting new job and they are not, at that point, when they are ref orming their life, they really are not the stage when they would go through the courts and ask for that 50 percent and there is a lor delay over that. MR.

GREEN: But this Act doesn't change that. lt says that they will have 50 percent of the hon which they are entitled to under the circums tance that you've related. MS. FONG: Yes, I guess ... No, we are speaking to an instance - like I don't think law Cl change humankind. MR. GREEN: I agree with you entirely, I agree with you entirely. I'm asking you what they are entitll to and if they own the home jointly - if you are looking for support that the law won't chan! people, I agree with you entirely.

I am asking you in this case where they own a house jointly, whit you agree is in the large majority of cases, and they are joint tenants of it and the wife leave she is entitled by law to 50 percent of the home. MS. FONG: And this is where I have to reite rate that maintenance is important because there no point about talking 50-50 over very little. MR. GREEN: I agree with you. I am really not trying to put that question and I really wonder wl it's so hard MS. FONG: Perhaps I'm not getting what question you mean. MR.

GREEN: Well, then I will repeat the whole thing and you will see that we are in full agreeme that the joint tenancy in the home is there but it does not solve the problem. She is entitled 50 percent of the home. That in many cases the furniture is turned over to the wife, that the husbar dr ives away with the car and the problem is maintenance from the husband to the wife. That h; been my situation. Do you agree that that is the large majority of cases? MS. FONG: That is the large majority of situations in the experience I have had. MR. GREEN: And that confirms exactly the experience that I have had. MR.

CHAIRMAN: Mr. Mercier. MR. MERCIER: Thank you, Miss Fong, and thank you for presenting your brie f. I think the answe have been very much apprecia ted and forthright and I commend you for withstand ing the cro examination of the previOus committee member. 1 just want to ask you one question. In your experiences, what is your view or your opinion abo reconciliation or conciliation services that are available to couples who find thems elves in tt predicament? MS.

FONG: 1 think I approve and support the fact that there is this clause in the Family L� legislation. 1 think quite ofte n, in our experience, if partners have the time to think over the situati1 they may change their mind. What we have found, however, in our experience, is that most partne1 and 1 think we are speaking from our own personal experience as well as from my work, that me partners don't want marriages to break up, so the Court very often becomes the last step. We a one step before court and we find that very often, even we feel that they are not coming to in time.

So that while it is laudable to have that re conciliation clause in how effect ive it is goi1 to be at that point when they have reached the moment when they say, "I am going to cour1 is another ques tion. I would nevertheless still support that principle. MR. MERCIER: Thank you very, Ms. Fong. MR. CHAIRMA � : Any further questions? Seeing none, thank you very kindly for ye presenta tion. 130

S. FONG: Thank you. Statutory Regulations and Orders Monday, July 10, 1978 ft CHAIRMAN: Committee will rise and meet again at 8 p.m. tonight. 131

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Collection	Manitoba — Debates (Hansard)
Citation	31-2-sro4
Type	hansard
Volume / chapter	31st 2nd hansardpdf sro4.pdf
Language	en
Format	pdf
Source	PROVINCIAL
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