Alberta Hansard — 15 May 1978, Afternoon sitting (14:30) (Legislature 18, Session 4)

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Alberta — Debates (Hansard)

May 15, 1978 ALBERTA HANSARD 1215 LEGISLATIVE ASSEMBLY OF ALBERTA Title: Monday, May 15, 1978 2:30 p.m. [The House met at 2:30 p.m. ] PRAYERS [Mr. Speaker in the Chair] head: TABLING RETURNS AND REPORTS MR. DOWLING: Mr.Speaker, I would like to table the response to Motion for a Return No 135 and to file with the Legislature Library a copy of the recently completed study of farm equipment markets in the United States and western Canada. Copies will be made available to all members. MR.

FOSTER: Mr.Speaker, I'd like to table the annual report of the Department of the Attorney General for the year ended March 31, 1977. MR. LEITCH: Mr.Speaker, I wish to table the Provin cial Treasurer's report, required by

Section 34 of The Alberta Municipal Financing Corporation Act. Attached to it are copies of the 1977 annual report of the Alberta Municipal Financing Corporation. head: INTRODUCTION OF SPECIAL GUESTS DR. HORNER: Mr. Speaker, some five years ago, I believe, the Canadian Broadcasting Corporation initiated a program called Reach for the Top amongst the high schools in Canada.

It's with a great deal of pride that I let you and the members of the Assembly know that in three of those years the Lorne Jenken high school in Barrhead has won the provincial championship, and on one occasion has won the national championship. The particular team I would like to introduce to the Legislature this afternoon has again won the provincial championship, by defeating the Henry Wise Wood high school from Calgary Glenmore. These young people and their coach will be repre senting Alberta at the national finals in Charlotte- town, Prince Edward Island, in July.

I want to assure all hon. members that they're going to make very admirable ambassadors from our province of Alberta. They are Ralph Baughman, Bruce Wallace, Jeff Toi- vonen. Matt Walden, Jackie Saide as their alternate, and their coach Larry Melnychuk. I'd like them to rise and be recognized by the Legislature. MR. LEITCH: Mr.Speaker, I'm very pleased to be able to introduce to you and to the members of the Legis lative Assembly 90 grade 9 students from the Nickel junior high school in the Calgary Egmont constitu ency.

They are accompanied by Joan Engel, Laurie Harris, Heather Campbell, Bob Whyte, and Gary Ryan. They're seated in both the members and the public galleries. I'd ask them to rise and receive the wel come of the Assembly. MRS. CHICHAK: Mr. Speaker, it gives me great pleasure again today to introduce to you and to the members of the Assembly some 25 adults from the Grant MacEwan college, Cromdale campus, who are involved in the adult development program. They are attending the Legislature today with their teacher and instructor, Mr. Don Whalen.

I had the opportunity of meeting with them for almost an hour earlier this afternoon, at which time I think they posed some very direct and involved ques tions I was very pleased to have the opportunity to have the dialogue with them. It's probably one of the exercises I most often look forward to in my role as an MLA: communication and the exchange of question and answer and information. I was very pleased to have the interlude of discus sion with them, and I'm happy to have them here this afternoon. I would ask them now to rise and receive the welcome of the Assembly. head: MINISTERIAL STATEMENTS Treasury MR.

LEITCH: Mr. Speaker, on October 19, 1977, I filed in the Assembly a draft of a proposed code of conduct and ethics. At that time I said: I'm making public the proposed draft because I appreciate there are arguments of considerable weight to support in several areas different poli cies and standards from those proposed in the code. Before finalizing it, I would like to have the benefit of the views of persons who hold different opinions, whether they be members of this As sembly or not. Thereafter, Mr. Speaker, I received a significant number of comments on the draft code.

All the comments and suggestions were carefully considered by my colleagues and me. We very much appreciate the interest that led to the making of those comments and the research and thought that went into them. Our review of those comments did lead to a number of changes in the code, which I now wish to file for the information of members of the Assembly. It is the government's intention that the code become effective as of the first day of July 1978.

However, we appreciate that in some instances — for example, for persons who might now hold a prohibit ed political office — it would be unfair to require them to cease holding such office prior to the expiration of its normal term, and the code will be administered with that in mind. head: ORAL QUESTION PERIOD Censorship Board MR. CLARK: Mr. Speaker, my first question is directed to the Minister of Culture.

It follows the comments made by the Solicitor General in the House last Friday, when he suggested that we con sider "the voices in our society who, in the name of permissiveness, have undermined the basic ethics of our culture." My question to the minister responsible for Culture is simply this: is it the position of the minister that

1216 ALBERTA HANSARD May 15, 1978 this permissive action the Solicitor General referred to on Friday really has undermined the basic ethics of our culture? MR. SPEAKER: With great respect to the hon. Leader of the Opposition, it would seem that he is seeking an out-and-out opinion. This is a matter which is end lessly debatable, in addition to which, as is set out in Beauchesne, a minister may not be asked for his opinion in the question period. The question period is designed for the soliciting of government policy but not of the individual opinions of ministers. MR.

CLARK: Then I'll put the question this way, Mr. Speaker. Does the Minister of Culture have any stud ies or surveys the government has carried out which would substantiate the comments made by the Solici tor General last Friday on this question of the unde rmining of the basic ethics of our culture? MR. SCHMID: Mr. Speaker, I think the

interpretation of the word "culture" in this context is the culture of a people rather than culture as responding, for instance, to the performing arts or in a similiar manner. The only one who would really be involved, I think, would be the minister responsible for the cen sor board. There, of course, the chairman of the censor board tries first of all to classify and then accept or reject movies which are not within the standards of the community; in this case, of course, "community" representing the province of Alberta. MR. CLARK: Mr.

Speaker, to the minister, and I remind him of the recommendations on censorship of the select committee appointed by the previous Legis lature: what action does the government plan to take on the recommendations made by the committee, which I believe was chaired by the Member for St. Albert? MR. SCHMID: Mr. Speaker, I am delighted that the amendments to The Historical Resources Act have been approved so we can further accomplish the preservation of our historic artifacts and resources.

Of course there are certain priorities, and in this case this was my higher priority rather than the amend ments to The Amusements Act which would possibly accomplish certain recommendations of the report by our MLA Mr. Ernie Jamison. MR. CLARK: Mr. Speaker, a supplementary question to the minister, in light of the comments made Friday in the Legislature by the Solicitor General about the undermining of the basic ethics of our culture and his reference to a certain movie now showing in the city of Edmonton.

My question to the Minister of Culture, who is also responsible for the censorship board, is this: does the government plan to bring in any legisla tion dealing with this question of censorship as a result of the committee chaired by the Member for St. Albert or as a result of the concerns expressed in this Assembly by the Solicitor General? MR. SCHMID: Mr. Speaker, legislation in this regard is always under consideration. When it will be brought to the House I am unable to state. MR. NOTLEY: Mr. Speaker, a supplementary question to the hon. minister. In light of the concerns express ed by the hon.

Solicitor General last Friday, has any consideration been given or has any discussion taken place between the minister and the censorship board with respect to toughening the censorship regula tions in the province? MR. SCHMID: Mr. Speaker, the guidelines for the chairman of the censorship board are still to classify and reject or accept movies according to community standards. Then, of course, if there are any questions of morality or pornography this would be under the Criminal Code. Charges would be laid if such an occasion occurred; and if not, of course it would then be shown. MR.

SPEAKER: As I recall the question, the hon. minister was asked whether he had had any discus sions with the censorship board. MR. SCHMID: No. MR. NOTLEY: That's wise. Transportation Week MR. APPLEBY: Mr. Speaker, this question is ad dressed to the Minister of Transportation. I under stand that National Transportation Week will com mence May 28. In view of the fact that this province has always actively participated in that event, I wond er if they are going to continue the same type of involvement this year. DR. HORNER: Mr. Speaker, I would remind hon. members that it is National Transportation Week.

Because in a country like Canada transportation is a very key commodity or resource that's required, we think Transportation Week is going to be very impor tant across the country. As a matter of fact, this year Alberta is the host province for the national dinner, which will be held in Calgary on Wednesday, May 31. Automobile Safety MR. STROMBERG: Mr. Speaker, a supplementary to the minister.

I believe last week was Child Safety Week across Canada, and I wonder if his department had any input into that week, especially as it pertains to children riding in automobiles and to the use of children's safety harness in automobiles. DR. HORNER: Mr. Speaker, that's a continuing por tion of transportation safety.

As all hon. members are aware, I'm sure, my traffic safety division has been very active indeed with a variety of programs in the schools trying to start to educate young people not only relative to the use of the seat belt but to make sure that things in cars, including children, are buckled down so that their safety is enhanced when they are in any kind of accident. In addition to that, of course, Mr. Speaker, a few days ago I tabled in the Legislature the seminars where we've been dealing with the school bus drivers in Alberta.

I want to reiterate to the driving public that when they see those flashing red lights on a

May 15, 1978 ALBERTA HANSARD 1217 school bus, that means they have to stop. If they don't stop, they will be punished. Preventive Social Services MR. SHABEN: Mr. Speaker, a question to the Minister of Social Services and Community Health. Would the minister advise the members of the Assembly if the PSS funding to isolated communities in northern Al berta has been reduced this year? MISS HUNLEY: Not to my knowledge, Mr. Speaker. I would need to check on the specifics.

Occasionally PSS puts forward programs which don't fit, or per haps the budget that a PSS board wishes to obtain does not fit within the budgetary guidelines. I believe that the funds would not be reduced, but they may have asked for more than the budget allocation would permit. MR. SHABEN: A supplementary question to the min ister. In the preventive social services program avail able to the isolated communities, is there a commu nity requirement of contributing 20 per cent, as in other PSS programs throughout the province? MISS HUNLEY: No, Mr. Speaker.

In that particular instance, we have waived the requirement because of the very nature of the isolated communities, in which there is really no established government from which the 20 per cent could flow. So the Department of Social Services and Community Health has been doing 100 per cent funding in this instance. Grain Handling MR. MANDEVILLE: Thank you, Mr. Speaker. My question is to the hon. Deputy Premier and Minister of Transportation. Could the minister bring the As sembly up to date regarding the development of the consortium to build a major grain-handling facility at Prince Rupert? DR. HORNER: Mr.

Speaker, as the hon. member is perhaps aware, we've continued to have some dis cussions with the various grain-handling companies operating in Alberta to encourage them to go forward with the formation of that facility. A proposition was placed before one of those major grain-handlers, and they made the decision that they wanted to see whether or not they could do it on their own, which of course is fine with us. As I think I mentioned a week ago in the House, our primary objective was to get the facility developed.

I can't report any further progress, other than that we intend to visit Prince Rupert personally this com ing weekend and have a look at the facilities and the various sites that have been suggested. MR. MANDEVILLE: Mr. Speaker, a supplementary question. Could the minister indicate whether the government has made any commitments to Alberta Wheat Pool with regard to using heritage savings trust fund money for an equity participation in the project? DR. HORNER: In certain circumstances there would be the suggestion that we might invest funds from the heritage fund.

Those circumstances relate to the involvement of companies doing business in Alberta as opposed to companies doing business generally in western Canada. MR. MANDEVILLE: A supplementary question, Mr. Speaker. Could the minister indicate whether he's contacted other provinces with regard to putting equi ty into the facility at Prince Rupert? DR. HORNER: Mr. Speaker, we've had some general discussions with the other two western governments involved. There was no indication on their parts that they would want any equity involvement at all.

The province of British Columbia had not closed its mind to being a minority equity holder if a certain site were used as opposed to other sites. That has to do with the argument between Casey Point and Ridley Island. MR. MANDEVILLE: A supplementary question, Mr. Speaker. Could the minister indicate whether the government or the minister has had any negotiations with Cargill in regard to investing in the Prince Rupert project? DR. HORNER: Mr.

Speaker, as I initiated earlier I've had discussions with all grain companies operating in Alberta to encourage them, as a consortium or otherwise, to get a facility built at Prince Rupert. Let me emphasize again, every additional bushel that goes through Rupert as opposed to the Seaway is 25 cents extra income to the farmers of western Canada. The target was 100 million bushels; that's $25 mil lion a year in additional income. I think it's important enough that this government should be involved actively as a catalyst to see that the thing is built. MR. NOTLEY: Mr.

Speaker, a supplementary question to the hon. minister. Has the government closed the door on either equity or debt investment in a consor tium where other companies doing business in other provinces are involved, or is that still under review? DR. HORNER: Mr. Speaker, that matter is under review. I have not had a proposal of any kind for that kind of consortium. Until such time as a proposal has been put before us, obviously we can't make a judgment on it. MR. CLARK: Mr. Speaker, one further supplementary question.

Has the Deputy Premier indicated to the group, including the Alberta Wheat Pool and others who are trying to pull together a consortium as I understand it, a time frame within which they should conclude their deliberations? DR. HORNER: Well, Mr. Speaker, I think I said a week ago in the Legislature that if this is as positive toward adding income to the farmers of western Canada as we and The Canadian Wheat Board say it is, surely every month's delay is a delay in getting that addi tional income to the farmers of western Canada.

We would like the consortium to move quickly, to tell us whether or not they're going to go ahead, so we can take some other avenues that may be open to us. MR. CLARK: Mr. Speaker, just to follow that along, to the Deputy Premier. Has a time frame been agreed

1218 ALBERTA HANSARD May 15, 1978 upon between the consortium and the Deputy Pre mier that a month from now they'll either be in a position of yes, we can put the consortium together, or no, the government had better look to some other avenue? DR. HORNER: Mr. Speaker, I had hoped that within that month's time I would receive some word from the Pool and the people who are trying to head the consortium. I don't think there's anything definitive about it. It was my suggestion that I'd like to hear from them within the month because of the impor tance of the matter.

But there's certainly no agree ment that they have to report to me, because they don't. Electric Power Development MR. NOTLEY. Thank you, Mr. Speaker. I'd like to direct this question to the hon. Premier. It flows from reports this past weekend that Calgary Power is apparently hesitant about proceeding with its major feasibility study on the Mountain Rapids sites on the Slave River. Among the reasons it cites is some concern about the possibility of a western power grid.

Is it the intention of the government to table a posi tion paper in the Legislature evaluating the various options for power development, including the results of the six-month study that the Premier announced on April 17, I believe, concerning a western power grid? MR. LOUGHEED: Mr. Speaker, I'd refer that question to the Minister of Utilities and Telephones. DR. WARRACK: Mr. Speaker, I think at this point in time there would be no reason to change the normal planning process on any of the alternatives as far as future power development in Alberta is concerned.

Certainly the work is proceeding, and there'll be dis cussions in the near future with respect to the excel lent idea, in my view, of the western power grid. At the same time the question of alternative develop ments, be they coal or hydro, needs to proceed in the normal course of events, and this work will be ongoing. MR. NOTLEY: Mr. Speaker, a supplementary question to either the Minister of Utilities and Telephones or the Minister of the Environment. Is either minister able to advise the Assembly where things now stand on the $6.5 million study on Mountain Rapids?

Is there any problem there, or has Calgary Power indi cated it would like some assistance by the Alberta government, or governments including the Northwest Territories, Saskatchewan, and the federal govern ment, to complete the study? DR. WARRACK: Mr. Speaker, the assessment so far has indicated that the time frame and magnitude of cost of such a feasibility study would be in the order of some $6.5 million and would take three to four years to complete. That study has not been initiated at this point.

However, it's fair to say that that's an important possibility for future electric power devel opment in Alberta, and this may be done in the coming months. MR. NOTLEY: Mr. Speaker, a supplementary question to the Minister of Utilities and Telephones. Is it the position of the government of Alberta at this stage that in fact the study will go ahead? Is it still a possibility that that will be up to the power company, or will the government consider partial funding? DR. WARRACK: Mr: Speaker, I answered part of that a moment ago when I indicated that that work may proceed. That's a decision to be made.

It is a major decision, because it is, after all, a study that would involve something in the order of $6.5 million. A decision about that needs to be made and will. The other part of the question is whether it ought to be solely the responsibility of the potential developer or, alternatively, the responsibility of the government or governments involved to develop those necessary studies to know whether it's a good idea for such a power project to proceed at this time. So that's a second part of the set of decisions that would be needed. MR. NOTLEY: Mr. Speaker, a supplementary question to the hon. minister.

Has a time frame been estab lished by the government of Alberta with respect to being able to make a decision both on the question of whether the study would proceed and, secondly, on the question of cost sharing if cost sharing were to take place? DR. WARRACK: Mr. Speaker, the only time frame is that as soon as we're finished here I'll have some time to work on that matter and proceed to see what it looks like. MR. NOTLEY: Mr. Speaker, a supplementary question to the hon. Minister of the Environment.

In light of the Dunvegan Dam study, which indicated that any further consideration of Dunvegan would have to await the study on the Slave River project, the Mountain Rapids project, is it still the position of the government of Alberta that the Mountain Rapids study must precede any future decision on Dunvegan? MR. RUSSELL: No, I think that's the kind of thing that should be reviewed from time to time, Mr. Speaker: whether the low head or medium head is still the only one under consideration, and how it might tie into any potential on the Slave River. MR. NOTLEY: Mr.

Speaker, a final supplementary question to the hon. Minister of Utilities and Tele phones. Has either the electrical planning council or the government of Alberta given any consideration to nuclear power in planning for the future power- generation requirements in the province? DR. WARRACK: Yes, Mr. Speaker, some considera tion has been given by the Electric Utility Planning Council to the possibilities of nuclear power develop ment in the future.

The basic configuration of the assessment is this: presuming that any nuclear power development in Alberta would be done with the Canadian technology, namely the Candu reactor, which is based on a 600 megawatt designed size, that is still much too large for Alberta, for reliability reasons. So the date when nuclear power might be a

May 15, 1978 ALBERTA HANSARD 1219 practical possibility is 12 to 15 years off. That is also about the lead time that would be necessary on such a project if it were to be undertaken. So I think it's timely that some attention be given to that matter. Those sorts of initial discussions, I know, have taken place within the Electric Utility Planning Council. MR. APPLEBY: A supplementary question, Mr. Speaker, to the Minister of Utilities and Telephones. At one time some preliminary studies were done regarding hydro sites on the Athabasca River starting at the town of Smith and to Fort McMurray.

I wonder if these have been discarded, or will some further studies perhaps be done as to their possibilities? DR. WARRACK: Mr. Speaker, I'm afraid I don't know the answer to that question. It will be necessary for me to inquire and report to the hon. member. Public Waterways MR. GHITTER: Mr. Speaker, I'd like to ask a rural question today. SOME HON. MEMBERS: Oh, oh. MR. GHITTER. I would like to ask the Minister With out Portfolio responsible for Public Lands whether it is the policy of the government of Alberta to declare large sloughs on farmers' properties as public waterways. MR. SCHMIDT: Mr. Speaker,

Section 4 of The Public Lands Act states that the bed and the shore of all bodies of water are vested in the name of the Crown. [interjections] MR. GHITTER: A supplementary to the Minister of the Environment, Mr. Speaker, and this is an unwritten question. I would like to ask whether or not the government has received submissions from a farmer in the Carstairs area with respect to the desire of the municipality to declare a large slough a public water way. If so, what does the minister intend to do about it? MR. RUSSELL: Yes, Mr. Speaker, I'm familiar with that case.

The legislation is there, and of course as the sloughs rise and fall it's rather tricky grabbing hold of where the property line is. MR. KIDD: Mr. Speaker . . . MR. GHITTER: Sorry, I'm not finished with him, Mr. Speaker. Again the Minister of the Environment is very elusive. All I wanted to know is whether they intend to do anything about the farmer from Cars tairs. Would the Minister of the Environment advise the House in this particular situation whether or not they intend to declare the farmer's slough a public waterway? MR. RUSSELL: Mr. Speaker, I don't think it's a matter of our declaring it.

The act states what it is, and that legislation has been in effect for several years. There is a real problem in some cases where land acquisi tion is involved. And I was being serious in tying down the property line where the waterlines fluctuate in these bodies of water in excess of 10 acres in size. The case the hon. member is referring to deals with sewage treatment facilities, part of the province that may be used as part of a lagoon system. That's the nature of the problem. We're trying to work it out with the parties involved. MR. GHITTER: A supplementary, Mr.

Speaker, to the Minister of Municipal Affairs. In situations where farmers' sloughs have been declared or are in fact public waterways, is it the policy of the government of Alberta to reimburse the farmers for the municipal taxes they have paid, on the basis that these lands are apparently no longer owned by the farmer? MR. JOHNSTON: Mr. Speaker, if the land were not owned by the farmer, he wouldn't pay any tax. MR. GHITTER: Mr. Speaker, on a point of order, that is not the situation at all. The farmer is paying the tax. I'm asking the minister if he'll reimburse the farmer. MR. JOHNSTON: Mr.

Speaker, if the title is in the farmer's name, the decrease in the value of that farmland is reflected in the assessment. If he has title to it, then part of that would be on the assess ment roll and he would pay an appropriate fee. If title is taken from him, however, of course he would not pay any tax. MR. GHITTER: A final supplementary, Mr. Speaker. I'm wondering if the hon. minister would take under advisement a situation where the title remains in the farmer's name, where the Crown is declaring it to be a public waterway, and where the farmer is still paying taxes, which is clearly inequitable. MR.

JOHNSTON: Yes, Mr. Speaker. Water Management MR. R. SPEAKER: Mr. Speaker, my question is to the Minister of the Environment. It's with regard to the water Apportionment Agreement between Alberta, Saskatchewan, and Manitoba. Has the minister had any discussions, or is there consideration in discus sions with the other provinces, with regard to Sas katchewan and Manitoba paying a portion of any capital structure being placed on any of the major rivers for water flow control? MR. RUSSELL: No, we haven't had discussions with other provinces, Mr. Speaker.

But we have inquired of the federal government with respect to that. MR. R. SPEAKER: Mr. Speaker, a supplementary to the minister. Is the minister considering having those discussions with the other provinces? MR. RUSSELL: Well, the very nature of topics such as apportionment and interprovincial agreements is ongoing through the Prairie Provinces Water Board. That particular item has not yet come up at the politi cal level. I will be meeting with the other ministers very shortly, early in June. The matter may or may not arise. I think the quantity of water is the most

1220 ALBERTA HANSARD May 15, 1978 important thing insofar as interprovincial regulation is concerned. MR. R. SPEAKER: Mr. Speaker, to the minister. On the basis that water flow control structures establish ed in Alberta will enable not only Alberta but the other provinces to have the amount of water they require, under those ground rules would considera tion be given by Alberta to requesting moneys from Saskatchewan and Manitoba to pay their portion of the capital cost? Would that be the intent of the minister, or is that not the present policy of the government? MR. RUSSELL: No, Mr.

Speaker, that's not the intent. Our obligation is to provide a certain minimum flow on any given day of the year so that the neighbor downstream can do as he pleases with it. Now, if there's an indirect benefit as a result of flow regula tion, I think that's very nice. But cost sharing is a matter that has been broached by the federal gov ernment and one we're pursuing with them. MR. R. SPEAKER: Mr. Speaker, a final supplementary to the minister. Could the minister indicate whether the decision relative to water flow control structures on the Oldman is on target at the present time? MR. RUSSELL: Yes, it is, Mr.

Speaker. We're still working within a two-week period to the

schedule we outlined at the meeting in Picture Butte last summer. Chamber Ceiling MR. WOLSTENHOLME: Mr. Speaker, I'm not positive if this question should be put to you or to the Minister of Housing and Public Works. While I'm confident the roof isn't about to fall in on this government, I'd like to know about the condition of the ceiling in this Chamber. MR. SPEAKER: For the reassurance of hon. members, I would like to say that the remainder of the ceiling is secure. [interjections] There was a loose panel. It's been removed, and we'll be attending to it after the House adjourns. Bow River-Airdrie Water Line MR.

KIDD: Thank you, Mr. Speaker. My question is to the hon. Minister of Housing and Public Works. In view of the major industrial development proposed in the vicinity of Balzac, has the minister or his depart ment made any studies regarding the possibility of increasing the amount of water which can be deli vered through the Bow River-Airdrie water line? If he has, would the minister give an estimate of the cost of that increased flow? MR. CHAMBERS: Mr. Speaker, when the hon. mem ber mentions water, I'm not so sure it should be directed to me.

Recognizing that Balzac is a very important community, though, I'm always interested in what goes on around there. But the question should be more appropriately directed perhaps to the Minister of the Environment. MR. KIDD: Let me then direct it to the Minister of the Environment. MR. RUSSELL: Mr. Speaker, that part of the water line the hon. member refers to has been transferred to the Department of Housing and Public Works for administrative purposes. It is actually physically a separate structure to the Red Deer regional water line and was carried out as a Public Works project. MR.

KIDD: The water is flowing faster than the ball bouncing across this table. Prison Incidents MR. CLARK: Mr. Speaker, my question is to the Solicitor General. It deals with the operation of insti tutions under the control of the Solicitor General. First of all, is the minister in a position to indicate what investigation will take place with regard to the unfortunate circumstance surrounding the death at the Fort Saskatchewan penitentiary this weekend? MR. FARRAN: Yes, Mr. Speaker. There will be a routine investigation, as there is in all these cases.

In this particular case the inmate was checked 25 minutes before the body was discovered. The admis sion clinical notes signed by the psychiatrist had shown no indication of suicidal or other homicidal tendencies. The regrettable incident is one that sometimes happens. I'm afraid a check every half hour is about as much as one can possibly expect in a correctional institution. He had been segregated from the main prison population, since he'd been charged with a sexual offence. MR. CLARK: Mr. Speaker, a supplementary question to either the Solicitor General or the Attorney Gener al.

After the internal investigation is finished, will there be an inquiry as to the circumstances leading up to the death? MR. FOSTER: Mr. Speaker, I'm quite sure the medical examiner's office, upon reviewing this matter, will call for an inquiry, since the death occurred in a provincial facility. MR. CLARK: Mr. Speaker, to the Solicitor General. Was the Solicitor General advised by the family that both the wife and a member of the Edmonton city police requested that this individual get psychiatric treatment on April 7, the day after the individual was arrested and the charges laid? MR. FARRAN: Mr.

Speaker, I was not advised, although I see in the report that he was committed to Alberta Hospital as a result of information laid by the wife on April 7. The inmate was awaiting trial, and he was checked by two psychiatrists who said they felt he was not certifiable and could only be held, in any case, under an order of apprehension for 24 hours. This was something that was entered during the course of the trial, and was really outside the orbit of my department. MR. CLARK: Mr. Speaker, to either the Solicitor General or the Attorney General.

Would either of the hon. gentlemen be prepared to take on the responsi

May 15, 1978 ALBERTA HANSARD 1221 bility of having someone outside the two departments have a serious look at the recommendations courts make with regard to the confinement of prisoners, and then ascertain whether in fact those recommen dations are followed through either by the Attorney General's Department or, more likely, in the terms of the Solicitor General's Department, because they have the responsibility for confinement of prisoners once they're sentenced? I raise the question because of the concern about recommendations made by the court.

Are those recommendations then followed through in the rehabilitation process? MR. FARRAN: Mr. Speaker, certainly these questions will be raised during the internal inquiry. But the medical examination report showed that as seen by the psychiatrist on April 11 the inmate was not psychotic, and no medication was prescribed. MR. CLARK: Mr. Speaker, is the Solicitor General prepared to have an investigation done from outside his department, to determine whether the recom mendations of the courts which are made on sentenc ing individuals are really being followed?

That's the question I pose to the Solicitor General. Is he pre pared to set up such an inquiry by someone outside the department? MR. FARRAN: Mr. Speaker, I just don't see what this has to do with this particular case. There was no recommendation by the court or by two psychiatrists that any psychiatric treatment should be given. Otherwise the inmate presumably would have been in the forensic facilities at Alberta Hospital. MR. CLARK: Mr. Speaker, the question deals with both the situation today and the situation we dis cussed in the House last Friday.

It deals specifically with: is the Solicitor General's department following up the recommendations which are made by the court upon sentencing? That's why I think it's impor tant there be an investigation done from outside the Solicitor General's Department rather than another internal investigation. MR. FARRAN: Mr. Speaker, I again get the insinua tion that the hon. member finds something wrong with my department. I'm ready to investigate until the cows come home if there is some sort of indica tion that something is wrong. But I just don't under stand the continued thrust of the hon. member's questioning.

On Friday, for instance, some allegations were made which were just not true: that the individual in the case was not discovered until late in the day or something. He was aroused at 6:30 for the routine morning exercise like the rest of the inmates, reported sick, and then didn't come to the staff with his story until 8 in the evening. MR. CLARK: Mr. Speaker, to the Solicitor General then, and this deals with the operation of agencies in the Solicitor General's Department.

Would the Solici tor General be prepared to indicate to the Assembly what the situation is with regard to a recent incident at the Nojack prison camp? Would the Solicitor General like to enlighten the members of the Assem bly what's happened there? Well, check the department and tell us tomorrow. MR. FARRAN: I know nothing about it except that we had one escape from that particular prison camp. I know of no other incident. PWA Aircraft Safety MR. NOTLEY: Mr. Speaker, I'd like to ask the hon.

Minister of Transportation and Deputy Premier whether he can advise the Assembly if Pacific West ern Airlines has contacted Boeing aircraft corporation in light of the statement made by the president of the airline pilots' association with respect to the thrust reversers on 737 jets that the airline owns. DR. HORNER: Mr. Speaker, that may be a very impor tant technical question relative to the inquiry that's going on, but surely we should await the outcome of the coroner's inquest and the full investigation by the federal Ministry of Transport officials.

I am aware that in the meantime the management have informed me through the chairman of the board that they have naturally been in contact with Boeing, because they have some responsibility in these matters. MR. NOTLEY: Mr. Speaker, a supplementary question then, quite apart from the current coroner's inquest. Has PWA been able at this stage to make the mechanical adjustments to the thrust reversers so in fact they meet the safety requirements I believe they do in the States? DR. HORNER: Mr.

Speaker, I am informed that insofar as safety matters are concerned on the 737s that are being flown by Pacific Western Airlines, they meet all those requirements like any other operating air line. Irrigation Water Supplies MR. MANDEVILLE: Thank you, Mr. Speaker. My question is to the hon. Minister of the Environment. Could the minister indicate whether he has carried out any assessment of the supply of water for irriga tion in Alberta this year? MR. RUSSELL: Yes, Mr. Speaker, we have a monitor ing system.

We receive and distribute weekly flow reports, weekly snow and runoff and moisture reports, as well as conditions of reservoir storage capacity. I can say at this time that it looks like a good year for the supply of irrigation water in all respects. MR. MANDEVILLE: A supplementary question, Mr. Speaker. Could the minister indicate what steps have been taken or if he's establishing an overall water policy that would prevent recurrence of water short ages for irrigation that we had last year? MR. RUSSELL: Mr. Speaker, the kind of thing that occurred last year is almost beyond control by a government.

I think the way the department and the districts managed the system last year was very commendable. They didn't have to resort to water rationing, and they managed to keep enough water in the reservoirs. But if it isn't coming from the various

1222 ALBERTA HANSARD May 15, 1978 sources, of course they can't really increase the amount of water. I think the principles used in the management and storage of existing water which is made available to us are entirely satisfactory. Prison Incidents (continued) MR. FARRAN: Mr. Speaker, I wonder if I could correct a response I made to the hon. Leader of the Opposi tion. I had forgotten that I did know about an incident at Nojack Forestry Camp, where two guards were fired because they were absent from their duty with out leave. I'm afraid that was brought to my attention last week.

I did know about it but had temporarily forgotten. ORDERS OF THE DAY head: GOVERNMENT BILLS AND ORDERS (Second Reading) Bill 41 The Alberta Hospitals Amendment Act, 1978 MR. CRAWFORD: Mr. Speaker, there was only one other item I meant to deal with in closing debate on second reading of Bill 41. That is the argument that the legislation in some way denies access to the courts, in comparison with present situation.

That argument carries with it the implication that at the present time access to the courts is generally availa ble to aggrieved parties, presumably including the boards, in respect to hospital privileges. Of course the legislation under consideration, Bill 41, specifically provides that in respect to matters of law an appeal to the courts may be made from a decision of the appeal tribunal. My suggestion is that that is the same situation which presently exists in respect to appeals to the courts from decisions of the hospital board.

The result would be that the appeal board really replaces the hospital board only in a very narrow sense and in a very limited area of its jurisdiction; that is, in respect to reappointment or revision rela tive to hospital privileges of individual doctors. It's already been noted that the bill does not purport to deal with the original appointments. So the picture of the appeal board's operation that should be in hon. members' minds is that the hospital boards themselves now make these decisions. They are appealable to the courts in only a very limited way.

As a result of Bill 41, that portion of the board's decision that relates to individual privileges for practi tioners could now be appealed. In the same way, that decision of the appeal board could be appealed to the courts in matters of law. Now, in what other areas might the parties want to go to court without reference to matters of law? Outside the area of the privilege itself and the right of the agency to deal with it on a final basis, be it the hospital board or the appeal board, there are the other areas of damages for, say, breach of contract between a practitioner and a hospital board.

There's the area of defamation of character and presumably one or two procedural or jurisdictional areas. There may indeed be other areas that don't occur to me at the present time that could find their way to the courts, despite the apparent finality of the decision by the appeal board. I say again that that is the present situation. In closing I wanted to place before the House the result of some of the legal research being done and simply quote a reference in a Supreme Court of Canada case, published in the Supreme Court's reports in 1959, page 655, which I think will interest hon. members.

The case is an Ontario one, and the situation would be that the principles being applied in Alberta are the same. In that case the Supreme Court of Canada said: The Board of Trustees of a public hospital has authority to exclude qualified medical practi tioners from the privileges of the hospital and from attending their patients therein. The con trary claim advanced by the plaintiffs, was unsupported by authority. There was no such absolute right as the one asserted. No common law or statutory origin was suggested and it could not come from any statutory or other rec ognition of professional status.

The right of entry into the hospital and the right to use its facilities, in the exercise of the profession of these plain tiffs, must be found in the hospital authority for, apart from them, it has no independent existence. That would appear to state very clearly that the hospital board itself is now in the final position from which there is no appeal to the courts, other than the exceptions I have already spoken of; stated simply, no appeal to the courts on the merits or the facts of the case, only on other matters.

All that is happening is that given the occasions when the appeal board's decision may change in some way a decision made by the hospital board, the same area of approach to the courts would still remain after that. [Motion carried; Bill 41 read a second time] Bill 2 The Appropriation Act, 1978 MR. LEITCH: Mr. Speaker, I move second reading of Bill No. 2, The Appropriation Act, 1978. [Motion carried; Bill 2 read a second time] Bill 20 The Matrimonial Property Act MR. FOSTER: Mr.

Speaker, I just clipped on my "50-50 or Fight" badge in preparation for second reading of Bill 20, for two reasons: one, because I agree with the argument it presents; and secondly, because it's made by a relatively new business that's moved to the city of Red Deer to take advantage of new opportunities in my city. Bill 20 is the product of a great deal of work following last fall's introduction of bills 102 and 103, and in fact incorporates much that was in that partic ular legislation.

It's proposed that Bill 20 be passed at this spring session of the Alberta Legislature but that it will not come into effect until probably January 1 next year. The reason is that we are awaiting

May 15, 1978 ALBERTA HANSARD 1223 assurances of federal legislation touching upon taxa tion matters to ensure that Albertans do not find themselves in a position where they have experienced an unexpected tax problem as a result of a distribution order made pursuant to this act. Mr. Speaker, this act provides for a system whereby upon marriage breakdown different classes of proper ty owned by each or both of the spouses are to be distributed in different manners according to specific guidelines set out in the act. However, not all proper ty of the spouses is subject to the act and to a distri bution order.

For the record, perhaps I could clarify the exceptions. They are property acquired by gift from a third person, property acquired by inheritance, property owned by either spouse before marriage, any award or settlement for damages arising in a tort proceeding unless it's compensation to both parties, any insurance policy that's not insurance in respect of property. As I've said, this property, either at the time of the marriage or at the time the property or the interest in the property is acquired, whichever is later, is subject to this exemption.

Now property that is exempt, of course, does not remain exempt forever, in the sense that a farm owned by a young man before marriage would con tinue to be exempt throughout their lifetimes follow ing marriage. Certainly its value at the time of mar riage would be exempt, but the increase in value of that land, for example, would not be exempt. It would form part of the matrimonial property. Indeed revenue and income that may flow from such exempted property will also be taken into considera tion by the court in making a distribution order according to specific guidelines. Mr. Speaker, the key

section of this act is one which, in rather simple language, says that all proper ty acquired subsequent to marriage is subject to a presumption of a fifty-fifty split and is to be shared equally between the spouses, unless it appears to a judge that it would not be just and equitable to do so, having regard to certain guidelines set out in the act. For the record, Mr. Speaker, I refer hon. members to

Section 8 of the act, which lines out the 13 criteria I referred to as guidelines. It may be important to address ourselves specifically to them and to keep them in mind in the course of debate on second reading. The first of these guidelines deals with the contribution made by each spouse to the marriage and to the welfare of the family, includ ing any contribution made as a homemaker or parent . . . That's guideline number one, followed by guideline number two. Together I think they represent the most significant failing in the law at the moment.

The second one is: the contribution, whether financial or in some other form, made by a spouse directly or indirect ly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise [et cetera] . . . It means, Mr. Speaker, that for the first time the non-financial contributions of a spouse in a marriage will be taken into consideration and acknowledged as being considered to entitle that spouse to share, presumably equally, in the distribution of those assets. The remaining factors do not relate to maintenance and alimony.

I would refer the House to Bill 102, where many of the guidelines did in fact refer to matters which really dealt more with maintenance than these do, and quite properly so. Based on repre sentations from several sources, we have endeavored to strip them out of Bill 20.

The third is the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation, or improvement in property; fourth, the income, earning capacity, liabilities — and I underline "liabilities" — obligations, property, and other financial resources that each spouse had at the time of the marriage or at the time of the court application. Mr. Speaker, I underline "liabilities" because I think some people have rather naively assumed this is a property distri bution, an entitlement solely to property.

We some times forget that marriages have assets and liabili ties, and it's important that those be considered. The length of the marriage will be a factor, for obvious reasons, and "whether the property was acquired when the spouses were living separate and apart" is additionally a factor which could be consid ered in arriving at the distribution order, following the presumption of fifty-fifty. "The terms of [any] oral or written agreement between the spouses" — I'll come in a moment to marriage contracts.

Whether or not a spouse has made "a substantial gift of property to a third party, or a transfer to a third party other than for bona fide" consideration; whether there's been a distribution of property previously by the spouses by way of gift or other arrangement; an order of the court; any "tax liability that may be incurred"; or the fact "that a spouse has dissipated property to the detriment of the other spouse"; and the thirteenth factor is "any fact or circumstance that is relevant". Mr. Speaker, those are the guidelines which the court will be required to consider.

A moment ago I referred to marriage contracts They are provided for in this legislation and would allow a consenting husband and wife, subject to cer tain specific requirements of the act, to enter into a contract which could override the provisions of

Part 1 of this legislation. The spouses would then be bound by the terms of their agreement. I emphasize "Part 1" because

Part 2 cannot be contracted out of. That relates to home possession, and as a matter of public policy we have felt it would be inappropriate to con tract out of those provisions. Bill 103 is incorporated in this legislation, Mr. Speaker. Generally we've had nothing but good response from across the province with respect to the powers of a court to order possession of the matri- monial home and household goods to the exclusive use of the other spouse for a certain period.

I think we can all imagine circumstances where, for example, a matrimonial home may be in the name of both parties, but if children are involved the court will want to order possession of the premises to the exclusive use of one spouse and the children. I hasten to underline, as I did before, that alimony particularly maintenance aspects, are not dealt with in this legislation. We have recently received the institute's report with respect to family obligations, and we will be considering that over the course of the summer. I would hope that sometime soon we can consider what appropriate legislative changes may he

1224 ALBERTA HANSARD May 15, 1978 necessary in that area of the law. It had been my original hope, Mr. Speaker, to have that work done by now and included in this bill, as some other provinces have done. However, that was simply not possible. Of course, "maintenance" refers to regular or lump sum payments which a spouse may be ordered to pay to another spouse for the benefit of the other spouse and the children. This is dealt with under separate legislation, principally the Divorce Act and The Dom estic Relations Act. Mr.

Speaker, I think it is clear that the property award between spouses will certain ly be a factor the court will take into consideration when it comes to awarding maintenance payments. For the sake of argument, presumably a female spouse who gains the overwhelming majority of the assets of the marriage and has custody of the chil dren too, would likely be entitled to a very small maintenance award, if any. But of course those cases will have to be looked at very carefully on their merits. As I think I've said, Mr.

Speaker, the problem with the existing law is that it has never acknowledged, and therefore the judges have not been able to acknowledge, that on marriage breakdown a party who has made other than a financial contribution to the acquisition of property is entitled to share in that property. There have been a number of important cases in Canada in the recent past where that has been driven home to us rather dramatically. Clearly the lime is well past for that kind of reform in the law.

I have been somewhat discouraged by the attitude of certain groups who feel that the judiciary cannot really be relied upon to be fair and reasonable in the matter of the sharing of matrimonial property. I would simply hasten to point out that the judiciary is bound by the law. The solution rests with the legisla tors of the country and not so much with the courts. We are endeavoring to redress that quite appropriate grievance in Bill 20.

Similarly, marriage contracts have not been ac knowledged in the law, in the absence of a statutory provision allowing the same, because the courts have held that portions of those kinds of contracts that deal with marriage breakdown have simply been ineffective. Mr. Speaker, it's fair to say we have considered several options, beginning of course with the report of the Institute of Law Research and Reform and a number of other recommendations. Briefly stated, there are three basic approaches to matrimonial property, and an infinite number when you combine the variations.

The first of course is the concept of full community of property. That's rather simple and basic, quite simply that all property acquired by the spouses after marriage is jointly owned and jointly managed, and upon marriage breakdown each party is entitled to one-half of the assets and one-half of the liabilities. There are obvious weaknesses in that, and I'll come to them. The deferred community of property is very similar, in the sense that the parties are entitled to an equal share on marriage breakdown but are free to manage and dispose of property in the course of the marriage.

Finally, judicial discretion: I think Sas katchewan is the only jurisdiction in Canada today which has almost a pure discretion system. This is where a judge has absolute discretion to divide the property according to whatever criteria he or she feels fair and reasonable. I should say that recent cases in Saskatchewan, even where they have a pure discretion system, have tended to start from the assumption of fifty-fifty and go from there. That is one of the reasons I was not at all uncomfortable with Bill 102.

But of course this bill provides a good deal more certainty than Bill 102 and a corresponding reduction in flexibility. Mr. Speaker, the inequities in the deferred commu nity of property concept are simply that it provides for an arbitrary split, fifty-fifty, down the middle, with varying degrees of injustices in many cases, because all marriages indeed are not the same. We can conjure up examples of where that might easily lead us to an unjust solution.

The advantage of deferred community of property is certainty; its disadvantage is that it lacks flexibility and, I think, could result in varying degrees of unfairness. Judicial discretion, on the other hand, has wide flexibility and does indeed lack some certainty. I think that has been its criticism by most in the public debate that has taken place in this province in the last few years. Judicial discretion is therefore very high in flexibility but low on certainty.

The public response we've had on this issue in the last several months is to provide for greater certainty in this legislation and somewhat less flexibility. The way Bill 20 is struc tured, I believe that will be the case. Mr. Speaker, I believe it is a happy blend of both certainty and flexi bility. It provides for sharing by a court, having regard to initial presumption of fifty-fifty, and then the ad dress of the 13 criteria to which I referred earlier. Mr.

Speaker, I'm deeply grateful not only to the members of this Assembly but to a wide variety of citizens of this province, some of whom I think are represented in the gallery today, for the very consid erable effort they have made in responding, reacting, and in fact initiating discussion on the subject of matrimonial property. For some time I was worried that both the institute's report and bills 102 and 103 would not receive very much comment. I was afraid this Legislature would be called upon to make certain decisions almost in a vacuum.

I'm happy, and I think we all are, that we've had a good deal of public discussion and comment. Certainly a great deal has been written on the subject in this province in the last while. On balance I believe the bill is fair and reasonable, and that it will be broadly accepted across this province. I do believe it is a substantial step forward, as I think has been remarked by editori al writers, at least the ones I have been looking at recently with respect to the Edmonton Journal, The Calgary Herald, and the Red Deer Advocate. In conclusion, Mr.

Speaker, I would simply like to comment that regrettably the concept of deferred sharing is somewhat of a misnomer. I think it's perhaps unfortunate the institute chose to use that word, because it's led people to believe the institute recommended a very firm and fixed fifty-fifty split, which of course they did not. They recommended a fifty-fifty; however, the judge could vary that where he was satisfied that the contribution of a spouse to the welfare of the family was substantially less than might reasonably be expected.

But the captioned words "deferred sharing" on the lapel [button] I'm wearing have been read by many as "automatic fifty- fifty",

whereas in fact deferred sharing can apply to deferred community of property or indeed judicial dis

May 15, 1978 ALBERTA HANSARD 1225 cretion. I believe this bill is as close as you're going to get to the majority recommendation of the Institute of Law Research and Reform and still retain some additional element of flexibility, which I think is needed. For those who are blindly focussed on the majority recommendation of the institute's report, I would point out that that was a four to three recommenda tion. Sometimes we tend to focus too much on the majority view and not consider the minority view. But even looking at the majority view, Bill 20 comes very close to the institute's report.

It is in fact a presump tion of fifty-fifty with certain guidelines. I'm very confident the courts will only disturb the fifty-fifty finding when they have just and reasonable cause for doing so. Mr. Speaker, I will conclude on that, and look forward to what I'm sure will be very interesting discussion and committee study of Bill 20. MR. CLARK: Mr. Speaker, in taking

part in the debate on Bill 20, at the outset I'd like to congratulate the Attorney General on two counts: first of all, Mr. Attorney General, in never having brought last year's matrimonial property Bill 102 to second reading; and his efforts here at modifying the bill in a direction that is progressive rather than conservative. I'm also pleased because, in fairness to the Attorney General, I believe he solicited and received much more public input than he had initially expected on this matter. I commend the Attorney General for the way he's gone about that particular portion of the bill. I would say though, Mr.

Speaker, that this bill was introduced eight sitting days ago. In Calgary the Pub lic Affairs Bureau have advised people that in all like lihood copies of the bill wouldn't be available until either last Friday or Monday of this week. I know my colleagues and I have sent copies of the bill to a number of interested citizens, and I'm sure many other members have too. We're really still in the process of getting reaction from them. I also feel confident that this bill has to be read, analysed, discussed, and certainly reflected upon. I'm sure all members of the Assembly have found that to be the situation.

I've been as frustrated as any member in this Assembly by the delay the government had in the past in bringing forward this legislation. The issue of matrimonial property has really been before this As sembly since the late 1960s. It was before 1971 that the Institute of Law Research and Reform began work in this area. But the first government bill came forth only last year, and the second edition less than two weeks ago.

However, with several years having gone into the formulation of this difficult and, I admit, very complex legislation, I would say to hon. members that it is folly to attempt to make up for lost time in overhasty passage of this bill, without adequate scrutiny by this Legislature and I think by a large number of people who have received copies of the bill recently and are still in the process of pulling together their thoughts on the matter, and certainly haven't had a chance to get back either to the groups and organizations they're associated with or their own particular Mem bers of the Legislative Assembly.

I would refer hon. members of the Assembly to a statement by the Attorney General himself when questioned about the timing of matrimonial properties legislation on February 25, 1977: . . . one of the hallmarks of a very successful government is its capacity to be flexible. When you discover that you may be moving down a road, legislatively or otherwise, that you have not clearly thought out, that you feel may do injury to some people, I think it's intelligent and responsi ble for a government to occasionally pause . . . . The point is well taken, Mr. Speaker.

In fact, from the look on the Attorney General's face, seldom is he so impressed with his own quotation. MR. FOSTER: Coming from the Leader of the Opposi tion, I can't help it. MR. CLARK: If you'll just listen as carefully from here on.

I think it would be very wise on the government's part to pause right now and ask itself: are we wise in pushing this legislation through second reading, committee, third reading, and royal assent in the next very few days, or would we not be wiser to follow the suggestions made by the Status of Women Action Committee and others who say, let's look at the legis lation over the summer — admittedly the government has moved some distance on this area — with the view in mind of dealing with it quickly as a priority item at the fall session this year? Mr.

Speaker, considering the complexity and con troversial nature of this bill, I propose that really it should be held over until the fall session. Had it been introduced at the start of the session, I think there would have been perhaps a month or something like that for people to look at the legislation, to get their reactions to the Members of the Legislative Assem bly. Then I would say, fair ball, let's move ahead with the legislation before we close this spring session.

I know some hon. members are going to say, for two years we had the Leader of the Opposition saying to the Attorney General, when are you going to move on the matrimonial properties legislation? Fair ball. Part of our job is to attempt to have the government move on pertinent issues of the day. But now that we have the legislation before us, I think we would be wise to ponder the implications of the legislation just a while longer. Mr. Speaker, I really have four specific areas of comment as far as the bill is concerned.

I would have to say this is a big improvement over the piece of legislation the Attorney General brought in earlier. Before I become involved in those four comments, I would like to say to members of the Assembly that in 1973 a survey was done by the Institute of Law Research and Reform. Albertans were asked a num ber of hypothetical questions relating to division of property in the event of divorce. The replies varied with particular questions, so I will refer to the resear cher's own

interpretation. I quote from that

interpretation: The chief conclusion to be drawn from the results of the survey is that the majority of Alber tans view marriage as a joint venture — a part nership where each spouse contributes to the domestic economy, where property brought into the marriage and property acquired during [their] marriage is considered to belong to both spouses, and where, upon dissolution of the marriage,

1226 ALBERTA HANSARD May 15, 1978 property should be equally divided. In another study, organized jointly by the same institute and the Alberta Women's Bureau in 1974, on every one of 10 different questions at least 82 per cent of the respondents indicated that if the husband acquires the property while the wife tends the house, the wife nevertheless deserves a share of the proper ty upon marriage dissolution. Of the 82 per cent, 78 per cent believed a fifty-fifty division was appropriate.

I welcomed the comments of the Attorney General when he described deferred sharing as something more than an automatic fifty-fifty split. I think the most pertinent comment I can make here is to quote from report 18 of the Institute of Law Research and Reform. On page 161, commenting on deferred shar ing, it says:

(3) The court [should] not exercise its power under subsection (2) unless (

i) it is satisfied that the contribution of a spouse to the welfare of the spouses and their family during all or part of the statutory regime was sub stantially less than might reasonably have been expected under the cir cumstances . . . . It's with that point of view that I look at deferred sharing as the route I believe we should be moving. Looking at Bill 20 for a moment or two, I think it's fair to say that

Section 7(4) indicates some sympathy to equal division of matrimonial property. As it now stands, however, the presumption is weak: . . . the Court shall distribute that property equal ly between the spouses unless it appears to the Court that it would not be just and equitable to do so, taking into consideration the matters in sec tion 8. Mr. Speaker, the phrase "unless it appears to the Court" is an invitation to the court to ignore the presumption of equal sharing and invoke judicial dis cretion. The Attorney General shakes his head.

I'll be pleased to hear his comments on that, either at the end of second reading or in committee when we look at the particular clauses. I think many of us want to prevent the kind of injustice that ended up in the Murdoch case. Mr. Speaker, the responsibility to define clear prin ciples according to which matrimonial property should be divided lies not with the courts but with this Legislative Assembly. I noted with some interest the comments the Attorney General made when he characterized the legislation as a "happy blend" be tween "certainty and flexibility".

I think there's really some question as to where the certainty ends and the flexibility starts. I think we have to look at

Section 7(4) and ask ourselves: how clear a direction is this to the courts? The second concern I have deals with the courts really becoming the instrument by which matrimonial property is going to be divided rather than on the principles decided here in the Legislative Assembly itself. My third comment relates to

Part 2, matrimonial home possession. My suggestion there is that the bill does not really recognize that the home itself may well be the most substantive part of the matrimonial property and should therefore be calculated in the division of property. At the same time, I realize that a home is more than just a marketable commodity. Its primary function is a place to live, not a thing to sell. Mr. Speaker, I admit openly that this is a difficult part of a difficult bill, and I believe it needs considerable rethinking. Finally, Mr.

Speaker, my fourth concern with the bill in principle is that, as I understand it, it contains no provision for the division of property acquired in common-law marriages. People do acquire property within such relationships, and they have a right to legislation which indicates the just division of such property in the event the relationship ends. Matri monial property legislation should specifically allow for it to be applicable to common-law marriages. To summarize, Mr.

Speaker, I'd urge the govern ment to keep the bill on the Order Paper during the summer; if one wants to put it this way, to accede to the requests from the Alberta Status of Women Action Committee to hold the legislation over until the fall session, when I think there will be a great deal better understanding of the implications of the legislation not only in the Assembly but across the province. Then, early in the fall session we should move on the legislation.

My urging to the Attorney General — and I hope he's in a receptive mood — would be that now isn't the time, in the course of eight, maybe 10 sitting days by the time we're finished, to put this matrimonial property legislation through, when in fact it's been before the Institute of Law Research and Reform for some time and before the government for some three years, as I recall.

We would be wise to take an additional three to four months for one last public inspection of this legisla tion before it's passed, keeping in mind that when the legislation is approved in its final form, the Assembly itself should be firmly establishing the principles and that we shouldn't be abdicating that responsibility to the courts under 7(4). DR. PAPROSKI: Mr. Speaker, may I make a few preliminary remarks regarding Bill 20. As we have passed through International Women's Year, it has been stated that in fact the consciousness of men concerning women as persons has developed consid erably. I think hon.

Members of the Legislative Assembly would agree with that. I also think there is a higher consciousness about female identity amongst women themselves. Mr. Speaker, that struggle against preconceived notions detrimental to full female personhood will continue, I think, for some years to come. As time goes on, I'm confident a more acceptable balance will indeed be found, hopefully within the next few years, but only with the strong support of all members of society. I think hon. members of the Assembly would rec ognize that those true concerns of women over the past years are proper.

I think every member in this Assembly has that concern and voiced it more than ever before when we started discussing the matrimo nial property legislation, Bill 102, which is now trans cribed in an improved state into Bill 20. I think we as society have to meet that challenge. The outmoded notions regarding the attitude of females and our atti tude as males towards females have to be challenged with vigor and determination, and I think we're doing that. I suggest, Mr. Speaker, that the challenge was started in Canada only 50 or 70 years ago, if we read

May 15, 1978 ALBERTA HANSARD 1227 some of the recent history books. Hon. members of the Assembly will recognize that during that short period of time women were given the right to vote. They fought to end so-called sweat labor. They fought to develop day care centres. Hon. members may recall that only during the first world war were they allowed to join the armed forces, and they partic ipated with their male counterparts in a most deter mined way. Today, Mr. Speaker, we're meeting another chal lenge regarding matrimonial property.

In addition, I say with embarrassment that I failed to mention we even have females in Parliament, in this Legislature, and in legislatures across this coun try. So much has been changed; today we're making a few extra changes. One of the concerns in the matrimonial property legislation we are dealing with today, Mr. Speaker, is the public response. I say that is a concern not because the response is a concern per se, because in my opinion the public response in my opinion was tremendous; but the concern that there was such a heavy, one-sided response against judicial discretion and in favor of deferred sharing.

The minister has taken note of that, and I think hon. members have. I suggest that those who haven't had better take heed. The Alberta Status of Women action group and many, many other groups, whether it be the Alberta Asso ciation of Registered Nurses, the Alberta Association of Social Workers, all have made their comments well known to us as members of the Assembly. Some individual constituents have indicated their concern. May I briefly quote one? "I live in your constituency and am very concerned about the new matrimonial property law" — which was was Bill 102 at that time — and the concerns the hon.

Attorney General has indicated have been to some degree corrected. Mr. Speaker, another letter from a "very much concerned" constituent describes some con cerns regarding fifty-fifty deferred sharing versus judicial discretion, of course in favor of deferred shar ing. Another letter from a constituent states, "I believe also, that because the proposed legislation does not recognize as a basic principle that marriage is an equal partnership, it violates the rights of women." All proper comments for consideration and deliberation. Mr. Speaker, as the hon.

Attorney General has indicated, those who have responded have done so with very careful deliberation regarding the pros and cons. Although some haven't considered the legal aspects to the same extent that I feel a lawyer or judge could, they have considered it in a very practi cal sense. Their deliberations and considered opinions have been considered over the past few months, and I'm pleased the government has done that to some extent. I've met with some of the groups, and I recognize that some members of those groups are in the gallery. Again I acknowledge their contribution, not merely because they're here.

I would have made that statement because their con tribution was very deliberate in booklet form, in letter form, and in a sincere, direct, eyeball-to-eyeball meeting. Mr. Speaker, the action of this government bringing in Bill 20 in a modified way after Bill 102 must be commended. I'm saying that to the hon. Attorney General, recognizing the stress he was under with the barrage of information thrown at his feet. No one in this Assembly can say it was a rush job, a snow job, or the input was not allowed. And deliberation of that input was done. Such an important item obviously needed time.

Knowing some of the elements or lack of them in the law prior to this legislation, I'm certainly pleased that it is being brought forward. Because as we should all remind ourselves, the existing law before this legislation — and it hasn't been enacted yet, as we know — states clearly that the husband's earn ings belong to him and the wife's to her. But the homemaker, the wife in most cases, has no right to her husband's property on divorce or separation, although she may have the right to maintenance. Mr. Speaker, her contribution as a homemaker is not recognized as giving her any property rights.

Even I as a legislator, and I'm sure the majority of people in our society, would have presumed that the homema- ker's contribution would have been considered. In other words, it did not provide adequate recogni tion of a married woman's contribution as a home- maker; it did not recognize a wife's indirect contribu tion for her work in a family business or farm; even with a wife's direct contribution toward family busi ness, the law still had serious shortcomings regard ing records, the intent, et cetera. It did not reflect the majority of Canadians' wishes in that respect. Some body mentioned statistics.

A 1975 Gallup poll showed that some 63 per cent interviewed believed a man should share equally assets accumulated during marriage. This was also true in the survey done by the Institute of Law Research. Mr. Speaker, in essence there are three considera tions here: deferred community of property, the judi cial discretion system, or a blending of the two. I feel Bill 20 in fact blends the two. Now there are those who would say that blending is not in proper balance. I suggest that under the circumstances, with all the information we have at this time, it is a fair balance.

With time, the Attorney General or any other legisla tor may decide to bring in amendments to make that blend a little more balanced toward deferred sharing. But that remains to be seen. Mr. Speaker, it's obvious that no matter what is chosen in this legislation by all hon. members of this Legislature representing a variety of groups across this province, some will be happy and some unhappy.

But facing the reality that in fact separation and divorce — especially divorce, which this bill deals with — is a societal concern that exists and will continue for some time unless we find some solution — I don't expect to find that solution quickly — I'm pleased we have an acceptable blend of the two items, deferred sharing and judicial discretion. Mr. Speaker, I hate to repeat some of the items mentioned already by the Attorney General, but I think it's valid and important because it gives a perspective that may be missed by some members of the Assembly or by the public as they read Hansard.

I don't pretend I know the answers to all these things, but I feel it's worth mentioning anyway. Deferred sharing: as I understand it, during marriage each spouse manages and disposes of property. If mar riage ends, property is valued and divided equally with proper compensation, if it is not equal in fact. In judicial discretion, regardless of the legal ownership by one or other spouse, the judge distributes property

1228 ALBERTA HANSARD May 15, 1978 according to what seems just to him. Under

Section 8 in this bill the judge is obliged to take into consider ation a variety of items. I think there are some 13 items. Keeping this in mind, and the Gallup poll and the Institute of Law Research and Reform report survey, keeping in mind the public input against judicial dis cretion and for deferred sharing, I think the govern ment was hard pressed indeed to have a blend of deferred sharing and judicial discretion. I have tried to listen, evaluate, and conclude in a most objective manner. I'm sure all members of the Assembly have done the same thing.

Indeed my direction seems to favor a blend of both of these, maybe balanced a little differently than what is in Bill 20, but better than one way or the other. Mr. Speaker, I think it merits just a few moments to reiterate some of the advantages of deferred sharing versus judicial discretion. Maybe we'll recall this in an historical sense, one, two, or three years down the line, when we have to go over the debate again and modify the bill as it now stands if some additional information comes to light.

The advantages of deferred sharing: it recognizes that marriage is an economic partnership as well as a religious and social partnership; it recognizes and acknowledges the homekeeper; it eliminates uncertainty, as the hon. Attorney General mentioned; it discourages litigation and confrontation, and the resultant stresses, strains, and costs involved in litigation. The other advantage is that it adheres to our social desires, our value system, as most accept and understand them; that is, equality in marriage. What are the advantages of judicial discretion? Well, it's flexible, Mr. Speaker. It sure is flexible.

As a matter of fact, the judge will take those 13 points and he has a wide-ranging flexibility. These are un fortunately the disadvantages. But the flexibility that on one hand may be wide-ranging and a disadvan tage, on the other hand obviously has an advantage. It is said that it's simple to explain, but you go to court for the explanation. That's difficult for the average person to understand, but that's the way it is under judicial discretion. The court will take the wife's contribution as well as the husband's. When the guidelines are set down as in

Section 8, at least the judge has parameters and guidelines. Having faith in the judicial system as we all should have, I hope it comes out to a good balance for both individuals. Particularly important under judicial discretion are the special problems that may arise, such as alcohol ism; a husband or a wife, as the case may be, who is irresponsible; or a marriage of very, very short dura tion. I think hon. members should quickly recognize that could happen: a one-week or one-month fling, and you have a problem and have to split everything fifty-fifty.

Certainly no hon. member in this Assem bly, male or female, would agree there should be a fifty-fifty split after a six-month or one-year marriage which ends in a divorce. So there's an advantage. Mr. Speaker, what are the disadvantages of deferred sharing? One, during marriage truly nothing will change. A wife can still remain in an unfair economic position until a marriage ends, if in fact it ever does. I suggest that argument doesn't hold water, because most wives have the opportunity of gentle persuasion. Indeed they should apply that kind of pressure.

The other disadvantage of deferred shar ing is that if one person is lazy, irresponsible, or becomes a hindrance, he still has the opportunity of sharing on a fifty-fifty basis. The other item is identification of shareable proper ty and accounts, which may be very difficult. I don't think that's a good argument or a disadvantage at all. Anybody who is married and has property certainly should be able to account for it. The other problems, such as sharing of pension insurances and taxation, are of course difficulties that can be resolved with time.

The Attorney General hasn't mentioned, or maybe he implied in an indirect way, that the vast majority of divorce cases should and will be kept out of court and satisfactorily resolved, recognizing the presumption of fifty-fifty sharing in this particular bill. Clearly, this will settle most cases. I'm pleased that the presump tion of fifty-fifty is now brought in, in Bill 20. Mr. Speaker, those who do go to court should be there only because of extraordinary items. However, this bill doesn't state that. As we know, judicial discretion will apply merely because there is a chal lenge by one or the other spouse.

If there was a weakness in the bill, I suggest that is it, because a mere challenge is all that is required. However, with time maybe we'll modify that. I hoped something would have been in the bill regarding another concern, the special pre-court hearing. I suggest it should be automatic, require both parties to attend, and attempt in a very serious way to resolve the issue before it goes to court under judicial discretion. Mr. Speaker, I know there are pre-court hearings. Those in the judicial system who are in this Legislature would say that in fact exists.

But I'm talking about a special pre-court hearing, where maybe the problem could be resolved. As I mentioned before, I would hope that under judicial discretion we could be more definitive and say a mere challenge is just not enough. There has to be a challenge with some definitive point made, so that challenge could be weighed by the court before it even gets to court, to see if they in fact have a reason for judicial discretion or going to court. Mr. Speaker, I'd like to make further points on the bill.

I feel the bill deals with the issue of how to divide between married couples matrimonial property, household goods, matrimonial home, and all other property and assets. I understand that maintenance will be dealt with by other legal parameters. I've indicated already that the bill presumes equal sharing of assets after marriage, and I'm pleased to see it there. Maybe in the future it could even be strength ened to some degree. The third point, Mr.

Speaker, is judicial discretion only if challenged; and gifts, inheritance, and damage awarded in settlement in tort, insurance, and claims proceeds will be exempted from the fifty-fifty split, unless given to both from the beginning. The fifth point, regarding conduct, age, and health, has been deleted as a consideration. I'm very pleased to see that, because I made representation with other members regarding that item. Mr. Speaker, I commend the hon. Attorney General for bringing in another point, which I think is vital and very important; that is, the married couple may con tract out as they see fit.

It means that in fact this act will not apply if a couple has a contract with clear understanding of what they are doing and of possible

May 15, 1978 ALBERTA HANSARD 1229 future ramifications, with a proper independent lawy er for both the male and the female — there can't be any conflict, they have to be separate lawyers for consultation, as I understand it. Is that correct? The Attorney General is nodding his head. Regarding the matrimonial home section, Mr. Speaker, the court, as it sees fit, can give the home or assign the lease to one or the other spouse.

Very importantly, if one or the other spouse knows or believes he or she should have known that the di vorce is possible or probable, then the court could prohibit selling of the home or make restoration based on the fact that he or she knew they were going to court. Mr. Speaker, in my opinion the legislation is good. It could be better, but what couldn't be better in this world? Considering the amount of work that has gone into it, I suggest we should be pleased that we have some type of balance between deferred sharing and judicial discretion.

I think it emulates and reflects the feeling of a good portion of our society. I hope the Attorney General, after reading the remarks and allowing the legislation to be tested for a few years, will seriously consider and not be afraid to improve, clarify, or respond even better to our needs, if he or future legislators feel it's needed. Mr. Speaker, I could have made many other points. I've skipped over them because of the time element. I would like to compliment the Attorney General. I know he has gone through a lot of hard work in his deliberation regarding that.

I feel it responds to needs of many people in Alberta for the present time, and I congratulate him. MR. NOTLEY: Mr. Speaker, I welcome the opportunity to take

part in this debate. I must say I found the remarks of the hon. Member for Edmonton Kingsway quite interesting. He made a number of observations that struck me as being valid, indicating at least quali fied support for the bill. Listening to several of his observations, it was apparent to me that he's still from Missouri, and the Attorney General is going to have to show him. I suspect quite a few people are in that category as we review Bill No. 20. Mr. Speaker, there's really little doubt that matri monial property legislation has been long overdue. Both the hon.

Attorney General and the Leader of the Opposition mentioned the Murdoch case, which was finally decided by the Supreme Court of Canada on October 20, 1974. Neither mentioned the resolution of 1971, just before the last provincial election, that asked the Institute of Law Research and Reform to look into the matter. It read:

Be it resolved that the government of Alberta request the Institute of Law Research and Reform to study the feasibility of legislation which would provide that, upon the dissolution of the marriage, each party would have a right to an equal share in the assets accumulated during the marriage, otherwise than by gift or inheritance received by either spouse from outside sources. Mr. Speaker, that resolution was the basis for the request by the government to the institute. We had the final report of the Institute of Law Research and Reform in August 1975.

Before the Legislature convened I had the opportu nity to discuss this matter with a large number of people throughout the province, also to review it at some length with the people I have the honor of representing in this Assembly. A series of meetings were held during the course of my pre-session tours. I would like to outline the results of the poll to the Assembly. I put the options to them, and I don't think anyone can dispute them. Both the hon. Member for Edmonton Kingsway and the Attorney General out lined the pros and cons of judicial discretion on one hand, versus deferred sharing on the other.

I must say, Mr. Speaker, I find it rather surprising that the overwhelming response was in favor of deferred sharing: 325 in favor of deferred sharing, 32 in favor of judicial discretion, and six sitting on the fence. And before people jump up and say, that's the sort of thing you would expect; the hon. member had the NDP Association call all these meetings, and that was just a response in the NDP membership — that really wasn't the situation. In most cases the meet ings were sponsored by groups like the chamber of commerce, Unifarm, the National Farmers Union, and non-partisan organizations.

I think the response I got from my little poll within the Spirit River-Fairview constituency was an indica tion of the attitude of most of the general public. Certainly the correspondence I've received as a mem ber of the House has been very strongly in favor of deferred sharing. I would just note that from time to time, when the public disagrees with statements I've made in the Legislature, the press, or the media, they're very quick to remind me of their disagree ments.

I get both sides of the story, but the mail I've received on the matter of matrimonial property has been overwhelmingly in favor of deferred sharing. The Leader of the Opposition commented on the law reform questionnaire which indicated 61.2 per cent favoring fifty-fifty sharing and only 13 per cent in favor of judicial discretion. I think it's important as we look at Bill 20 to recognize that despite the rather eloquent introduc tion of the bill by the hon.

Attorney General — a very reasonable and low-key pouring of oil on troubled waters — when we set that aside, what we really have here is a guided judicial discretion bill. Admittedly it's somewhat of an improvement over the bill introduced in this Legislature last fall. Quite frankly, almost anything would be. But before we jump up and down and say we have the best of all worlds, I think we have to take a fairly close look at Bill 20 and analyse what the hon. Attorney General is asking this Legislature to en dorse. He says the presumption is fifty-fifty. That's right.

Section 7 indicates a fifty-fifty presumption, but adds, where it's just and reasonable. Then we have 13 qualifying points, 13 provisions which all, in one way or another, can qualify the presumption of fifty-fifty sharing. I'm not saying they will, but they can qualify that provision. While I can't say they will qualify the fifty-fifty presumption, on the other hand neither can the hon. Attorney General or the govern ment members sitting in the House say they won't. We're going to have to see what happens in the courts.

In fact we're going to have to wait for the case law to develop, and that could take a number of years. The Alberta Status of Women Action Commit tee is saying — and in my judgment it's a rather reasonable proposition — that in a sense by putting in the 13 points that will be up to the case law to interpret over a period of years, this Legislature is

1230 ALBERTA HANSARD May 15, 1978 side-stepping a responsibility for clearly delineating what the law will be. We're going to say, yes, we're passing a law here. The presumption is fifty-fifty, but you have to take into account these 13 provisions. The 13 provisions are going to go through the courts. We're going to have the whole process of establish ing precedents. What in fact will take place then is that we have the possibility of fifty-fifty sharing. No question about that — the possibility.

But it is a possibility only if we are optimistic and assume that the case law will rule in favor of fifty-fifty, taking all these qualifications into account. Mr. Speaker, if I didn't misunderstand the hon. Member for Edmonton Kingsway, he indicated in his remarks that there would be less litigation. With great respect, I can't imagine a lawyer, handling ei ther one side of the case or the other, advising anything other than going to court with Bill 20.

There's so much ambiguity in the legislation that, good heavens, if you're going to successfully repre sent your client's interests there is almost a natural demand that you say, look, we've got a case, let's take this to court. You look at these 13 qualifying provi sions, and in most cases there will be some way of arguing that we can get less than fifty-fifty. If there's any uncertainty, we get to the thirteenth: "(

m) any fact or circumstance that is relevant". I can just see what some of our skilful people in the legal profession will do with "any fact or circumstance that is relevant". We see what they do at the present time with rape cases. One of the reasons women's organizations in the country have been requesting some changes in that particular approach is because of the way in which defence counsels have dragged everything into the record in the case of court pro ceedings.

Are we going to have open sesame then in terms of analyzing the conduct of both partners of the marriage, for the last year, two years, five years, or 10 years? At this stage of the game we don't know. In the final analysis the thirteenth provision will be deter mined as a result of precedent. Precedents are not established overnight. They're established as a result of the system working slowly but surely. That's going to take years. Small wonder that the Status of Women Action Committee as well as a number of people in the legal community are saying to us, look, you people are the legislators. You set the law.

You clarify what it's supposed to be. Don't foist this off on the courts so that it's going to take years and years. I wish we could arrive at a situation where there would be as little litigation as possible. One of the major reasons I think deferred sharing is preferable to judicial discretion is that it will limit the litigation. When I am told that lawyers charge between $300 and $1,000 a day on these cases, that adds up to quite a bit. I say to members of the Assembly, we are living in a dreamer's paradise if we assume that by passing Bill 20 we are going to be reducing the litiga tion.

For the next five or 10 years, or however long it takes to establish the precedents, we're going to have a bonanza field day for the legal profession as they try to establish by precedent what should be established clearly in the provisions of this act. The hon. Member for Edmonton Kingsway was quite right when he talked about the unnecessary bitterness that will result when legal action is taken. A statement of claim will only add to the trauma of a difficult, emotional experience, particularly when we take into account "any fact or circumstance that is relevant". Mr.

Speaker, in looking at matrimonial property leg islation, we have to face the fact — I suppose for most of us the rather unpleasant fact — that divorce is growing and that probably Alberta has the highest divorce rate in Canada. But however unpleasant that fact may be and however we may regret it, it just happens to be a fact of modern life. That being the case, we have to establish a matrimonial property law which is truly just and reasonable.

I say to members of the Assembly, with absolutely no disrespect to the judiciary in this province, that I believe we are being unfair to the judiciary when we ask them to make a subjective assessment, not an objective assessment but a subjective assessment, on who should get what in dividing up the property of a couple who are separated or are breaking up their marriage. Judges are not marriage counsellors.

In my view it just isn't reasonable that we can expect, with the pressure on them, that they will be able to go into the very personal, subjective evaluation that would be necessary to really make judicial discretion, fair as it sounds, genuinely fair. I think of some of the couples I know as individuals who have sought and obtained divorces. And know ing the details of their lives fairly well, I would find it extremely difficult taking these 13 guidelines, making a decision as to who should get what in the matrimo nial property division.

Are we going to be asking our judiciary, with the tremendous pressure as a consequence of more and more divorces, to have to make these decisions? Mr. Speaker, quite frankly, however much respect I have for the judiciary, I don't believe that is either fair to them or fair to the couples who are trying to settle the matrimonial property. Mr. Speaker, the advantages of deferred sharing — and here I do agree with the hon. Attorney General. I think we have to be very clear that we're talking about the division of net gains or losses after the marriage. Too often we tend to focus on the gains.

The fact of the matter is that one of the major contributing factors of divorce in this country, or in North America generally, is financial difficulties. So very frequently the division will not be the division of gains, but will in fact be the division of losses acquired during a marriage. Mr. Speaker, I would say that under deferred shar ing one of the major advantages is that in most cases, not in every case but in most cases, the division of property can be settled quickly without having to bring in the legal profession or go through judicial assessment.

As the Attorney General pointed out, that of course would not always be the case, because where one spouse can demonstrate that the contribu tion of the other is "less than might reasonably have been expected" — here I'm quoting from the Institute of Law Research and Reform — then there can be a different settlement of the property. But the onus is upon the spouse to indicate and to prove that the other has done less than might reasonably be expected. In most cases, Mr.

Speaker, under deferred sharing it would be a much faster and, in my judg ment, a far more equitable way of dividing the matri monial property. In fairness I think I should say that even if this

May 15, 1978 ALBERTA HANSARD 1231 Legislature were to labor here for the next 10 years and try to come up with a perfect system, you are never going to be able to develop a system of dividing matrimonial property that will be fair in every case. It just isn't possible to do that. And the more we try to drag in examples, it seems to me the more we put together a patchwork arrangement which will end up being neither fish nor fowl, neither having the flexibil ity of judicial discretion nor the certainty and the equal sharing of deferred sharing. Mr. Speaker, I know some people have advanced particular arguments.

I know this has been raised in rural areas of the province. The question of the family farm has been raised as an argument. Joe and Mary Smith have farmed on a

section of land for 30 years, and now they're going to get a divorce. Under the provisions of deferred sharing, what's going to happen to the farm? Is Joe going to lose the farm? I say, Mr. Speaker, I think we have to look at that. It's a reasonable problem. There are all sorts of reasona ble problems that will arise in any method of allocat ing marital property. But I would say to the members of the House that, first of all, we do have provincial agencies that should in most cases allow the people to bridge the gap. We have the AOC for small businessmen. We have the ADC for our farmers.

But I think we have to keep another point in mind. This is the thing that has always worried me about the argument that we're going to have to sell the business or sell the farm. The suggestion somehow is that if the wife would take less than 50 per cent it would be okay; the suggestion that the preservation of the property is more important than the right of the spouse to receive her fair share. Mr.

Speaker, how ever sympathetic I am to maintaining the small busi ness or family farm operation, I say to the members of the House that in law we cannot set or attempt to resolve in a piece of legislation something that would, whether by design or accident, place property rights before the individual rights of the citizenry of our province. So I just can't accept that particular argu ment, Mr. Speaker. But I do say there are methods where we now have in place vehicles of the government that would in most cases allow the assets to be divided without selling out the small business or the farm.

The Insti tute of Law Research and Reform outlines a number of things. It could be a balancing payment. It could be an equity that one spouse takes in the business. Or as I mentioned, Mr. Speaker, we do have agencies of government in the loaning business. I'm not suggesting that that in itself is going to solve every problem. I have no doubt that whether we opt for judicial discretion or deferred sharing, there is going to be a myriad of cases that somehow won't fit.

But in drafting legislation we have to strive for a law which, for the vast majority of people, provides the most equitable and fairest possible way of dividing property. I sometimes wonder, Mr. Speaker, what the people who oppose deferred sharing are afraid of. Is it the syndrome of the millionaire and the blond; the fact that some snappy young thing comes along and mar ries the 60-year-old millionaire, stays with him for six months, then says, "tallyho", and is going to get half the assets?

The fact of the matter is that under deferred sharing you're only eligible to get half of the gains during the term of the marriage. Mind you, if the millionaire is in the real estate business, I sup pose those gains could be very substantial, even in six months. But I'm not overly sympathetic to that particular argument. Mr. Speaker, I say to the members of the House that Bill 20 reduces the flexibility of genuine judicial discretion. Judicial discretion has as the major ar gument in its favor that it provides real flexibility and allows a judge to look into all things.

But of course we've moved away from that in Bill 20. We've said we're going to have guided judicial discretion and only the assets after the marriage are included. So we've taken part of the provision of deferred sharing and we've stuck that in. What we've attempted to do is blend facets of deferred sharing with aspects of judicial discretion. On the other hand, the equity of deferred sharing is denied. We have reduced the flex ibility of judicial discretion and have turned our backs on the equity of deferred sharing in this legislation.

I say to the members of the House that Bill 20, as it presently stands, can only block up the courts, pro duce a bonanza for the lawyers, and postpone fifty- fifty sharing until whatever time it takes for the precedents to be established. I'm not surprised, Mr. Speaker, that there are little buttons out from many women's groups in the province saying, "50-50 or Fight", because despite the assurances of the hon. Attorney General and others, we still have a long way to go before we nail down clearly in the law a commitment to fifty-fifty sharing. The last point I want to make is very brief.

This bill was introduced in the Legislative Assembly on May 4. We've had only 11 days to consider Bill 20. Various groups have attempted to analyse it. The hon. Leader of the Opposition indicated that it wasn't until last weekend that the Premier's office in Calgary had copies of the bill. I say to the members of the Assembly: is there any major rush in ramming this bill through the House now, in the eleventh hour of the spring sitting of the Legislature? The minister has indicated that in all likelihood it's not going to be proclaimed until the end of the year because of the taxation question. Therefore, Mr.

Speaker, it would seem to me that the proposition made by the Alberta Status of Women Action Committee that we defer the bill until the fall session is an eminently reasonable one. It would allow groups, both pro and con, to contact their respective members of the Legislature and indicate their concerns, suggestions for amendments, and proposals to improve the legislation.

In view of the fact that it took the government caucus most of this session, from the beginning of March until May 4, to finally work out the compromise internally, I see no reason that in the course of 11 days, and eight of those sitting days, we should be asked to pass Bill 20 without having an opportunity to get input from the people who have elected us. I've referred to the discussions I've held with peo ple in my own constituency. But unfortunately the options I placed before the people in February have been modified to a certain extent by Bill 20.

I'm willing to admit that Bill 20 is a better piece of legisla tion than Bill 102. But, Mr. Speaker, I would say it would be in the interests of everybody to have this summer so that people could make representation to their members and the members in turn could have an opportunity to discuss the provisions, particularly

1232 ALBERTA HANSARD May 15, 1978 the qualifying provisions of

Section 8, with their constituents. Accordingly, Mr. Speaker, I wish to propose an amendment to second reading: that the motion be amended by striking out "be now read a second time" and substituting "be read a second time six months hence". That's the traditional six-month hoist. I would just advise members that if a fall session were held earlier than six months, of course any motion in that fall session would supersede the six-month hoist. DR. PAPROSKI: Mr. Speaker, I'd like to rise on a point of order just for clarification. The hon.

Member for Spirit River-Fairview indicated that I said there would be less litigation. I did not say there would be less litigation. I implied, and feel I indicated quite clearly, there would be less litigation if the balance were more in favor of deferred sharing. But I also indicated there would be less flexibility with deferred sharing. MR. GHITTER: Mr.

Speaker, in rising to deal with the amendment, I think it is important to deal with the legislation as a whole in order to determine just how valid the arguments of the Member for Spirit River- Fairview really are as to the necessity for a six-month hoist, as he calls it, pertaining to this legislation. Mr. Speaker, I rise as a supporter of this legislation for many reasons. I believe one must at all times look at matrimonial property legislation from two basic points of view.

The first is that it is always sad, in the sense that legislation or court time is so totally taken up by dealing in matters that involve marriage break down and many of the social problems we have in our society, when one looks in terms of the immense number of divorces occurring in our province, the immense amount of court time being taken up deal ing with matrimonial matters — not with the new legislation, but with the legislation as it exists today — when one takes into consideration the tremendous disharmony, the tremendous social ills that are occur- rent because of divorce and all the attendant difficulties.

Mr. Speaker, in dealing firstly with the aspect of why we should go ahead with this legislation at the present time, you'd think this matrimonial property material had just come before us for the first time. You would think we hadn't been debating it in the public scene for years. You would think the argu ments of deferred profit sharing, judicial discretions, and the like all of a sudden came upon this Legisla ture by great surprise, that these are new concepts which have now been imposed upon the citizens of the province of Alberta and that they need all kinds of time to determine what the legislation says.

Mr. Speaker, I think it's in the interest of what is happening in our society today to come to grips with the legislation and deal with it now. This matter has been going on actively for the last three years. All members of this Legislature have met with groups representing, if the truth be known, I suppose only one-half of the story, but a very important half. I would think those of us who studied the report of the institute were well cognizant of the various problems that exist in trying to come to grips with what is fair and reasonable matrimonial legislation.

In fact the legislation was introduced in the House at that time for the sole purpose of letting it lie over for a long period of time so we could hear from groups as to their points of view. I well recall the Attorney Gener al saying months ago that there would be an amend ment in this bill after the legislation was put forward. The Attorney General said to the public in the prov ince of Alberta — I believe it was in your address in Lethbridge; it received wide publicity — that the legis lation was going to be changed so there would be the assumption of fifty-fifty sharing. We were all aware of that.

That was well known to all the groups throughout the province. And we come to the Legis lature and that's the change, the basic change in the legislation. What possible use can be gained, Mr. Speaker, from putting it over again? We're going to hear from the same important groups that came to us before. They are going to make the very arguments — the impractical arguments, as I will suggest and reiterate in a few moments, we've heard from the Leader of the Opposition and the Member for Spirit River- Fairview — that we must have black and white, a fifty-fifty split.

Now we know that that is going to be the position of some groups. I do not believe that is the majority position of the citizens of this province who are aware of the legislation and have studied it. What is going to be accomplished by laying this over for six months? All we are going to have is a rehash of the arguments we've heard time and time again; important arguments indeed, but surely the time has come to put this to rest, and let's get on with it. Surely the time has come for people who are sitting in Alberta looking at the situation to know how we feel about matrimonial property in this Legisla ture.

We're not hiding anything; we're not taking people by surprise. There's nothing to be gained, Mr. Speaker, by putting this over. We've all met with the groups. We've all read the submissions, and we know it from start to finish. Let's get on with it. Let's get on with this job and pass the legislation. Mr. Speaker, I would like to discuss why we should pass the legislation, why we should do it at this point in time, and how surprising it is to me — although it might be a fair play of grandstanding by the opposi tion, who perceive this great support in Alberta that's just dying to see this fifty-fifty split.

Grandstanding is fair enough from the opposition point of view, and I look upon it as that to a certain extent. For those who submit that legislation should categorically require our courts to divide matrimonial property on a fifty- fifty basis, I say it will not work in a practical sense. It will be inequitable and will result in more strife and disharmony in Alberta than those who think what we are doing now is causing that very thing. It will first cause individuals to look twice about entering into the marriage contract. Secondly, it will cause more common-law relationships than we have right now.

Thirdly, it will take away a very fundamen tal and important concept that can only be deter mined by an impartial and fair judiciary; that is, a discretion which is fundamentally required in dealing with matrimonial property. Now it's easy to sit back and say, hey, let's just divide everything equal-equal, and everything will come about; it sounds great, and let's do it. But if one who has any experience in dealing in matrimonial property were to be asked, can it survive on a fifty- fifty basis, they would clearly recognize the impor tance of judicial discretion.

May 15, 1978 ALBERTA HANSARD 1233 Mr. Speaker, property divisions in court proceed ings under matrimonial property basically come into three categories. The first category is no problem; that is, the situation where the disputants don't have anything and there's really nothing to share. I sup pose a great majority of Albertans are unfortunately in that position. They get the divorce, the lady gets the children, and whatever estate is involved, a few dollars, go as can best be supported by the man's earnings in order to assist the woman in helping the children. In most cases, there's no property to worry about.

It's a case of how you split one person's income so two families can survive, because the husband is now living separate and apart. The ex- wife has the children and many onerous responsibili ties. How then can you divide one income two ways? In some situations there may be a home. In any discretion the courts would invoke with respect to a home, it's clear-cut what they will do. Legislation or no legislation, the woman will stay in the home at least during the period she's bringing up the children, because they need a place to stay. The man will go into an apartment.

They'll try to divide the income, and the home sits out there. That happens in 70 per cent of the cases. That is exactly the situation that arises. Then there are the areas where there are some assets to be concerned about. Those aren't the situa tions of the rich, as the Member for Spirit River- Fairview seems to be so concerned about, with his paranoia of the rich that are everywhere in the prov ince of Alberta. Those are a few cases. Probably those cases will always go to court, Mr. Speaker. Basically the cases we read about in the legal reports are when they're fighting about something.

Those will be litigious; a certain percentage of matrimonial property cases will always be litigious. A bitterness is involved in matrimonial property disputes, as only one who is dealing in it from day to day can see, as are these lawyers who are going to make this great bonanza, which I'll talk about a little later in my address. But when the hon. Member for Spirit River- Fairview tells us the story of the rich and the man who is going to go out and marry the blonde, and all those things, it reminds me of the story — if I can digress for just a couple of moments, Mr.

Speaker — of the 70-year-old, very rich bachelor who finds this young girl, this 18-year-old lovely the member was mentioning. They get married. Shortly after the mar riage, after their honeymoon, the man takes deathly sick. He's in the hospital in an oxygen tent. At that stage his lady comes up to him, and a note is passed under the oxygen tent to this young lady. It says, "Darling, don't worry about anything. I've solved all your problems. There'll be a bank account for you with a considerable amount of money in it. There's a car, a nice Cadillac, for you.

You have a nice villa in Monte Carlo and our apartment in New York. Every thing I have is yours, and please do not worry." The young lady whispers into the oxygen tent, "I feel so bad about everything that's happening. Is there any thing I can do for you in your condition at the present time?" You hear this voice gasping out of the oxygen tent. "Yes, would you get your foot off the intake valve for the oxygen?" [interjections] That basically is what I think the hon. Member for Spirit River- Fairview is concerned about. Let's talk in terms of a practical sense, Mr.

Speaker, as to why judicial discretion is needed and why the 13 points set out in

Section 8 are fundamentally important to this legislation. Let's talk of the case where matrimonial property division is coming up. The man has his business, just a little company, let's say a garage. He and another man have some shares in this little operating company, not a big situation, but an operating business. Then we are going to pass laws, as suggested by the opposition, that will make it black and white, fifty-fifty. Now the woman will have half the man's shares. Now that little garage is being operated by the wife, I suppose the husband, and his partner. That is just impractical.

It's impractical from the woman's point of view; it's impractical from the business point of view. The AOC isn't going to look at that business and give them financing, nor will the ADC or whoever you want to talk about. It's just impractical to suggest that. Mr. Speaker, in my experience in matrimonial property cases there's no such thing as two cases that are the same. There's no such thing as assets valued at the same amount. There's no such thing as identical circumstances. If we take away the judicial discretion that is so important in this case, we will end up with a ridiculous situation.

I fear that certain members in our community — and I recall hearing this from a particular ladies' group — just don't trust our judiciary. I read it between the lines from the Leader of the Opposition and the Member for Spirit River-Fairview, although he denies it. There seems to be a basic distrust that some allegedly male chau vinistic judge is going to sit up there and immediately try, in whatever way possible, to harm the position of the women. That is just untrue, Mr. Speaker.

If one were to spend time examining recent judicial decisions — and in my view the worst one to examine is the Murdoch case, because that is not one that deals with the issues at hand.

But just recently in a case that came out of Saskatchewan the Supreme Court of Canada clearly dealt not with looking at legis lation, but in fairness and equity utilized their discre tion and worked on a fifty-fifty sharing position, well recognizing the homemaking role of the woman: a brilliant judgment of the leading court in our land, not being bound by legislation with automatic black and white fifty-fifty splits, but dealing, as the presumption says and as the minister has so well said this after noon, on what is just and equitable. That's what courts are for. That is why they are there.

If we for a moment will sit back and say, we have to say everything in here in black and white so the courts will understand it, we are alluding to ourselves a grandeur we do not possess. When we suggest for a moment that our courts of law are not dealing with subjective matters day in and day out, as the Member for Spirit River-Fairview suggests they are incapable of doing, and when the law is basically dealing in subjective dealings of human conduct and relationships, that is just not right. Mr.

Speaker, frankly I am surprised at the members of the opposition for one position they haven't stated today, as they try so hard to capture the feminine vote in the province of Alberta with their standing up, yelling fifty-fifty in their impractical way. What about retroactivity, Mr. Speaker? How often we have heard the members of the opposition dealing in terms of the discussion of retroactivity. How repugnant retroacti

1234 ALBERTA HANSARD May 15, 1978 vity is as legislation. We heard it in the Indian caveat question when the members were leaping to their feet about retroactivity; we heard it I think on three or four other . . . I remember privity of contracts, leases retroactive. Remember how much we heard from the opposition on what we call the rather illusory, mar- shmallow areas of retroactivity?

But when we come to probably the most severe legislation I have seen in this Legislature, involving probably 500,000 Albertans in a severe retroactive way, where we are telling marital relations that have been here for years and entered under certain laws that we are now going to tell you how your property will be divided whether you like it or not — and with no judicial discretion, heaven forbid, is what they're

Document details

Collection	Alberta — Debates (Hansard)
Citation	19780515
Type	hansard
Volume / chapter	L18 S4 19780515 1430 01 han.pdf
Language	en
Format	json
Source	PROVINCIAL
Identifier	a5b3b5d85d35b2f4c9314a77bbe662a514071ef3

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