VOL. 4 PRELIMINARY UNEDITED TRANSCRIPT HOUSE OF ASSEMBLY FOR THE PERIOD: 3:00 p.m. - 6:00 p.m. MONDAY, MAY 14, 1979 NO. 31

May 14, 1979 The House met at 3:00 P.M. Mr. Speaker in the Chair. MR. SPEAKER (Ottenheimer): Tape No. 1272 NM - 1 Order, please! I am pleased to welcome to the House of Assembly a delegation representing the Port Blandford to Winter Brook Rural Development Association, including the council of Port Blandford and a representative of the Council of Musgravetown. The gentlemen are Mr. Ewart · Hall, Mr. Ray Olford, Mr. Clayton Cook, Mr. Calvin Day, Councillor Charles Butt and Councillor Max Gill. I know hon. members join me in welcoming these gentlemen to the House of Assembly. SOME HON. MEMBERS : MR. SPEAKER: MR. W.

ROWE: Hear, hear! Oral Questions: The hon. Leader of the Opposition. Mr. Speaker, perhaps the Gcvernment House Leader would indicate whether the Premier is expected in or not. MR. MARSHALL: I understand, Mr. Speaker, that the Premier is on the West Coast of the Province. I presume lie will not in today. MR. NEARY: Did he not tell you where he was going? MR. W.

ROWE: In that case, Sir, may I direct a question, which otherwise I would have directed to the Premier 1 to the hon. the Minister of Finance concerning meetings which, according to press reports, were held by First Arabian Corporation, Ashland and members of the government. Would the hon. the Minister of Finance indicate to the House whether First Arabian Corporation now has confirmed to the government that they have a supply source of crude oil to use with regard to the Come By Chance refinery? MR. SPEAKER: The hon. Minister of Finance. DR. J. COLLINS: Mr.

Speaker, over the weekend there were meetings with FAC, First Arabian Corporation, and a representative of one other organization, that is Ashland Oil, who have been approached and 3306

!-lay 14, 1979 Tape No. 1272 NM - 2 OR. J. COLLINS: brought along by First Arabian as the possible operators of the refinery and the meeting covered a very ~Kide range. The purpose of th~e meecing really OKas for t.he, I suppose you might call them the principals involved, that is particularly the Premier, and Mr. Tamraz, to discus.s the macter fully in a face to face posicion. This was the main reason for it 3307

May 14, 1979 Tape 1273 PK- 1 Dr. J. Collins: and it covered all aspects, including the ques.tion of supply. And there were assurances given by Mr. Tamraz that he had supply arrangements discussed and at a stage that he was happy with. We were not expecting at this meeting to have any absolutely definitive positions established. There is a deadline for the conclusion of the negotiations that the Province has said it will look to in terms of making a final commitment, that is the end of June. It may be before then, but that was the outside deadline.

And there was no thought at this particular meeting that that deadline would be met at this stage. But all aspects of the things were discussed including supply. MR. W. N. ROWE: Mr. Speaker, by way of supplementary. MR. SPEAKER (MR. OTTENHEIMER) : Supplementary. MR. W. N. ROWE: Is the minister satisfied that the First Arabian Corporation does have a source of crude? What evidence did First Arabian give the minister and other ministers who were in attendance at the meeting that they have a source of crude for the Come By Chance oil refinery? And if so, what is that source? MR. SPEAKER: The hon.

Minister of Finance. DR. J. COLLINS: Mr. Speaker, as I said we did not expect to get documentation on all these points. There was no actual document or piece of paper or contract or whatever expected, sought, nor given in terms of supply. But we were given assurances in terms of supply to the same extent as we were given assurances in regard to many other aspects that were covered in the letter of intent. And the assurances given in regard to supply were as of the same order as the other assurances. MR. W. N. ROWE: MR. SPEAKER: MR. W. N. ROWE: A supplementary. A supplementary. Mr.

Speaker, I mean, such mumbo jumbo, Sir, I never heard in my life. Is there a source of crude? And if so, surely the minister did not sit down at a meeting - maybe he did,

May 14, 1979 Pl< - 2 Mr. w. N. Rowe: but let him confi.rla it or not as the case may be ~ly:.. the minister did not sit down at a meeting with Mr. Tamraz and other officials of that company, First Arabian 1 and Ashland Oil and simply he~ assurances from Mr. Tamr;az that, Oh, yes we have a source of crude, unless, you know, t,hat Mr. Tamraz was satisfied he had a source of crude, without the minis;ter aod other officials qoinq a little further alld saying. Would yoa be kind enouqh Mr. Tamra% to tell us what your source is? Where are you getting it fr0111? Wbat ltind of arrangements have you entered into?

WouJ,.d the minister please answer that question? crude oil? What is the source of the MR. SPE.!\XER Om. O'l"rENHEIMER): The hon. Minister of Finance. DR.. J .. CO:r,LlNS : Mr. Speaker, if the hon. Leader of the Opposition is asking if We asked for a!ld saw a contract, no, we did not, becagse we did not ask

May 14,1979 Tape No. 1274 AH-1 DR. J. COLLINS: to see a contract nor did we expect for the First Arabians to have a contract with them. That was not the purpose of this meetinq. The purpose of this meetinq was to go over all matters and brinq ourselves up to date on them. As far as the source of the crude supply, the sour::e of the crude is the Middle East. MR. W.ROWE: MR. SPEA!CER: (Mr .Ottenheimer) MR.W.ROWE: A supplementary. A supplementary. The Middle East. That covers a large area - Is it Lebanon or is it Iran or some other country in the throws of a revolution? Mr.

Speaker• perhaps I miqht get a little further with the minister on another question. Mr. Speaker, could the minister indicate whether there is a direct supply of crude from a particular country to First Arabian corporation or whether there is a middleman involved 1say 1 in the United Stares or canada who Mr. Tamraz is dealing with? Did the minister get that far in his talks with Mr. Tamraz? Is it a direct supply, direct from a certain country, direct from a certain company in a certain country 1 or is 1 t a question of Mr.

Tamraz entering into an agreement with a middleman , a middle canpany who in turn may have same source of crude from the Middle East? MR. SPEAXER: DR. COLLINS: The hon . minister. Mr. Speaker, I do not think it would be reasonable to say that we were depending on a single source of supply, for instance,one country or one oil well or whatever. That would be 1I would sugqest 1 too slender a source of supply. But the supply will be direct. I am not exactly certain what the hon. Leader of the Opposition means by a middleman.

I presUllte he means that there would be some entirely divorced organization or company buying supply and then selling this to the people who would be operating the oil refinery. And at this point I might emphasize that there has been no commitment at this staqe that we will aqree to this proposal. We have stated many times that we 3;)i0

May 14,1979 Tape No. 12 74 AH-2 DR. CQI.LmS: want the full exposition of all the facts that we are lookinq for before a decision wili be arrived at. But if that. is what the 'bon. Leader of the ~aition haa in mind there will be an entirely tUfferent or diwrced o~~tion buyinc; oil and then sellinq it,that is not 'What is in mind. What is in mind f:r:olll our discussiol'lS .i.s that if this proposal is accepted the operators of the refinery will be in the direct line lor the line of supply. MR. W • .BOWE: sir. MR. SPEAICER: (Mr.Ott~eilller) MR. W.ROWE: A further suppleaentary, A supplementary.

This is an impor""~t topic so I would ask Your Honour to ha:ve s0111e forebearance on the inatter in terms of the n1llllber of supp~J!.taz'ies • Mr. Speaker, is Ashland Oil, whiCh is a company 1I ~stand, owned by the Tamo.z group of ccmpanies. perhaps awned by the First Arabi ,an i tsel!, b1,1t at least p~ of a family of CCIIIIPanies etmtrolled by Mr. Tamraz 1 is Aahliind Oil 33ti

May 14, 1979 Tape 1275 EC - l MR. W. N. ROWE: invol. ved in. any way in the source of crude oil which will be used in. the refin.ery{ For example, will it be qoin.g through Ashland Oil and then to the Coma By Olance retinery or are they in 11011111 way aqents? Could the llliDister generally elucid&ta 1if he is able 1 the position of Ashland Oil in the supply of crude to the refin.ery? MR. SPEAKER: (Mr. Ottenheimer) DR. J • COLLINS: 'rhe hen. the M:Ulister of Finance. Mr.

Speaker, I do not want to give the impression that we were interested in minutiae, in the details of this, that and the other thinq in terms of supply or in llliU1Y other things • We were lcckinq for the bz:oad picture, we were looking to qet assurances on this and we did qet it in te:DDS of supply. Ashland Oil are looked to u the operators of the refinery, that is their main role. MR. W. N. ROWE: MR. SPEAKER: MR. W. N. !lOWE: Mr. Speaker, a further suppleiii&Jltary. A supplementary. I c:anDOt seem to qet too far on specifics regardiDq the scqrce of crude oil, concerning which, Mr.

Speaker, the refinery will rise or fall, by the way. Let 11111 ask the minister a question or two reqarding the financing of the takeover of the refinery by First Arabian Corporation. Did the minister receive. assurances as well from First Arabian, Mr. Tamraz and those present, that the financinq had now been lined up, had been okayed, that the thing was siqned, sealed and delivered in tenns of the 1110ney which was necessary ·for the takeover and the starting up and the subsequent operation of the oil refine:ry? MR. SPEAKER: The hon. minister. DR. J. COLLZNS: Mr.

Speaker 1 this is a ve:ry COIIIPlex operation including the financing thereof. The financing covers not only the satisfaction of the mcrtqaqees and other creditors, it also involves the rehabilitation of the refinery as well as the correction of any defects in the refine:ry, and I think it is co1111110n knowledge that there were many defects in this refinery, some small and some not so small. And it also involves financinq in te:DDS of temporary credit, shall we say, for the lifting of crude, so that the financing is a ve:ry wide area, a very complex 3312

May l4, 1979 Tape 1275 EC - 2 DR. J. COLLINS: area, and al.l I can say on that is that we were given info~tioa that was satisfactory to us that these arranc;ementa were IIIDVin9 alonq at the SIIIE pace as the other aspects of the ael.Uiaation Qf the wbole situation is IIID'ViJlq ~q and we we%11 satisfied with the aasurances and infonaation we we~ given to date in terms of finance. ~. W. N. ROWE: MR.. SP~: ~. ottanhei.Jaar) . o.f the Opposition. MR. W. N. liOME: Mr. Speaker, . a suppla.nt.uy. A suppl~tary, th• bon. the Leadar I would ask the hoa. JDiDiater to conec:t. • if I • wrouq, Mr. Spaalcer, 3313

May 14, 1979 • Tape No. 127 6 so - l MR. W.N. RDWE: but reading between the lines it would be fair to say that as this point in time First Arabian Corporation were not able to satisfy the Government that they have arranged all the financing necessary to purchase, satisfy the creditors, correct the defects, start up the refinery and operate it thereafter in terms of working capital, that Government is not yet sat;i.sfied that First Arabian has raise that amount of complex financing necessary to get this refinery going again; Would that be correct?

Th.:y have net yet satisfied the Government by documentation or documentary evidence that they have raised the money. MR. SPEAKER: (Ottenhei.mer) Hen. Minister of Finance. DR. J. COLLINS: Mr. Speaker, that is correct. We ,., have not got all the details but we have sufficient in these ~a:i ou s th .I areas that I have mentioned so that we are content that LPSI s are moving along satisfactory, MR. R. SIMMONS: supplementary, Mr. Speaker. MR. SPEAKER: Supplementary, bon. member for Burgep - Bay d'Espoir. MR. R. SIMMONS: Mr.

Speaker, I would just like to return to the earlier line of questioning that my colleague the Leader of the Opposition (Mr. W.N. Rowe) was pursuing having to do with crude supply. I would like to direct a supplementary to the Minister of Finance (Dr. J. Collins). Would the minister indicate to the House whether he, as minister, is satisfied that adequate arrangements can be made 1or indeed have been made 1 to assure a crude supply for the refinery< Is the minister satisfied that such arrangements have been made or can be made? MR. SPEAKER: Hen. Minister of Finance. DR. J. COLLINS : Mr.

Speaker, I must go back and make the point that we have not statel that we are satisfied on any aspect as of yet. We are not looking to saying we are satisfied on this part and make a final decision in that regard, and then at another stage we are satisfied on that part and make a final 33:14

May 14, 1979 Tape NO. 1276 so - 2 uR. J • COLLINS : decisioa on that reqard and so on. We have stated 1and this is quite c~ea.r to all concerned 1that we will look at the total packaqe when it is fin&l.ly brouqht toqether,and that includes all the parts at the. same time,anci we will make a dec:ision at that staqe. In regard to the crude supply, at this time there is no outstanainq difficulty in that regard. There is no hindrance that we appreciate there at this point in time. MR.. R. SIMMONS : MR. SPEAKER: (ottenheimer) Burqeo - Bay d'Espoir. HR. R. SIMMCNS : SUpplsmentary, Mr. Speaker.

Supplementary, hon. mUiber for Mr. Speaker, the Jllinister' s answers are most enlightening at least in so far as they indicate a.t what staqe the negotiations are. And I would like the minister to indicate to the House now just what staqe in llis view the negotiations are? I qet the impression frCIII llis answers that they are at a very, very preliminary stage, so preliminary ind~ tha.t the questions of crucie supply or financinq have not come to a discussion point., that is 3315

May 14, 1979 Tape No. 1277 ow - 1 MR. R. SIMMONS: the impression I am getting from the minister's answers. WOuld the minister indicate just at what point the discussions are, and if indeed I am right in saying that they are still at a fai:ly preliminary stage and that the government on the one hand and First Arabian on the other have not yet got down to the matter of the stage of hard bargaining on very specific and crucial details such as crude supply and financing? MR. SPEAKER (MR. O'l"l'ENHEIMER): Hon. minister. OR. J. COLLINS: Mr.

Speaker, if one were going to give a rough guess, I suppose one would say we are 50 per cent along the way. MR. S. NEARY: Mr. Speaker. MR. SPEAKER: The hon. member for LaPoile followed by the hon. gentleman for Terra Nova. _MR. S. NEAR%: Mr. Speaker, I have a couple of questions for the Deputy Premier in the absence of the Premier, the Minister of Municipal Affairs and Housing (Mr. Windsor) • In view of the fact , Mr. Speaker, that Mr.

Joe Cl.arlt during a visit to Newfoundland on April 24 where he attended a chowder luncheon out in Gander stated that if the Progressive Conservative Government won the election that they would give Newfoundland the jurisdiction over offshore mineral and gas and the fisheries - SOME HON. MEMBERS : Hear, hear! MR. S • NEARY: Well, Sir, the question is, in view of the fact last night on television that Mr. Joe Clark did a flip-flop 1 that he said no, he was misunderstood that there would only be negotiations and co-operation MR. OOODY: Fisheries. MR. SPEAKER: Order, please! MR. S.

NEARY: -fisheries and resources, Mr. Speaker, that he would only co-operate and negotiate with the Provinces. What does the hon. gentleman now have to say about that position, when Mr. Clark completely reserved himself, turning himself upside down , and inside out has completely done a flip-flop? What is the hon. gentleman's reaction to that? 33iG

May 14, 1979 Tape No. 1277 ow- 2 MR. SPEAKER: (Ottenheimer) Ho.n. minister. MR. N. WINDS,OR: ~. Speaker, ray colleague, the Minister of Ml,nes and Energy (Mr. Doody) miqht W<Ult to CClllllllent, ~t a$ I understood the wosds of the Federal Leader of the Opposition liiBt night, be did not at all take 11. flip-fl~, ha was quite consistent on what he has .been saying' and that be is not goinq to come down here in a confrontation position at all, he is qui"ta willi~ to neqatiate and be recognizes the rights of the Province, MR. S. NE~: MR. SPEAKER,: MR. s. ~: A S~EIIIentary, Mr. Spe~r. Hon. m~ for LaPoile. Mr.

Spealcer, is that ng,t the same position,. sir, that the Liberal Government of canada h;i,s taken, that they are prepared to neqotiat _e aod co-q~erate with the Provinces? The P-rovince itself - ~ BON. MEMB!i:J!S : Oh, ob.! MR~ SPEAKER: Order, please! I must point out tha-t our rules will not pe.rmit a kind of re-sc:heciullnq or

interpretation of c;iebate last niqht. l'he han. member must gat his questioi)S into a fo%111 whereby he is askinq a minister for fa.J:t:ual infQZmaticin in respec ,t of the matter for which he is respon9ible to the House. The questions have to 33i7

l".ay 14, 1979 Tape No. 1278 NM - 1 MR. SPEAKER (Ottenheimer): come into responsibility to the House of a minister. The hon. member for LaPoile. MR. NEARY: Okay, Mr. Speaker. Would the hon. gentleman tell the House if it is true that the Government of Canada is prepared to negotiate and co-operate with the Newfoundland Government in the matter of offshore resources and the fisheries, that they are prepared to negotiate? MR. MARSHALL: MR. SPEAKER: MR. MARSHALL: giving a ruling; A point of order, Mr. Speaker. A point of order.

The hon. gentleman is - Your Honour has the hon. gentleman said, "Okay," and then proceeds to ask exactly the same question that Your Honour immediately ruled upon. We would be quite happy to debate this with the han. gentleman at any time,but this is not a matter within the responsibility of the han. Minister of Municipal Affairs and Housing. MR. W. ROWE: MR. SPEAKER: MR. W. ROWE: ' To the point of order To the point of order Mr. Speaker, we understood that first of all the hon. Minister of Municipal Affairs is the Premier's right hand man and takes over for him when - MR. NEARY: Deputy Premier. MR. W.

ROWE: - Deputy Premier, he has been on a number of occasions in the past; if we are wrong perhaps the Government House Leader could tell us who is the Deputy Premier now, who does take responsibility for the Premier when he is not in the House, number one. And number two, Sir, the questions my han. colleague is asking of the hon. Deputy Premier,as I understood him to be 1 are matters which should be within the purview of the minister in his negotiations with the Government of Canada.

Surely this government has a policy on what they want to do with regard to fisheries and offshore oil and gas and jurisdiction over those resources and what they understand the present 331.8

May 14, 1979 Tape No. 1278 NM- 2 MR. W. ROWE: Government of Canada's position to be. If they do not understand that, Sir, then I would submit that we are at sea completely. What is the minister's understanding, as I understand the hon. member's questions, what is the minister's or the government'3 understanding of the policy of the Government of Canada and what has their response been and what is their position with respect to that position of the Government of Canada?

Now, Sir, it may be a grey area but I would submit that it certainly is within the minister's or at least the government's purview to make a COIIIIIIent on that kind of important public position. MR. SPEAKER (ottenheimerl: The gist of my former rJling was of course not that the subject matter of federal/provincial relationships with respect to fisheries jurisdiction 1 however one wants to put it, was not a subject matter appropriate for questioning.

My interjection was that questions on whatever subject have to be in such a way as to be directed to a minister in terms of an area of responsibility for which he is responsible as a minister and responsible to this House, and both questions and answers obviously should be from that perspective. I think the hen. member in rephrasing the question did take it out of that ambit of comment upon the debate last evening 1 which really no minister in this House is responsible for, and did put it in a different kind of perspective. So I recognize an hon. minister. 331.9

May 14, 1979 Tape 1279 PK - 1 Mr. Doody: I would like to give the hon. gentleman ~~e benefit of my small experience in conversing with his colleagues in Ottawa, the Liberal Administration there which is shortly to be the former Liberal Admir~stration. SOME HON. MEMBERS: MR. DOODY: SOME HON. MEMBERS : MR. DOOOY: Hear, hear! Now there are two very distinct - Oh, oh! - areas of interest here , Your Honour, one of them is the offshore resources, the mineral resources, the under the seabed resources: The P.C.

Party's policy in Ottawa in this regard is that these offshore resources are the property of the provinces to which they are adjacent. There is no equivocation on that. It has been established as the policy of Mr. Clark,who will shortly be the PrimecMinister, and so we can dispense with all of this rigmarole that we are going through through the law courts. With regard to the fisheries 1 there is a somewhat different situation.

We have been fighting on our own here in Newfoundland to try to establish some rights with regard to those areas which you feel are the responsibility and indeed the territory of the Province of Newfoundland in regards of the marine life in that area. We have tried to co-operate with the Maritime Provinces in presenting a case to Ottawa. We have not been successful. The present administration, particularly the present Minister, Mr. LeBlanc, feels that each province should be dealt with on its own and on its own merits, and Newfoundland obviously is not in a position to go along with that.

We feel that our historic rights are the rights that should be looked at. The Minister of Fisheries (Mr. W. Carter) has made that abundantly clear on many occasions. Mr. Clark feels that it would be better if a spirit of co-operation were to be established with the Atlantic region, the existin~ crovernment through Mr. LeBlanc feels that a spirit of confrontation is more in keeping with what they feel is Confederation. Unfortunately we have not been able to make too many points in the fisheries end of it. Mr. 33~0

May 14 , 1979 Tape 1279 PI< - 2 Mr. Doody: Clark is willing to sit down and try to 1:esol ve that. We will find out after the 22nd. which of the two policies will really be peirtinent as reqa!:ds to the Province of Newfoundland and its future. MR. NEARY: A final supplementary, Mr. Speaker. Ml{. SPEAKER (MR. OTTENHEJ:MER) : A final supplementary. MR.~: In view Of the fact- now, Mr. Speaker, that Mr. CJ,ark halo changed h.i.s mind again, and that he claims that the jurisdiction of the fisheries - AN HON. Ml!;MBER: Oh, oh! MR.

NEARY: - the jurisdiction of the fishery comes under the Governmel\t of Canada,acco:rdinq to Mr. Clark, and that other resourees will be ne<;Jotiated and he is prepared tp co-operate with the Province 1 will the hon. gentleman now undertake to tell Mr. cabot Martin from now on when he is making public statements, mak;ing utterances on behalf of the governll!eht 1 that he not play politics, that if t~e wants to be a politician let him cancel his c011tract with the Newfoundland Government and go out 3321

May 14,1979 Tape No. 1280 AH-1 MR. NEARY: and be a fullfledged politican and not make the statements that the hon. gentleman made a couple of weeks ago that if Mr. Clark won, if Mr. Clark won - MR. MARSHALL: A point of order. MR. SPEAKER: (Mr. Ottenhei.mer) A point of order has come up. MR. MARSHALL: The hon. gentleman is obviously making a speech and 1 you know, we are in the Question Period. MR. SPEAKER: On that point of order, I would point out to the hen. gentleman and request the hon. gentleman to bring his question to a point of interrogation. MR. NEARY: Well,what Mr. Martin said was that if Mr.

Clark won the election that Newfoundland would get the jurisdiction over its offshore resources. Will the hen. gentleman now discipline Mr. Martin and tell him that that is not t;rue , Mr. Clark says it is not true , and ask him not to play politics while he is on the public payroilil? the hon. gentleman undertake to do that? Will MR. SPEAKER: MR. DOODY: The hon. minister. Mr. Speaker, my understanding on that is that Mr.

Cabot Martin is a special advisor to the Premier and is under contract and has made little or no effort to hide the fact that he has taken a most responsible view of the political scene in Newfoundland and supports the Progressive Conservative Administration. I congratulate him for seeing the course of events as they will occur. The job that Mr. Martin has done in presenting the under the seabed mineral case to the world and to Canada particularly is a tribute to him and to this administration.

The thoughts that he may possibly enter the political arena, as the hon. gentleman opposite suggests that he should,fills me with delight. I would be particularly pleased 3322

May 14,1979 Tape No. 1280 AH-2 MR. DOODY: to see him actiV@ in this particular House. I would like to see him, as a matter of fact, head for the district of LaPoile and C]row some deep roots in that area. W'e may be in the somewhat peculiar position of seeinq the hon. member for LaPoile (Mr.Neary) beinq driven from LaPoile and come back to Bell Island, where I will be only too happy to meet the qentleman again on his home territory. SOME HON. MEMBERS : MR. SPEAD:R: member for Terra Nova. MR.LDSH: Thank you. oh, oh! Order , please ! The hon. Mr.

Speaker, I have a question to direct to the Minister of Transportation and C011111unications. Sir, in view of the fact that we are fast approaching the road construction season, and in view of the fact that we have no idea what time the Budget will be presented before the House, I wonder if the minister can indicate as to what time will there be an announcement made regarding the full compliment of communities, regions and areas which will be receiving or be allocated capital funds for road construction this year, this coming season? Mr. Speaker, this is rather an important matter.

There are many people living in areas in rural Newfoundland that are subjected to terrible road conditions that are now awaiting these announcements from the minister. 3323

May 14, 1979 Tape 12Bl EC - l Tbe hon. minister. MR. SPEAKER: (Mr. Ottenheimer) MR. BRETT : Mr. Speaker, that is a matte.r of qrave <Xlncern to me. We have IIOIIIIilthinq like 2 ,000 miles of qravel road in this Provin~ and the bud.qet for reconstruction and paving generally is in the area of $10 million to $12 million, and it is obvious from that that we cannot hcpe to start all of the 2,000 miles of road this year and, therefore, cannot expect to finish them. I do not know if any minister h.as ever given a list of the roads that would be done in the Province.

I think that would only serve to entice riots almost, since obviously some will be started this year and some will not. So if I were to get up in the House and say that we are going to pave some of the roads in the hon. llll!lllber's district and none in that of the hen. the member for Bellevue (Mr. Callan) , then I can see what would happen. All I can tell the h.on. lllelllber is that I will not know for sure exactly what roads are going to be paved until the Budget is presented in thi.s House, which hopefully will be sometime du~q the latter part of May or the early part of June.

As I said, I will not be given the list then, but at least I will lmow what roads we hope to start. A bit of good news - our calcium chloride proqramme will be somewhat different this year for the areas that we cannot pave. Last year we did the roads between C011111Nni ties. I think that was rather a waste, and this year we hope to put calcium chloride to prevent dust in all areas that we control, not council roads but roads that we control 1 all area.; that are built up. So this at least should be good news for the rest. MR. LUSH: MR. SPEAKER: MR. LUSH: Mr. Speaker, a supplementary. A supplementary. Mr.

Speaker, it seems as though every time an hon. member on this side of the House asks a question relating to the allocation of capital funds for this thinq or that thinq, water and sewer or roads or whatever, we are given the same answer that no decisions . can be m.ade until the Budget is brought down. Now it seems to me in reading 3324

May 14, 1979 Tape 1281 EC - 2 MR. LUSH: the papers and 1ookinq at the teDders that are beiAq culed, that l: have seen this year te,nders be.inq cU!eci for mads iD. certain parts of the P:mvin~. Now what is the reason for this that it seem u thoqgh we caa UDOUilce- SOIIllll ~ before 1:411 Budqet camas down and others we canaot? can the llinister addraas m-lf t.o that quuticm? MR. SPSAICER: (Mr. Ottanheilller) MR. a~: Yea, Mr. speaker, that is qu.ite eaay. 'lha:ra will. be. SOllie $20 lllillioa worth of pavinq and reCIOD.St:%Ucticn on the Trans~ Hiqhvay this year~ the TCB aq~t. 'ftleJ:e are several. lllilliOD dollars worth of DRD work that is W1der 3325

May 14, 1979 Tape No. 1282 DW - 1 MR. C. BRETT: construction. In addition to ' that 1 there was $6 million worth of work ca=ied over from last year that was not completed. And,of course, tenders were called for some of that this year, that is onqoing. There are some sections "of roads and bridges that obviously have to be done for safety purposes and some tenders have been called in that area as well. MR. T. LUSH: A supplementary, Mr. Speaker. MR. SPEAKER (MR. OTTENHEIMER) : Final supplementary. MR. T.

LUSH: If you will remember, the minister will recall that I presented a petition here in the House last week on behalf of 1,688 rasidents in communities stretching from Port Blandford through to Jamestown and the Winter Brook area requesting that funds be allocated in this fiscal year for reconsttruction, upgrading and paving of the roads in that area. can the minister indicate to the House what action he has taken respecting that petition? MR. SPEAKER: Hon. minister. MR. C.

BRETT: I can only tell the hon. member that the gravel roads that are in his district will be considered among the other priorities, Whether or not we will get them done this year I could not say but certainly they will be considered to be done at some date. 3326

May 14, 1979 Tape No • 12 82 DW - 2 ORDERS OF THE DAY MR. SPEAKER (MR. OTTENHEIMER) : Order 27 , the adjourned deb~te on Bill No. 33. The hon. Minister of Justice. MR. A. HICKMAN : Mr. Speaker , on Friday ! had just about concluded my sunmary of the bill to reform matrimonial property l~w.

And I undertook to go through it once more very carefully over the weekend to ensure that I had covered all of the areas of concern contained in this bill.Because it is a bill, apart from the reform nature of it which is very significant , it is also a bill that had to be very carefully prepared to ensure that the property law and the law of intestacy wa.li not affected inadvertently as a result of this legislation.

I would commend to hen. gentlemen who are interested~in the work that has gone on into family property law, the reading of a very voluminous piece of work that came out by the Law Reform CO'll!lllission of canada in 1975 entitled Stucties on Family Propert y Law. And that was about four years behind the Gushue Report on Family Law that was submitted to the Government of Newfoundland. In the provisions as to void contracts, there is a provision that is known in the law as a dum casta provision, two words.

My latin training in the Methodist college of Grand Bank comes to the fore where we had great emphasis on latin under the leadership of the father of the hen. the Leader of the Opposition and it was a phrase that we used so often when I was in grade IX and grade X and grade Xl: . But anyway, it spells d-u- and the next word is c-a-s-t-a. What it really;·'tlleanS is that people should not contract or try and legislate on morality, that that is some­ thing thllt is beyond the ken and the ability, the wisdom of parliamentarians and legislators.

And in that respect I would quote a very good paragraph from the Law Reform Co111111ission of canada as follows; "Misconduct may be the legal reason for the termination of marriage but it does not necessarily follow from this, that it should also be the reason for inflicting economic sanctions upon one of the 3327

May 14 , 1979 '!'ape No . 1282 .DW - 3 t.Je~ ·~~#)- li!P:ra.i ~ o,l ~iea ~; ts rtOt s~ ~ Wt i\i~ :lire, ~.c:ltasea: 1 ao~ Ql:t we ~ ~it a a; pazu~~iy ~ate. taste ~ ~ ~to· ~~ ~ ~~ ~- c>#·i'~«t ~ 100• .~ ~~ :~i• ~ th.e -~· o'E 1;he: coat, to ~ p.idjltie~ ol: ;jiwU.Sh ~~~by -the gran$CJ ot: w~~ ~f ~~· d.qlj,~·· " l'ba~ .~l'-'1, :t_s 3328

May 14, 1979 Tape No. 1283 NM - 1 MR. HIClCMAN: a summation of what I was saying here on Friday with respect to the dum casta clause, and to the clause covering the void provision. So, Mr. Speaker, in concluding may I simply again say this bill!like Gaul 1can be divided into three parts - that is more Latin - the part one of the bill really which deals with the matrimonial home,deals with it separate and apart from the rest of the estate and both spouses shall have a one half interest in the matrimonial home no matter who has the legal title or when the home was acquired.

Part two deals with the matrimonial assets acquired during marriage.And again under the heading of part two, the provisions for the exercise of judicial discretion where something is obviously grossly unjust and unconscionable and part three deals with the domestic contracts.

I had been asked also to enquire over the weekend a couple of people contacted me and said, How wi.ll this new legislation as it deals with the matrimonial home deal with the registered home ownership plan?Where at one time if a house was registered in the name of the husband,say 1 and it was the desire of the couple to come under the registered home ownership plan,then the wife could go and register under it and avoid a provision in the act which says that the applicant or the person so registering must not have any ownership right.

The concern was that we now give a right to the wife and this might preclude her. But upon checking with the federal people toda~ I am advised that under recent federal legislation one spouse cannot contribute to a plan while the other holds title to a property. So they apparently dealt with this so-called loophole in legislation earlier this ye~r and therefore the matrimonial home provisions of this bill are not relevant one way or the other to the RHOP programme. Mr. Speaker 1 I move second reading. MR. SPEAKER: The hen. Leader of the Opposition. 3329

May 14, 1978 Tape No. 1283 NM - 2 MR. W. ROWE: Mr. Speaker, I rise to support the general principle of this bill. The general principle of the bill is good. It is a bill which goes a long way towards correcting one of the most serious abuses of our society today and that is with regard to the inequality of treatment which has generally been accorded married women under the law since time immemorial.

Before getting into the various sections of the bill itself, concerning which, Sir, I have some very grave reservations, very serious reservations, the way in which the principle is in fact put into effect causes me and causes a number of other people with whom I have spo~en some serious reservations and I will get into that in a general sense in a moment and a more detailed sense as I just flip through the pages of the bill. Before doing so, Sir, let me compliment the minister for bringing the bill in.

It is one example,! would say,of where Cabinet solidarity has overcome the private misgivings, indeed perhaps the private philosophy of a particular minister.

I am not saying that the minister is in any way determined to keep women down in our society, but Sir, I will make note in passing of the extreme reluctance which the Minister of Justice showed last session of this House with regard to the efforts being made by status of women's councils, by members of the Opposition, by other members in his own caucus, I would submit, to try to enshrine legally, in legislation, the rights of women, particularly married women. He showed an extreme reluctance, Mr. Speaker, on every occasion.

His basic Tory philosophy,! think 1 came to the fore on every occasion that he was questioned on it in this House or outside the House. As a matter of fact 7 he tried to forestall the dismal day when we would see this legislation brought in 33JO

May 14, 1979 Tape No. 1284 SD - 1 MR. W .N. !lOWE: by talking about White Papers that were needed, my cclleagues will recall that. 'oh, this is a very complex matter, Mr. Speaker; we need to bring in at least one White Paper on this and we need to have that White Paper spread far and wide and have comments from married women, by women's groups, by husbands for that matter, by men's groups, by other aspects and elements of our society.' We have not seen a l'lhi te Paper. I do not knew if the minister ever got around to trying to draft a White Paper on the subject or net. We have net seen a White Paper.

We· see him now as Minister of Justice (Mr. T.A. Hickman) forced, reluctantly I would submit, but forced nevertheless by his cabinet , soma of the more progressive members of his cabinet to bring in a : bill and to ~ for it strenuously as he has done in the last couple of days. It is an example, Sir, of Cabinet solidarity in action and there is a number of ministers of the crown who would well take a leaf, a page out of the hon. minister's book when it comes to the exercise and the · need for the exercise of Cabinet solidarity.

There is no doubt, Sir, that over the years married women have been more or less treated as a chattel in the hands, in the estate of their husbands. There have been some giant strides made over the last generation or so to try to equalize matters a little bit, to try to make matters more equitable under the law but we still have a · long way to go. And this bill in many of its sections and parts does help to equalize matters, to make matters more equitable, mere fair, fairer to make fair play operate 1mder the law as far as ~~~arried women are concerned.

There are a number of aspects of it, Sir, that do not go far enough on the one hand and I would submit, Sir, on the other hand there are some aspects which go too far. Which go too far in terms of what they do and go too far in terms of casting doubts as to what the legal situation and the legal rights of a married woman or a spouse,generally, would be under this act. 3331.

May 14, 1979 Tape No. 1284 SD - 2 MR. W .N. ROWE : Before getting into some of these matters, let me ask the minister this, perhaps he can make a note and respond to it when he closes the debate or perhaps somebody else in his Cabinet, in his administration can mention it as well, did the minister canvassany groups in our society as to some of the more radical elements 1 perhaps 7 in ~~is bill2 Did the minister or the Government ask any of the religious groups, . for example, religious denominations in our Province today what their views were on a nwnber of elements in this bill?

I am refe=inq specifically and I will get into more detail on it a little later 1 I am referring specifically to the

section in the bi.l.l which provides for the so-called cohabitation agreement, an agreement whereby a man aJid a woman who are not married, have no intention,perhaps,of getting married, do not believe in marital status of any kind but who want to live together, not in common-law, not a common~law marriage as is normally understood under the law but -nly vi.ah to live together. There are certain terms for that st:o.te of bliss or otherwise ~loyed in the parlance of the street, Mr. Speilkar.

Has the minister checked with any of the groups who,I believe, may have their sensibilities and their sensitivities somewhat ii.ff:ronted by this possibility? I am not saying that the minister should not have proceeded in spite of having canvassed or contacted religious groups in the Province, I am not saying that at all; what I am saying, Sir, what I am asking, has the minister contacted various groups in this Province today to ask them what their views are on this so-called conabitation agreement or the provision under the law for cohabitation?

Your Honour will know that the tradition under the law has been not to allow people who are not married, who do not intend to be married, who do not believe themselves to be married, do not want to be married, the law has been that it will not sanction agreements between a man and a woman in those circumstances who may be living together 3332

May 14, 1979 Tape No. 1284 SD - 3 MR. W.N. ROWE: because what it does is lands the dignity of the law and the sanctity of the law and 3333

May 14, 1979 Tape 1285 EC - 1 MR. W. H. ROWE: the sanction of the law to a situation which may be in some cases illeqal in certain jurisdictions or considered to be iaM)ral in certain jur1adictions and amcnq certain people; therefore, no agreement which is designed to provide for property division or the ownership of pJ:OIM!rty or the status of cohabitation generally without m&rriaqe, no aqreement has been deemed to be leqally enforceable in our courts because it is an agreement in respect of an illegal or an .ialllor&l subject matter. That is, I Slll?pose, briefly what the law has been on the subject.

The hon. minister would also know that the reuon this law has de..,.l.aped in the way it has is because the CO&IIIQn law on the subject of marriaqe and man and woman livinq together has basically been taken, a couple of centuries or more ago, f;rom the canon law whic:ll was church law. And there have been certain changes made , of course, over the years by decisions, some very radical changes - some qood changes, some bad changes - that were based on the canon law, the church law with respect to the m&rital state.

How the minister may be aware or maybe he is not aware that there are groups in our society, religious groups and othenriae, who do not necessarily believe that thi.s cohabitation aqreement is a proper form of aqreement to be given the sanction and sanctity of the law and of legislation.

I have my own views on it which I will express a little later on, but I would like to ask the minister whether - some groups wb.om he could reasonably have assllllll!d to have stronq feeli.nqs on the matter - whether he did them the courtesy of askinq them what their views were and how they felt about it and whether they had stronq abjections to it or whether they miqhtJin fact,be willinq to go alonq with it in spite of their stronq moral objections to leqal sanctity beinq given to the state of cohabitation without marriaqa having been entered into? The minister did not touch on that subject when he spoke.

And I think it is an important subject, because after all, the gove:rnment is elected to govern on behalf of the people and there are certain people who would have strong views on the matter. Mr. Speaker, it is a good bill, it is a we~ drafted bill. There is some fuzziness in it which may cause some

May 14, 1979 Tape 1285 EC - 2 MR. W. N. ROWE: legal difficulties, and I will touch on that as we qo along - a certain amount of fuzzine•a, which perhapa is a qood thing, in that we will get some decisions from the court on various

interpretations; but at tht1 moment it is a little bit fuzzy. The explanatory note in the bill, Mr. Speaker, for the sake of the press and other members who may not wish to wade through sec:t.ion by

section - the explanatory note itself is inordinately good, an excellent

summary of what the bill, itself does and what the bill, itself proposes. Part one, as the explanatory note says, deals with the matrimonial home, which is defined as any home · owned by either or both the spouses and used as a. family residence. Each spoWJe would ha.ve a one-ha.lf interest in the matrimonial home no matter who has the legal title or when the home was. acquired. No spouse could dispose of or encumber a matrimonial home without the consent of the other. In addition, the court would have the power to award exclusive possession to either spouse.

That is a qood SUJIIIIIilry of what this bill provides with respect to the matrim::lnial home. There are a number of other elements which I will deal with as we qo through the bilL But there is one point, Sir, that sprinqs to ~ mind right at the beginning which may cause some serious difficulties, and I would ask the minister if he has addressed himself to it, and I refer to this; as the minister knows, although it does not say here in that explanatory note, in the Act, itself,there is a

section which I will come to a little later which states, in effect, that a.lthouqh spouses may a.gree to opt out of the provisions of this Act with regard to all other matrimonial property, that no aqreement can be entered into and be considered valid respecting the matrimonial home which takes away from the rights conferred by this Act. In other words, Mr. Speaker, a husband and a wife under this law,if it is passed, are deemed to have a one-half interest in the matrimonia.l home 1 and there is no way that either spouse can get out of that privilege or that obligation by agreement or otherwise.

Now, Sir, I put this to the hon. the minister and members opposite: Because this Act has retroactive effect, it will apply to matrimonial homes 3335

May 14, 1979 Tape 1286 PK - l Mr. w. N. Rowe: which were acquired and dealt with in good faith by a huband and a wite twenty-five years ago, fifty years ago, one year ago·today or even before this Act came before the House. Now, Mr.

Speaker, I know of many cases both through my legal practice 1 when I was practicing and through discussions with friends of mine,of many cases where a husband 1 very mindful of his duty to protect his wife and family as far as the matrimonial home was concerned, very mindful of that duty, very concerned about that duty, and that feeling, that root-fundamental feeling to look after his wife and family no matter what he himself does with regard to business or otherwise, I know of many cases where a husband who has owned a home or acquired a home shortly after marriage put that home in his wife's name.

And the reason he put·it in his wife's name, he is not looking forward to a divorce or anything else, he and his wife and his family are going to live together forever as far as they are concerned, and their children until they grow up and move away, and the wife has title to that home, and it was done twenty years ago, and that man goes into business, and he sets himself up in a company,for e~le, and goes into business 1 perhaps a risky business,trying to make a few dollars,or politics for that matter,or practices law for that matter 1 or does anything else, and the house is put in his wife's name, and he does it because he knows and there is no attempt to defraud anyone or try to pull the wool over anyone's eyes, down in the Registry of Deeds the house is in the wife's name, and anybody can see that by a simple search of the Registry of Deeds.

Ee goes into business and he applies his name to all kinds of commerical paper in connection with that business and becomes personally liable by way of guarantee and otherwise. And during the course of operating his business he goes bankrupt. And because he anticipated or forsaw the possibility of going bankrupt in his business as an enterpreneur,he provided for the protection and security of his wife and family by putting the house in the wife's name, And it might have been there for ten or fifteen or twenty years. There are provisions 3336

May 14, 1979 Tape 1286 PK- 2 Mr. W. N. Rowe: under The Bankruptcy Act whereby you cannot give property to relatives within a certain period of time before a bankruptcy occurred or it is declared null and void, it is considered to be a fraudulent conveyance. So, Mr. Speaker, this was done twenty years ago.

And the business goes along, and the husband goes bankrupt, the company goes bankrupt and he,because of havinq applied his name, his signature to all kinds of guarantees and so on, may go personally bankrupt himself and, as I say, having provided against that eventuality;made sure that no matter what happened to him in his business or his business capacity, his wife and his family would have a roof over their heads.

Now we have a situation where,in spite of the man's best efforts and desire to protect his family in this regard, that man who did that in good faith years ago, we now have ~situation where willy-nilly 1 whether he wants to or not 7 that man suddenly finds himself as again half owner of that home. And if he goes bankrupt,as I said 1 I would submit, Sir, that his creditors now have a legal weapon and a legal remedy whereby they can go against that asset in the hands of the husband~namely, the half ownership of the home. It is an asset, like any other asset, and can proceed against him on that basis, Mr. Speaker.

And I would submit, Sir, that in certain cases the home could be sold to satisfy the debt of the husband and perhaps the wife would end up with half the value of the home when it is sold, but half of the other value of that asset which was the husband's and deemed to be sold by this Act whether the husband wants to or not, the other half of the value of that asset, the one-half ownership of the home would go to the husband's creditors. And sudaenly you would find a situation where 1 33~7

May 14,1979 Tape No. 1287 AH-1 MR.W.ROWE: in spite of it having been dona years ago in good faith, no effort to defraud anybody, no effort to pull the wool over anybody' s eyes, reqistered in the Registry of Deeds,you find a situation where a man can no longer depend on the matrimonial home,or the home being preserved against the depredations of creditors that he had entered into relationships with as a result of his own personal. business enterprises. Now, Sir, I would question whether that is right.

Without drawing away from, without detracting from the need to provide for equality with regard to the matrimonial home with respect to the wife, particularly, let us be under no delusions at all about this, Mr.

Speaker, we are not talking about the protection of husbands or men .when we talk about passing this act,. we are talking about giving women a fair share, a fair shake of the matrimonial property that they have contributed to,if not in terms of money earned, they have contributed to in kind by the· efforts made to bring up their families, by looking after the home and,perhaps,also by financial contribution as a result of working or otherwise as well, we are not, Sir, detracting from the need to'do that and provide some basic equity and equality to the woman in a marriage, what I would question, Sir, and I would like to hear the minister respond to this or perhaps the hon. the Government House Leader when he speaks on this, I would question the right of the government to be passing legislation which goes the other way, in fact, in trying to protect a woman's right· to a half ownership, deprives a husband and the wife as well in this case, of a protection with regard to the family home which they could have entered into before this act came into effect but because of the existence of this act we suddenly find he can no longer do.

You may have arguments saying, Well why should a man be able to put a matrimonial home to one side and then go into business and so on and not allow that matrimonial home to be liable for any debts he may incur. But I would say, Sir, that that is largely irrelevant. The point is that he could have done 3338

May 14,1979 Tape No. 1287 AH-2 MR.W.ROWE: it beforehand. The title to the home was in the wife. The title is registered in the Registry of Deeds.

Creditors dealing with the husband in a business capacity are aware of that, they know of that, they know that·the family home is not available to satisfy debts, business debts of the husband , they proceed in any event, they proceed to give him credit and they know that if the man goes bankrupt or his COIIIPanY goes bankrupt they cannot touch the fiiDiily hiaae except in very unusual circumstances • And I would say, Sir, that we should not deprive a wife and a family of that legitimate protection which was heretofore available to a man before launching out into the · risky world of business and business ventures.

Perhaps, Sir, I will have another word to. say on that when I go through the act and mention some of the sections. But I mentioned it right at the beginning so that the minister will deal with it because I think it is probably one of the most fundamental points. My house, for example, as anyone can see if they 90 down stairs,is in my wife's name. Although I make no bones about it that the greater portion of the financial contribution came out of my pocket, it is in my wife's name. Why? Because I want to protect my family in the event of anything happening to me in business or law or anywhere else.

It is something that a man normally does. I would be very surprised if this hen. gentleman here, who is recognized as being the most gentlemanly politican ever to enter into politics L~ Newfoundland's history, I would be very surprised if his gentlemanliness has not extended into his domestic relations. I would be very surprised if his home is not also in his wife's name for the same reason.

The man has been in business, sometimes risky businesses: I would submit, and wants to make sure that if anything should happen to his business venture-whether it is his fault or not his fault is irrelevant, that there would be a roof over his family's head. And that is a minimal security and protection, Sir, I would 33;39

May 14,1979 Tape No. 1287 AH-3 MR.W.ROWE: submit, that a man can guarantee to his family. I would not like to see

an act whereby that minimal security and guarantee is whipped away from a man because he goes into businese 3340

May 14, 1979 Tape 1288 EC - l MR. W. N. :ROWE: or because this Act is in existence. And now the man, without wanting to have half ownership in his home, this Act deems him to have half ownership in his home simply because it was something which was not anticipated. by a government in their zeal to protect the woman in the ~age and to make aure that a. woman had half ownership of the matrimonial home. In other words, it was a sort of boomerang effect, Mr. Speaker, it was a legal boomerange - it sort of backfired,.

And before passing this Act we should make sure that some provision is made whereby a. husband can afford the minimal protection of a matrimonial family home to his family no matter what the repercussions may be of his goinq into business and then going bankrupt or iosing his shirt as tha case may be. So I think the point is well taken - I have seen the minister over there nodding his head and whispering that it is a good point, and I hope that he will deal with it.

And perhaps before he closes the debate, he can bring into the House something drafted up which can be moved by one of his colleagues in Committee to take care of that eventuality in some way or other without detracting from the need to protect the female · spouse and her right to one-half ownership of the home. The point we are trying to make , of course, is that it should be at least one-half awnership and that if a husband desires to pass all title over to the wife for the protection o~ his family, or the reverse, then there should be some way whereby that agreement can come into effect. Perhaps, Mr.

Speaker, one way I can suggest to the minister - and I will apply this to other sections of the Act as well - perhaps one way that we can make sure that a husband and a wife are not being taken advantage of by the other spouse with regard to the matrilllonial home, is to provide for a form of a.greement which can be entered into by a husband and a wife to allow one or the other to have full title to all the matrilllonial home but to make a provision that in this particular case both spouses are almost in a fiduciary capacity with regard to the other. In other words, as my hon. friend, the Minister of Justice (Mr.

Hickman) well knows, if he is givinq advice to a. client. and in the course of giving advice to 33.}:1

May 14, 1979 Tape 1288 EC - 2 MR. W. N. ROWE: the client enters into some kind of an agre81118nt with a client of his which. could possillly be to the disadvantage or not to the advantage of the client, then if anything ever went wrong With that agreement and they ended up in court, in order for that aqreement to be upheld in court because of its fiduciary :relationship, he would have to prove that no undue influence was brouqht to bear on the client in order to get the client to enter into that a~ment.

And one of the beat ways of proving that no undue influence was exercised on that client is to show that the client had independent leqal advice with regard to th&t particulAr aspect of their relation.hip. Now, pemaps something can be written into this Act which providas for an aqrument to be entered into concerning the title of the matrimonial home, that there is a presUIIPtion aqainst that aqreement beinq bol'la fide =less the person who seeks to enforce the agxeement can show that the other spouse had independent legal advice with respect to the agreement.

Maybe that is the way to look after it. l:t is a sort of legal tac:hnical.ity that l: do not expect all melllbers of the Ho~e to become excited about or involved in, but l: would assure them that we should do something about tlUs aspect of the problem, because each member of this House and eveJ:Y ~~~ember of society at larqa can be adversely affected and gravely adversely affected by 334:2

May 14, 1979 Tape 1289 PK - 1 Mr. W. N. Rowe the bill as it now stands with respect to the matrimonial home. Mr. Speaker, part two, of the bill deals with the matrimonial assests acquired during a marriage in addition to the matrimonial home, of which I have just spoken. The basic principle as the explanatory note says, is that the matrimonial assets are to be divided equallY; although -and this is important- the court may vary a division if an equal division would be grossly unjust or inconscionable. That is important. Now, Sir, business assets are dealt with separately in

Section ( 27) and may be shared if one spouse has made a financial or other contribution to the building up of these assets." Now, Sir, here is .an example where I believe the bill does not go far enough. I will deal with it a little bit more specifically when I go through the Act. But let me say at the beginning,

whereas with respect of the matrimonial home I believe the Act goes too far and does something which was not anticipated and which should be remedied~ in this particular respect_, business assets, it may not go far enough.

I will give the exact word 'ing when I come to it, but the situation now is that unless a spouse, and let us face it, we are talking about a wife in 99.9 per cent of the cases, unless a spouse actually contributes money or money's worth or time or effort towards the building up of the business asset she has no right to a share in the business asset irrespective of the fact that by her looking after the family, by her devoting her time and attention to raising the children, looking after the home, taking that burden off the back of the husband and allowing him to go out and build up a business, irrespective of that fact the contribution made by the wife in those circumstances 1 we have a situation where 1 in the event of the marital breakdown and the separation and divorce of the parties, we have a situation where the wife who may have given fifteen years o£ her life to the family in order to allow the husband to build up this business asset she finds herself completely out of luck when it comes to sharing the asset, the 3343

May 14, 1979 Tape 1289 PK- 2 Mr. W. N. Rowe: business asset,because she did not involve herself directly eno~h or immediately enough in the actual building up of the asset itself. And I will read the words when I come to it, Mr. Speaker. I just mention now in a general way, because I think again this is a defect in the bill. I am surprised, I do not know if the han. Minister of Justice (Mr. Hickman) who complimented the Status Of Women's Councils on their input into matrimonial property law, I do not know if he showed that

section to them, and if they were in agreement with it. I have had numerous meetings with these ladies who, as he indicated, showed far more knowledge than I did on the subject, and more knowledge than I would say the hen. minister showed on the subject, because they have dug into it.

They have gone into it, they have looked at all of the jurisdictions, they have looked at all of the problems, they have looked at all of the possible remedies, andmy understanding from my discussions with these ladies was that there was nothing radical about what they wanted or thoughtwas right and equitable, it was a moderate request and that was that a wife who is making her con±ribution to the family, helping to rear up the family, looking after the home, looking after the husband's needs in a matrimonial and domestic way, and allowing the the husband to make money on the outside 1 their view was that business assets, assets which were acquired during the term of the marriage, not before, during the term of the marriage should be divided equally. seems to be a bit of a comedown from that position.

This I had agreed with the Status of Women's Councils and other women who had strong views on this that I thought that this was a reasonable position to take. I was very surprised to see this bill come in which did not ~enshrine that position in the legislation, and I would ask the minister whether hEO discussed that aspect of the bill far and wide and whether he has gotten the feelings of these women who have done a tremendous amount of research and work and devoted 3344

liay 14, 1979 Tape 1289 p~ - 3 Mr. w. N.

Rowe: a lot of thought to this subject whether he l'las gotten their, not their approval, because this HoUSe and the government needs the approval of nobody, but as with respect to the religious groups who may feel a little bit upset about the c:opabitation a,greement,without marriage, I would submit that other groups in society may be somewhat upset over this business asset definition~ and although their approval is not required, I would submit, Sir, that certainly the thoughts and the position and the ideas o£ these thoughtful women who have stUdied the subject, should at least be canvassed to see where they stqnd with regard to it.

Now, Mr. Speaker, part three, of this Act to reform the iaw respecting the property of ma:r:ried persons deals with domestic: contracts. "persons would be permitted to enter into marriage contracts to deal with their relationship and to take them outside of tl'le Act: In other words, a contract can be entered into by a husband and a Wife to deprive the husband or the wife,partic:ularly the wife:, of most of the benefit of thi.s Act. They cannot, of course, as I mentioned ear.l.ier 1 depri.ve themselves of the benefit of the

section relating to the 33~5

May 14, 1979 Tape No. 1290 so - 1 MR. W .N. ROWE : matz:imonial home, that stands no matter what a contz:act would say, a marriage contract would say. but they can,in fact,render this act more or less null and void with respect to all other aspects of the marriage and all other sections simply by entering into a contz:act, an agreement to do so. unmarried couples would be permitted to enter into cohabitation agreements which could include a provision to bring them under the act.

In other words, you could have a man and a woman, as I said earlier, with no intention of ever getting married, no desire to get married but who could,by simply signing an agreement,brinq upon them all of the benefits of a married couple so far as this act is concerned.

And, Sir, I might also add, a couple who does not want to get married, no intention of getting married, do not agree with marriage can bring all of the benefits of this act upon them.by a simple statement, agreement, .signed,bearing their signature,without bringing upon themselves any of the liabilities of a married state of marriage which may exist outside of this act altogether. Now, Sir, one can be as progressive and as liberal in ones views as one wants to be.

Sir, I gravely doubt the efficacy, the rightness even, of a provision which allows unmarried people 7 whether it is a long-term arrangement or whether, in the parlance of the street it is a one night stand, I could apply other nouns and adjectives to the state we are talking about in the parlance of the stz:eet again, I doubt very much whether without very great and due deliberation we should be passing a bill which gives unmarried couples, living together, long-term or short-term, the right to bring upon them all the advantages of this act as if they were married w-ithout, Sir, importing into the state which they are living in the obligations that you, Your Honour and I, my friends here in this House have as a result of having gone through a marriage ceremony.

One may say7 without becoming 33~6

May 14, 1979 Tape No. 1290 SD - 2 MR. W.N. ROWE: nysterical ~t it, that certa,inly with respect to some people we are,by pa.ssj,ng this act and these provisions,encouraging people to become involve<i in t:his kind of a living an"anqEIIIent, relationsnip and discouraqinq them fxom entering into the mari.tal state which brinqs with it certain serious obligations, one, with reqard to one SPQW!e to tbe otner and the children of tne marriage and so o&. As I said, there is no need to becaue hysterical about it but I think. it deserves a certain a.DIOIUlt of attention.

I think that before we pass this aspect of the bill we shou.ld ask ourselves wnethe,: we are doinq the rignt thing. Perhap:;; SCIIIe melilbers of the :aouse may believe that we sbould get rid off man'iage, as we know it altoqether and allow peopl.e to enter into contracts governing their relationsnip which can be rescinded by the consent of either party. If that is what the Government wants to do, Mr. Speaker, let them say it.

If the Government wants to get rid of the status of marriage - as I said earlier, I am not accusing . them of anything or beCOIDinq hysterical. about this, but if the Goverillll8Dt wants to allow man'iaqes to take place by simple contract 33.;7

May 14,1979 Tape No. 1291 AH-1 MR.W.ROWE: which can be rescinded by mutual agreement,without resort to the courts, without the obligations that under our present law the m&rried state confers on the partners_, !:f they want to do that well let them do it. Let them bring in

an act which does that. Mr. Speaker, as I said earlier I doubt very much whether the government should be bringing in legislative provisions which provide for the married state on the one hand and then allow t1110 people, a couple who wmt to live together without marriage to have the benefits of this act and none of the obligations of the married state. It see­ to me that that is lopsided.

If they want to bring in a new code of marriage , if they want to bring in something which allows a marriage to take place by simple contract and as a result of that contract being signed certain legal obligations aut0111atically follow as a .result, hut that that contract can he rescinded by mutual consent, without going through courts , without anything else, and that after the rescisaion of the contract and the separation of the parties certain legal consequences follow 1 well let them do i t 7 but I would doubt very much the acceptance on the part of a great number of people in our society, church groups , individuals whose sense of morality and decency may be affronted by this, I doubt very much, Sir, whether the lopsided arrangement which they are now approving, I doubt very much whether that in an unchanged form should go through this hon.

House • But there is something which is again more serious, Mr. Speaker, regarding this situation. Under the existing law it is quite possiJ:lle for a man and a woman to not he married when,in fact 1 they think they are_, either because one of the parties did not have the capacity at the time to consent to a marriage,or because the marriage took place and it was irregular in form, or a marriage was performed by somebody who did not have the right to confer the marital status on the couple. There 3348

May 14,1979 Tape tlo. 1291 AH-2 MR.W.ROWE: are hundreds of reasons as to why a marriage is either void from the beginning or becomes voidable as the relationship carries on for a variety of reasons. Now, Sir, under the existing law there is a presumption in favour of marriage.

If1 for example,a marriage was not in fact entered into and could have been entered into,but it was not in fact entered into and the couple had been living together on the basis that they had been married, then it is beholden on people who want to - en anybody who wants to say that they were not married, to actually prove to the court that the marriage did not take place. There is a presumption in favour of marriage. Now I have not done any great legal research in preparation for this, I am just talkin9 in general terms based on a qeneral knowledge of matrimoni&l. law.

Now that had some very salutary effects.For example, if a couple were not, in fact) married and they were pnsumed to have been married that meant that,of course,their children were presumed to have been legitimate for all purposes unless by proving beyond a reasonable doubt the marriage did not take place and therefore the child was not legitimate , it waa illegitimate. But the presumption was in favour of marriage. Now what I am wondering here, Mr.

Speaker, is how much doubt is going to be cast upon ··the existing law in which there is a presumption in favour of marriage unless it is proved otherwise by somebody) haw much doubt is going to he. cast 3349

May 14, 1979 Tape No. 1292 NM-l MR. W. ROWE: on the status of some people who with good intentions, who intended to be in a married state, who thought they might have been married, who intended to be married, who -ant to be married, as a result of this new law , this new

section under this particular act, I am wondering how much doubt is going to be cast upon that particular situation which may affect a nl.llllber of people in our society in this Province? If we have a situation now where a bill provides that unless you are married this act does not apply 1 and then goes further and says, but if you are not married, if you are cohabiting and you are not married you can make this act apply by entering into an agreement to make it apply, does that now mean that the presumption in favour of marriage is in any way interferred with? Perhaps the bon.

House Leader can advert to that point when he stands up.

Does it now mean that there may be couples who , unless they have signed an agreement which brings them under the purview of this act, and if it is suspected that they are not, in fact, married, that presumption in favour of the marriage is now done away with and that they must prove themselves that they are married in order to come under the purview of this act and if they cannot prove that, and some­ times it may not be possible to prove it, if they cannot prove that then they are out of luck as far as this act to reform the law respecting the property of married women is concerned?

Again, Sir, it may be a difficult legal point, it may be a tecllnical legal point, and I do not expect all members of the House to follow it with bated breath.

But it seems to me, Sir, that this bill can at least be construed, rightly or wrongly, and that can only be decided by a court of law, can be construed as, because it now provides for agreements to be entered into by people who are cohabiting without marriage, that it could weaken the whole fabric of the matrimonial law which presumes people to have been married, to have entered into a valid marital state, so-called common-law marriages for example, which are in effect presumptions 33;jQ

May 14, 1979 Tape No. 1292 NM - 2 MR. W. ROWE: in favour of the married state, without any proof being adduced to prove that a person may be married to another person~ the presumption is there that they are,in fact, married. Is this burden of proof in any way shifted or changed? I would like the hon. House Leader if he has done some research on the subject to advert to that as I say, to see how this may in fact cast doubt upon any particular marriage.

There are two points, Sir, about this cohabitation agreement without ma=iage; oneJ is that it may be offensive to a number of people's sensibilities, it seems to bring into the law now the advantages of this act without any of the liabilities or obligations. I should not say liabilities of the married state because theoretically there are none, but there are obligations of the married state. People can have the best of all worlds now, Mr. Speaker, they can have their cake and they can eat it too.

I am not necessarily against that, what I am against is laws being passed which discourage people from getting involved in a married state which carries with it certain obligations, discourages them from doing that and encourages them to get into a relationship whereby they can have certain benefits under this law and none of the obligations of the married state. And secondly, Sir, does it cast any doubt upon the presumption in favour of marriage which is now part of our common law? Is the onus of proof in any way shifted?

Is the onus now on people to prove that they are married rather than for somebody else to prove that they are not, which is an important - as Your Honour well knows, being a trained lawyer - is an important consideration when it comes to proving something in court, where the onus of proof is, whether it is on Your Honour or whether it is on someone who seeks to attack some relationship of Your Honour's or some contract Your Honour has entered into. Mr. Speaker, I am glad to see, just going through the act now

section by section, not all sections,of course,but some of the more salient points in the act, I am glad 3351

May 14, 1979 Tape 1293 EC - 1 MR. W. N. ROWE: in the Act, I am glad to see that this Act, which is called the Matrimonial Property Act, shall be deemed to be remedial. It shall be deemed to receive a fair, large and liberal construction and

interpretation as best insures the objects of the Act. Perhaps that section, itself gets rid of some of the doubts which I have now raised a moment or so ago. Perhaps it does. AN HON. MEMBER: Which

section is that? MR. W. N. ROWE: That is

section 2, sub-section 2: 'This Act shall be deemed to be remedial.' In other words, it is

an Act which is deemed not to bring additional problems on people, but to solve people's problems, and in that respect shall receive a fair, large and liberal construction and

interpretation as best insures the carrying out of its aims. I am glad to see that there and I hope that it is strong enough and is deemed to be strong enough by judges in our courts to remove some of the doubts which I have submitted may be raised by some of the sections of this Act. Mr. Speaker, in part two, page ten,

section 16, the bill provides for a definition of certain terms such as business assets and matrimonial assets. Business assets is defined to mean property primarily used or held for or in connection with a commercial business investment or other income or profit producing purpose. Matrimonial assets, Mr.

Speaker, which is the crux of this bill, includes all real and personal property which is acquired by either or both spouses during the marriage and ordinarily used or enjoyed by both spouses or the children and so on, and it talks about being used for recreation purpcses, education or household, social, aesthetic purposes, and then it makes certain exceptions, and rightly so - gifts and inheri­ tances and trusts and settlements are accepted.

For example, if a man or a woman comes into a large amount of property as a result of a gift or death of a relative and so on, that does not become part of the matrimonial property. And that is only right and proper. It may even have the salutary effect of causing people not to get married to another person be~ause that person is going to become an heir or an heiress. Another exception to matrimonial assets is the personal injury awards that may be awarded to a person 3352

May 14, 1979 Tape 1293 EC- 2 MR. W. N. i!OWE: in respect of a personal injury and that is al.so a reasonaklle exception, except for the economic loss, for example, of a husband who is disabled in some way and therefore cannot earn IIIQney and part of the personal injuries award ma.de by the court is in respect of thati than, of course , the wife should axpect to share in that award as well.

But aside from that we have an exception to the general rule - personal effects, family heirlooms, real and personal property acquired after the separation, and then we have two exceptions which I h.ne left until last - business assets and property exempted under a ma.rriaqa contract or separation agreement. We see, Sir, where leqally, business assets ara excepted from ma.triii!Qnial property and also all property which is exempted under the ma.rriaqa contract. Now, Mr.

Speaker, just referring to business assets for a IDOIIII!nt, which is an exception to the general rule that all ma.triii!Qnial property is to be owned equally and in the event of a sepa­ ration there is to be an equal division of the property, an equal return on any property sold.

Section 27 on paqa 15 says that where one spouse has contributed work, mney or money's worth in respect of 3353

~y 14, 1979 Tape No. 1294 ow - 1 MR. WN. ROWE: the acquisition, the management, the maintenance, operation or improvement of a business asset of the other spouse.1 the contributing spouse may apply to court and the court shall by order direct the other spouse to pay an amount to compensate the contributinq spouse or awaxd a share of the interest of the other spouse in the business asset to the contributing spouse in accordance with the contribution. Now, Mr. Speaker, here is a situation where I believe the bill perhaps does not go far enough.

As I mentioned in my opening remarks 1 it applies only to a situation where the spouse, and in 99 per cent of the cases you are a talking about the wife , has contributed work , money or money' s worth in order to buy the business or to manage the business or to maintain the business or operate the business or tc improve the business.

It does not, as I indicated earlier 1 apply to a situation where the husband is left free and independent to buy, operate, build-up and manage a business where the wife stays home)looka:after the children, looks after the husband's personal needs, takes great burdens off his shoulders, looks after the home) adds an equal amount to the • viability of the marriage and the bringing up of the children. but because she does not contribute money or money's worth or time or work directly to the purchase or the management or the operation or the . improvement or the building up generally of the business itself 7she is not entitledias I read this

section twenty-seven of the bill,she is not entitled to one penny, Mr. Speaker, of the business asset. I would question the legitimacy of that. I would certainly question the equity of it. It does not appear to be fair to me. It does not appear to be fair at all. Just to take an example 1 you could have a husband and a wife who are building up a family business that they have acquired and for the first two years of their marriage the wife is mPking an equal or greater contribution to the success of the business as the husband is, 3354

May 14, 1979 Tape No. 1294 OW - 2 MR. W.N.

ROWE: wcrking away at it~ then the wife has a child and another child and two or three or four or five children and as a Kesult of that 1 concerning which process the husband is at least as responsible as the wife, she is away fzam the business looking after the children, rearing the children up, children who are the responsibility of the husband as of the wife, as I say, looking after them,seeing to their education, their schooling and so on, providing the maternal benefits to the children and the wifely benefits~tc the husband in a home 7 are we to assume that under this law at the moment that the wife gives up a direct contribution of time, work, effort, money, investment into the business she is then deprived of any further share in the value of that business asset' Mr.

Speaker, that does not sound equit$le or equal or fair or anything to me. Perhaps the hon. Government House Leader (Mr. Marshall) could give us· the benefit of his views on that subject. It just does not seem jair, Mr. Speaker. It is not fair! If the government is going to take the bull by the horns and bring in a bill here which is supposed to effect a fair division and ownership of matrimonial assets, acquired and improved and developed during a marriage 1 then 3355

l".ay 14, 1979 Tape No. 1295 GH -1 MR. W. ROWE: I would submit, Sir, that they do it properly. I would submit, Mr. Speaker, that they go all the way and make it fair and equitable. If they do not intend to be fair and equitable, well then let them come in and say, "We are not going all the way. What we are going to do here now is we are going to go part of the way. We are going to throw a sop out to the females in our society.

We are going to make it look as if we are dividing up matrimonial property in a fair and equitable way and the ownership thereof, but we are going to put all kinds of little weaselly things in it which make sure that the husband is not deprived of his ownership of a business asset if, in fact, the wife,as in the majority of the cases this would be the case 1 has not directly contributed money or work or time to the building up of that asset.

I think in terms of a law practice, for example, how many wives who are looking after families who are not working themselves, looking after the family, looking after the husband, looking after the home, a housewife in other words, how many wives, Mr. Speaker, make any kind of a contribution to a husband's law practice? In fact, how can she make any kind of a contribution to a husband's law practice? How can she do it? There is no way for her to do it unless she is a trained lawyer herself actually down there in the lawyer's office, And so the lawyer or the doctor, as my hon. friend the Minister of Finance (Dr.

J. Collins) is, goes about his business, puts in ten or twelve or fifteen hours a day~ his wife puts in an equivalent amount of time looking after him and the children and the home. He builds up a nice valuable practice which brings in a good income and which has a capital value in its own right in terms of good will and clients and patients and so on, and the wife has no interest financially or legally, Mr.

Speaker, no legal interest in the building up of that capital asset simply because she has not directly contributed in any way to the building up of that asset, although she has contributed in many ways to the building up of the marriage and has contributed indirectly by allowing 3356

May 14, 1979 Tape No. 1295 GH - 2 MR. W. ROWE: the husband to go out and build up the asset while she takes greater responsibility for the development of the home, the matrimonial home, and the care of the children. Mr. Speaker, if there is any fair play or equity in the way this

Section 27 is worded and the way 'Business Asset' is exempted from

Section 16 which describes matrimonial assets, Sir, if there is any fair play or equity or equality in it, I do not see it, and I would like the government to bring in an amendment during Committee stage and perhaps the House Leader or the Minister of Justice (Mr. Hickman) can indicate what they intend to do 1 I would like to see them bring in some amendments to take care of that aspect of the matrimonial property act which does not provide for fairness or equality or equity in any way. Now, Mr. Speaker, we come again to 'Domestic Contracts' it is called under

Part III of the bill on page 16, 'Domestic Contracts'. They talk about two persons being able to enter into an agreement to be known as a marriage agreement, marriage contract, before the marriage or during the marriage in which they agree on their respective rights and obligations under the marriage, upon separation, upon the annulment or dissolution of the marriage, or on the death of either spouse. Then, Sir, in

Section 32 of the bill we get into this famous cohabitation agreement. "A man and a woman who are cohabitating and who are not married to one another may enter into an agreement to be known as a cohabitation agreement, in which they agree on their respective rights and obligations during cohabitation,upon ceasing to cohabit,or upon the death of either one of them, And the cohabitation agreement may adopt the provisions of this act and upon adoption this act applies to the man and the woman as if they were married. So for the purposes of this act there is no distinction 3357

May 14, 1979 Tape 1296 PK - 1 Mr. w. N. Rowe: except with regard to the matrimonial home~ there is no distinction between a man and a woman who are married and a man and a woman who are not married. No distinction! Now some people may think that is a good thing. I have some reservations about it myself. MR. F. ROWE: Are you allowed to have more than one cohabitation agreement MR. W. N. ROWE: Yes, that is right. My han. friend puts another idea into my mind. one man or one woman have? How many cohabitation agreements may A cohabitation takes place, an agreement is entered into, the cohabitation ceases.

Another cohabitation is entered into, another agreement, the cohabitation ceases. I can see some very convoluted legal problems arising therefrom, Mr. Speaker. MR. F. ROWE: Possibly including debts. MR. W. N. ROWE: on this already. But in any event, Sir, I have made some points And I would like to see the Minister of Justice (Mr. Hickman) and the House Leader, and others deal with them, especially with regard to how widely they have canvassed our society to see what the views of people are on these cohabitation agreements, and some of the other problems which I mentioned.

Now, Sir, "An agreement made under this part", says Section (35)"is void unless it is in writing and is signed by the parties and witnessed." "Any provision in a marriage contract purporting to limit the rights of a spouse to the matrimonial home is void." These are two major aspects of this section, the domestic contract section. And

Section 35 [1) which states,as I have already said, "An agreement made under this

Part is void unless it is in writing and is signed by the parties and witnessed", is the

section which caused me some alarm with regard to people who intend to be married, think they are married, but for some factual or legal reason are not in fact married. And as I said earlier,under the present law certain presumptions are made with respect to that and certain benefits of the law can be taken by people who intend to be married and think they are 3358

w· May 14, 19 79 Tape 1296 IB-2 MR. W.N. ROWE: married and so on but who are not in fact married. If this act now changes that situation we do have a situation where if people are merely cohabiting even in spite of the fact that they may intend to be married, think they are married, mean to be married and are not married as a result of some legal or factual impediment 1 then any rights or obligations which they believed they might have had as a result of their intended or presUIIIed ll)arried state may be done away with as a result of

section 35 because it says quite clearly, "An agreement made under this

Part is void unless it is in writing and is signed by the parties and witnessed." And, Mr. Speaker, as far as the state of cohabitation is concerned the act makes it quite clear that unless a written contract is entered into and signed by the parties 1 then the parties do not have any of the benefits provided under this act. So there are some doubts there and I would like to hear some opinions on that. The other thing, Mr.

Speaker, which I would like to mention in conclusion~is that I believe the guts of this act are destroyed, done away with, by the fact that it is very easy for the act to be cast to one side and for a couple, a married couple, I am particularly concerned with now, a ma=ied couple to enter into an agreement which in effect allows them to opt out of nearly all the provisions of the act with the exception of the matrimonial home. Mr. Speaker, I think it would be naive for us to believe that it is not a fairly easy task for a husband 3359

May 14, 1979 Tape No. 1297 so - 1 MR. W.N. ROWE: to get a wife to sign an agreement either before marriage or afterwards in many cases. I know of many cases that I dealt with when I was practising law,whereby a husband either before marriage or upon marriage or shortly after marriage or during the marriage was able to get his wife to sign agreements affecting the home, agreements affecting her interest in various business enterprises and so on.

I think, without being condescending about it, that in the respect of many wives at least?many wives are inclined to take the advice of their husbands in commercial matters. It should not be so and perhaps it is not so in many cases but in many cases I believe that there is an implicit trust on the part of a wife with respect to the advice given to her by her husband on various matters. And if a husband draws up a contract or gets a lawyer to draw up a contract,which the act allows him to opt out o£1 and gets the wife to sign it, then you are going to see many cases, Mr.

Speaker, where wives,perhaps naively, perhaps inadvertently deprive themselves of the benefit of this act.

You are going to see where the provisions regarding martimonial property and the division of it including business assets,for example, because even if she did make some contribution to the business asset and is therefore under the act with regard to an equal ownership or division of the business asset, how difficult would it be, in many cases, for a husband in the right circumstances to get his wife to apply her name, sign her name to an agreement which takes the business asset out of the operation of this act? Perhaps the reverse would be true as well.

Perhaps a wife who is in business and the husband is not, may be able to get her husband to sign an agreement Which does away with the benefit of this act.But I would submit, Sir, that in the vast majority of the cases we are talking about a situation where a husband who is out in business has the advantage over his wife,in ~ny cases, 33oo

May 14, 1979 Tape No. 1297 SD - 2 MR. W.N. ROWE: when it comes to this matter and would perhaps be in a position to get her to opt out of this agreement. I think it should be made difficult, certainly more difficult than this act presently provides for, I think it should be made difficult for a wife to deprive herself of the benefits of this act. And once more I submit to the Minister of Justice (Mr. T. A. Hickman) ,if he is listening, and to the House Leader (Mr. w.

Marshall) and other members opposite,a provision whereby a husband would have to prove or show by evidence that when a wife agreed to opt out of this act that she d.ldso in full possession of the facts. The other side of it should be proved as wel1 1 that if a wife got a husband to opt out of the act by agreement the husband or the wife~ wboever got the other to opt out of the agreement 1should have to prove, should have to show that the husband or the wife, particularly the wife, was in full possession of the facts and had independent advice,legal or accounting or some a<.lvice, at the time that she did so.

As I mentioned to the Minister of Justice earlier, where you have a situation where one person may have the ascendancy over the other 1 may have an advantage over another because of knowledge about a certain situation, legal knowledge,for example 7or accounting knowledge, where you have that kind of situation 1 if a person involved with another person who has the advantage over the first person, if that person gets rid off his or her rights under

an act then if it can be shown that the person who dealt with the person who got rid off his or her rights had some kind of power or control or advantage or ascendancy over the other person then in many cases, Mr. Speaker, in order for the person to take advantage of the agreement which gets rid of somebody's legal rights, that person has to show that the other person had independant advice, that he or she knew •,hat he or she was doing and the full consequences of the agreement. And I think, Sir, we should put something like that in this act 33~1

May 14, 1979 Tape 1298 EC - l MR. W. N. R:lWE: so that we do not have a situation where what has kleen given by one hand can kle taken away with the other hand because the person who is lJeUlq dealt with may not realize the full consequences of her act or his act, but particularly her act, in opting out of this agreement. We should not make it easy for this agreement to be opted out of, we should make it a little more difficult.

We should make sure that wives and husklanda have the full benefit of this Act and that if they do opt out they recognize the full consequences, the full ramifications, that they realize what they are doing at the time that they are doing it. And I would say , Mr.

Speaker, we should add to the klill to give it more clout, to give more protection to those who are supposed to be protected Wlder the Act) we should add to it a need for somabody to have had independent advic:e when he or she signed his or her name to an agreement whereby they were deprived of the benefits of this Act1 particularly as they relate to matrimonial property and the rights of a wife to an equal share of matrimonial property. Mr. Spealc.er, there will probably be other things to be said about this bill when it goes through CoiiDittee prior . to third reading.

I do hope that SOIII8 of the suggestions whi.c:h have been thrown out here today will be taken into consideration by the government, not to detract from the principle of the bill, whic:h is a good principle, but to do what I believe the bill sets out or intends to do, to protect husbands and wives with regard to matrimonial property and to sake sure that they have the full benefit of the law, full protection, full security.

And in respect of the matrimonial home, I think. there needs to be a provision whereby title can reside in one of the spouses • n_.s so that the other spouse who is inwlved in business can take it out of his or he:z: personal assets and make sure that the matrimonial home, as far as the children in the family are ooncerned 7 is protected against the depredations of creditors or other people cominq after the assets of one of the spouses. Mr. Speaker, I support the bill. I hope that the government takes into consideration some of the positive 33\j2

May 14. 1979 Tape 1298 EC - 2 MR. W. N. mWE: suqqestions wh.icb. I believe can only improve the bi.ll and make it a much better law for the protection of married persona. Thank you, Sir. SOME IKlN. MEMBERS : Hear, hear! MR. SPEAKER.: (Mr. Cross) SOME HON.~RS: MR. ROUSSEAU: The hon. the member for Menihek. Hear, hear! Mr. Speaker, I would like to say a few words on this bill. I think in nine years in the Hause of Ass&lllbly there have been a nlmlber of bills that have been aqreed to in principle and which I think are deservinq of input from both sides of the House.

I think this is a bill that should not in any way, shape or form be political in nat~ and that DIIIDY of the coJIIIIIellts that ma:t be thrown out by llllllllbers of the Opposition and members on this side of the House should ce:rtUnly be taken into consideration. I think we have four or five learned gentlemen in the House who add much to it, but I think some people who are unlearned in the sense of unlearned in the law · - al thoUC)b the learned men of the law alao find themselves in the same practical position we find ourselves - may have somethinq to offer.

And I aqree fully with the hon. the Leader of the Opposition that the bill is fine in principle. I certainly support in principle the bill. I recall two years or three years ago when the Status of Women Council came around to the various ministers and 1 I quess 1 the various members in the House of Assembly, that I had no hesitation whatsoever in qi vinq my unqualified Sllpport to the concept of the principle of this bill. As a matter of fact, I was proud at the time that I had my home in both my wife'sand my name. I listened with interest to the hon. the Leader of the Opposition (Mr.

W.N. :Rowe) today because I hope he would aqree that not a lot of Newfoundlanders are in business and would consider the fact that the full ownership of the home may be prejudicial to the principle they are tryinq to establish. Certainly not as a businessman in my own r£ght, as a teacher before I became a member of the House of Assembly, . it would not occur to me that by 3363

May 14, 1979 Tape 1298 R.r-3 Mil.. BCUSSEAO': bei.nq restricted ta one-half of the !IJiltrfmanj al hoae for both spouses that it could, in effect, be pz:ejudid.al ta either of the spouaes or to the c;:hlldren of the IILUX'ia9e· I think it ~ ~y a point that has ta be CCDSi.dared a11d I think bears llll!rit. Another point that the hen. the Leader o.f the Opposition (Mr. W.N. lloWe) brinqs 13p and ·.vi.th which I OQIICNr ill that it is Qllforamata that the spouse, and as the h.on. member ral.ates in ninety-nine per cent of the qasea - are ~q about the vi.fe, caDaOt awn 3364

May 14, 1979 Tape No. 1299 GH-1 MR. ROUSSEAU: part of the assets of the business, ~ut I would like to throw out one possibility, Mr. Speaker. The han. Leader of the Opposition used the example of a lawyer and his wife and I can see that possibility but there are other possibilities as well. Young people, a young male, for example, starts a business and in order for that business to grow 7 from what I understand of business, it is necessary in the earlY years to throw the money back into the business to build up the assets of the business.

At the same time being a young couple it is possible that the wife may also work three, four or five years before they decide to have children. In other words, they want to get on their feet, and although the wife may not be contributing directly financially to the business, she is by working and getting a salary allowing the husband to throw back money into the business that will build the business.

That may be indirectly and it may not be according to the law 7 in the sense that she has made a direct contribution to the business 7 but from a practical point of view that wife of the marriage certainly is contributing to the build-up of a business of that nature·in my estimation. Of course, there has to be a point where yqu have to stop. The lawyer and the wife, maybe not.

But again,if a young lawyer is out trying to establish a practice and he does not want to take the money out of the practice 7to build the practice up the wife is working and the wife, by limiting the amount of money that the husband 7 the lawyer or whatever business the person may be in, puts into the House is, in effect, indirectly maybe, but is 1 in effect,and certainly practically 7 contributing to the business.

I would like to make a point on the children of the marriage and I do so not because it is the International Year of the Child, I think every year is the year of the child,but there are certain principles here that bother me and I would like to bring them to the floor of this House of Assembly. Now whether indeed, I am not a lawyer; I cannot read as the han. the Leader of the Opposition, the hon. the House Leader and the hon. the Minister of Justice (:.rr. Hickman) and the other 33G5

May 14, 1979 Tape No. 1299 GH-2 MR. ROUSSEAU: members of the learned profession in the House; I have to take it on what I can read and I certainly have some concern for the children of the carriage. I notice in

Section 24(

d) that any property forming part of the share of either or both spouses be transferred to or held in trust for a child to whom a spouse must provide support and in

Section 13(ii) (b), I think, there is another reference that the court may only make an order for exclusive possession of the matrimonial home under sub-section 1 where in the opinion of the court it is to the best interest of the child to make such an order. There is another

section I want to speak about in a minute. I would want in support of this bill to ensure beyond any shadow of a doubt that the children of the marriage are provided for and I would assume that it is so done in this bill, but of even greater consequence, Mr. Speaker, in my opinion is this possibility. In

Section 3 the question of domestic contracts, in which I fully agree with the Leader of the Opposition. You know some people may agree with it, others may not, It is there but some people may have reservations. Let me give a possible example, Mr. Speaker, that a separation occurs leading to a divorce and that there are one or more children to the marriage, and let us say, for example, that of the husband and the wife one or the other does not agree in the principle of cohabilitation and let us say that a cohabilitation contract and let us use - I am sorry - cohabitation - 3366

May 14, 1979 Tape No. 1300 GH-1 MR. ROUSSEAU: contract is drawn up and let us use, for example, the wife because the wife in the greater majority of cases has possession of the children.

So let us say the wife agrees on the principle of cohabitation and she has one or more children of the marriage; and let us say the husband who does not have possession of the children does not agree in principle, as a matter of moral or religious belief or just does not agree with the concept of cohabitation, what would happen to the rights of the hus.band,or it could be either spouse but I use the husband again because in the majority of cases I think that would .be the case, but what right would the husband have if the wife signed a cohabitation contract and there were children of the previous marriage involved?

Should not the husband have some right to say, "This is not satisfactory to me or that I know the person in the cohabitation contract and I am not satisfied that he would provide the right and proper home that I would want to see for my children"? Or that possibly one,if there is one1 or more of the children may not want their parents to enter into cohabitation or the parent with whom they are living. I do not know whether that is covered, Mr. Speaker, in

Section 387 that "The court may disregard any provision of a marriage contract, cohabitation agreement or separation agreement affecting a child where 7 in the opinion of the court 1 it is in the best interest of ·~t.!l.e-·chilci." I think han. members of this House who have served in government from both sides of this House know what the best efforts and the .best interest clause may mean. It is a very wide and very varied clause. You have seen many employers in this Province give undertakings of best efforts or best interest to employ Newfoundlanders or to use Newfoundland materials that have not done so. I do not know, Mr. Speaker, again it is a matter of the lawyer's

interpretation, the court's

interpretation, but I certainly would not want to feel that the children of a marriage would be forced to enter into a cohabitation agreement and tr~t the 33G?

May 14, 1979 Tape No. 1300 GH-2 MR. ROUSSEAU: other spouse in disagreement in principle with it1 or from a religious or on moral grounds would not have some say in that. I would certainly appreciate it,and I am sorry he is not in his seat 1 but I am sure he will do so and maybe the House Leader when he speaks on the bill will assure that this point is not the way it could be, because I think, Mr. Speaker, that as good as the principle of the bill is and which I agree and support fully,that the thought to the children of the marriage be g-iven in a clear and unequivocal manner so that there would be no problems arising as a result of

Part III of the law. I think that the bill itself is a unique one for this Province. I think it has been long in coming. I believe up to the time I was in government that many people had input into it. Again I say and I would assume that in the final analysis of the bill that government has given consideration to the thoughts of the various religious denominations in the Province, that while it may be a state in the legal term we are still certainly dependent on the views of our religious leaders in all walks of life, many who have differing opinions on differing subjects.

Certainly I would hope that their views have been sought and I hope heeded. I think it is ~fortunate that this bill had to come as a result of pressure from,well the Status of Women Council but I would assume from women in general, that it was not something that years before had not been at least thought about and given consideration to on a more positive basis. 33o8

May 14, 1979 Tape 1301 IB-1 MR. ROUSSEAU: I would look with much interest on the reaction to the bill that the Status of Women Council and women across the Province have.

I know that as with what was supposed to have been done and I would assume was done with the Labour Standards Bill~that some public information was put together and sent out to the various employees and employers in the Province, that once this bill becomes law that it will be put into layman's language so that a husband and a wife in Ochre Pit Cove or on the Port an Port Peninsula or the Coast of Labrador might be able to understand exactly what their rights are.

It is one thing to say we have the law and it is another thing for the people who are involved for the most part, 80,90 per cent of them who have no idea looking at this piece of paper exactly what their rights are. I would certainly like to see some publication in laymen's terms being distributed to the householders of the Province. It has been done on other occasions. It certainly can be done on this occasion. I repeat again, Mr.

Speaker, that I would hope that the points brought out by all members of the House of Assembly regardless of which side 7 in respect to this, especially the lawyers, of course,who have more the job of safeguarding what the intent of the principle is, that every consideration will be given to the points made. And I certainly would like to have, especial!~ the point I raised in respect to the cohabitation and children concept explained satisfactorily, either when the hon. Minister of Justice (Mr. Hickman) or the hon. House Leader (Mr. Marshall) stand to speak on the bill or certainly in committee stage.

So I fully support the concept of the bill. I listen with interest to the thoughts of my colleagues in the House of Assembly and to other points that may be raised that as a lawyer I am not able to understand until I hear them in layman's language, then I can go back and look and see it there, that what we are really trying to accomplish here is that we are trying to give women equal status with men in the law and that will come about because of this bill. And I hope, as the hon. the Leader of the Opposition (Mr. w.

Rowe) mentioned, that this is not a sop, that it has some real meaning, I believe it does and I would hope-'s we all are 33o9

May 14, 1979 Tape 1301 IB-2 MR. ROUSSEAU: aware of in this House of Assembl~ no bill that has ever been passed here has ever gone without amendment,that we start from a general base and then as we see the problems that arise because of the bill that we are able to amend them, that this will be an oncTOing process in this concept which I think is one of the ones which-!. can stand up in this House on very few occasions and say that I wholeheartedly and fully support without reservation and without concern or care for anybody else in the world except what I believe. I think it is a great principle.

I would not like to see it degraded or bastardized in any way, shape or form. I think that we should go on the concept and go on it to the point where de jure in law,there is a natural equality between women and men in otir society. Thank you very much, Mr. Speaker. SOME HON. MEMBERS: Hear , hear! MR. SPEAKER (Cross): The han. member for Eagle River. MR. STRACHAN: Mr.

Speaker, unlike the Leader of the Opposition I am not a learned gentleman in the legal sense although I must admit publicly and openly that I am learned in most aspects of marriage or non-marriage as it is stated in this bill here having coh~ited for a number of years prior to marriage openly and publicly although in some cases - and with no shame. Therefore , some of the things which are stated here are very pertinent, some of the acts. My wife, I am sure, would give her eyetooth to be standing here arguing this bill and debating this bill rather than myself.

But I would like to tackle a number of problems as I see them in this bill. I support the bill . I think it is excellent legislation. I especially like the way the bill is layed out and the fairly simple language, the introduction. some of parts of it that I think 33'10 There are

.. May 14, 1979 Tape No • 130 2 SD - l MR. I STRACHAN : net go far enough in trying to get to the stage ofequality because 1 in essence 1 most marriages, as I see it in terms of equality of rights and so on are rather hypocritical, rather a hypocrisy in that men, in essence, many times do certain things in order to protect their interests rather than protect the interest of both. The only point I can see that I am concerned about initially is, as was brought up by the Leader of the Opposition (Mr. W.N. Rowe), the matrimonial home.

And from my point of view this is something which has given me a great deal of concern in the past.

Becauseowning a business it is therefore a great concern to me that sbiluld the business go down the tube and become bankrupt then we have difficulty of how my half of the home ,as is stated here, how that would be attached and how difficult it would be on my wife,for instance, or a family? orif I go and there are debts 1 for instance 1 in the business,then will that be attached to my familyr Will they be harmed in any way;_ I do not know the legal terms you use in these kinds of situations but I am concerned that the home that I have now and I share with my wife which belongs to both of us.

Now in this term here, in this act here 1 legally all homes belong to both people which I believe should occur anyway. It now means how do we protect this home from business risks or pusiness ventures be it on the part of my wife or myself?

And I have often wondered that the turning over of a home, for instance,by myself totally to my wife or by my wife totally to myself is often 3 rather messy method of getting rid of certain responsibilities or protecting the family,I should say, protecting the family or protecting the home,But it is often done in such a way that this is the only time that a man would even consider in the past doing it. He certainly would not have considered doing it in any other context except to protect something that he feels he may lose. However he rio es i t 1

May 14, 1979 Tape No. 1302 SD - 2 MR. I STRACHAN : the argument now comes/ how can I protect the home in this situation so that should we go into bankruptcy it can not be attached or half of it can not be attached? I have often considered that one of the needs in business is that surely there should be some mechanism, not through turning over to another spouse the home or same other loophole 1 there should be some mechanism in business to protect that home for the family in the risk or in the case of a bankruptcy in the business or a business going dawn.

I feel that if the home is be;ing built as a normal home and was not the cause of the obvious bankruptcy 1 because obviously someone can set up business to demand money to build a huge palace and then) of course 7have it protected but in normal cases if the home is built out of normal proceedings from the business, then surely if that business goes down for any number of reasons,surely that home should be protected for the male, the female of the marriage and the children as well.. Because I think to cause suffering by loss of the home because of a business loss then I think there is a certain danger there.

I do not like that attitude.I would like to see some way in which we can protect in some form, in a reasonable fashion 7obviously in a reasonable fashion - if a home is worth half a million dollars then obviously there is some concern as to where the money came from and did it cause the bankruptcy.

But I do not see that our home, for instance, should be in case our business fails, I do not see that now we have put equality in it, and it is equal in our case anyway 7but now we have put in equality of sharing here then there must be some other way in which - maybe it should be added here or in further legislation or disucssion) and maybe the legal minds can come up with it7of trying to protect that home should that occur. Because I never felt that should a business go down the drain a 33'"12

:-lay 14, 1979 Tape No. 1302 SD - 3 MR. I • STRACHAN : family should be out in the street, thrown out in the street,either because the leqislation now states it is an equal silar.i,ng or, in our case 1 because we share the home a.nyway. I think there should be some method of protection there . So . I would like to put that in to support the point put forward on the business of the matrimonial home . As far as everything else is concerned there, I absolutely agree that th.e 3373

May 14, 1979 Tape No. 1303 GH-1 MR. STRACHAN: spouse should have, absolutely should have, the right to 50 per cent, an equal sharing of the properties belonging to the matrimonial home and this is something that we have argued before and talked about and discussed and in my own relationship we have discussed a great deal, because I believe very strongly that that has to occur.

Another point I would like to bring up here and where I do not think it goes far enough and I cannot argue in legal terms; I can only obviously argue from my own experience and our own situation and our family situation, is in the business assets because I have a particular situation in which my wife, during our first two years of marriage,did almost 75 per cent of the work to create a business. Then three years later we decided to have a family 1 or four years later in other cases 7 we decided to have a family and the male takes over the business and the business becomes successful.

Then it should be, as far as I am concerned, built into this here that a wife can get an equal sharing of that business not based on the amount of time she puts into it. If my wife works,for instance,for two years to help set up that business at no pay in the early years of the business when it was a real struggle, then why1 when the business becomes successful down the road, allocate to her an amount based on the time that she put in in the early years? It is not, is not, as far as I am concerned, equality.

That is certainly not equality to me and I think that this section, 26-27 section, does not go far enough in allowing the spouse, either spouse, enough sharing of the business asset in the case of a breaking up of a marriage 1 for instance, especially where they put in a great deal, as has been stated earlier, a great deal of time and which time can only be valued at a certain value which may be inconsequential or very small compared to the future success of that business.

And if they have spent that considerable time then I feel that they should be able to share in the business assets in an equal fashion even though, later on down the road 7 they came out of the business because of rearing a

May 14, 1979 Tape No. 1303 GH-2 MR. STRACHAN: family and the problems of time allocation in raising the family. I think that this is something that should be done. We have done it very simply in our case because my wife is a shareholder and holds a similar amount of shares as I do or very close to it. So, in essence, she will obviously gain her assets should a marriage break up. Then , of course,there is no argument here. But in most other cases the wives are not shareholders in business. Only in the case of a man wanting to use his wife's name as a matter of convenience does she become a shareholder. But I think that in this case here there should be some argument here to strengthen this

section as far as I am concerned, because I would feel that a wife has a claim, has a very strong claim, and more than just a claim from the point of work or money or money's worth in respect of the business.

She has in that business - there is only one other argument that I can see against it, should someone marry and he or she has a business, a very successful business at the time, marry someone,then, of course, the argument is that they cannot opt out, but I think that as it was stated earlier on if there is opting out and if the person says, "Look I am bringing into this marriage myself and a salary but I am not bringing my business into it and you have therefore no right to any part of the business", then I think if that is going to allowed it should be clearly spelled out.

There should be clear instructions given to the spouses on that aspect of it and this would probably have to be introduced because I could see some people getting very uptight about this arrangement that should someone marry someone else in successful businesses I can now claim half of that business and they will obviously argue.

There is the other argument, of course, that I put forward where the wife or the husband has contributed to that business 1in building up that business, then surely by having to remove oneself on a time aspect because of rearing children or various other things or, for instance, in my case by being in politics,I have taken myself away from my business and my wife has therefore had to do more of the business than would be normal and certainly more of the 3375

May 14, 1979 Tape 1304 RT-1 MR. I. STRACHAN: business than I do 7 and so she, therefore, could claim that because I a111 out of the business, away from the buainasa, I should, tbarefora, only in this case of buaU.ss be allowed lilY c:ertain a.oWlt of tU. that I would ~cate to lilY business. And I think that is totally wzongil thera should be some form of equal sharing as far a.s I am concerned in these types of business arrangements and asaets.

There wu , of course , the arq\llll&nt in the west, over in Alberta I believe - I cannot remember the details of it, getting no daily n-apapers in Na.in, I only heard it on the radio - about the ar~t in whl.c:h the wife of a f~ in the Prairies somewhere who had contributed a. qreat deal to that marriage, a qrea.t dllal of work to that farm in making it a. successful farm,of course, and later beinq separated and I