Manitoba Committee Hansard — 7 July 1978 (Statutory Regulations and Orders Committee, Sitting 1, 31st Legislature, 2nd Session)

31-2-sro1

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba HEARING OF THE STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Chairman Mr. Warren Steen Constituency of Crescentwood Friday, July 7, 1978 8:00 p.m. Printed by P.N. Crosbie -Queen's Printer for the Province of Manitoba

me: 8:00 p.m. Hearing Of The Standing Committee On Statutory Regulations and Orders Friday, July 7, 19 78 rtAIRMAN: Mr. Warren Steen. )mination and Election of Mr. Steen as Chairman. (Agreed) R. CHAIRMAN: To the members of the committee, we have five bills that are before as: Bill 38, 1e Marital Property Act; Bill 39, The Family Maintenance Act; Bill 40,

An Act to amend The Provincial 1dges Act(2); Bill 41,

An Act to amend Various Acts Relating to Marital Property; Bill 42,

An Act amend The Queen's Bench Act. The Clerk has a number of names of persons that which to appear as delegates. I would ask I persons who wish to appear on any one of those five bills if he or they would come forward 1d add their names to the list that the Clerk has. Otherwise, I would have to read off the l-some-odd names of the people and see whether they're here. -(I nterjection)- To the Member r St.

Johns, it has been indi cated to me by the Clerk of the Ho use that he thought he could handle easier if persons wish ing, who are not on the list, came forward or saw him at the back of the ·om and were added to the list. The Member for Selkirk. R. PAWLEY: Mr.

Chairman, earlier today I had requested of the Hous e Leader that consideration � given to delaying this hearing until such time as the Minister responsible, the Attor ney-General, >uld be present, because I am not convinced of the maximum benefit of briefs being presented the absence of the Mi nister responsible for, in fact, each and every one of the bills that are before ; this evening. That request was rejected. I think, Mr.

Chairman, there should at least be some msideration given to those that are on the list tonight, that in the event that they wish to present eir brief when the Attorney-General is present, that they be allo wed to stand down so that they 1n present their brief while the Attorney-General is present.

I want to just further add that I know that inconvenience has been caused, I think that could 1ve been prevented by insuring, when the meeting was scheduled, that the Attorney-General would � present, and I do believe that when the meeting was scheduled on Wednesday, that consultation 1th the AttorneyGeneral would have so ind icated that he would not be avai lable for tonight's meeting. is other meeting, I'm sure, is very important but this meeting could have been re-scheduled in ·der that the Attorney-General be present to hear each and every one of the briefs presented. jo say, Mr.

Chairman, that the minimum cou rtesy would be to stand down any brief from anyone ho wished to present their brief while the Mi nister respon sible for this proposed legislation was ·esent. R.

CHAIRMAN: To the Member for Selkirk, I would say to him that the Attorney-General is out the province on government business, as he does know, and that Hansard does reproduce the >mments made by each and every indi vidual that do appear before this committee, but as Chairman, would be more than happy to allow anybody who wishes to appear before this committee, who ishes to appear tomorrow, when the Attorney-General will be present, to take leave and appear morrow.

But I might point out to the Member for Selkirk, that we do have the Premier, we do 1ve the Government House Leader and we do have three other Cabinet Min isters here, and if his ars are that we do not have sufficient government representati on, that tho se persons that wish make their presentation in front of the Attorney-General, I would be glad to move their names 1ck and we will hear them tomorrow or perhaps next week if the committee is carried on at that ne. Is that satisfactory to the Member for Selkirk? R. PAWLEY: Mr.

Chairman, I want to just say to you that I don't believe it's sufficient to say at the Attorney-General will have an opportunit y to read in 1-jansard that which has been said 1

Statutory Regulations and Orders Friday, July 7, 19 78 this evening. The importance of the presence of the Attorney-General is to listen but also to gi· him the opportunity to question tho se that are provi din g briefs to the committees so that he c; analyze a face-to-face question and answer process on an analytical basis the representations th are made. That can't be done from a mere reading of Hansard next Mon day or Tuesday of th which has been ind icated tonight.

Now, if the Chairman, is indi cating that he is prepared to stand down anyone that is listed un such time as the Attorney-General is present, then I wo uld, if the Chairman is guaranteeing th to us, that he is prepared to do that, then I would think my colleagues and myself would be agreement. MR. CHAIRMAN: To the Member for Selkirk, the Chairman, would say right here and there th there are no guarantees that we have 54 persons that have ind icated through the Clerk that th' wish to make presentations and be represented .

If a particular person who is on the early part of the list would prefer to be void until tomorro when the Attorney-General is present, I would be more than pleased to move that name down < the list, but I'm not going to give you, or any other member of the committee a guarantee th we are going to sit for days and days and days until the Attorney-General is present when th particular indi vidual wants to appear. Is that fair eno ugh. MR. PAWLEY: Mr. Chairman, I thought that the Attorney-General was to return later on this evenin I didn 't think it was a question of days and days. MR. LYON: Mr.

Chairman, on that same ... MR. PAWLEY: Now, Mr. Chairman, I believe I still have the ... MR. CHAIRMAN: The Member for Selkirk. MR. PAWLEY: What I wanted was some assurance that no one this evening would t incon venienced to the extent that they would have to present a brief while the Min ister that w; respo nsible was not present. Now it may be that we have no difficulty, but on the other hand, am not sure of how many of those that wish to present briefs tonight would have preferred to c that when the Attorney-General was present. MR. CHAIRMAN: The First Min ister. MR. LYON: Well, Mr.

Chairman, on the point raised by the Member for Selkirk, it is rather a nov idea in the Cabinet form of government that a particular Min ister who happens to have carria! of a particular bill must, of necessity, be present, at all times, when the bill is being discusse That has never been the precedent of this House and so far as I am aware if there were a vo taken on it, it certainly would not become the precedent of the House. We operate under a Cabin form of government in which there is responsibility by the Cabinet and by the members of tt government in the caucus for bills that are brought before the House.

Members from time to tirr may be discommoded by virtue of illness, by other appointments, by the multitude of du ties ar responsibil ies that they have to carry out. So there can be no guarantee at any time on any matt' appearing before any committee of the House that the Min ister having the carriage of the bill w at all times be present. That is nothing new in this Legislature. The Attorney-General of Manitoba happens to carry about three other portfolios. He has a nu' of other responsibiliti es in the overall carrying out of his dut ies to the people of Manitoba.

He happer to be engaged today on what I think even the Meer for Selkirk would agree is a fairly comprehensil and responsible task, namely, prelimin ary discussions with the other Attorneys-General of Weste1 Canada and the other Min isters responsible for discussing the new constitutional proposals th; have been brought down by the Federal Government.

That I regard as an important task and t was asked to go at the behest of the Premier of Saskatchew an, who laid on the meeting sorr weeks ago, and I asked the Attorney-General to go as the Chief Law Officer of the Crown to th meeting, the date of which was tentatively set recently for this night. Now, as to the coincid ence of this night with the appearance of the Attorney-General in Saskatoc attending to his other responsi bili ties, the government at no time can give any guarantee to mee1 of the public or tho se wishing to make representations as to when a particular bill is going to t before a committee.

That to a large extent depends upon members of the Opposition, because thE are free, of course, to debate the bill so long as they wish in the House. lt happened by the fluxic of time and by the kind of debate that took place, that the bill in question or a series of the bil that are here tonight, the major bill, the debate on it was completed, as I recall, on Wednesd� 2

Statutory Regulations and Orders Friday, July 7, 19 78 vening, and as a result 48 hours notice being the usual requirement, this evening was set for the rst of a number of briefs to be heard on the bill. So I would not in any way, Mr. Chairman, make any apology whatsoever on behalf of any member f the Cabinet, either of this government or of any other government for that matter, for not being ble to be present throughout the whole of hearings on any particular bill, no matter how important 1at bill may be in the eyes of the governnt or in the eyes of people who are making representations n it. .

That would be an unreaso nable requirement. Therefore, I think that the Chairman is being xcessivel reasonable, if I may say so, in suggesting that tho se persons who may wish to stand own until the Attorney-General appears. That's a suggestion that he has made. 1 would make the 1rther suggestion that persons wishing to make submissions on the bill should feel quite free to o so tonight, because there are at least five members of the Executive Council here. There are 1embers of the Attor ney-General's staff.

We do operate in a Cabinet form of government, in which 1ere is Cabinet responsibility for bills that are brought before the House. That being und erstood y everybody, the absence for two or three hours of the Minister having the carriage of the bill a matter of no great moment. IR. CHAIRMAN: The Member for Sel kirk. IR. PAWLEY: Mr. Chairman, in reference to the comments by the First Minister and ind ication 1at it was the opposition that determined when the meeting would take place, that certainly is not 1e case, or any inference to that effect. The decision to hold the meeting tonight was that of the overnment.

We could have proceeded with business of the House this evening, and for the life f me I don't know why, in view of the fact that the meeting in question was arranged some weeks go - I don't know the exact day or night in which the First Minis ter was aware that the ttorney-General would not be present this evening - but there is no doub t in my mind that on lednesday we could have proceeded with House business tonight and have proceeded with the usiness of this committee tomorrow.

I just want to ind icate that to the Chairman and, again, with the caveats that were mentioned a.rlier insofar as those that wish to present their briefs, be given an opportunity to do so when 1e Attorney-General is present. IR. CHAIRMAN: The Member for St. Johns. IR. CHERNIACK: Well, Mr.

Chairman, I just wanted to note that the Premier said that it was a ovel thing to expect that the Mi nister having the conduct of a bill should be expected to be present. must say that it is most unusual in my experience for the Min ister having conduct of a bill not , be present - very unusual - and I think the First Minister, who do esn't count too well either - must admit that I have been around about as long as he has been arou nd, in terms of experience this Legislature, and 1 assert to him that it is most unusual for the Mi nister having conduct of bill of major consequence, as I believe these bill s to be, not to be present.

Now, that's unf ortunate, and I think he will suffer, or the legislation may suffer, because of his Jsence. And it's unf ortuna te that it was a mix-up in the planning of the session and of the committees tat the Hous e Leader was not aware of the intended absence of the Attorney-General for this tening. -(I nterjection)- Well, it's a mix-up if the ... I would assume that the House Leader, ho plans pretty carefully, Mr. Chairman - in my experience, I have found that he plans pretty 1refully - had he known that the Attorney-General could not be here this evening, I think that 3 would have rearranged the

schedule so as to accommodate to that fact. Nevertheless, Mr. Chairman, we are here. All members of the Committee are here, and there a substantial delegation present to make representations. As long as they know that they will 1ve to rely that those who speak toda y will have to rely on the reportage which may take place 1 inform the Attorney-General of what they've had to say, then by all means, if they are prepared 1 go ahead that's fine. I don 't think you're being excessively reasonable, Mr. Chairman, I think >u're being reaso nable to accede to the suggestion of Mr.

Pawley, that they be given a choice. think that that is right, that they should be and then I think we can proceed , noting with regret 1 the part of some of us, that Mr. Mercier is not here tonight. R.CHAIRMAN: The First Mini ster. R. LYONS: And also, Mr. Chairman, for the record ... with wha tever humor you wish to not at the Minister is engaged on government business, on a matter that is, I suggest of equal 1po rtance, at least to the people of Manitoba, namely the Confederation of Canada. MR . HERN IACK: Mr.

Chairman, on that point, I would think that the Attorney-General is absent on Jsiness which 1 assume is of utmost importance, and that's why I would say that the First Min ister 3

Statutory Regulations and Orders Friday, July 7, 19 78 who's given him apparently four portf olios, which involves him in much more work than he ea obviously handle for tonight anyway, that a proper arrangement of the sched ulin g would have mad it possible for us to use Friday even ing for some other legitima te government legisla tive purpos and have proceeded with this tomorrow morning. However, I say we shou ld proceed, recog nizin that Mr. Mercier is, I'm sure he's not partying somewhere, but he's on business as the First Minis tE says, and will be here in the morning. MR.

LYON: Notwithstan din g the usual snide comments of the Member for St. Johns, Mr. Chairma1 I do find one element of his comments that I can agree with. I suggest that we get on with th business of the comm ittee. MR. CHERNIACK: Having set the tenor , Mr. Chairman, I would agree that we should procee as the First Minis ter suggests. MR. CHAIAN: To the Member for St. Johns, I have been informed by the Clerk that we shoul establish what a quorum is, and to the Government Hous e Leader, would you move a motion th< we have a quorum. MR. JORGENSON: I move that the quor um be one plus half the membership. (Agreed) MR.

CHAIRMAN: The Member for Selkirk. MR. PAWLEY: Mr. Chairman, in view of the size of the number of people present tonight, surel there must be some means by which chairs or some further accommodation can be provided fc the convenience of the public. MR. CHAIAN: My other question to the members of the committee is that as chairperson, I woul suggest that we establish some rules as to how long a particular indi vidual can speak. The Minis tE without Portfolio responsible for the Task Force. MR. SPIVAK: Mr.

Chairman, I would move that we follow the precedent set in Law Amendment with a time limit of 30 minutes for a presentation. MR. CHAIRMAN: The motion has been put forward by the Min ister - the Member fc Selkirk. MR. PAWLEV: Mr. Chairman, I believe that at the last set of hearings there was a rule simila to that, but the understanding was one that would relate to the length of time read ing the brie that there could very well be a considerable question and answer period that would exceed th 30 minutes period. Also Mr.

Chairman, I do belive that a certain deg ree of latitude is required, becaus some of the representations may very well be that which represent organizations and the complexit and the nature of the brief may at certain times require some flexibility on the part of th comm ittee. MR. SPIVAK: Mr. Chairman, I move that the briefs be presented no longer than 30 minutes, an1 that did not of course include the questioning that would occur afterw ards.

I think if we make . decision on that, we can follow the precedent that has been established in Law Amendments, th comm ittee has fle xibili ty if a brief has to be extended by the very nature of the brief and we ca1 deal with it at that time. MR. CHAIRMAN: Is that agreeable to the members of the comm ittee? (Agreed) The Mem ber to St. Johns. MR. CHERNIACK: Mr. Chairman, it's clear that the brief itself is not to exceed 30 minutes, th1 question period goes to whatever period it goes. MR.

CHAIRMAN: Can we have another motion from the members of the committee that th1 proceedings be transcribed? (Agreed) The Member for Se lkirk. MR. PAWLEV: Mr. Chairman, again, surely there's some way we can convenience the member: of the public. There are a lot of chairs present. Could n't the Sergeant-at-Arms make sure tha everyone standing has a chair? 4

Statutory Regulations and Orders Friday, July 7, 1978 IR. CHAIRMAN: I have been informed by the Deputy Clerk of the Hous e that there are no additional )aces back there in which they can put chairs. R. CHERNIACK: What about the side chairs? R. CHAIRMAN: Well, the side chairs are usually reserved for members of the Legislature. 1 will ke dir ection from the Gov ernment House Leader. R. JORGENSON: Let them occupy those seats. 8MR . CHERNI ACK: Mr.

Chairman, there must � 50 chairs in this room that are not occupied, surely we could accommoda te them by bringing e press desk forward or permit them to sit at the back of the room. But surely there aren't as any ML As as there are chairs here. R.CHAIRMAN: To the Members for St. Johns and Selkirk, we are at the will of the commit tee, 1atever their wish is. R. CHERNIACK: Mr. Chairman, do you want a motion on that, that we provide additional chairs the side and the rear of the room? I'll move it, Mr. Chairman. R. JORGENSON: Mr. Chairman, we don't need a motion, let them occupy the chairs that are ailable.

R.CIRMAN: I would suggest to members of the public that if they see some vacant chairs at e sides of the table grab them quickly. I have been presented with a list from the Clerk of the Legislature's Office of persons wishing make presentations. As I mentioned earlier, there are a number of persons that perhaps have 't recorded their names with the Clerk's office or the Clerk or the Acting Clerk. As I mentioned ;o earlier, the Attorney-General isn't present tonight, but anyone wishing to make presentation 1ile he is present may defer until tomo rrow or until some other time.

So, therefore, I will go with 3 list that has been presented to me. There are likely persons present who wish to be added the list. They can be added to the list through the Clerk of the Legislature. The Government 1use Leader. �-JORGENSON: Mr. Chairman, I just want to add one rider to your suggestion that those people :�t want to defer can do so tomo rrow, that there's going to be no one presenting briefs here tonight, d that the comm ittee meetings were concluded as long as the evening is occupied in the 3sentation to briefs.

I don't care in what order, they can arrange amongst themselves in what jer they appear, but we are going to carry on the hearings tonight. :r. CHAIRMAN: To the Government House Leader, I was under the impression that we would that and that if there was a particular indi vidual that would prefer to delay their presentation til tomo rrow, we would try and accomodate them, but all we can do is try. The first person, from the Manitoba Teachers Society, Mr. Ralph Kyritz. l. KYR ITZ: Thank you, Mr. Chairman. I'm speaking here on behalf of the Manitoba Teachers' Society and on behalf of teachers.

The ciety has been involved dur ing the past few years in promoting the equal status of women, both ide and outside the teaching profes sion. The Society's Status of Women Commit tee organ ized rkshops on the elimi nation of sex bias from local and provincial programs and has been actively olved in in-service work with teachers. Towards this end, the Society is in favour of laws that >mote equality and which tend to lead to the devel opment of the full potential of all citizens. 1 would like to point out to the Commit tee that other than parents, teachers are in the most ect and consistent contact with students.

As such we are most painfully aware of the psychological 3cts on students caused by either strained family relati onships or by family break-ups. While )roving family relationships is outside of the realm of the law, we suggest that the effects of family 1ak-ups may be alleviated if provisions are made in legislation for expedient and rapid solutions the inherent problems. Therefore, we believe that lengthy court battles are detrimental to the dents' welfare and would be in favour of legislation which reduces recourse to the courts in as ny situation as is possible.

The Society agrees with the principl es espoused by Bills 38 and 39 but we are concerned with ne of the details. With the permission of the Comm ittee, Mr. Chairman, we would like to dis cuss each of the bills 1arately. To start with, in its general intent, Bill 39 establishes the equal rights and equal 5

Statutory Regulations and Orders Frida y, July 7, 19 78 of the partners in the marriage. We appreciate

Section 5(2), which recogn izes in law the contributio made by the spouse who is emplo yed in the home. We also support the manda tory exchange c financial information (Section 6), the obliga tion of the partners to mutual support and the provisio' for reconciliation. Ho wever, we are concerned with some provisions. We question

Section 2(2) which al lows a cou1 to deviate from the principle of mutual suppor t Support is a matter of necessity and should ne depend on the conduct of either partner. Where the conduct is so "unconscionable as to constitut obvious and gross repudiation of a marriage relations hip", we suggest the marriage should b dis solved and its assets distribu ted fairly. Ho wever, for the dur ation of the marriage the partner must support each other.

The Society would note that in business partnerships it is the contributio to the business and not the relative conduct of the partners which determines the sharing of asset� We suggest in the marriage both spouses make equal contributions: One in earning the extern< income, the other provi ding the legally recognized domestic service, and therefore we suggest th� conduct should not deny the earned right of either partner.

Section 3 also raises some problems. lt seems that the right of the supported spouse to "periodi reaso nable amounts for clothing and other personal expenses" is unusually restrictive in view c

Section 5(2), which places a value on domestic service. The Society realizes that

Section 3 guarantees only the minimum level of personal disposabl income and that a mutual agreement could increase this amount. Ho wever, in the absence of an provision in Bill 38 for the joint ownership of family assets during a marriage - with the exceptio of

Section 12 (e) - that is the

section having to do with dissipation, the supported spouse has n legal access to any family income other than these personal expenses. The Society submits th< they could buy this Sec tion, if after subtracting personal expenses of both spouses, that the remain in family income were to be shared equally. But in the absence of equal sharing, we submit that th minimal provisions for clothing and other personal expenses should be increased, it is not sufficient! large. The Society also questions Su bsection (

j) of

Section 5( 1) .

Section 5( 1) ind icates the condition which a court could consider in det ermining enforcement orders. Su bsection (

j) notes that the lengt of time that the marriage has existed may be consider ed as one reason affect ing the order. Th Socie ty maintains that support should not be dependent on the length of time of the marriage; neithE the obligation to support a spouse nor the need of a spouse to be supported increases with th lon gevity of marriage. And as such we suggest that rights to equality to supp ort, not with divisio of assets, but to support should be ind ependent on the length of time of the marriage.

Parts 11 and Ill of Bill 39 provide generally acceptable and fair enforcement procedures for chil support and for the other provisions of the bill. $ Unfortuna tely, experience ind icates that the supported spouses may encounter difficulties ne in obta ining, but in collecting court-imp osed settlements. Therefore, the Society proposes that th government consider increasing the penalties noted in

Section 25(3) and in

Section 26. We suggel that a $500 fine or a 30-day jail sentence in terms of today's costs is not sufficient to enforc compliance with the orders. An alterna te solution may be that the government might wish to purus more effective inter-provincial enforcement procedur es or possibly they should establish governmental collection and disbur sement agency. With respect to Bill 38, the Society commands the government for including bank accounts use for family household expenses in the defi nition of family assets. The Society also appreciates th principle established in

Section 6(2) and 6(3) giving spouses the "equal right to the use and enjoymer of" the marital home and family assets, but submits that this principle should have been extende to include the right to joint owner ship. We are also happy with

Section 6(6) to 6(9) which reduc a number of options which the spouse has a greater access to assets may have util ized to circumver a fair sharing of resources. Ho wever, we consider

Section 13 (2) as a problem area. This

Section empowers the courts t vary from the equal-division principle for commercial assets. The liberal definition of commercii assets and the extensive judic ial dis cretion may detract significantly from the equal division principl with undesirable results. We tear that the expectation of judicial discretion may increase the util izatio of the courts by some spouses, while on the other hand, the tear of litigation may prevent othE spouses from seeking the dissolution of an intolerable marriage with the result that children w continue to be exposed to severely strained family relationships. Although the judicial dis cretion in

Section 13 (2) should be reduced, the Society proposes th< in one respect the power of the courts should be increased.

Section 6(1) prevents the vest ing < "any title to or interest in any asset of one spouse in the other spouse." We are afraid that unwillin to break up a sound business, the courts may award the previously supported spouse a unrealistically small share of the value of a business. Therefore, the Society recommends that courl be allo wed to impose shares or partnerships in a business where a fair cash settlement woul otherwise not be achievable. 6

Statutory Regulations and Orders Friday, July 7, 1978 If I may simply state it in other words, Mr. Chairman. I am talking basically here about family ssets, which may be just one large business which is dif ficult to separate, and where also on the ther hand a large cash settlement to the supported spouse may incur too large a liabi lity on the usiness. In such cases, I am afraid that the courts might then give a smaller cash settlement in rder to keep the business alive. In that case we suggest a joint ownership or partnership or some 1are in the business might be an alternate way of doing it.

While the Society agrees that some lim ited jud icial dis cretion may be necessary to dis pose of 1e commercial assets, it is op posed to such dis cretion in the division of family assets as proposed 1

Section 13 (1) . By definition, family assets are those assets which were accumulated through the !forts of both partners. Therefore, both partners should have an equal share and no exceptions 1ould be allowed. lt may be argued that by virtue of

Section 13 (i), the courts may allocate a greater 1are to the spouse who raises the children. Ho wever the need for support should not be confused ith the right to assets. Bill 38 determines the division of assets, Bill 39 defines support. Therefore, ection 13 (1) of Bill 38 should mandate the equal division of family assets and Bill 39 should legislate mily maintenanc e if necessary. The Society is thrrefore concerned that lengthy litigation during a marriage break-up may have jverse effects on children.

Litigation can be reduced if fewer exceptions are provided in law. ' !though litigation may be necessary in the division of some commercial assets, especially large 1es, the Society can see no purpose in subjugating family assets to the litigation process. The Society realizes that the number of court actions could be reduced and the lim itations of 1e law could be circumvented if all spouses were to sign agreements designating the disposition • assets, which is the present provision in the law. Ideal ly, such agreements should be executed : the commencement of marriage or prior to the emergence of disputes.

Ho wever, in the absence ' an extensive informational or educational campaign, it is unlikely that a majority of spous es will 1dertake such preventive measures. Some spouses, full of hope at a commencement of marriage, may consider such agreements ; sort of a lack of trust in each other.

Others may be igno rant or uninterested in the detailed ·ovisions of the law when such provisions are deemed to be unnecessary, and as such we submit 1at the law must protect those who cannot reaso nably be expected to protect themselves. lt would � unrealistic to expect partners in a new marriage to make adequate provisions for the eventual ·eak-up of the marriage. And for these reasons we suggested the points we made just 1cently.

Therefore, in conclusion, the Society proposes that maint enance should not be affected by relative >nduct or by the length of marriage; that the right to eo-owners hip should be extended to include e period of marriage; that the extent of judicial dis cretion in a division of commercial assets should � reduced; and that a division of family assets should not be subject to court action. And we believe at if the government were to agree to these, the number of litigations affect ing family break-ups ould be reduced and that is our concern; namely, their effect on children. Therefore, Mr.

Chairman, Ladies and Gentlemen of the Commit tee, I am very grateful for having is opportunity to make this presentation to you. R. CHAIRMAN: Any questions from members of the commit tee? Mr. Cherniack. R. CHERNIACK: Thank you, Mr. Chairman. Mr. Kyritz, there are just a couple of questions I would :e to ask. I note that in the main your recommendations are so far not acceptable to gov ernment. 1erefore, I just want to deal with two relatively minor matters.

On Page 2 you deal with the exchange of financial information, and since the teachers' group an emplo yee group, I am wondering what your reaction is to the change that is proposed in this w from the existing law on the statute books, which provided, as I recall it, that not only must spouse give information of income to his or her spouse but that the emplo yer and the accountant the earning spouse is also required to give that information on request. This is not included in e present proposed legislation, except by a special applic ation to the court, an Order of the )Urt.

As a representative of an emplo yee group, would you say that the teachers would object to their nplo yer being requir ed to give information to the spouse. R. CHAIRMAN: Mr. Kyritz. R. KYRITZ: Mr. Chairman, I would probably say that you're asking for a ... employer to give 1 information; I could see nothing wrong with the court action in order to li berate that. So I don't ink we could see an objection to going to court first, before the emplo yer gives up the ovision. 7

Statutory Regulations and Orders Friday, July 7, 1978 MR. CHERNIACK: Okay, the next question, Mr. Chairman. On Page 5 you refer to

Section 6(1 of The Property Act, Bill 38, and possibly somebody from government would better interpret it fo1 you what 6( 1) refers to, but you speak of it in relation to business and a share in a business, anc I sort of related it to 6(3), which I read "together" means that each of the spouses have an equa right to the use and enjoyment of a family asset but that spouse who is a registered owner of an) of the family assets is free to sell it.

In other words, if there is, let's say, a summer home which is a family asset, they both have a right to joint use of it under 6(3) but in spite of that the person who actually owns the summe1 home may proceed to sell it without reference to the spouse. So I see it in relation to the famil) assets and not business. Would you care to comment on your reaction to my view of it? MR. KVRITZ: Mr. Chairman, I ... MR. CHERNIACK: I'm sorry, Mr. Chairman, I'm not referring to a legal

interpretation, I am jusl asking what should the principle be. Do you see a dif ference between the right to ownership o a family asset during the term of the marriage, as compa red with business? MR. KVRITZ: Mr. Chairman, I think our brief stated already that family assets should be jointl) owned during marriage, in any case. So I cannot really see any point in what you are saying. Whal I was attacking in

Section 6(1) was that where a marriage breaks up and the court makes a settlement that the court should also have the right, as I mentioned earlier verbatim, should also have the right to impose some kind of share in the business, if that is the best way of settl ing. MR. CHERNIACK: Thank you. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, through you to Mr. Kyritz. Mr.

Kyritz, one question on a technicality On the bottom of Page 4 your brief says in the second last sentence, "The li beral definition o· commercial assets and the extensive judic ial dis cretion will detract significantly from the equal divisior principle with undesirable results." I noticed that in your presentation to the comm ittee you del ivered that contention as "may" rathe1 than "w ill". You said that that definition "may" detract significantly.

Sinc e the Attorney-General i� more likely to be read ing the transcript of these comm ittee hearings than the individual presentation! that are before us at the present time, I wonder if you would clarify that point of whether you have changed your position. I think you would agree there is a significant dif ference between "will" anc "may". MR. KVRITZ: Mr. Chairman, you're probably correct. I guess in either case you're talking abou detraction from the equal division principle. "Will" is a futuristic term in this case, predicting tha· something will happen in the futu re; "may" is the same thing.

I'm not that hung-up on either word I will stand by the . original "w ill" if in fact that's what the text says, and I don't think it will make that much di fference, especially since the next two sentences explain why in fact this would occur namely that people would go more often to their courts and therefore, of course, there would be more court actions. MR. SHEAN: Well you wou ld agree, Mr.

Chairman, that the use of the term "wel l" is more declamatory and more definite, and you are standing by that position in your submission, whict you intend will be read in transcript form, and I'm sure will be read in transcript form, by the Attorney -General. One other question, Mr. Chairman, relating to the Society's contention and position having tc do with the consideration of the length of time of a marriage. This was an area that generatec considerable concern for many of us when the original legislation was being considered under the previous ad ministration a year ago.

There were some strongly held views and in fact, at that time if memory serves, there was consideration de bated as to whether the length of time of marriage should be one of the circumstances to be considered in situations that would be dealt with unde1 this legislation.

Would you not agree that the length of time the marriage can have, provided i· is a fairly extreme length of time, can have some significant effect and impact where the capacitl of a spouse to support himself or herself is concerned, by virtue of the fact that that particu1a1 spouse might have been out of the work force, out of the market, so long as to have incapacitatec himself or herself to compete effectively? MR. KVRITZ: Mr. Chairman, I agree with that. The point is that is covered. I would say all those 8

Statutory Regulations and Orders Friday, July 7, 19 78 tuations for the length of marriage may affect the spouse's abil ity to once more enter the labour 1arket, all those situations are covered in the previous sections. What we are objecting to is the ngth of marriage as one particular item is not necessary in the legislation because what we are tlking about is only the right to support, not the right to division of assets. That is why we suggested 1at in this case, (

j) could very easily go out without losing anything from the legislation. That's why dif ferentiate between the support. I did not make that same argument in terms of division of ssets. IR. SHERMAN: I und erstand that, but you do make that clear differentiation or distinction when 1pport is being considered. R. KYRITZ: Yes. R. SHERMAN: You obviously feel that the same imperative does not apply in those two tuations. R. KYR ITZ: In support, I can see no reason why whether a person was married for two months · for 20 years, what that has to do with their right to being suppor ted and to living normally. The 1ggestion you made earlier is, I think, covered under (

h) and every other suggestion I have heard )m people up to now have been covered by the previous sections. Tha's why I tend to believe at (

j) is not necessary and I'm afraid that the court might take this as maybe the sole discretionary 3.use, because a court may take any one of those, and that's why I would prefer not to see that tction in there, because the other ones take care of all the situations. That's the only point we're aking. R. SHE RMAN: Thank you, Mr. Chairman. R. CHAIRMAN: Are there any other questions to Mr. Kyritz? If not, thank you, Mr. Kyritz. R. KYRITZ: Thank you, Mr . Chairman. R. CHAIRMAN: The next person on my list is the representative of the Junior League of Winnipeg, s. Pat Cooper, or Marjorie Trenholm.

For the Hansard, would you please identif y yourself. S. PAT COOPER: I'm Pat Cooper from the Jun ior League of Winnip eg. The Ju nior League of innipeg has advocated on behalf of a just and fair family law for two years. Our efforts have been 1ited to written submissions only. We have not sought interviews with ML As, nor with specific 1binet Min isters. We have not lobbi ed physically nor participated in demons trations. My com ing before you with a public brief from the Jun ior League of Winnipeg is a first for this 1ditionally very cons ervative organiza tion.

This brief represents the opinion of some 200 women 10 have debated at length for two years the basic principles they want to see embodied in the w Manitoba family law. Our brief is not only on behalf of the women of our organiza tion, but behalf of all citizens who are unable to cope with the unrespons ive bureaucracy and who need sistance in securing what is required for a healthy life. Our political system is not com posed solely of elected representatives. Interest groups and >byists abound.

Those with power, money, influence, knowledge, status are able to protect their hts and interests either through their own interventions or by hiring professional spokepersons act on their behalf. Ho wever, the poor, the disadvantaged, the uned ucated and the unskilled are s adept at representing their interests and protect ing their rights. For 50 years the Ju nior League in this com munity has worked quietly on their behalf. Ho wever , s organization has been slow to dis cover that the intention to do good is not enough to ensure tt good is actually done.

The Jun ior League volu nteers now want to know that their labours make li fference, an impact. We therefore come forth with our first public submission in 50 years. I'll :tl with The Marital Property Act first, Bill 38. The Board of the Ju nior League of Winnip eg ommends the Government of Manitoba for not accepting the recommendation of the Family Law Review Comm ittee regarding unilateral opting out of equal sharing of marital assets.

The Junior League feels it would be unjust to create a law which does not apply equally to all Manitobans as well as contradicts your stated belief of marriage as an equal partnership. The Board of the Junior League is concerned, however, that in Bill 38,

Section 6(1 ){2){3), the 9

Statutory Regulations and Orders Friday, July 7, 19 78 owning spouse may still arbitrarily make decisions concerning the di sposal of family assets othE than the home, which is now protected by The Dower Act. By stating that the non-owning spous has no management rights during the course of marriage, means that the marriage is not an eqw partnership. The Junior League is concerned that the no n-own ing spouse has only two recourse to exercise his or her right to an equal division of assets, that is, the break-up of the marriage t assert rights to property, or prove dissipation.

The Ju nior League concurs with the arguments for immed iate sharing of the family home as state by the Family Law Review Comm ittee and the Ju nior League believes the same arguments are relevar to sharing of family assets. The report refers to the right to share family assets as "paper rights satisfyi ng a "psychological need ." The Junior League cannot agree with this assessment. If famil assets were immedia tely shared, the rights of the hitherto non-owning spouse would be real rathE than perceived and this reality would further the contention of the legislation that marriage is a equal partnership.

The recognition in law of eo-o wnership does much more than satisfy psychologici need. lt legitim izes the principle of equality of marriage partners. The perception of dif ficulties as stated in the review committee's recommendations in th implementation of immediate sharing ought to be reason for solving them rather than for denyin equality of asset ownership during marriage. The Juni or League cannot accept that Manitoba is n< equally endo wed with legal ability as California, for example, where commun ity of property and joir management are in force.

The right to share in the proper ty of the income-e arning spouse does not arise from mutu• participation in the judgment and skills required to earn the income that produced the propert; The right to shared participation in the economic property benefits accruing to the spouse wh specializes in financial provision arises from the fact that the other spouse, although under no leg< compulsion on the basis of sex, has voluntarily assumed the income-earner's portion of the do mesti respon sibi lities, thereby freeing the earning spouse to devote full time to the enterprise of earnin money.

Property sharing is not based on a contribution of economic skills or judg ment to th income-producing activity, but rather a contribution of time by the domestic spouse to dis chargin the domestic and parenting responsibili ties of both spouses. The Board of the Junior League of Winnip eg would like the word ing of

Section 11 concernin foreign assets changed from "may be" to "shall be". The Board of the Ju nior League of Winnip eg is deeply concerned with

Section 13 (1) and 13 (: dealing with judicial dis cretion to vary equal division of family and commercial assets. The broa judicial dis cretion allowed repudiates the principle of marriage as an equal partnership, a principl upon which revised family law must certainly be based. This is a reversion to the status quo. is because judic ial decisions have favoured one spouse over another that a 50-50 sharing in th law is being recommended by law reform commissions across the country. In Manitoba, wives receive 12 percent of their husband 's net worth upon divorce.

I understan that that is not a figure that came from any realistic su rvey or a survey that could be relied upor ltis unlikely that this will change in the near future. The Board of the Juni or League is concerned that the broad judicial dis cretion as outlined i 13 (1) and (2) will cost dearly in financial and emotional terms.

One of the objectives of any la is to enable people to know with some degree of certainty what are their rights and obliga tion A broad dis cretion carries with it the inabili ty of either lawyer or litiga nt to predict how that dis cretio wi ll be exercised by a particular judge on a particular set of facts. Jud ges are only human - thE vary widely in their views on the weight to be given various factors. Marital breakdown does n< usually bring out the best in people.

Fairness and selfishness are not commonly noted. lt is therefor ob vious that the amount of litiga tion and its cost in financial and emotional terms will inevitab increase due to the broad dis cretion given the court in this Act. The Ju nior League of Winn ipeg in March, 19 78, voted by a three-quarter majority vote to acce1 the need for narrow dis cretion as a fail -safe device, to give protection in unfor eseen and very unusu< cases. To extend the di scretion significantly would do violence to the spirit of the Act and the publ commitment of this government to the basic principle of equal sharing.

The Family Maint enance Act, Bill 39. The Junior League of Winnip eg is concerned with

Section 2(2) which introduces a widE consideration of conduct in the decision of the amount of support than was contempla ted in t� original bill. Though it is obvious the government is attempting to limi t fault to extreme cases is still left unsure as to what case laws will develop around "obvious and gross repudiation of tt marriage relat ionship." Fault is seldom, if ever, one-sided in marriage breakdown. Fault should t consid ered in only very extrao rdin ary circumstances in setting maintenanc e payments. Maintenanc should be based on need and abili ty to pay of both spouses.

The Jun ior League of Winnip eg is very concerned that enforcement proceedings must t improved. Mai ntenance payments should be made a debt to the court with automatic enfo rcemer proceedings. Consultation with the Federal Government should be set up immedia tely to expedil 10

Statutory Regulations and Orders Friday, July 7, 1978 >cation of defaulters, through access to add resses through social insurance numbers or through 1come tax returns.

Section 25(1): An order under this Act "may requi re" the person against whom it is made to eposit a specified amount in court or to enter a bond - should be changed to ' "required" - ot made a matter of choice. Thank you. IR. CHAIRMAN: I thank you very kindly for your presentation. The next person is from the Young Women's Christian Asso ciation, Dianne DeGraves. IS. DEGRAVES: Mr. Chairman, honourable members, I am Dianne DeG raves from the YWCA. The purpose of the Young Women 's Christian Association of Canada obliga tes its member ssociations to oppose in justice, to respond to need, to effect social change.

As a result of this bligation, the YWCA of Winnip eg, a member assoc iation with a membership of 4,000, responded > the Working Paper of the Manitoba Law Reform Commission in the spring of 19 75. Since that me it has responded at every opportunity afforded the public tor input in the area of Family Law etorm. They YWCA has taken

part in a considerable number of lobbi es with government members, 1cluding Premier Lyon and Attorney-General Mercier. All of these efforts were und ertaken after 10rough research and deli beration. In keeping with our interest and concern, the YWCA wishes to make known to the government s apprehension regarding Bills 38 and 39. lt is not difficult to become entangled in a lengthy iscussion of peripheral details of the legislation. For this reason we would reiterate, at the outset, 1e principl es which we believe are absolutely essential to Family Law Refo rm.

The first of these principles is that women are independent human beings of economic worth ossessing economic capability. This is a departure from the ageoold concept of women as property f or dependent upon their husbands or fathers. The second of these principles is that marriage a partnership: not only a social partnership in which people live together prov iding caring concern 1d convenienc es for one another, but also a partnership in the true sense of the word - an �onomic and legal partnersh ip as well as a social one.

Equally important is the acknowledgment that the roles in marriage of home management and, here applicable, child care, are vital and therefore of equal value to the role of wage-earn ing. ccord ingly, all the products of a marriage must be shared equally between spouses. The rewards of a marriage are many. A large share of them are invaluable and cannot be Jrchased with money. No one would deny one spouse access to childr en of a marriage simply ecause that spouse's role is not performed in the area of child care.

Likewise, access to the material �quisitions of a marriage ought not to be denied to a spouse because that spouse's role is not 3rformed in the area of wage-ear ning. If equal sharing is not desired by those entering a marriage we would suggest there are two ternatives open tor those not wishing to share equally. Such persons may mutually write their own arriage contracts, or they may choose to stay single in order to keep what they acquire tor 1emselves. lt is not acceptable that the selt-centered interests of these persons should dic tate the nor of legislation gove rning marriage.

The institution of marriage is basic to society as we know it. Most ind ividuals enter marriage 3lieving that sharing is basic to the institution. Many spouses have found to their surprise and mow that the view of family law is otherwise. lt is because of recog nition of the inequi ties in that w that we are here today. We commend the government tor its recog nition that all assets, including commercial assets, 1ould be shared by partners of a marriage. We commend the government tor stipulating in

Section 12 of Bill 38 that spouses have a right an equal division of assets. We commend the government tor its stand that the legislation should apply to all Manitobans, 1d tor its rejection of the concept of unilateral opting out of the legislation. Ho wever, the YWCA is dis tressed that other areas of the legislation introduc ed by the government 11 not allow tor the implemenation of the principles of marriage as an equal partnership, the equal tlue of the role of home management and child care to the role of wage-earn ing, or equal sharing assets acquir ed during the course of the marriage.

These principles, we submit, are not inherent Bill 38 by virtue of the fact that the legislation allows tor broad judicial dis cretion in the sharing commercial assets, and that the legislation defers sharing of any assets until marriage breakdown. hat the legislation says to marriage partners is: Your marriage will be a partnership in the eyes the law when your marriage breaks up, maybe. lt all depends on the judge deciding the 1se. One reason given by the government tor not including immediate sharing of family assets in Bill I, namely that no other province in Canada has immedia te sharing, is a hollow one.

One of the 11

Statutory Regulations and Orders Friday, July 7, 19 78 deficiencies of the reports of the Manitoba Law Reform Commission and the Family Law Review Committee, and of those responsible for producing and presenting Bill 38, is the lack of adequate consideration of jurisdictions in which joint communit y of property is the law. Such deficiency has been pointed out to both the present and previous governments on several occasi ons. The other reasons given by the Attorney-General for deferring sharing are equally unconvincing.

Tax problems, creditor's rights, and interference in the lives of married couples are poor excuses and beg the issue. In early April the Minister of Finance of Canada ind icated that technical changes will be made to the Income Tax Act to accommodate provincial laws gove rning marital pro perty. Legislation can be written to ind icate that immed iate sharing will take effect contingent upon action of the Govern ment. Creditors who acted in good faith were not liable under June, 19 77, legislation. Third party liabilit� was limi ted to fraud or collusion. The ind ebtedness was an obliga tion between spouses.

The excuse that the government is loath to interfere in the lives of cohabiting married persom is the most puzzling reason of all. Any legislation is an interference in people's lives. The point i� how that interference affects people. If it results in inequality, it can justly be called undesirablE interference. If, on the other hand, it results in equality, it is difficult to believe that fair-mindec people would regard such legislation as interference.

Present laws interfere in married persons' lives People marry thinking they are entering a partnership, only to find that the law imposes a regimE of separation of property, not one of equal sharing. The YWCA welcomes interference of the kinc that promotes the principle of marriage as a full and equal partnership. There are those who argue that immed iate sharing is a "paper right" satisfying a psychologica need. For those marriage partners enjoy economic inde pendence, immed iate sharing may well b1 an illusion.

For those who do not enjoy economic inde pendence, the right to share is a reality tha legitim izes equality in marriage. Most married women are financially dependent and do not hav1 an equal voice in family management. Imm edia te sharing of family assets is an essential step toward: partners having the right to an equal voice in marriage.mm Simply because some dif ficulties are foreseen in immed iate sharing of family assets is not suffi cien reason to dis regard doing so. This attitude is unworthy of prog ressive legislation seeking to redres: the inequities in the present law.

Both the Manitoba Law Reform Commission and the Family La� Review Comm ittee reco mmended immediate joint ownersh ip of the family home. If immed iate sharin! was viewed as both desirable and possible in the case of the marital home, it is dif ficult to understan1 why it is not desirable and possible for all family assets. An equally dis tressing area of the legislation is that governing wide judicial di scretion of sharin! of commercial assets. Why are family assets subject to a limi ted judicial dis cretion while commerci� assets are subject to a di scretion so broad that it virtually elimina tes equal sharing?

In law, th, specific overrules the general. This means that a consideration by the courts of

Section 13 (� Discretion to Vary Equal Division of Commercial Assets will result in a di fferent decision in eac case. The introductory clause gives the court the right to consider "any circumstances the cow deems releva nt", coupled with ten wide-open exceptions to equal sharing. The presumption of equ1 sharing in

Section 12 is an example of a "paper right", a right which di sappears as the court weigh all the factors the law requires to be weighed as evidence. The YWCA is concerned that broad judicial discretion in the sharing of commercial assets wi result in increased litigation. The lawyer of any client own ing commercial assets would not b perform ing professionally if advice was not given the client to contest the case, given the exception to equal sharing. The YWCA is also concerned because the history of judicial decisions in the area of family la• has discrimina ted against women.

The equal value of work contri buted in the home to that performe in the labor force will not be recogn ized by the court. We are concerned that this discriminatio will continue.

Section 13 (2)(

i) refers to the "effect" of housekeeping, child care, and domesti responsibil ities on the ability of the other spouse to acquire any commercial assets, but does ne dir ect that such work be regarded as an equal contribution. Any spouse associated with dev eloping commercial assets is using the resources of the marriag partnership in his or her aspirations. These resources include at least one, but most often all < the following: (

a) moral, emotional, intel lectual and/or physical support from the other spouse as well as ar respective related hardships, (

b) most likely a great deal of time spent away from the family, (

c) homemaking and family management functions most likely contri buted by the other spous' thereby fre eing the time and responsi bility of the income provider, (

d) most child care and parenting functions, unfortuna tely in our society, are largely pushed on1 the mother as her primary responsibil ity, again freei ng the father even further, (

e) in most cases, family monies and assets are used as capital or colla teral to acquire and/1 develop commercial assets, 12

statutory Regulations and Orders Friday, July 7, 19 78 (

f) the "lean" years in the development of commercial assets can often see the family do without arious necessities, (

g) spousal support through fostering business contacts, friendships, and social events to prom ote 1e comme rcial deve lopment, (

h) spouse's eo-signature often requi red by the bank in order to obtain loans. Strangely,

Section 13 (2)(

i) makes no mention of the spouse who fulfills the roles of home 1anagement and child care and, in addition, earns wages in the labor force. Over 60 percent of romen in the labour force in Manitoba are married women. A recent release from the Unit ed Nations 1dicates that married women in the labour force continue to do 80 percent of the work done in 1e home.

The wages earned by these women, if not used as a dir ect contribution to the acquiring f commercial assets, are certai nly an indir ect contribution when used to pyy household and child are expenses, while the wages of their husbands are freed to acquire commercial assets. Because the legislation continues the regime of separation of property dur ing the course of the 1arriage, the name on the title to the asset will deter mine ownersh ip.

Because the legislation does ot presume that marital role functions are equal, the penalty will fall on the spouse who remains 1 the home and whose name does not appear on the title. Because the legislation does not make lference to work other than "do mestic", the penalty will fall on the spouse who performs the roles f home management and child care while also working in the labour force and contributing to family Jpport.

This is no change from the present laws and, given the exceptions to equal sharing in ill 38, the "presumption of equal sha ring" the Attorney-General has emphasized becomes a figment f imagination. The YWCA is deeply concerned that the concept of fault has been reintroduc ed into the Family laint enance Act. First, clarification is needed concerning two points.

Section 2(2) along with

Section 1) seems to apply to conduct both dur ing the marriage and at marital breakdown. Is it the intent I the government that

Section 2(2) apply dur ing marriage?

Section 5( 1) has broadened the area ' factors to be considered when making a maintenance order to include " ... all the circumstances ' the spouses ... " and not only the 10 factors listed. Does the government intend that conduct ' spouses is a circumstance to be consider ed by the court? The net result of allowing fault to be considered in granting maintena nce orders is that the �pendent wife suffers. lt rarely happens that the courts increase maintenance orders because the Jsband is at fault.

However, if the wife is at fault, mai ntenance is reduced or denied altogether. ow many economically dependent wives have access to a lawyer to press for their right to aintenance? lt is generally accepted that faul findin g in separation procedu res bears a large easure of responsi bility for the poor collection record of maintenance orders. In Canada over 75 lrcent of maintenance orders are either not collected or not collected in their enti rety.

The Attorney-General expressed concern that no-fault maintenance would be a foul example to 1ildr en of a marriage; that childr en would be inf luenced by the fact that the court did not punish parent financially because of conduct in marriage. The YWCA finds this argument unrealistic in at childr en are not likely to concern themselves with the amount of maintenance granted one parent )m the other parent except insofar as that amount may be insufficient for the support of the recipient 1rent.

This insufficiency will most likely be felt dir ectly and/or indir ectly by the child, a situation 1tagonized even more if the parent with reduced maintenance is forced to go on welfare. On the other hand, the damage done to childr en who must testify against parents is well known. 1e parent 'at fault' nevertheless continues to be the parent of the child. This adds to the burden guilt, insecurity and emotional upset the child experiences when the marriage of parents breaks >wn. The process of fault fi nding is inhumane and serves to increase litigation and to justify self-se eking ngeful mot ives.

Its retention in the Family Maintenance Act serves only one pu rpose - to punish. is human to ascribe blame when things do not work out as one may have planned. But to give Jal backing and encouragement to the mutually destructive process of attributing and establishing �me upon marriage breakdown is counterprod uctive and cruel. Contes ting spouses will be forced endure adde d prolonged hostility in order for the court to attach a monetary value to a visible t of fault.This entire process is irrelevant and bears no relationship to the present needs of those ouses when the marriage ends.

The need for maintena nce arises from the functions performed the marriage. To deny support where there is demonstrable need and ability to pay burdens the <payer needlessly with a respon sibility that principally belongs to the partners of the miage. The YWCA unde rstands that the reason the government party voted against the Family 1intenance Act last Jun e was because the Act did not make adequate provision for maintenance llection. For this reason the YWCA is astou nded that Bill 39 does nothing to improve enforcement :hniques outlined in the suspended legislation of Jun e 19 77.

This is an area of Family Law that 1uir es immedia te attention and the YWCA of Winnip eg urges the government to make collection maintenance orders a priority. The fact that a great majority of maintena nce orders are in some 13

Statutory Regulations and Orders Friday, July 7, 1978 measure of default flies in the face of justice - particularly for women. The YWCA entreats the government to reconsider its stand that family assets not be share� equally during marriage. We request that family assets be shared immedia tely, in order that th1 law view marriage po sitively as an equal partnership while the marriage exists. The law must no view marriage negatively - as a partnership only when the partners are going their separat1 ways.

The YWCA appeals to the government to enact legislation with ho nesty and integrity, legislatiol which considers all assets simila rly, whether family or commercial. To this end judicial dis cretiol must be lim ited if equal sharing is the goal. The YWCA urges the government to elimi nate fault in the determination of maintenance order and to provide for adequa te enforcement techniq ues in the collection of maintenance orders. With these changes, Family Law in Manitoba will be fair, just and equitable to both marriag partners. Without them, little prog ress will have been made. Thank you. MR.

CHAIRMAN: I might mention to all persons present that we must conduct ou rselves in th same manner in this commit tee as we would in the House, and that is that we must not hav demonstra tions. Are there any questions to ... -I nterjection)- As one person said, that's only for th strangers. Are there any questions to the last person that last spoke before us, if not I will call on Georgi Cordes. MS. CORDES: My name is Georgia Cor des. Mr. Chairman, it's my impression that the purpose of these public hearings is to receiv submissions from citizens for the purpose of improving proposed legislation.

I would think that an such improvements wou ld, in all likelihood, have to be init iated, in this case, by the Attorney-Genera Therefore, I strongly object to the absence of Mr. Mercier from tonight's proceed ings. Mr . Chairman, I would prefer to present my brief when the Attorne y- General is present, howeve because I do have pre-school childr en, I'm not in a position to allow my name to be put at th end of the list of submissions, thus never being sure of when my presentation will take place.

Sine 1 do bear the major responsibili ty for daily care of my children, you can understand difficulties thl can arise for securing adequate, full-time child care du ring the course of these hearings. Ther efon 1 request that my name be put at the first of the list when the Attorney-General is present hopeful ! tomorr ow. MR. CHAIRMAN: I might say to the person making the presentation that that is up to the will < the commi ttee as to whether your name goes first on the list for tomo rrow or at the end of th list that is in front of me. The Mem ber for St. Johns. MR. CHER NIACK: Thank you, Mr. Chairman.

We've heard four delegations, and this is the fin that has made this request. I would move that we comply with the request and agree that she b heard at 10:0 0 o'c lock tomorr ow morn ing assuming the Attorney-General wi ll be here. MS. CORDES: Excuse me, could I ask the gentleman passing out the briefs, if he could pleas collect them , because if I don't present tonight, I'd rather have them with me until tomorrow. Son about that. MR. CHAIRMAN: To the members of the comm ittee, what is your wish? MR. CHERNIACK: I made a motion, Mr. Chairman. MR.

CHAIRMAN: To the person making the presentation, I would say that at 10 :00 tomorro morning, you will be first. MS. CORDES: Thank you very much, Mr. Chairman. MR.CHAIRMAN: The next person on my list is Ruth Brown. Is there a Ruth Brown present? MR. CHERNIACK: There sure is. MR. CHAIRMAN: Mr. Cherniack says, "There sure is." 14

Statutory Regulations and Orders Friday, July 7, 19 78 WTH BROWNE: Before I begin my presentation, I would like to add to the mention made by tho se >eople tonight, to object strenuously to the calling of these hearings on such an impo rtant subject luring the absence of the Attorney-General. I will continue with presenting my brief because Mr. ll'lercier has heard my suggestions in several different forms.

However, I cannot help but emphasize hat this legislation, I believe, will be the most important that this government will deal with. it is >robably the most significant that has been dealt with since women have obtained the right to vote n 1916 , and in view of that, I believe it should have been given consideration in setting the hearings. had hoped to appear before you today to congratulate you on the introduction in the Manitoba .egislatur e of just and equitable family laws. lt would have given me great pleasure to have no :riticisms to make concerning Bills 38 and 39. Regrettably, this is not the case.

Ho wever, I would like to mention the good before the bad . You are to be commended particularly on four points in your legislation: First, you have provided for sharing of all assets, not , just sharing of family assets, thereby ecog nizing the value of the contribution made by the spouse who cares for the home and family, o the acquisition of assets. That all assets acquired during the marriage should be shareable is JS and equitable. Secon d, you have rejected the insidious provision, favored by some, regarding unila teral opting 'ut.

To introduce such a clause, would have left unprotected those who stand most in need of 'rotection - wives in long-term marriages. The provision that you have made recog nizing existing greements and allowing mutual opting out is fair and reasonable. Third, you have left intact the factors regarding setting of maintenance contained in the suspended lgislation - most notable fina ncial need and ability to pay of both spouses. I also support the lea of encouraging spous es to become financially independent.

Fourth, you have made the law applicable to all Manitobans, whether married before or after 1e com ing into effect of this Act. Like unilateral opting out, an unequal application of the law would ave worked injustice on those most in need of the law's protec tion. Here endeth the cong ratulatory ection. Many Manitobans, including myself, are disma yed to find ou rselves here again - Family Law earings have become, it seems, an annual event in Manitoba. So long as legislators continue to 1nore public demands for justice in family law, so long will we continue to appear before you.

Rest ssured, we will not dis appear! When you suspended the legislation passed last Ju ne, you assured the public that the suspension as for the purpose of "cleaning up" the legislation. You have certainly cleaned it up - in doing ), you have swept some of the principl es right out the door, principl es which , we were assured, )U would not alter.

I would like to add ress myself to three of these "swept-out principles": (1) immedia te sharing f family assets; (2) broad jud icial dis cretion in sharing of commercial assets and; (3) the !-introduction of conduct as a factor which "may be considered" in determ ining spousal 1aintenance. The immedia te sha ring, or right to sharing, of family assets - the home, the furnitur e, family :�r, etc., has been dismis sed by your review comm ittee, among others, as a paper right. lt is no 1ch thing. Marriage should be a partnership of equals - socially, psychologically and economically - dur ing ; course.

If we are to recognize that partnership in law, as well as philosophically, then that ·esumption must be written into the law. lt is not good enough to presume that most marriages ·e, in fact, equal partnerships. They are not! The spouse who earns the mone y has the power, hether he is a benevolent ruler or not, and this is not the issue. The fact that he has the power be a despot, however kind he may be, is the issue. Trying to describe to the fe elings engendered by a state of dependency to a group of men who e not dependent and who are not likely to be dependent, is a difficult undertaking. Mrs.

Price, lrhaps you can help us in this particular instance. Pardon? R. CHERNIACK: She may herself be independent. S. BROWNE: She is now, but I think at one time she was not. The following analogy may help you to conjur e up the fe elings evoked in women by their dependent uation. Remember when you were seventeen? (The age may vary but the condition existed for of us.) You were approaching adulthood, feel ing independent, but still very much dependent on ur father for support. When you needed mone y, you were probably going to get it., but you had to ask.

When you mted to use the family car, you probably could get it, if you didn't ask too often, but you had ask. When you needed a new suit for graduation, you were probably going to get it, but you d to ask. 15

Statutory Reg ulations and Orders Friday, July 7, 1978 Married women who do not work outside the home are still in that position through their ad ul life. Can you imagine yourself at age 35, 40, 50, 60, still in that position? lt does not matter how generous a woman 's husband is, she is still in the position of that teenage - she must operate within the rules acceptable to the spouse with the power or risk having he request refused, no matter how reasonable it may be - she still has to ask! Women are contributing economically to their families and to society by the work they do responsible, adult work.

This contribution should be recognized throughout the course of tht marriage, as entitling them to equal rights in the decision-making and the acquisition and disp ositior of the family assets. If you do not provide for equal ownersh ip, the dependent spouse is place< in an inferior position, with no say in the management of impo rtant family assets. The only recourse a dependent spouse has under your legislation during the course of tht marriage, is to prove dissipation.

A spouse dealing with assets against your wishes, does no necessarily mean that you can prove dissipation, so there is no legal recourse - if you have nt title in law to an asset, you have no say in its disposition. To declare an interest in assets then the dependent spouse must separate and ask for an equaliza tion. The law should not require spouse to take such drastic steps to assert claim to what is rightfully theirs by virtue of their contribution to the marriage. On May 29th, Mr. Mercier said in the Legislature that there would be deferred sharing of a assets.

Immediate sharing of family assets would have tax impl ications, creditors' rights would b< threatened, and something - I'm not sure what - would happen to security required by banks Maybe it was going down the kitchen sink, but it didn't seem to be explained. Mr. Chretien annou nced in his April budget speech, that the tax laws would be revised to provid no capital gains penalties deriving from inter-spousal transfers of assets, made in accordance wit' provincial marital property laws. And I emphasis that last thing because I think that's a significan point. The budget has now received Royal Assent.

Those were typed before this was passed. Ther is now no reason why immedia te sharing cannot be included in this bill; the problem of tax impl icatio is an excuse, not a reaso n. If this Legislature does not make provisions for immediate sharing betwee spouses, transfer of assets made during the course of the marriage will not be made in accordanc with provincial marital property laws, and hence will be subject to capital gains. You are creatin a problem for spouses who do wish to transfer assets by omitting the provision for immed iat sharing.

You are not unduly interfering in the lives of married persons living together, since they are fre to opt out, if they mutually agree to order their lives in ways other than equal. Creditors' rights must not be threatened. What about dependent spouses' rights? Und er th suspended legislation, and under your proposed bills, creditors' rights were honoured before an sharing took place. What's the problem? If an ongoing marriage is a partnership, each partner ha the right to pledge the credit of that partnership. This is not new or different.

Creditors have alway colle cted from whi chever spouse is available, and they wer en't particular about whose name wa on the title. The only time a creditor's rights would be questioned, would be if that creditor ha participated in fraud. Su rely this is only just. As concerns bank security, I fail to understand why immed iate sharing of family assets become a problem. Business has not ground to a halt because of the provisions of The Dower Act. Loan are still made, repaid, or called with the attendant penalties, within The Dower Act provisions.

Bot spouses should have the right to have some say in the management of the family assets. One spous should not be able to deal unila terally with these assets. The suspended Marital Property Act in no way gave a non-owning spouse management righ1 to any commercial asset. The own ing spouse would still have had the same rights as always, t deal with a commercial asset. If marriage breakdown occurred, the non-owning spouse acquire a right only to a payment of money equal to % the net value, or increased value of the commerci; asset. Again, creditors' rights came first. What further protections are needed?

The debt occurrin as a result of marriage breakdown is a debt between the spouses, not against the commercial asse Where is the problem? I suggest that these things are not reasons for avoiding immed iate sharing, but excuses. Mr. Mercier implied, in that same speech, that Manitoba cou ldn't bring in immedia te sharin because no other provinc e had done so so. Why cou ldn't this government have honoured the fin part of its title - prog ressive, instead of the last part - cons ervative. You have the chance 1 be a leading, influential government in keeping with Manitoba's past history in the field of women rights.

I hope you do not miss the opportun ity. The legislation presented in Bill 38 provides for lim ited judicial dis cretion to allow for hardshi cases in the division of family assets. This provision recognized the partnership of spouses. Wt then , have you seen fit to change that provision when considering division of commercial assets 1 think that you have made this dif ferent provision because you do not belie ve that women ha\ a right to share equally in commercial assets. In spite of Mr. Mercier's claim that presumption ' 16

Statutory Regulations and Orders Friday, July 7, 19 78 equal sharing will change court decisions, the wording of the phrase "if the Court is satisfied that a division of those assets in equal shares would be inequitable having regard to any circumstances the court deems relevant includin g . . . " makes it virtually certain that few women wi ll be deemed to have made a contribution entitling them to an equal share of the net value of the commercial assets. Let me hasten to ad d, this is not a personal criticism of judges.

Rather, it is a recog nition of the societal conditioning of judges, the legal precedents which judg es must consider, and to quote the Manitoba Law Reform Commission's report: ". . . one judge's sense of justice may be bou nd JP with technicalities which do not fetter another judge's view of justice, and which mor eover, may 1ot be in accord with the social policy of the law." A body of jurisprudence wi ll, of course, dev elop, )Ut how will it go? Your list of factors is not a limi ting list, but an expansionist list, leavi ng room 'or a creative lawyer to introduce just about any factor she or he can think of.

If it doesn't fit anywhere �lse, it will certainly fit under 13 (2)(j) - a catch-all clause, large enough to acco mmoda te any and :tll objections to equal sharing. Every case will have to go to court. Indeed, if I were petitioning under this Act and my lawyer jidn't go to Court, I would think that she or he was negligent. Is this what you want? May ii remind you of Mr. Jus tice Ju dson 's remark in Thompson vs. Thompson (19 61) " ...

If l. presumption of joint assets is to be built up in these matrimonial cases, it seems to me the better :ou rse would be to attain this object by legislation rather than by exercise of an immeasurable jud icial 1is cretion ... " "I mmeasurable jud icial discretion" is just what you are prov iding in Bill 38. Of what relevance s the nature of the asset? Are farms and businesses male assets? Is a female asset a sewi ng nachine? What are you considering in this factor? Why is the date of acquisition important? lt was lither acquir ed before the marriage, dur ing the marriage, or after separation.

You have already :overed dates of acquisition in Sections 3 and 4. The only relevant factor that I see is

Section (1 3)(2)(i). "his factor should be part of the basic philo sophy of the Act and written as part of the

preamble, >utl ining the partnership philosophy. Finally the introduction of broad judicial dis cretion keeps us in the situation of there being no :ertainty as to the rights of sharing assets. lt will propogate the adversary nature of settlement of >roperty claims. Again, I would like to quote the Manitoba Law Reform Commission's report: "lt would not be surprising in a commercial or professional partnership, for example, that

whereas he slothful ness or poor business judg ement of one partner would be the cause of the other partner aking steps to termi nate the partnership, yet the deficient partner would nevertheless still be entitled o his or her agreed upon share of the value of the partnership assets. One would not expect those 1artners to go running off to some tribu nal to complain about what a difficult partner each other 1ad been. The assets are divided and each partner is free to meet life's exigencies alone or in 1artnership with others if willing and able to do so." Mr.

Mercier has said that there are cases where a wife may des erve more than 50 percent of he assets. We are not interested in more than 50 percent of the assets. Indeed , I think that Mr. �ercier would be hard-p ressed to give us case history from English jurisprudence - which he quo tes - which has broad jud icial di scretion, illu strating situations where the wife was given more than 0 percent. We are asking that we be assured of an equal share of the assets, no more, no �ss. The limit ed judicial dis cretion provided in

Section (13 )(1) should be applied to the division of 11 assets. (1 3)(2) should be abandoned. As I mentioned, I am generally supportive of Bill 39. I believe that spouses should be mutually upportive, and that they should have mutual obligations for support of their children, support in 11 its forms, not just financial. The factors affe cting the order are reasonable and relevant to the etting of maintenance. Financial information should be mutually avai lable to the spouses, and each hould attempt to become financially inde pendent if at all possible.

The provision for occupanc y of the family home, the interim order provision and the provision >r lump sum payment are good provisions. I would like to see

Section 25(1) amended from, "An rder under this Act may require ... " to read, "An order under this Act shall require" to either eposit a specified amount with the Court or enter a bond to guarantee a backup for defaulted ayments. This would be a step toward improvement of the enforcement procedure. I am very disappoint ed to see the introduction of this bill with no improvement over last year's et in enforcement proceed ings.

Since this was one of the reasons given for your entire caucus )ting against last year's Family Maint enance Act, I could scarcely believe that this bill was virtually 1changed from the suspended legislation. Sin ce we have been informe d that an in-house comm ittee currently invest igation this problem, I will say no more on enforcement proce edings at this ne. 1 do have a great deal to say about the introduction of conduct as a factor in the setting of 17

maintenance. t$ Statutory Regulations and Orders Friday, July 7, 19 78 lt has been generally agreed by Law Reform Commissions across Canada, the majority of thE ML As with whom I have met over the past year, and those groups lobbying for changes ir maintenance provisions, that maintenance serves two basic purposes: it provides support for childr er of the marriage and for the spouse who is caring for them, and/or it provides short-term suppor for a dependent spouse who is re-entering the labour market, or long-term support for a spousE who is unable to become self-su pporting.

That is, maintenance should be based on need and thE financial situations of both spouses. If you have accepted these basic assumptions in prov iding for maintenance, there is no roorr for introduction of conduct as a factor. Your position seems to be that there must be some roorr for moral judg ments to be made. That is, society must be able to wreak vengeance upon an offensivE spouse.

You seem to think that if you penalize the spouse who grossly repudia tes the marriage relationsh ip you will somehow make that person better, imbue that person with a sense of responsi bil ity, witl a resulting flow of satisfaction to the innocent spouse. Maybe I am overly cynical but my response to that line of thinking is immedia te and short. 1 won't work. To suggest that a spouse who has been cruel, unfaithful, brutal, uncaring, an< irresponsible to the extent ind icated in

Section 2(2), is suddenly going to become responsible remor sefu l, a reborn human, is utterly ridiculous. You are much more idealistic than I, if you believE that this transformation will occur. Supp ose that the sinner is a mother. According to my

interpretation of 2(2), she would havE to be a vile person to have maintenance payments reduced under this section. If she is this typE of person, what do you suppose her reaction will be? I predict that her reaction would be to sa� some thing this effect: "Well, if I'm not going to get the money for looking after these kids, the hel with it, let him do it." If, on the other hand, the male spouse is the transgressor and he is assigned higher maintenancE payments because of his gross conduct, what will he do? I suggest that he will leave town, neve to be seen again. Mr.

Mercier, though, interestingly enough, has assured us that the male transgressor will probabl: not be assessed a higher fee and this is an astounding revelation to me. He is reinforcing the th• dou ble standard and I would have liked to have him here to tell me if that is what he really mean to say. You can say that the chil dren should be shown that irrespons ibilit y doesn 't pay, that society doe: not condone it. I have had a great deal of experience with angry, hurting children, as victims o just the situations to which you are referring.

Believe me, the destructive relationships existin! between these childr en and the deviant parent will not be alleviated by the cou rse of action yo1 suggest. You will simpl y reinforce the deviant behaviour and exacerbate an already damagec relation ship. I do not wish to condone the behaviour you suggest should be punished . I simply believe tha your remedy will be ineffective. Furthermore, it will introduce a potentially harmful factor, of whicl the chief victims will be the chil dren involved in the marriage breakdown.

There are remedies available within the terms of the factors listed in 5( 1) to vary the amount: of money awarded to the so-called "innocent spouse." I would like to refer to only one of the case from British law, to which Mr. Mercier referred in defi ning gross conduct, that of Jone s versus Jones Mr. Jones attacked his ex-wife with a knife and wounded her, for which he was incarcerated . Th1 couple owned a matrimonial home, which under our law would have been equally divided. On th1 wife's application for maintenance, the judge could rule under

Section 8( 1) (

a) that all or part of th1 husband's portion of the home be transferred to the wife to satisfy a maintenance awa rd. Obvious!� the man will be unavailable to make any other kind of maintenance payment. After looking at all the cases of British law supplied by Mr. Mercier, I believe that the satisfaction · you feel necessary are already avai lable under the factors in 5( 1), without introducing this vague unde fined

section on conduct. 1 believe that I have dealt with most, if not all, of the objections raised by critics of the suspende1 legislation. Can you answer all my questions and criticisms of your proposed legislation? I believe that the suspended legislation embod ied principl es which established marriage as : partnership of equals. You said in December that you would not alter these principles, but you hav1 done just that. I hope, by the conclusion of these hearings, you will have prepared an amended bill for presentatio1 to the Legislature, a bill that reinstates the principles embodying just and equitable family lawi Thank you. MR. CHAIRMAN: Mr. Cherniack. 18

Statutory Regulations and Orders Friday, July 7, 1978 CHERNIACK: Thank you, Mr. Chairman. Ms. Browne, may I deal with a few matters in your brief? tly, on Page 4, you raise the point which I would like some elaboration on and possibly other people , have studied law will be able to elaborate on it when they make their presentations. As 1 understand ·v iew, if under the law of Manitoba there was immedia te vesting of assets in a marriage, equally, then e would not be any capital gains tax exigible upon the vesting taking place. BROWNE: Right.

CHERNIACK: Then you are saying, as I interpret it, that if a person, a spouse, now that there is �ift tax law in this province, wishes to share a substantial asset, a business or an apartment block the other spouse, in doing so would invite taxa tion. What you are then saying, and you are saying some certainty and I just want to confirm that that is so, that a gift of a substantial asset under present law with the proposed bill before us, would result in taxa tion,

whereas ... MS. BROWNE: Capital gains taxat ion. MR. CHERNIACK: Well, that's still mone y .. ..

Whereas if the law provided for immed iate vesti ng, then it would not. MS. BROWNE: Well, that's what I und erstand the Federal Gov ernment's proposal to be. III R. CHERNIACK: One other point, Ms. Browne. Then it would still, I should IIIR. CHERNIACK: One other point then, Ms. Browne. Then it would still, I should think, if there s a separation, a court proce ed ing and a judi cial order involv ed in that vesting, then there would 1ot be tax payable by the division of assets as between the parties. In other words, it seems to ne that, from your

interpretation, a couple has to go through a fight of some kind, real or suppo sed, o be able to pass a substantial asset from one to another without being involved in capital tax. rhat's your interpretat ion? Ill S. BROWNE: That's my point. III R. CHERNIACK: I move, then, to another point on Page 6. You deal with Mr.

Mercier's clain hat the presumption of equal sharing will change court decisions and then you qu arrel with that hought by quoting that "if the court is satisfied that a division of those assets in equal shares vould be inequitable, having regard to any circumstances the court deems relevant, includin g ... " nakes you feel that this is not the case, that indeed there would not be a presumption that the :ourt would provide for equal sharing. 1 thought I would draw to your attention an exchange that took place the day before yesterday 1etween Mr. Mercier and Mr.

Green at the conclusion of the debate on the Marital Property Bill vhere Mr. Mercier quo ted a judge in the Si lverste in case in Ontario as saying, and I quote, "I am :onvinced that the Legislature did not intend the court to be entitled to exercise any broad dis cretion o divide family assets in accordance with what an ind ividual judge may think is fair and equitable 1 a particular case. The property law in this province ... " - this is Ontario - " ... is of vital npor tance to married persons and in my view that law not only should be but is in fact now clear nd precise.

He should exercise his power to part from the rule of equal sharing only in clear cases there inequi ty would result. .. " He went on and elaborated. Mr. Green then asked whether Mr. Mercier was prepared to put into this bill before us, those ery words, that is, the words of the jud ge, to provide that equal sharing should be the rule and 1at there has to be substantial inequity for the court to change it. Mr.

Mercier did not rise to the ccasion to accept the suggestion that said - I think I explained already that in a case already ecided which does not have the presumption of equal sharing of commercial assets, that that is 1e very

interpretation that he has given to it. In other words, I interpreted Mr. Mercier to have aid that he believes, based on this judgment of the Ontario judge, that a court would fi nd that qual sharing is what is expected except in inequitable cases, clearly apparent inequitable cases, nd therefore he did not think it was necessary - this is my

interpretation of his failure to agree > Mr. Green's proposal - did not think it necessary to make the change. Do you have any comment n that? IS. BROWNE: Well,! respectfully but strenuously dis agree with Mr. Mercier. He may certainly have te very best of intentions but I believe that under the judicial dis cretion clauses as they are set :> in this proposed bill, the family assets will very definitely be divided 50-50, unless there are gross 1fairne sses shown. If you remember from last year, our inevitable drunken spouse and so on. I 19

Statutory Regulations and Orders Friday, July 7, 19 78 think that 50-50 will be the rule in family assets, but I do not think that 50-50 will be the rule in commercial assets because of the very breadth of scope provided in those listed factors, plus which that is not all that can be considered. lt isn't even limited to 10 factors. Those are only to be included. Any factor can be included.

Now, I think I mentioned in my brief, I feel that the lawyers will be honour bound to go to court with every client to see what will be acceptable and after a couple of years, the cases won't perhaps lessen but I think they will maintain. The litigation will be endle ss, forever, under this setup of clauses. So I would like to think that that's what will happen, but I really don't think it will. MR. CHERNIACK: Finally, Ms. Browne, on Page 10 you refer to The Mai ntenance Act and you are critical of the

interpretations possible on

Section 2(2) of The Maintenance Act as to conduct. Then you are suggesting that there are remedies avai lable under 5(1) to deal with what you refer to as the innocent spouse, and then you qu ote this Jones case. MS. BROWNE: Yes. MR. CHERNIACK: Again, I should tell you that Mr. Mercier made a point of indi cating that there seemed to be some di sagreement on the NDP side of

interpretation as reg ards 5(1) and 2(2) and he was quite right in that Mr. Green had indic ated that he believed that conduct was not to be a factor to be involved under 5(1) , and only a factor as to quantum under 2(2),

whereas I contended that there would be two kicks at the cat, one under - I withd raw that, I don't like that analogy - there would be two opportunities for the court to get involved to exercise jud icial discretion on conduct. One is 2(2) as to quantum, where there is sort of a lim itation on it, and then I contended that there was a wide di scretionary powers as to conduct under 5(1) , and you, I think, will be pleased to know, as I was, that Mr.

Mercier made it clear that he believed that 5(1) did not enable the court to review conduct, that the court was limited to 2(2), that under 5( 1) there would have to be an order without reference to conduct of either spouse, and he invited - and I requested that since I for one didn't accept that so clearly stated as he intended it to be, he agreed that he wou ld consider a proposal for an amendment. I have ready an amendment which I would like to read to you to get your reaction to whether or not you think that would clarify what you and I apparently think is an interpretat ion in disag reement with Mr. Mercier.

MS. BROWNE: This would come under what section? MR. CHERNIACK: 5( 1 ). MS. BROWNE: Okay. MR. CHERNIACK: And what it would do, is to strike out the words where the court "shall consider all the circumstances," strike out the words, "shall consider all the circumstances," and replace it with the words, "shall not consider the conduct of the spouses but shall consider all other circumstances." You might think about that and ind icate whether you think that might make more clear ... MS.

BROWNE: I would have preferred - I'm not dis agreeing with your amendment, but when I was writing this, I thought of suggesting that one way of wording

section 5( 1) would be to have a limi ting set of factors, rather than an expan ding set of factors, as it's now written, so that you could word it to the effect that the judge shall consider "the following fact ors," that's a limi tin£ list. MR. CHERNIACK: You may recall that in the legislation which we passed last year which is stil on the statute book, we are saying, "shall consider only the following factors ," and conduct wa! or was not in there, depending on

interpretation. May 1 suggest, then , Ms. Browne, that you and maybe other people who have a similar idea pick up from where I left off with Mr. Mercier, and draw or conceive of some kind of an amendmen · that could be proposed to assure that what you want, and what he says he wants, which seem! to be the same thing, to remove conduct from 5(1) as being a factor, is indeed removed to you1 satisfact ion, and let us have it. We'll be around for a little while. MS. BROWNE: I'd certainly be pleased to do that. And so will we. MR. CHERNIACK: As a matter of fact, Mr.

Chairman, I wonder if I can conclude by wonderin! how often Ms. Browne has been in this room dealing with this matter, and I wanted to have he 20

Statutory Regulations and Orders Friday, July 7, 19 78 >surance that in three to four years from now, she will certainly be back in this room to review 1anges to the legislation. S. BROWNE: I have been here on three occasions in this room; I have been in the Legislature 1 about 10 3 occasions on indi vidual visits, along with a few of the rest of our delega tion; I will e here as long as I can walk up the steps, if that's how long it takes. R. CHERNIACK: We'll run the elevator for you. IR. CHAIRMAN: Mr. Green, do you have a question? IR. GREEN: Since Mr.

Cherniack is going to a good sou rce to get legal advice since you've been round so ofte n, you certai nly will be in a position to give it. I am somewhat concerned here with, nd I'd like to get advice from you also with regard to professional responsibil ity, which has been ealt with by yourself and the brief from the YWCA. You say every case will have to go to court. If I were petition ing under this Act and my lawyer didn't go to court, I would think he or she was egligent." Now, I presume that you are saying that this will happen, where the parties don't agree n 50-50.

You wou ldn't be presuming your lawyer is negligent if the parties agreed to accept the 0-50 split. IS. BROWNE: Oh yes, if you can acco mpli sh an agreement. But if I am not quite happy with the greement, I would say, "Get in there and do what you can ." IR. GREEN: I'm not objecting to that. I'm merely indi cating that the cases that would have to o to court, in your view, or where a lawyer wou ldn't be behaving properly, is if he advised the fife not to go to court if there was a dis agreement as to 50-50, then the lawyer would advise her 1at she has a chance to collect 50-50 in court. That's what you're saying.

IS. BROWNE: That's right. �R. GREEN: Now, the previous statement, and I guess this is unfair, but since we're all getting �gal advice from you I'll pursue it ... IS. BROWNE: it's too bad I'm not a lawyer and then I could charge you. IIR. GREEN: lt is a little bit more disturbing in terms of, again, my professional responsibi lity. it's aid here that the la wyer of any client owning commercial assets would not be perfo rming trofession ally if advice was not given to the client to contest a case. liS. BROWNE: Where are read ing from? IIR. GREEN: I'm read ing from the, I told you, this was unfair. liS.

BROWNE: All right. IIR. GREEN: I'm using your knowledge, I would have liked to have asked the question from the ady from the YMC A, I think it was Mrs. DeGraves. . liS. BROWNE: it's the YW and it's Georgia Cordes. IIR. GREEN: I'm merely indi cating that I am treating the equality of the sexes so I. .. liS. BROWNE: She embraces he in this case. IIR. GREEN: She embraces he, that's right. That's nice, too. The remark here is that the lawyer >f a client owning commercial assets would not be performing profes sionally if advice was not given o the client to contest the case.

Now, assuming that a man wanted to, or a woman wanted to, ;o that we 're qui te clear, a spouse was agreeable to accepting a 50-50 sharing, would you say that l lawyer was behaving unprofe ssionally if he advised the client, in spite of that, that he should go o court and try to get more? illS. BROWNE: I don't know whether I would call him on the carpet on a profes sional basis for 1im not advising to go for more. I think it's a lawy er's responsibilit y to explain, beyond any shadow 21

Statutory Regulations and Orders Friday, July 7, 1978 of a doubt, the consequences of the action of his client. MR. GREEN: A lawyer who said that there is the possi bility of contest ing, but advised a husband for instance, or a wife, that you have the right to contest but I would recommend to you that yo1 not contest. That wou ldn't be professional misconduct, at least I hope not. MS. BROWNE: Not as I can see it. MR. GREEN: Thank you. MR. CHAIRMAN: Any further questions? Mr. Axworthy. MR. AXWORTHY: Ms. Browne, we are having to add ress some of ou r remarks to the ghost o Mr.

Mercier tonight, in the hope that he will read this transcript ... MS. BROWNE: lt's rather difficult. MR. AXWORTHY: ... and I'd like therefore, to ask you some questions based upon an exchangE that he and I had on The Property Sharing Act when we debated about the reasons he gave fo1 not including immedia te sharing of family assets. First, we contended over the tax issue, and I would like to read to you a transcript of the Hansard when he said, "The Honourable Member for Fort Rouge said that tax problems are solved. Mr Speaker, I suggest to him that they have not all been solved.

The problem with respect to the principa place of residence under The Income Tax Act has not been resolved, although the Federa Government, to their credit, have taken some steps in their amendments." And then he goes or to deal with the question of creditors. Can you elaborate upon your statement that there is ne inhib ition based upon the income tax law to prevent the immedia te sharing of assets? Is Mr. Mercie1 right when he says there are still problems related to that? MS.

BROWNE: Well, I think the problem that he is referring to can still arise, but that's with indi vidua spouses. lt's not as a result of the word ing of The Income Tax Act. If you have a cottage and a home, each of you have the right to claim one as a principal residence, and therefore it's not subjec1 to capital gains. That's correct, is it not. MR. AXWORTHY: Right. MS. BROWNE: So if you transfer half of each asset to the other party, thereby each of you owning half of each place, then you lose your abil ity to have double principal residences. Now, as far as I'm concerned, that's up to the indi vidual spouses.

They can't have it both ways, I guess, is wha1 it boils down to. If they want the freedom provided through the principal residence thing, then they can't have the freedom provided through the equal own ing of each asset. MR. AXWORTHY: Okay. So your fe eling is that based upon the read ing of the Federal Income Tax changes, that there is no major inhib ition or barrier to the implementation of this, based upon income tax problems. MS. BROWNE: Not that I can see. Not that I have heard from any . . . MR. AXWORTHV: In fact, I'd like to go one step further.

You said in your brief, actually turned the argument around, that if the immedia te sharing was not implemented, there could be creating a problem for spous es who do not wish to transfer assets. Could you explain that a little bit further, just to make sure the Attorney-General understands it when he reads the . . . MS. BROWNE: Supposing I owned a cottage and I wanted to give half of it to my spouse. If I did so, under our existing laws, then that half would be subject to capital gains. And it will remain so if this proposed bill becomes law. MR. AXWORTHY: 1 see. Thank you.

Now, on the question of creditors, which was another reason given for not doing the immed iate sharing of assets. In your brief, you state that, again you're read ing of it is that creditors would have first lien on any assets in any event. In your dis cussions that you have had with Mr. Mercier, because he didn't really elaborate in debate on the Hous e what he meant by that, can you ind icate to us what rationale was given on this question of creditors? What is it that he objects to? 22

Statutory Regulations and Orders Friday, July 7, 1978 liS. BROWNE: As tar as I know, the only objection I've heard, based on creditor's rights was not rom Mr. Mercier, but from people such as the Chamber of Comm erce, and one man from, I forget vhich bank so I won't take a guess, who was writing in a farm newspaper. And they seemed to eel that the farmer's right or the businessman's right to pledge credit would be affected by this egislation, because it would possibly, if the marriage broke down, be su bject to a settlement, and hey seemed to feel that that was a terrible threat to credit granting. IIR.

AXWORTHY: A third point, and again if I can just take the time of the comm ittee, Mr. Chairman, 1ecause I think it's impo rtant in terms of going over these reasons. On this question that Mr. Mercier aised, another reason tor not doing the immedia te sharing in assets is, he didn't want to undul y ntertere in the private lives of citizens, and I would quo te, he said, "Mr. Speaker, I have ind icated 1u ite clearly this position of our government. We do not wish to interfere in the private lives of :itizens of this province to any undu e degre e." This is the

part I would like you to comment on, Jls. Browne. He said, "the real problem has always been deficiency in the commo n-law or marriage >reakdown, not for married couples living together. This Act meets that problem that has been raised n the common- law, Mr. Speaker, and resolves that matter." In other words, what the l.ttorney-General is suggesting is that the problem only deals in marriage breakdown and :ommon-la w relationships and has nothing to do with the ordina ry, or ongoing marriage relations hip. �an you give us evidence or citation to dispute that conten tion? IllS.

BROWNE: If you're asking me for a court case, no, I can't give you I/IR. AXWORTHY: No, just really acting more from your experience, dealing with these kinds of IllS. BROWNE: From dealing with people who speak to me, yes, I can give you very strong reasons or believing that immedia te sharing should take place, thereby recog nizing the right of the spouse hat doesn't earn the mone y to the assets acquir ed dur ing the marriage. I think that I mentioned n my brief that the dependant spouse is su bject to the control of the earning spouse. Now, it may >e a very gentle control. lt may not be a harmful one.

But in many cases, it is. I'm sure that all >f you have heard, in your constituencies, stories of wives who are beaten and they still stay with heir husbands, and you can't imagine why they would stay there. They stay because they have 10 money to do anything else. They can't take their childr en and go anywhere because they have 10 money to do so. They wo n't go and leave their childr en, so they stay. That's why women should 1ave a right durin g the marriage. I/IR. AXWORTHY: How would the existence of those equal rights du ring marriage assist in the kind >f case that you enumerated? Ill S.

BROWNE: First of all, if the spouse who is title holder wants to sell the car without the consent, ;he has then a legal right to object. Now, she doesn't. He can sell it. As long as he doe sn't participate n fraud he can do anything he likes with the asset that he owns and she has no right to )bject. I/IR. AXWORTHY: Okay, Ms. Browne, than k you. I think that deals with that part.

The other qu estion had was on the issue of dis cretion, and agai, we had an exchange which I wo n't bother to read o you, but the gist of it was that if there is a presumption built into the legislation, then the likelihood, 1cc ording to the Attorne y-General, is that equal sharing will occur. I took issue with that and tried o refer to cases in ou r jurisdictions. Do you have any evidence to ind icate that where there is a 111 ide latitude of dis cretion, even though presumption is built into the legislation, that there is or sn't a tendenc y of the judges to give equal sharing or unequal sharing?

What evidence is there wailable? Ill S. BROWNE: Well, there has only been one case reported that I have read that comes under mything like this kind of legislation, and that's the Ontario legislation and it's the case that was ·eferred to here tonight that Mr. Cherniack mentioned. And in that case the family assets were divided i0-50, indeed, because the case is put fairly firmly for a 50-50 division of family assets but the :ommercial assets were no where near 50-50. I worked out the percentage and I forget what it s. lt was about 30 percent, I think. it's that high. I/IR.

AXWORTHY: In jurisdictions like New Zealand, do they have a presumption of equal sharing )Uilt in their legislation? 23

Statutory Regulations and Orders Friday, July 7, 1978 MS. BROWNE: I don't think it's written in. lt's not written in dir ectly, I don't think, in Great Britai1 and I don 't think it is in stralia either. MR. AXWORTHY: So there really isn't any other comparison that we can use to judge ... MS. BROWNE: Not an identical comparison, no. MR. AXWORTHY: Okay, thank you, Ms. Brown. MR. CHAIRMAN: Any other questions to Ruth Browne? Mr. Sherman. MR. SHERMAN: Ms. Browne, , I am not a lawyer and I don't have legal training. I'm asking fc dir ection and an opinion from you on this point.

Picking up on a point that was dis cussed by M Axworthy, on Page 4 of your brief, where you make the contention that if we don't make provisio for immediate sharing, then transfer of assets, etc., will be subject to capital gains. I'm not quarreling with the arguments that you advance for the concept of immed iate sharin� What I'm trying to get at here is an understand ing of the legal difficulties which you are suggestin will result from the legislation as it's currently worded. You say that we're creating a problem fc spouses who do wish to transfer assets by omitting the provision for immed iate sharing.

I conf es I don't understand what you mean by that and I think there may be others present who have similar dif ficulty. Are you di fferen tiating when you talk about transferring assets? Are you di fferen tiating specificall between transferring assets and bestowing of or conveyi ng of gifts, for example; that's one questio1 I would ask. MS. BROWNE: I am referring to inter-spousal transfer, where there is no exchange of money. S1 if I wanted to give, without charging money to my spouse, a family asset, I could not do so withou being subject to capital gains. MR.

SHERMAN: Well, when you say that tran sfer of assets, etc., will be subject to capital gains are you advising us that that will apply in all cases, that transfer of any and all assets - we'n talking here about family assets, presumably, not merely commercial assets - will always be subjec to capital gains? M! MS. BROWNE: Well, that's up to the Federal Government.

I am speaking only about their forgivenes of transfer between spous es and it must be done. lt was to me very specific, it must be done i accordance with provincial marital prope rty laws in order to attain this forgiveness of capital gaim Now, all of the other aspects of capital gains, I wou ldn't venture a guess on, because there's roll -ove provisions when you pass the family farm to the son and all that kind of thing, and I don't war to get into that.

All I'm saying is that the Federal Government has provided us with a means whereb spouses can transfer property between them without incurring capital gains, and if you don't provid for the possi bility of that taking place under a provincial marital property law, then it can't happe free of taxa tion. MR. SHERMAN: But this provincial government has provided a means whereby you can, with you spouse, or I can with my spouse, transfer or . convey or bestow or gift anything we want to de without incurring taxa tion. MS.

BROWNE: Well, I'm by no means a tax expett, but I understand that your removing the gi1 tax does away with provincial gift tax, but as far as I can see it doesn't have anything to do witl Federal Capital Gains Tax. I'm certainly pleased that you have done away with the gift tax but tha still leaves the Federal thing as it was. MR. SHERMAN: Okay, thank you, Mrs. Browne.

One other point on your - on Page 8 of you brief - in the first paragraph you challenge the Attorney-General on the basis of your search o case histories from English jurisprudence and again, as a layman, I put to you my unde rstandin \ that we're really comparing apples and oranges here. I stand to be corr ected on it, but when we'n talking about English jurisprudence, we are talking about a situation here in Manitoba where you pursuing the object of 50-50 sharing, and there's no presumption of 50-50 sharing in English la� or English jurisprudence.

So, I'm not quite clear, I don't clearly understand why you would resor to the evidence in English jurisprudence records on this particular point, because we're dealing witl areas where different presumptions exist. 24

Statutory Regulations and Orders Friday, July 7, 19 78 �S. BROWNE: Well, I co uldn't agree with you more, Mr. Sherman, these are Mr. Mercier's cases �at he presented to the Legislature. �R. SHERMAN: But you have drawn on the same source throughout your brief, you'v e dr awn on 1e same sources. �S. BROWNE: I merely referred to those in order to refute his use of them . 1 don't agree with is use of them. I think that it's a mistake to transfer from one area of jurisprudence to not her.

Furthermore, these cases that he mentioned are dealing with division of assets and he's used 1em to deal with the setting of maintenance. So, there's some more - I guess those are peaches nd pears. �R. SHERMAN: Well, Mr. Chairman, in this particular portion of your brief to which I've referred, 1e are tal king - you and the government are debating the issue of conduct here - you are not lebating the issue of assets. We're debating the issue of conduct. NS. BROW: That's right, exactly. That's my point exactly.

The cases that were presented to your .egislature are the cases to which I am referring here, and they were dealt - in English jurisprudence - they were deal ing with division of assets, but they were used, I believe, to illus trate what was :> be meant by gross repudiation of the marriage relationsh ip. I submit that they are inappl icable x two reasons. First, that they're from another jurisprudence and secondly, they are applying to division of assets, tnd not to setting of maintenance. JIR. SHERMAN: Well, I have to pursue the point further with my colleagues and certainly with the �ttorney-General.

I don't see that it makes any di fference in this case, Mrs. Brown. We're only talking tbout the conduct aspect, but I appreciate your information and I'll certainly study it in that context. Jut I can't, at this moment, distinguish for myself or see where there's any - see what the dif ference s between the position you're trying to make here, and the position that troubles me when we' re ;oncern ing. ou rselves purely with conduct. However, I _ wi ll certainly pursue it with the �ttorney-General. illS. BROWN: Thank you. t'IR. CHAIRMAN: Mr. Pawley. 11R. PAWLEY: Ms. Browne, first, insofar as Mr.

Sherman's earlier comment that his government 1ad elimina ted the gift tax and therefore it no longer applied. I think you would concur that when ve passed our family law legislation, the previous government, that there was a specific provision hat the gift tax would not apply as a result of any of the consequenc es of our legislation. Now, could I ask you, Ms. Browne, in respect to immedia te sharing of assets, you indi cated that : would be nice if the Conser vatives would emphasize the "progr essive" rather than the ·cons ervative" part of their party name.

There have been considerable movements in the di rection 1f immedia te sharing of family assets, not only in parts of the Unit ed States but also in Western :u rope. liS. BROWNE: Yes. IIR. PAWLEY: Now, can you tell me, Ms. Browne, from many of your studies, how those laws have 10rked in practice? liS. BROWN: They have worked very well in West Germany, in the Scandana vian countries. I believe >reece has an equal partnership arrangement, a limi ted form of partnerships, and they have worked ery well according to all the reports that we read on them. They have not resulted in great amounts ·f litigation.

They have not resulted in public outcry about injustice. As far as I can see, they work xtremely wel l. .R. PAWLEY: Thank you. •R. CHAIRMAN: Any further questions? If not, thank you very kindly. 25

MS. BROWNE: Thank you. Statutory Regulations and Orders Friday, July 7, 19 78 MR. CHAIRMAN Women's League, Representing the Catholic Women's League, Provinci� Council, Evelyn Wyrzykowski, is she present? MRS. EVEL YN WYRZYKOWSKI: Mr. Chairman, I have our Provincial President, Mrs. Shirle Scaletta, with me. May she present at the same time? MR. CHAIRMAN: Yes. A MEMBER: Your

an act? MRS. WYRZYKOWSKI: Good evening. Mr. Chairman, sometimes were known as Tweed le Dee anc Tweedle Dum. This is our sixth presentation to the commi ttees dealing with changes in the Family Law ir Manitoba since December of 19 76. We have spent considerable time studying the report of the Family Law Review Comm ittee an< the su bsequent Bills 38 and 39 introduc ed in the Legislature a couple of weeks ago. The followin! is our consid ered opinion on a number of specific issues, which we hope will be of benefit to y01 in your deli berations. First, Bill 38, The Marital Property Act.

Opting Out - We concur with the decision to retain the right of couples to opt out from thl provisions of legislation contained in The Marital Property Act. We strongly believe that mutual optin! out is a just method . We also see in this piece of legislation the possi bil ity of promoting necessarJ dialogue between spouses when making decisions. In our view, laws which provide more reasonl for dev eloping the 'mutual' decision process have greater value than those which promote an 'easy unaccountable way out'.

The clause dealing with "M utual Optig Out" could be an instrument tc foster beneficial dialogue between spouses. Deferred Sharing of Assets - In our previous submission of February 10 th, 19 77, which wal a written submission, we gave as our opinion that the immediate sharing of all assets would bE unnecessary and cumbersome and stated we were in favour of deferred sharing of communit� property in all areas except immed iate family assets. We note the proposed law has deferred sharin� of both family and commercial assets.

We feel however that the immedia te sharing of family assets has many psychological advantages for the spouse who remains at home - advantages that fa1 outweigh the small incon veniences which may result. And a further comment, the ideal situation would be one where spouses are mature enough tc agree upon the handling of family assets dur ing the marriage, but to repeat, this is an ideal to be strived for. This being the case, the partner who is not contributing financially is often at a dis advantage when it comes to handling family income, sometimes to the detriment of the whole family.

If one spouse has no say or co

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-2-sro1
Type	hansard
Volume / chapter	31st 2nd hansardpdf sro1.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	b1f059c1110cc0d2b7e43a2a791a4af520f18418

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