Manitoba Committee Hansard — 8 July 1978 (Statutory Regulations and Orders Committee, Sitting 2, 31st Legislature, 2nd Session)

31-2-sro2

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba HEARING OF THE STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Chairman Mr. Warren Steen Constituency of Crescentwood Saturday, July 8, 1978 10:00 a.m. Printed by P.N. Crosbie - Queen's Printer for the Province of Manitoba

'1me: 10 :00 a.m. Hearing Of The Standing Committee On Statutory Regulations and Orders Saturday, July 8, 1978 IR. CHAIRMAN, Mr. Warren Steen. IR. CHAIRMAN: Will the comm ittee come to order? When we broke off last evening, it was agreed y the commit tee that we would start this morning by calling Georgia Cordes, who had made it nown last night that she wished to make her presentation when the Attorney-General was resent. iEORGIA CORDES: Thank you very much, Mr . Chairman. I appreciate very much being able to resent my submis sion with the Attoin ey-General, Mr . Mercier, present.

I appr eciate the oppor tunity to appear before you today to submi t my views in consideration f Bills 38 and 39. I thought I might best pr eface my specific remarks about the bills with some 1sight first about my personal motivation and concern. I am a wife and mother of two preschool child ren. After graduation from secondary school I Jent th ree years em ployed in the labour market performing a cross-section of part-t ime and full-time 1bs, including waitressing, architectural drafting, and the proverbial secretarial jobs. At the same me I financed my own way through university.

After th ree years of independent living, I married I the age of 21 and continued full-time emplo yment for six months. I helped to support my husband hile he studied in a technical training program. Following this, both my husband and I pur sued our university educations further. I received my !aster's Degree. I then became emp loyed on a full-time basis tor two years, doing social group ork with all ages of people. The money from that job suppleme nted that of my husband. wages 1ade it possible tor us to purchase our first home.

Later my wages made it possible for us to buy :her homes for rental purposes, launching my husband into what is now a considerable undertaking investm ent and entreprene urial enterprises. As often happens, we decided to add ch ildr en to our family after seven years of marriage. Three onths before our first child was born I left the paid labour market to labour at home. I have been bouring full-time in this mult ifaceted career ever since.

I can quite cand idly report that I have used, by far, more of my personal resources, effort, patience, 1eer strength and willpo wer in this 168-hour work-week occupation tor the past five and one-half �ars, raising our family than were ever required of me in any full-time labour market em ployment. 1at is not to say I was never used to hard work, for I have received several awards in my adult �ars in recognition of my efforts in em ployed and volunteer positions. Conservative estimates place the value of the functions I perform to be worth at least $10,000 lr year dur ing the course of a marriage.

In addition, research has sh own that, if their total value 3.S included, the services of homema kers would account for a signific ant economic worth of one-t hird the Canadian Gross National Product. While fulf illi ng all of the family functions of homemaking and child care, I have been active in 1merous volunteer capacities in Winnipeg tor over five years.

Though I am the sole com pany partner my husband, it is he who continues to unceasingly direct the large majority of his efforts into anaging our substantial busin ess act ivities, while also hold ing another full-time emplo yed position. )gether we both are develo ping assets: our home environment, child ren and income. I am one of a growing num ber of women whose husband suppor ts my right to choose a career 1ttern for myself, in the same way that I support his career decisions. I live in a lovely home, have personal car and personal monies regularly received from my husband without my even having ask.

In tact, my hus band is so enlightened that two years ago, viewing me as an equal partner marriage, we mutually agreed to a formal marital partn ership contract. lt provides for imm ediate 1-50 sharing of the total of all of our marital assets, including both family and commercial sets. You might be asking yourself, "So why is she here today? Even without the marriage contract 43

she has it made." Statutory Regulations and Orders Saturday, July 8, 19 78 My answer? lt is a sad comment ary inde ed that as a couple before our marriage we were n given any indi ca tion, neither through our schooling nor from others we may have respected, regard ir laws which reflect the relatively low status of homemaking in marriages. When I was younger I nev dreamed that there were laws which did not recognize husband and wife as legal equals. I presumE there was equality between spouses - how naive. lt is also a sad commentar y that such unequal laws ever existed.

Just imagine how they ha' reduced the legal worth of the enormous marital contribution of perhaps your mother ar grand mother, not to speak of your wife, to a mere pittance. I have vowed that my ' children shou not have to marry into family law which socially alienates husbands and wives. The inequi ty of fami law allows no basis currently for continuing mutual respect and independent security.

Recog nition of my marriage as a legal partnersh ip is more than a "paper righ t". lt h< strengthened our self-worth and thus indi vidual contributions to our marriage. lt has al� strengthened our rela tionship and our commitment. What is most signif icant to me as a result our equitable marriage contr act is that my vital, productive and valuable contributions of hon management and child care to our marriage are recognized and legitimi zed to be equal to tt essential income provision contribution of my husband.

I do not have to be earning an income n' be developing commercial assets in order to be an equal marriage partner and to gain some measu1 of economic inde pendence. I am no longer a dependent possession of my husband, a harmf tradition traced from feudal times to the present through our common law. The method of immedia te sharing of our assets in their entir ety has worked well for us. lt interest ing to note that my husband has been able to acc ommodate any tax impli cations immedia sharing was supposedly to have borne. Creditors' rights have been protected by special provisic in our document.

Neither our commercial assets nor commercial position have been jeopardize as a result of our im mediate sharing. There is no doubt that I am respo nsible for virtually all of the homemaking and child care functior at home, which signif icantly frees my husband to pu rsue his goals in life. There is no doubt th; I benefit from my husband's commercial income, which helps me tremendously to pursue my goal Our marital contr act will not economically penal ize either of us for the functions we mutually ar privately all ocated in our marriage partnersh ip beginning over 12 years ago.

Current family law and Bill 38, by virtue of their Separate Property orientation and powers , judi cial discre tion, would inde ed penal ize me for the functions I perform in my marriage. The Separa Prop erty philo sophy recognizes and rewards only the mone tary contribution function in marria� and not the economic value of a non-earning spouse whose primary respo nsibi lity is horr management and child care. Ironically, most wives would presume that, as long as their marriages were continuing witho1 major problems, their husbands must be satisfied with them as marriage partners.

What a shoe to find out at the time of marriage separation that one's husband thought a great deal less of ht - in fact, about 38 percent less.

I base this claim on statistics which reveal that the average lu mp-su1 property settlement awarded to Manitoba women in recent years has been 12 percent of the husband's net worth, 38 percent less than equality. 01-01 In my previous remarks, I have endeavoured to stress, among other things, th ree principle They are that women are un ique independent persons who can be respo nsible for their ov. lives; marriage is an equal partnership between spouses and unp aid work performed in t� home is an equal and vital contribution to marriage.

These th ree principles are basic for th development of equality in human rights for women in our society. They should also be ver evident in Bill 38, but they are not. I believe that, if passed, Bill 38 will not change the depender status of married women. 1 commend the government tor pres umin g equal sharing between spouses. Now it mw act further to see that the legislation guarantees equal sharing. I would first suggest that ther be a

preamble to Bill 38 outlining to the court the general int ent and dir ection of the legislatior lt should clearly state the phil osophy of equal 50-50 sharing between spouses in recog nitio that both spouses contribute equally in their family roles to the marriage and thus to th development of all that the family values. Secondly, I would suggest that this Law Amendments Comm ittee ple ase research an __ produce a fair evaluation concerning the workability of the instantaneous community < property regimes in a numb er of jur isdictions in the United States.

I have yet to see an such in-depth evaluation in either the Manitoba Law Reform Commission's report on famil law, or the Family Law Review Committee's report. No one, to my knowledge, has produc e evidence answering why such equal sharing regimes could work well for both public and priva1 interests in the states of California and Wash in gton, but not in Manitoba. There were several submissions to Law Amendments Commit tee approxi mately one year ag which detailed the California marital regime. I trust that you will hear more about this in other currer 44

Statutory Regulations and Orders Saturday, July 8, 19 78 bmissions. lt behooves each of you to be aware of all factors in your present considerations. herwise, your deli berations will guide us no further ahead of our current antiq uated family N. Regarding foreign assets. In

Section 11 of The Marital Property Act, I strongly suggest that the >rding be changed from "may" to "shall." Only then will all the family assets be properly considered any acco unting and division. With respect to deferred sharing of family assets,

Section 12. I am discou raged that the 1vernment has not deemed imm ediate equal sharing of family assets to be desirable. lt is especially :rd for me to understand why, in view of the fact that my marriage is managed by what appears be a workable regime, not to speak of the many U.S. examples. Let me pose an example of 1w Bill 38 will determine sharing of family assets, only in my example it is the men who are the :tims of discri mina tion in marital inequ ity.

How would you feel if the law told you that you had e right to enjoy your childr en, whom I consider to be a marital asset, dur ing your marriage, but 1 legal right to guardianship? And you ask why? According to the dir ections set out in Sections 2), 6(3) and 12, in my analogy you would have no legal rig ht to guardianship because you were 1t the person who gave birth to your childr en. Does my example sound fair? Does it reflect any kind of equal parental partnership?

I am sure of you would answer "no." What is more, you are probably abhorred having such an example 1t before you, yet this is what Bill 38 says to me about presumed equal sharing of family assets. my money does not pu rchase a family asset, then I will not own, and ther efore will not have legal cess to control or management of that asset. I can only use and enjoy it dur ing my :�rriage.

Section 12 turns a presumption of equal sharing during marriage into the reality of a separate operty marital regime dur ing marriage - taking us no further ahead of our existing law today. �ction 12 denies the majority of married women much more than a psyc hological right or paper 1ht.

Section 12 denies the majority of married women freedom from their present dependent onomic status resulting from their marital contri bution. If the principle of equal partnersh ip during marriage was paramount, the government could at 1st make an attempt to see that the principle is realized. The ostensible obstacles of tax implications 1d creditors' rights are red herrings in a sea of inequ ity. Nevertheless, these so-called major 1stacles can be easily overcome.

Amendment can be made to tax legislati on, creditors can easily ange their policies where necessary, to accommodate equal sharing legislation, while at the same ne protecting their own interests. These alleged obstacles are merely being thrown to the public ' the government, hoping to appeal to our society's concern for the rights of creditors while burying y concern tor equality of rights between husbands and wives in marriage. I urge that all family assets, including the regular family income in the form of cash or a cheque, � equally owned and equally shareable between spouses dur ing marriage.

With respect to judicial discretion to vary equal division of commercial assets,

Section 13(2), ere may well be a presumption on the part of the government of equal 50-50 sharing of both nily and commercial assets at marriage termination. However, the wording of the legislation has en to it that equal sharing will be the exception rather than the rule when Bill 38 is enforced. �ction 13(2) comple tely obliterates the presumption of which the Attorney-General speaks, reducing ill usory hopes to a nonentity. If you look closely at

Section 13(2) you will find 11 mile-wide loopholes, each of which spouses, IVyers and judges can use to vary equal sharing of commercial assets. The opening statement ows tor variation "If the courts are satisfied that a division of those assets in equal shares would � inequitable having regard to any cir cums tances the court deems relev ant." If you think about s, every thing possible, includin g the kitchen sink, could conceivably be dragged up as an excuse vary equal sharing.

The courts need to be given very precise narrow guidelines tor considering variation of equality 1tween spouses up to the time of their separation. Unf ortuna tely, the 10 points following in Section (2) do not provide any help; they all should be deleted. Point No. (

a) under 13(2), "The unr easonable impoverishment of either spouse of the family assets" already taken into account un der

Section 6(6) through 6(9). Item (b), "The amount of the debts d liabil ities of each spouse and the circums tances in which they were incurred" is previously nsidered in

Section 10(1). The government is suggesting in Items (

a) and (

b) that some form of Jlt could also possibly be attached to the spouse who is respo nsible for the occurrence of such ents. You have already provided recourse tor the offended spouse; why must fault be considered well? Item (c), "Any spousal agreement between the spouses" is previously considered in

Section Item (d), "The length of time that the spouses have cohabited with each other dur ing their 45

Statutory Regulations and Orders Saturday, July 8, 1978 bears no rela tions hip to the equality of contribution by each spouse to the marriage, and ther ef< no relationship to equality in the division of all assets. Bill 38 will economically penalize dependE non-earning spouses in shor t-term marriages. Item (e), "The length of time that the spouses h� lived separate and apart from each other dur ing marriage" is considered in

Section 12(

c) to so1 extent. That

section allows for a right to equal division of assets between spouses "where the spou� have been living separate and apart from each other for a continuous period of at least 6 mon1 " lt appears that you are damned if you do and damned if you don't! If your marriage is un hap and you and your spouse live apart for six or more months, you both will finally have a theoretil right to equal portions of the assets. Except then the judge can turn around and, considering y< separate residence, vary the division of assets and. maybe economically penalize you because ye perhaps, moved out of the marital residence first. Any attempts at reco nciliation will be thwart by this

section of Bill 38. Item (f): "The date of acq uisition of each asset" suggests that expensive assets purchased m the end of the marriage by an earning spouse should not be equitably considered as betwe spouses. This does not take into account the presumption of equal sharing dur ing the course the marriage, and the government knows this. Theoretically, the entire family could have been struggling for years on a meagre budget, all t time savi ng for a special acquisisition - such as a small business.

But if the marriage were end shortly after the purchase, the owning spouse would be able to claim the majority interest that asset. The total family effort would not be considered. Item (g): "Whether either spouse has assets to which this Act does not apply by reason of th having been acquired by way of gift or in heritance and the value of those assets" has supposec been answered in

Section 7, which states that gifts and in heritances are not subject to equal divisi< But the government is here further suggesting that Bill 38 will inde ed apply to gifts and in heritance Gifts and in heritances will be taken into account as reason to vary equal division of assets. Is it fair to say that, because you have inh erited a sum of money from your parents, you th can have no legal half-i nterest in your marital assets to which you contributed equally ? I am Sl fair-minded people would agree that this would be neither fair, equitable, nor a recog nition marriage as a legal partnersh ip.

This allows gifts from a donor to one specific recipient to be leg� used as a subsidy to the recipient's spouse by increasing that spouse's inter est in the marital asse The Family Maintena nce Act, not The Marital Property Act, is the appropr iate legislation when the matter of financial resources at marriage termination should be assessed. Item (h): "The nature of the assets" is very biased in its implication. lt appears to refer to s stereotypes as they relate to marital assets.

Commercial business buildings and stock, farms a other real estate might be regarded as masuline assets, particularly noting that it will be marri men who will largely have complete title to such items. I am hard pressed to produce any exam1 of equally valuable assets the feminine nature of which would be sufficient to vary equal divisi of commercial assets between spouses. (Perhaps only the childr en might enter this category.) Aga it will be the non-earning and/or non-own ing spouse who will be penal ized by this provision. lt not relevant to the presumption of marriage as an equal partnership.

Item (i): " The effect of the assumption by one spouse of any housekeep ing, child care or ot� domestic responsibil ities for the family on the ability of the other spouse to acquire, manage, mainta operate or impr ove any commercial asset" need not be present in this sect ion if the governme is truthful when it talks about belief in the principle of marriage as a legal partnersh ip. After l this sect ion states the essence of prog ressive marital property law reform. The effect of t performance of such duties can not be arbit rary; the effect is an equal (50-50) contribution marriage. If this

section (

i) is not deleted, it tells me that there is no belief in the partnership princip lt directs a judge to decide the value of the marital contributions of most married women. Our soc and judic ial bias favours financially prod uctive labour as opposed to unpaid labour. This bias al reflects sexual stereot yping , all of which ensur es that homemakers will continue to lose in t courts. Let me pose another ill ustration using

Section 13(2) to show how two of the above loophol can be used by the courts to vary any presumption of equal sharing away. Based on my previous example of reverse discrimination, suppose you had no legal guardianst of your childr en . You and your spouse have ended your marriage.

Only at that point are Y' theoretically granted consideration of equal guardianship, in spite of the contribution (di rect indir ect) you have made toward the maintenance and nurturing of your childr en during your marria� You begin to think that you have finally attained the ultim ate equal status of legal parenthood, whi you have worked and hoped for over many years.vg But wait - there is a catch! Your wife has applied to the court asking that your status of eqt parent be varied. Why? Because according to the dir ections in

Section 13(2), it would be inequi tat 46

Statutory Regulations and Orders Saturday, July 8, 1978 •r you to be considered an equal guardian based on two ci rcumstances: (

h) nature of the assets, > well as (

j) circums tances relating to the acq uisition, pr eservat ion, and impr ovement of the ssets. So you have your lawyer explain this shocking situation to you. lt seems that, as a member of 1e Manitoba Legislature, you had to spend a large portion of your time away from home over the �ars. Your wife spent a considerable portion of her life raising the childr en dur ing your government �rvice years, and you did not. Accord ing to

Section 13(2)(j), you should no longer have equal access , the childr en because you did not contribute equally to their birth , preservation or improvement. cc ording to

Section 13(2)(h), the "nature" of the children as assets could be regarded as feminine mply because more women devote their careers to rearing childr en than do men. And to top it all off, what judge in her right mind would rule in your favour? After all, legal ·ecedence has established that the absence of your visible contribution to the bearing of the childr en 1d to dir ect child care tar outweighed the value of your wage earnings to the family, not to speak ' your service to Manitoba. How fleeting was your equal parent status!

And here you had presumed all along that your wife 1pported your career and had under stood why you had to be away from the family so much. You id tru sted . your wife, not to speak of the law, to ulti mately grant you what you had expected nee your first child was born - equal status. Well, tough luck, Joe. But you should have known hat your rights were before you were married. Besides, the children must not have meant that uch to you; otherwise, why would you have not spent more time with them? This analogy most likely appears gross and unconscionably unfair to all who hear it.

But, except ,r the tact that the sexes and assets have been revers ed, this unconscionable unfairness has been 1d will continue to be legally infl icted on Manitoba married women in Bill 38. I wish to correct an impr ession left by the Attorney-General on May 29th in the Legislature. He ated that "most people's assets are com posed only of family assets." I strongly disagree. The mily paycheck is still considered to be a comme rcial asset. As well, most people have some form savings, however meagre they might be. I would say that most people have some form of >mme rcial asset.

Very simply, I urge that all comme rcial assets accrued dur ing a marriage should be equally shared the termination of marriage, except in rare hardship cases - period. To allow otherwise reflects 1d perpetuates the premise of ineq uality in marriage. Critics will answer me, if they are honest, by saying, "To heck with equal partnersh ip! Whoever itiates and toils in commercial undertakings deserves to reap the full profits alone." I suggest that spouses directly and indir ectly subsidize their partners through their various marital mtributions.

I suggest that the large majority of women toil with proportiona tely little direct help )m their husbands when raising their childr en . Yet those women are not scream ing to have sole :cess to the children. I suggest that a wealth of resources from the marital partnership are heavily vested in order to develop even a modest commercial asset. These resources from the marriage include at least one spouse's considerable time devoted away )m the family, while utilizing the spouse at home to assume the responsibility tor homemaking 1d child care functions.

Such marital resources also include numerous efforts, abilities and emotions 1 the part of both spouses, as well as family moneys and some lean years before a commercial :set becomes income prod ucing. lt violates one's sense of justice that any one spouse, usually the wage earner, can use any and ' of these marital resources with no intention nor legal expectation to return the prod uc ts of those sources to the contributing partner in the marital rela tionship. With regard to retroactivity, I commend the government tor provi din g that Bill 38 will apply to married persons resident in Manitoba.

Only in this manner will current injustices which now exist marriages be rectified. Many major laws were retroactive, including human rights and income x legisla tion, the Dower Act and the Ma rried Women's Property Act. Equality and demo cracy should 1ply tor all, not just tor those of one sex or one genera tion. With regard to contracting out, I commend the government for allowing only mutual contracting 1t of the Marital Proper ty Act. Unila teral opting out would not have suppor ted any principle of 1uality in marriage, not to speak of any sense of partnersh ip.

With regard to jud icial discre tion, there should be no provision in the Act to allow a judge to te more to one spouse than the other, except in rare hardship cases. To do otherwise destroys e intent of any prog ressive legisla tion. Unf ortuna tely, histor y and the recent monitoring of court ses has generally revealed that neither family law nor judi cial discretion have recognized women independent beings of economic worth who share in a marriage partnership based on equality. •th government and the jud iciary will continue to elevate discrimination against women to the level principle in Bill 38.

This must not be allowed to conti nue. The equal sharing presu mption in Bill must be an assured provision with very li mited jud icial discretion if Manitoba expects to change statistical average to 50-50 sharing rather than 88 percent versus 12 percent sharing. 47

Statutory Regulations and Orders Saturday, July 8, 1978 With regard to Bill 39, The Family Maintena nce Act, our current laws governing marriage ha their origin in English common law stemming from the Magna Carta. During the middle ages wom were chattel, the property of men to which they were related. Women were not consider ed perso in the eyes of the law. They were not considered capable of controlling their own lives and, hen< were somet hing to be protected. The economic status of women was determined by the status of their fathers or husbands.

Th status as women was determined by their sexual and reproductive capacities. In feudal times marriage was an exchange of services: the husband pr otected and supp ort, his wife in exchange for her exclusive services. Not only did men own their women, men al possessed all control over marital property. The family line age and property was passed from o generation to the next through male heirs. Thus it was essential that paternity was free from doul To guarantee this it was necessary for the male property owner to have exclusive rights of sext access to his wife. No such restraints were placed on the husband.

This double standard has been perpetuated through the ages, evident even in the existing Wive� and Childr en 's Maintenance Act. In that Act, wives still are thE;J victims of blantant discrimina U if they are considered guilty of a sexual ind iscret ion. Husbands are not subject to su discrimination. The vengeful continuance of the fault concept in Bill 39, I contend, is a perpetuation of the earliE principles and common law relating to marriage. Although Bill 39 has overtly elimina ted the sext double standard, it has not overcome this governmen t's hang-up with wives who reject th1 husbands.

Those who support retention of the fault concept bel ieve that pursuing recrimination in pub is a legally necessary way to pun ish people who have committed no criminal offense. I say the is no moral or criminal code in Canada which calls for the legal pun ishment of spouses who repudia a marriage. Repudiation of a marriage takes place when marriages are on a shaky foundatic Repudiation of a marriage is rec ognition that the marriage has broken down. Legal backing whi supports a public recrimination procedure for wrongdoing between spouses can sever possibiliti for any hoped-for reconc iliation.

Finding fault bears no rela tionship to the reality of the stages of human rela tions hip, least all mututal un derstan ding, respect and love. Finding fault forces in creased litigation, not to spe: of incr eased trauma and unne cessary emotional scarring on spouses and childr en when marriag end. lt does not allow for a realistic decision based on human needs. As one source ph rased it, "Fault gives direct financial motives to pu rsue recrimination in publ Retaining the fault concept presents almost insurmountable obstacles to the development appropr iate legal polic y for the family.

Family policy should focus on the economic and soc implications of marriage breakdown, premised on finding fair constructive solutions." As a society guided by Christian princi ples, we have to re-examine the origins and purpose the fault concept in our cultur e. Its retention poses many harmful contradictions. The fault conce must be elimina ted from Bill 39. Sur ely the purpose of maintenance acts from the time of their orig in has been to secure necessa support for dependent wives and childr en. The onus of the respo nsibility for such maintenance h primarily been on the economically independent husbands.

Welfare, and ultim ately the taxpayt were viewed as a last resort for family maintenance. However, current statistics show that over 70 percent of maintenance awards in Canada are some measure of default. We as taxpayers are forced to provide support for women and childn in need, either because the wife's non-criminal conduct has dic tated their poverty, or because la1 of government enforcement has dic tated such poverty.

This is an injustice to spouses in need, children, and to me as a taxpayer if husbands and fathers have an ability to provide support The onus is on our government to totally revamp its procedure for collection and enforceme of maintenance awards. Our government should help ini tiate such procedu res on a national seal as well, in order to facilitate out-of-province collections.

Part IV Enforcement of Orders of Bill 39 is an insult to the concept of mutual maintenance betwe1 spouses. 1 wonder if

Part IV, as it is written, would be facing us today if men were the prima recipients of maintenance awards? I am sure it would not. Ultimately the characteristics of Bill 39 combine to offer little or no help to dependent spous in need. Bill 39 provides women with a newly acquired responsiblity to support and maintain tht spouses dur ing marriage. lt also provides for women the obligation to attempt to becon self-suf ficient within a reasonable time after marriage breakdown. Yet lack of adequate enforceme procedures will ensure that the dependent spouse - usually the wife's - right to maintenan1 is artificial.

The independent husband still will have his inc ome, employment, job skills, fringe benefi and work experience when marriage breakdown occurs. This is not equality of rights. The inclusion of the fault concept will ensure, as in the Middle Ages, that dependent spous - usually wives - will be economically penalized on a proportiona tely greater scale for non-crimir 48

Statutory Regulations and Orders Saturday, July 8, 1978 nduct, while independent spouses - traditionally the husbands - will suffer proportiona tely less. e position of the average husband in the emp loyed labour market will assure his financial security er separation. The position of the average wife in the home labour ind ustry will assure her financial >ecurity. This is not equality of security. With respect to obligation to support childr en -

Section 12(1), I urge that the wording in Section (1) be changed to say that "E ach parent of a child has an equal obligation", rather than "the ligation". I commend the government for adhering to a reco mmenda tion of the 1970 Report of the Royal 'mmission on the Status of Women calling for equality between sexes with respect to mutual ligation to support and maintenance during and after marriage. I also commend the government · focusing its guidelines in

Section 5( 1) on realistic criteria relating to need and ability to pay. Jrther commend the government for stating that spouses have an obligation after separation to ce all reasonable steps to become financially independent. You must und erstand that for too long married women haveccarried their equal share of any ;ponsibil ities toward a marriage without insurance of any equal share of rights in marriage.

The atus of Women report states "that real equality cannot exist without economic independence." at is why a Marital Property Act which promo tes and insures equal sharing dur ing marriage is essential step in creating a base of economic independence for women who labour in their homes. I 38 does not promote equality dur ing marriage because the bill remains on a separate prop erty mdation. Thus Bill 38 . can be in no forefront position as long as it fails to create a base of onomic inde pendence for married women who labour in their homes.

I plead with each of you as spouses, as parents and as legisl ators, to ask yourself why Bill 38 d Bill 39 are being introduced. If your hone st answer is, to reflect marria ge as a true legal rtnership between equally contributing spouses, then the major changes I have discus sed are vital these famil y law bill s. I fear that in this legislation you have merely perpetuated what has gone on before, that is, in �eyes of the law, financial contribution to the marriage and a financial extract ion from the marriage pear to be the essence of marriage itself.

You have not legally rec ognized, nor given credit for, any significant meaningful way, any other forms of contribution to the marriage partnersh ip. The vernment is dreaming if it thinks it is strengthening the family unit with these pieces of legislation. 10uses who are not em ployed can and will still end up the losers. This offends my sense of justice d it should offend yours. lt is your duty as representatives of thousands of women in each of your constituencies, to not ;miss the concerns we bring to you.

Each of you must use your own integrity to make sure that � necessary alterations are made in these bills to elim inate sexual inequalit y, and to make sure at any presu mptions of equality are made ieal. Do not be fooled into thinking that equitable means ual; it does not. Equal means exactly the same in measuring; equitable means just and fair. Equity · women in family law is decided subjectively by a judge; equality for women in family law can ly be an objective fact in legislation enforcing 50-50 division of all marital assets between ouses.

In closing I wish to quote from a book entitled, "All We're Meant To Be," a Bibli cal approach Wom en's Liberation. The authors state, in a

chapter which asks, "Where Do We Go From Here" 'We should have learned from the history of slavery and racism. Sixteenth Centur y Spanish eologians formulated a natural law theology for inequality in order to enslave Indians. They declared at each person has a most appropr iate social function; these biologically distinct indi viduals are 1stined by nature to be slaves, a condition beneficial to them and to society. Southerners of the 1ited States used similar arguments to keep blacks in slavery.

To argue that women are equal creation but subordina te in function is no more defensible than separate but equal schools for e races. For men, it is true, women's li beration will mean a loss of power; but it will also mean new sharing of resp onsibili ty. Autocrats have no place in a democracy." Thank you. ft CHAIRMAN: Mr. Cherniack, would you lik e to ask the representative a question? �-CHERNI ACK: Thank you, Mr . Chairman. Yes, I would, Mr. Chairman. May I say, Mr s.

Cordes, at this is an outstanding presenta tion, in my opinion, and therefore there is not too much I want ask, but there - is one very small point that I would like you to elaborate on. At the bottom Page 18 you refer to

Section 12(1 ) of Bill 39 suggesting that the words "an equal" replace the >rd "the" - each parent of a child has an equal obligation. I accept the point you make, but lon't quite see the nuance of distinction between what you're suggesting and what is already in e bill. Could you elaborate then, on why you feel think that 49

Statutory Regulations and Orders Saturday, July 8, 1978 MRS. CORDES: Well, it appears to me the way that it's worded that again the court could deci how much of an obligation each parent has, and it's my feeling that initially it should be view as an equal obligation between both parents, and then one can look at the resou rces that the parer have. Perhaps the husband may or may not be in a position to provide more of the financial resourc towards the maintenance of the childr en after marriage breakdown; perhaps the wife may be a position that she would maintain the children on a daily care basis.

I'm saying initia lly that t judge should assume that there should be an equal obligation, because I feel now, without stati equal obligation, that again, the judge could decide, for various reasons not given here, as to ht that obligation should be varied between spouses - philosophic ally he can decide that that shol be varied. MR.

CHERNIACK: Well, what you then, I assume, package in the concept of equal obligation, r only financial but also emotional and physical support that is needed, because there will becor an equating here between the financial contribution on one part and the emotional, as I say, a the actual care, the physical presence of the other spouse, which is of cou rse likely, after a separati has taken place, that there would be different ...

So, you're saying, it should say equal, eql obligation to provide for the support, maintenance and education. lt seems to me that if you want, to spell it out to the extent that I believe you do, you would then want to add to it, "bearing mind the fact that included in this concept is the non-mone tary aspects of . . . " MRS. CORDES: Well, I don' t think that would hu rt at all. I think tha t sec tion needs to be spell' out a little bit more clearly. I do not have suggested wording to that effect, but I think we agr, on much of it. MR.

CHERN IACK: Well, I appreciate your having brought it to my attention anyway because I hadt thought of it.

Now, coming back to the beginning of your brief, at Page 4, you refer to your own arrangemer with your husband and comment that creditors' rights have been protected by special provisi1 in your document and that commercial assets and commercial position have not been jeopardize This is something that people talk about; they say, "Wel l, I can't get credit if my creditor knm that I may lose half my assets." That's been said often by people who try to raise the issue, if to make it appear that there would be a tremendous obstacle to business operations.

Could y1 elabor ate a bit on why you feel that it is not an obstacle? MRS. CORDES: Well, first of all, it's been our experience in two years - and certainly my husbanc experience in his dealings with financial institutions - that has been no problem in any way. No I've got the agreement in front of me; I'd be willing to read to you those sections that have do with possible tax and creditors' rights impli cations. With your permission I'll just read it, there not very much here, not too many.

One that sheds a little light in this area says that - and I' not taking these in any necessary order - "each partner hereby assumes joint liability for all existit debts of the partners. Each partner solemnly declares that so long as the marriage shall subsi any property, real or personal, acquired by one partner shall be held by that partner in trust f the two partners jointly, and that he or she will hold, admini ster or dispose of such trust proper as a prudent businessperson, in good faith and in the best interests of the two partne jointly.

" With respect to taxes, I believe, "in the event that the partners are advised that a transfer property from one to both names may result in the imposition of additional tax upon one or bot or would have some other financial disadvantage, then by mutual consent the property may rema in one name only, but shall nevertheless be and remain held by the partner in trust for the tv partners joint ly, and shall not be encum bered or dis posed of without the consent of the oth partner." And then there is another sec tion; "in the event that a partner has acquired property or an intere in property which cannot be trans ferred into the joint names of the parties, as, for example, certa kinds of pension rights, then that partner shall nevertheless hold such right or interest in its pr oceec in trust jointly for the two partners.

In the event that the partnership should be dissolved, any sue right or inter est· shall be· evaluated and taken into account as between the partners, and the oth partner shall receive the equivalent in money or other partner ship prop erty, of one-half of the n value of the right or inter est." "And, the agreements and declarations herein contained are not intended to apply only • between the partners and not to affect their obligations to the Min ister of National Revenue or at other taxing authority or third party.

In the event that any tax liability shall be incu rred in the eve of a dissolution of the partnership then such liability shall be borne equally between the partne 50

Jt of the partnership assets." Those are the sections. Statutory Regulations and Orders Saturday, July 8, 1978 R. CHERNIACK: Than k you, Mr s. Cordes. That, of course, is an agreement that protects the rights each of the parties to the agreement. lt does not in itself protect or give further guarantees to creditor, either existing or potential, because they are not parties to the agreement. RS. CORDES: No. R. CHERN IACK: What I want to under stand is whether in your business affairs you have found 1y difficulty in getting credit? RS. CORDES: Absolut ely none. R.

CHEIACK: May I ask if you have had occasion to apply for credit? RS. CORDES: Oh, yes. R. CHERNIACK: All right. May I then conclude ... RS. CORDES: And I've eo-signed bank loans, too. R. CHERNIACK: I didn't hear clearly. RS. CORDES: am called in to sign bank loans; I have been before, and I am after the Jreement. R. CHERNIACK: So that it is clear that since there is an equal ownership or a partnership ·rangement that your creditors are made aware of that fact, and would be anyway, I suppose, hen they ask for any kind of security that is in both names.

So that the practice is that your creditors, �ing aware of it, are asking or demanding that each of you sign the obligation documents? RS. CORDES: Yes. I can really detect no change from before we had the contract and dur ing e time that we've had the contract, in creditors' responses; no problems. R. CHERNIACK: The only thing is that you are now required to sign some documents that you ight not be required to sign otherwise? RS. CORDES: That may be the case. All I know is I sign a lot of them; I sign a lot of documents. try to sign a minimum of them, but . . . R.

CHERNIACK: Well, on the other hand, it has been suggested by some people that there would � an obstacle in the operation of a good business if it were necessary at all times to obtain the >pr oval of the other spouse. RS. CORDES: I do not have to sign every thing, I know that. R. CHERNIACK: Now, the point I'm making is that documents of creditors, . or other parties 1 a financial transact ion, might request you to si gn. You could refuse to sign, and that then means, 1 some people, that it would prejudice their efforts to carry out a business transac tion. RS.

CORDES: Yes, 1 could refuse to sign; I have refused to sign on some occasions, but I feel at if I am viewed as an equal partner in the marriage - and we're discussing the assets of the arriage - that I should have the right to be party to discussion of how finances are handled , 1d be able to have some kind of decision. Now, I don 't invoke that power very often; I do it with great deal of consider ation and usually it's when my husband and I are in agreement. R. CHERNIACK: Mrs. Cordes, would you ple ase confirm that you and I did not agree that I would ;k you that question, nor that you would give that answer.

RS. CORDES: No, I have not talked to you; no. R. CHERNIACK: Thank you. 51

Statutory Regulations and Orders Saturday, July 8, 1978 MR. CHAIRMAN: Thank you very kindly. The next person on the list is Janet Paxton. I might menti to the person that we ran seven minutes overtime with the last presenta tion. Would you try to confi yourself to the 30 min utes? MS. PAXTON: Good morn ing, gentlemen, and thank you for the opportunity of speaking w you. Now, I agree whole heartedly with the statement made by some Cons ervative members that t proposed family laws now being debated are much better than those passed in June, 1977.

Havi met members of the government personally I have found many of them to be charming, intellige and completely reasonable people to talk with. However, I am wondering how to assimilate this w the fact that they did not finish the statement. The new laws are better, but they neglected to spec for whom they are better. They are better for some prospective businessmen who were almost in a state of shock at t prospect of having to reveal and share their total assets with thei r spouses last June. Some we crashing around looking for anonymous bank accounts, I unde rst and.

They are better for lawye the public will now need in even gr eater deman d. There will be a lot of business for them. T skills of a lawyer will be all-important,

whereas with the laws passed last Jun e we would not ev· necessarily need a lawyer. Women will still have to literally take food from childr en's mouths in ord to pay lawyer to obtain what should be taken for granted as their natural right, an equal amou of all assets obtained during a marriage. They are better for all the men who were so frightened at the prospect of not being able control their wives every move and thought, through their stranglehold on the purse-s trings.

Tl is particularly true if she was a non-i ncome-e arn ing spouse, and you know, they might have be· pleasantly surprised to learn that she would not run off in 10 different directions, as so many see to fear, if released from their control through the finances. They are much better for the businessmen who wish to pr otect themselves from creditors putting 100 percent of their assets in the wives' names. And you know, the average Manitob� when he owes a bill and he doesn't pay it, he has his goods retrie ved from him.

Why should peo� have this special concession granted to them because they have more money, they have the lawye to advise them how to protect their goods? People should pay their debts, and I have a feelil that the majority of Manitobans are being required to suffer under the old laws or inequity so tt1 this can be done. These laws are no longer a dog's breakfast; now they are a cheater's second chance, wife-batter er's boon, and a Scrooge's saving grace.

Many men are good husbands and they de on their wives, however, the other kinds were no doubt wiping their sweaty brows when tl Conservative government repealed the equal sharing laws. lt was a close call. lt is a bitt disappointment to those who have worked so hard to attend meet ings, prepare briefs, take tin from their own personal lives to work for just and equal marriage laws. I am a relative novice at it. Only two years ago I attended a meet ing here and realized wh was happening with the family laws.

I almost wish I had not, because once your eyes are open1 you can never look back, not stop seeing the injustice which exists in these laws, particularly f the females. The effects on them and their families is traumatic. Sometimes the hurt lasts a lifetirr Though I have seen a lot of the effects I have never realized what the real cause was; it was tl fact that the laws have been designed by males, for males, maintai ning the double standard the way.

I used to feel that my case was extraordinary, having been separated; that somehow or oth I must be a worthless indi vidual, that it was a natural cou rse of affairs that life should be so diffict for me because of a marriage breakdown, while it was relatively pleasant and unemcumbered f the father of my children.

There was the nagging thought that probably I really had deserved tt situati on. lt was not un til I listened to the other people here, learned from talking to some of the1 what had happened in their case .. .. statistics regard ing maintenance being paid only 25 perce of the time across Canada, that I realized what was happening - the lights went on. I was n an unusual case.

In fact I was more fortunate than most in that I had received maintenance paymen for the contribution to support of thr ee children. lt was from some other speakers and kno wledgeat women, such as you heard make presentation last even ing and just prior to me, that the messa! came off. We, the female partners in the marriage were being ripped off on a massive scale.

Tl powers that be, the legal profes sion, were aware of it all along and that is what is : shocking.$$ Society, as a whole, has tr eated the female, who sought separation from her spouse, as a lepE a person to be punished, hammered into the ground with poverty and tossed onto the garba! heap of low in come living or welfare. What did it matter if the judge gave her a subsistence allowan for her and her childr en to live on, she had had the almighty nerve to ask for a separation a1 52

l:llalUlory negu•auons ano vrut=r:. Saturday, July 8, 19 78 :Jrefore deserved what she got - almost noth ing. The same applied if her husband wanted a paration - she was the loser. Now, I brought examples up to meet Mr. Mercier, and unf ortunately I had to go to Vancouver 1cause my mother was ill but I had many more ladies lined up to meet with you and Mr . Mercier ry kindl y took his extra time to listen to some of the ladies. And I think that they gave you good amples of how this very moment the laws are not working tor women .. Last year all tha,- was to change.

The government, under the NDP, thr ew out those musty tiquated laws and brought in the best legislation in Canada. We always liked being Manitobans d now we could be especially proud of our legislators. The Conser vative government was voted in and immediately reinstated the anti quated marriage ws, while not menti oning this plan as part of their election platform.

Yet ladies at meet ings at 9 YWCA stood up to tell groups of women there how they had been promised hands -down by :Jir MLA in the Conser vative Party that they would support the family laws as passed in June. 1e lady described how her MLA had stood in her hallway and written on her election pamphlet guarantee that she should go ahead with her separation as they would support the new laws if �cted. She did, and was wiped out.

Women who have left their homes and spent much personal time on this work do not take things e this lightly, though David Young's essay on bureaucracy says to get the dir ty work over with the first two years and throw in the good things the second two years. He does not know women ry well. We shall not forget.

We have nothing to gain and have no reason to lie to each other. > stories such as that womans are burned and recorded into our minds to be played back in e voting booth, much as the supporters of family law legislation had by tactic agreement not wished allow the legislation to become a political issue, it cannot now be overlooked because of the 1y things have occurred. Perhaps the members of the Con servative government feel you have done well with these new 'Is.

However, at the time you repealed them, you calmed everyone's trepidation with a statement at only the cumbersome wording would be corrected, that 50-50 principles would be un altered. )W, I don't know if others share my feel ings, but I find I am not so angry about the laws presently 1ing debated right now in their present form, and I don't lik e them at all, as I am about being �ated as though I am a moron, and that is the truth . We are asked to believe that nothing in e principles of the last bills has been changed. lt is lik e being asked to look at a blackboard 1d agree that it is white.

To say that there is any resem blance to the laws passed last June is 1 insult to our intelligence. Society has always obtained its slave labour from the uneduc ated. You 11 have to go back to allowing girls to attend school only until Grade 6 if you want to carry on th this male Utopia. Yet, would you want that for your own daughters? With the events since repealing of the bills, we are not about to feel secure because of your atement that these laws will be equal, because now they say there will be a presumption of sharing, gardless of all the other strange little additions we now note.

What we had asked for and got :;t Jun e was the guarantee of equal sharing; that is what we want to see now. Why is that word 1uarantee" not used instead of "pr esumption"? Here are the points I note in the new bills which I do not like. I am not a lawyer; I read them . a lay person. I did n't have time to really discuss them point -by-point with anybody with legal IOWiedge. All right, on the maintenance bill, while you insist that fault must be consid ered when arriving quantum of maintenance, there is an anomaly here.

While there is the punis hment factor built by possible reduced maintenance usually received by the female, there is no fault factor applicable consideration of sharing of commercial assets, usually the male domain. This means that a female 1ouse's right to maintenance could be seriously limited if she were found to be a flagrant adulteress. 1d somehow I cannot see any jud ge not considering that as unconscionable conduct, but a male 1ouse cou ld have a harem and it would not affect consideration of deter minin g his share of the 1mmercial assets, where the real money is.

Nowhere in that list of considerations the judge must ke into account in the commercial assets sharing does it mention fault can be a consideration. hy is it applicable then to the portion the female will receive in the majority of cases, which is e maintenance payment. While you may argue that it does not mean a judge would not take fault into consideration when 1termi ning sharing of commercial assets, the way the points are worded, the judge may or may 1t choose to do so. That is not justice for the female spouse, not by any means, it is the continuation laws written by males for males.

If you are going to insist on inserting fault, then the first thing e government must do to guarantee justice then is establish a massive private detective agency �ely available to the public. You see, the housewife and mother .who suspects that she may have oof of behaviour on the part of her spouse, which repud iates the marriage, is pretty well blocked >m obtaining that proof, particularly if she is a non-working wife. You have not allowed sharing family assets during the marriage, so she is penni less un less her husband wishes her to be 53

Statutory Regulations and Orders Saturday, July 8, 1978 Men who wish to trip the light fantastic usually make sure their wife has no more than about fi' dollars in her purse at any given time, in case she would have enough funds to get out of the how and accidentally discover him in his revel ries. She would never have enough money to hire a detecti' to follow him. The only other alternative she would have, perhaps, is a long blonde wig and affa bicycle to try and follow him herself.

That is because you have made proof of fault so very importa to her and her childr en 's future sur vival as financially in dependent citizens of Manitoba. On the other hand, it is not too difficult for a male spouse to obtain proof of repudiation the marriage contract. While he is mobile in his work, meetings, etc., she is pretty well stationa at home. While he may be happy with his work, his business friends and his girlfriend, she m; be becom ing worn on the edges.

Having no money of her own with which to make decisions abo what she can do for the day, having no idea where her husband goes when he stays out late night while she raises the children alone, her behaviour may change. She may become nasty ar unc o-operative, charge up accou nts, perhaps buy new clothes to gain his atte ntion. She may becon neglectful of the house, the childr en and herself. Finally, the male spouse will come home, after a th reeabsence, and announce he wants separat ion.

Now, this thought had occurred to her several times, too, over the years but she didr have the mone y to go to a lawyer and find out what she could expect in the way of maintenanc and she doubted if she jumped in his lap and asked him for the money if he would give it to h' if she explained why she needed it. But, see, he wants the separation now; there will be monc for that purpose. And she is not that disappointed; it hasn't been that much fun. In court, though she has suspected all along he has had ind iscreet affairs, she has absolute no proof of this.

The male spouse, on the other hand, can relate to the judge how she has mac his life miserable for him and the childr en by her comple tely shrewish behaviour. If he manage to win the sympathy of the judge, the judge will perhaps decide that he des erves more money his pocket and she deser ves less money in her maintenance. This will be particuarly true if the ma spouse has stated he wishes to take advantage of the reconciliation clause for a period of one mont They may go to the counsellors, etc., but in private he may make absolutely no moves to reconci with her.

Of course, the next time they are in court, she will say, "No, she does not wish to reconci with him." The judge may just drop another $75.00 in her maintenance award for that refusal lt should be noted that if a couple goes for a separation, one or other have usually thoug about it - at least one of the parties - for many years before it actually comes to pass. If the are going to rec oncile, nobody could stop them from doing so at a later date. A rec onciliation mig be more logically forthcoming if a couple does not have to air their dir ty lin en in court.

We strong hope that the government will recognize this all-imp ortant fact. Also, if you feel fault should be such an all-impo rtant factor in establishing the quantum maintenance, hopefully the government should be busy building extended psychiatric child ca1 facilities, because we most certainly are going to need them. lt is all the more likely now they 1111 be called upon to testify against their own parent. Proof of fault may be only obtainable in th manner. The strain in the home is unbearable. We had hoped to elimi nate that by eliminating t1 fault factor.

If it means enough money to feed them with the mother or father, whic hever the custodial pare may be,. may have to allow this to happen, but it is a terrible strain for children to go throug What is the real purpose behind this fault factor, then? Will it make that much difference in tt long run to the amount of maintenance paid? I can see it only as another means of keeping t1 female spouse under control dur ing the marriage. While the male's behaviour will not affect his rig to commer cial assets, the female's behaviour will affect her rights to maintena nce payments.

The1 is nothing just or fair about that situation, noth ing new either. We are back to square one. I felt at the time of my separation that the judge had been totally unr ealistic in the amount ' mone ys awarded. With having to pay $100 to a sitter, and having three childr en aged 11, 10 ar a year-and-a-half old, the judge said $17 5 would do me just fine. Now, it was actually lud icr01 in view of the costs that I had facing me, yet we had decided not to go into the reasons for separatir in t courtroom, so I definitely had not been found at fault.

All I can think of reading these bil now is, what in the world would have happened if I had been found at fault? No doubt I wou have been required to pay my spouse $100 a month, as well as support our th ree children. 1 read somewhere that 90 percent of the separat ions the husband had been judged at tau where it was contested, and yet the women had received next to zilch for their maintenance awar We are prepared to forego proving the husband was a meany in favour of receiving 50 perce1 of the assets required or acquired dur ing a marriage. That will be more satisfactory and mo1 practical.

Nobody can say for sure who was at fault in the marriage, though at the time most partne are equally convinced the other is totally respo nsible for the marriage breakdown. Lawyers are the only people who can profit from this situation, especially where there are limi tE assets. They will be paid out in litigation costs. The person who can hire the best lawyer will r doubt win the case, rather than the person who really would be at fault, if you could study it f, 54

Statutory Regulations and Orders Saturday, July 8, 1978 whole year .. I strongly urge that you remove this from the bill. Marital Property Act: I strongly recommend that family assets be considered shareable dur ing � marriage, other wise the whole principle of equal sharing has been ignored. Because 1 know too my women I've met, by the time they get in the court room, there are no assets accord ing to � husband. They have been transferred, sold, hidden - how can you apply for an equal share something that isn't there?

I can not use the words I would really like to about this bill, I will just say, "it's sheer nonsense." e division between family assets and comme rcial assets, it is transparent, crystal clear, that the ercial assets are set aside lik e a crown jewel to be won only by the male victor. Granting the >man half the family assets with no question of judi cial discretion sounds good, but, in effect she uld end up with alm ost nothing. If they have not bought a home, but always rented, there is nothing · her to automatically share in there.

If he has never bought a camper or opened a family bank count, there is nothing for her to share there. Particularly in a marriage which has been slowly heading towards a breakdown, a couple often 1es not replenish household goods. She may not have the right to sare the car, if he claims he eds it for work, then it becomes a commercial asset, so she may end up with only an automatic aring of the furniture. She will have half the old fridge, half the old stove, half all the wornout 'ods which she did not bother to replace since the beginn ing of marriage.

Since you will not allow spouse to have information about income, etc., without a Court Order, as I und erstand it, we e back to the same problem of the spouse who has no mone y to obtain one. How can she ask a judge for a reason able share of half of something she does not even know exists? Commercial assets are her onl y hope of having something realistic to start supporting herself th, and I'm rather concerned about the Hansard that I read, where Mr . Mercier gave an example how marital assets would apply.

He described a couple who started an insurance company, I 11ieve, where the male spouse decided to veer off into another line of work altogether, and he 1scribed that as an example that, when the marriage broke down, it would be logical that she >uld more or less keep the comme rcial assets she had earned with her career by staying on with e insurance company,

whereas he would keep the assets he had earned with his career. And mebody asked him, what would happen though if he stayed with the insurance company and she .d stayed home as a homemaker, and, as I recal l, Mr. Mercier replied, "Well then, she would be 1titled to 50 percent of the assets." And what is the message there? lt means that if a woman tes out to work and a man goes out to work, they are both going to keep their own income - that it? And the woman who stays at home, however, would receive 50 percent of the man's ;ome.

And seeing that the woman always get a lower income than the man it could end up a eat injustice. But I may be wrong, Mr. Mercier. Would you please advise us what provisions are made in these bills to ensure the wife can trace cessive gifts, because I know of people who have been unable to prove the existence of assets, :hough they were there just the year before the separation occurred. That may be a big oblem. A woman who is past president of The Federal Advisory Council of Ontario visited Winnip eg few months ago. She said the laws in Ontario are turnin g into a disaster for women.

She is now lvising them not to make mortgage payments entir ely out of their own paycheck, but to ensure at their spouse shares in those payments. Al ready unscrupulous spouses are learning that they 1tomatically share in the family home on marriage breakdown, but the female spouse will have contest and fight to prove her right to share in his bank acc ount, RRSPP pension plan , and ivate properties bought in his name, etc. Mr.

Mercier should not ask us to follow the laws set 1t in other provinces, since for various reasons, reports are filtering back that the women do not al they have achi eved equality in family laws. Manitoba had the best laws last Jun e, 1977, and we would like them back again. We are grateful at you have reconsidered your position regarding unila teral opting out; it would be gr eat if you >uld reconsider your position regarding all the other points brought out by those who advocate r complete equality in financial status in marriage.

I cannot bel ieve that politicians started out as young people with any other motive but to serve 10ple - they wanted to help their fellowman and woman also. Have you ever started rummaging rough a dr awer and suddenly wonder ed what it is you were searching for? Can it be that now u have reached your goal, as one of the highest mem bers in politic al office, you have forgotten 1y you first wanted to reach it? Politicians have a responsibility to all citizens, and not just the osperous businessmen of the commu nity.

By the changes you have made, one could suspect that ese bills were written with those businessmen first and foremost in mind. A little cleaning lady at work, who speaks broken English, ·b eing recently from Italy, said, :ons ervative Government Family Laws no good." Now, if even she under stood this, then word sprea ding, and on election day, the vote of that lady and the prosperous busine ssmen make them 1 equal footing. Thank goodness! 55

Statutory Regulations and Orders Saturday, July 8, 1978 it is hoped that the Con servative Government will reconsider and amend these bills. lt will t obvious that while they believe in the right of the individual to advance themselves financially, th4 believe in free enterprise, they obviously do not believe in equality for females. We do not feel th you have given us laws here - you have given us a grey mist - and we are going to enter tt court room having no idea how we will emerge. Mr s.

Myrna Bowman, a qualified Family Law lawyer, said, as the laws are presently written st could not advise her clients what to expect in a court room. That is wrong. This is your opportun ity to be regarded not as the rich man's fantastic people, real human being who care politician, but as for all the citizenry of Manitoba.

I know you are all anxious to go aw� with your families on holidays and you are putting in a lot of extra time here, but while you a1 away, I would ask that you all keep in mind that there are many families in Winn ipeg - wome and childr en - who have never had a vacat ion for five years, have no hope of having a vacatic for years to come, because they have never been granted equal sharing or any justice on marria� breakdown. Thank you. MR. CHAIRMAN: Are ther e any questions of the delegate? Seeing none, call the next person. M Cherniack. MR. CHEIACK: I thought I'd like to ask Mrs. Paxton a question. Mrs.

Paxton, your brief is clear and your advice is clear, but accept ing the fact that your advic will not be taken by the majority of this comm ittee MRS. PAXTON: Why not? MR. CHEIACK: Because the Conservatives have made up their minds about this legislation to large extent and MRS. PAXTON: I believe that everybody has an open mind. They are all intelligent people her - surely it's an educational pr ocess - everybody learns as you go, and surely if he listened t all these brilliant people who have been ahead of me, I certai nly cou ldn't offer much technical! that will influence your thinking.

Because there are a lot of women who aren't here, but they ar interested in it. They aren't up waving a flag because they have a husband at home, and it's kin of a strange situation. Even the best married men, I've been really surprised, the most happily marrie1 men who adore their wives - you can see that they get nervous.

My own son said to me, "That' crazy, you mean she'd get half my business if she met somebody else and went with him?" An1 I said, "Well, Bob, for centuries women have accepted the fact that their husband could meet anothe person and take off with 100 percent of the business." We've been pr etty good about this, yo1 know, so I think it's a learning process and I don't believe that the Conservative MLAs are an different from any other MLAs, it just takes exposure to the wishes of the public. MR. CHERNIACK: Wel l, Mr s.

Paxton, since I'm in a hurr y and can't wait for all of us to attai1 the level that you look forward to, I'm thinking more specifically of any changes that we might b1 able to persuade the majority of comm ittee to make in the legislation that has been brought befon us. So 1 am looking at the aspect of conduct. You will recall under the existing legislation whicl is now on the Statute Books, there is no opportunity in deciding on maintena nce, for the court: to look into the question of who was at fault during the marriage, and as a result th4 breakdown. MRS. PAXTON: That's right, yes. MR.

CHERNIACK: But the present law invites the Cour ts to go into the question of fault dur in! marriage. Now , with all that you'r e aware of that goes on in marriages, could you try to relatE the justification for going into the cause of breakdown as being a punishment or a benefit to eithe 1 the husband or wife in the payment of maintenance? That is the one specific on which I would likE to hear from you. Do you un derstand my question? MRS. PAXTON: Yes, I un derstand what you're saying.

And to tell the truth, I debated whether should make a few comments that I had wanted to make, and I thought no, that sounds as thougt I'm a trouble-maker trying to make some women feel un easy. But when I was married I was completeiJ green. 1 thought people got married and they cleaved only unto each other, and it was not unti 1 was a separated woman, living on my own, that I found out this isn't always the case. I knoVI many married couples are very very happily married, and they do stay together; however, I havE 56

Statutory Regulations and Orders Saturday, July 8, 1978 1et married men who like to have affairs on the side, and don't like their wives to know about . And I bel ieve that any women, living on thei r own in today's society, would agree with me. Now nobody is condem nin g - you know, there's little things that apply - I'm sure female spouses >o are sometimes not playing the role they should. But the problem is, the creativity and the niq ueness of the ideas of some of the stories I've heard to convince me that a man was not married, think must equally apply at home.

You know, the creativity to convince his wife he's living like saint out of the house. So bringing fault into it is not necessarily just, because it's not always case of who is at fault as much as it's a case of who got caught . Now, that's one thought. If ::>u want to talk about justice, that's just one thought, and maybe it's a silly notion, but it is a 10ught. But the other thing that bothers me is, I believe it takes two people - you start out very much 1 love with each other, it's a very sad thin g when a marriage does go bad, and it's a very hurting ling.

I'm sure, even now, looking back on my own marriage breakdown, I'm really not sure what appened, or who was at fault, to tell the truth. At the time I was sure it was all my husband's fault, and now we're friends. He was over, we ad coffee, we talked to each other, and I think it was just too bad we were put in that adversary osition at that time, because in the two or th ree months before we went in to get a separation, 1at's when the most damage was done, irrepairable damage.

You say terrible things to each other 1at you can never take back later, and I believe that, if possible, if a separation is going to occur, should occur with as much digni ty between a couple as possible. The children shouldn't hear eople scre aming and yelling at each other. And when you know who is at fault is very very im portant, nd the lawyers make a good point in letting you know when you're dre dging up every thing from 1e back, trying to prove to him that he was the one that did that and you didn't do that. So, it's bad system; the whole thing is sickening and we've got to get it out of there. IR.

CHERNIACK: But Mrs. Paxton, I am thinkin g now in terms of how much the maintena nce rder should be. What should be the amount paid by the husband to the dependent wife? Mr . Mercier as proposed that very serious - well, why guess at what the proposal is? The bill says that in eterm ining the amount the court may look at cou rse of conduct that is so unconscionable as to onstitute an obvious and gross repudiation of the marriage rela tionship. That is, in determ ining ow much shall be paid. IRS. PAXTON: Right. IR.

CHERNIACK: And since you are a person who has told us in the past that you managed to ecome independent, financially independent, after a period of time, I refer you to Mr . Mercier's ords where he said on this question, "The question arises as to why include conduct as a factor 1 determ ining a maintena nce order.

I think the response is unanimous to exclude conduct in etermining an order for maintenance would simply be unjust, that an indi vidual ought to be held lsponsible for his or her own actions is an accepted concept, and the concept of indi vidual lSponsi bility is the fundamental part of the law of tort, criminal law as well as other areas of the ::>mmon law, including other aspects of family law." Now, I mention that in order to have you react to the tbought that a man who acts in a comp letely nconscionable manner so as to constitute an obvious and gross repudiation of the marriage llationship - and 1 don't know what that would mean, you may have your own ideas - should ave to pay more than is necessary to support his wife acco rding to their standards because of 1at; or the converse, if the wife, who is dependent, behaves in such an obvious and such a bad ay as to constitute an obvious and gross repudiation - I don't quite know what that would be, 1d you have your ideas.

IRS. PAXTON: No, nobody does, no. IR. CHERNIACK: But then the suggestion is that she would get less than would be other wise :�yable. I'd like you to comment on that, since you've lived through that kind of an experience 1d know others who have. 'RS. PAXTON: Wel l, I believe that it's illogical, totally illogical, particularly if there are childr en mcerned, to punish the family, you know, it's like a reward if you can prove that spouse did >mething - pun ish those childr en, you know, is what you are doing, and in so many cases of arriage breakdown there are childr en.

When a couple has been married about 25, 30 years, there ·e more comme rcial assets, hopefully, which could be spread around so that the maintenance itself ... You know, 1 can't see a judge telling a man he's got to pay even more maintenance than l would have before because he was found at fault. But I can see a judge punishing the woman, 57

Statutory Regulations and Orders Saturday, July 8, 1978 if she was found at fault, with a smaller maintenance payment, somehow, 1 can. And 1 feel it's punishing the childr en , taking food out of the children's mouths, you know, because the mothE did something wrong. Now, if you want to compen sate - I sat down and figured it out last night. If a man were t pay his wife for child- care services at the rate she must pay a day care service, for eight hour a day, I figur ed out for three children it came to $1,12 5 a month, on a 24-hour daily basis, fc only 28 days; that's February. Oka y.

Now, even if she was at fault or not, I mean, they've bee getting pretty free babysitting from the wives so far, haven't they, while they're out doing their ow thing, on a marriage breakdown? And many men can't even stop long enough - if they do vis with the children it's four hours on a Saturday afternooon, so it doesn't in terfere with their socii life at all. Meanwhile, she stays home with them Saturday night. I know, Christmas dinners and s on, my children usually went over to my husband's, but New Year's Eve I could be pretty sure I' get them, you know.

So, the woman is providing a service that's an unpaid service when it says right in there, "o mutual obligation for supp ort of childr en." Now, that supervision of children is a necessity undE the law, if they're under age 12. If his wife weren't there to look after those childr en he'd ha11 to pay a babysitter on a 24-hour basis, so, she's giving him free babysitting and it's pretty expensi11 if you pay for it. So, even if there's fault for the female I believe the judges have unde rcut female all along; they will continue to do so.

I think allowing fault to be put in there is just another loophol that maybe a man's going to save his skin.$ MR. CHERNIACK: Mr s. Paxton, one other aspect dealing with dur ing a marriage. There is a chang from the previous law that was passed last year and what is now prop osed in relation to joir ownership of famiy assets; that is, joint ownership of the home, of a summer cottage, of the ea the furniture, whatever is used within the family. MRS. PAXTON: For the family use, yes. MR.

CHERNIACK: The change now being made is to exclude that and say that there is not joir ownership un less there is a breakdown and separation. MRS. PAXTON: Oh, yes. That's what I was trying to say. MR. CHERNIACK: And what has been said by some is, "Don't let the government in terfere betwee my wife and me while we are married; we can work things out our way. Don't walk into our househol and tell me and my wife how we should relate to each other." And this goes further, this goe to the use of the family cheque, the payroll, the paycheque.

This would relate to the assets I'll mentioned; it would relate to knowledge as to what the earnings are. Under the law that has alread been passed it says that a wife is entitled to know what her husband is earning, and vice vers� Our law, the one that is being brought in by the government today, is that a wife is . entitled t ask, but she cannot obtain the information un lsss she goes to a court and gets the court to ordE the informa ti on. What is your reac tion to that? MRS. PAXTON: I was aware of those points you brought up, and as I said I was most upset abm them.

I don't know, maybe I bypassed it - I did have it in my brief - there must be sharing c family assets while the marriage is going on, because a wife on her wedding night doesn't say t her husband, "Now, I'll share the marriage bed with you, I'll cook, clean, and bear your childre for you when our marriage breaks down." Now, another thing, an empl oyee would not accept a job if the emplo yer said, "We ll, look, thi is the offer I'm making. While you're working for me I'll give you board and room and a few bit of clothes here and there, but don't expect any wages un less I shut down my busine ss some day.

Now, not knowing if the emplo yer is going to be bankrupt or not by the time that business shut down, what emplo yee in their right mind would accept that job? And that is what men are askin of women if they ask them that there should be no sharing of family assets un less there is a marriag breakdown. Anybody who says that it's intrusion on the privacy of the home is a male chauvinil wanting to keep the wife under control; that's the only reason that they could make that statemer or objec tion, because it is denying the woman the equal partner ship.

We're not going to say ever marriage is going to break down, and hopefully, even when there is a happy marriage, a woma is not going to have to feel lik e a 12-year old asking her daddy for $5 all her life, and wonderin if he will approve of her deciding to want to purchase this - all her life - it's ridiculous. Yo don't grow as a person you just shrivel up and die. Okay? MR. CHAIRMAN: Thank you kindl y Mrs. Paxton. 58

Statutory Regulations and Orders Saturday, July 8, 19 78 Ms. J.M. Anderson-J ohnson. S. ANDERSON-JOHNSON: I personally would like to think that in this day and age ind ividuals :un from their life experiences. Sometimes these lessons in life, as they are, carry hurt with them, 1t these are often the best-remembered and most lived by. As one of the many children who have 1rvived a marriage breakdown I also learned that the law does favour one half of the union more an the other, and that it is only by the persistence and strength of one parent that some form family unity is pr eserved.

I am presenting this brief on behalf of myself and my brother in protest of the system which >es not come to the aid of women like my mother, who are forced by necessity to make a new e of their own. In our specific case it seemed that at every turn we ran into a brick wall of disconcern 1d a lack of knowledge. We left hurriedly in the th reat of physical danger. Police, when called, d nothing to lessen our fears or provide for our safety. Upon leaving we finally obtained a separation 1reement, at which a maintena nce payment of $50 per child, per month was decided.

There were so verbal promises of extra help stated at the lawyer's office. After four payments these ceased. llage muni cipal officials and the church were sympathetic but could not offer any con crete 1ggestions to help our situation. Again, the lawyer was contacted to see if we could legally enforce maintenance. He advised against gal proce edings because my brother and I were no longer infants.

He also cautioned my mother at she could be responsible for court costs, therefore, my mother chose to accept the responsibility parenting and supporting us, both economically and psychologically. - This brief is intended to show that many women, like my mother, dis cover that looking for help lcomes an exercise of futility, and finally reach such a level of frustration that these efforts are >andoned. We felt maligned by a social system that could not even grant us the human right of lrsonal safety, and instead, gave a feeling of patronization in even looking for it.

Trying to collect maintena nce payments also gave this feeling. Between the costs of supporting tildren and retrai ning for a viable economic profes sion, many, lik e my mother, must cope with e realization that even though maintenance payments are legally bound there is nothing in the w to enforce it. Some MLAs who represent the rural areas are disinclined to believe in the need for updating mily law simply because they do not hear about it in their constituencies. I am sure they can lpreciate the reality of the fact that there are few people who would phone up their MLAs to help 2:00 o'clock in the morning.

I would suggest that perhaps you can check around, because there e very many people in rural areas who have nowhere to go. These family law bills do offer some relief for the problems, but I urge you not to overlook the et that there is much more to be done. If what is needed is to hear from all the people who have td to cope with marital breakdown I hope they will all come forward and explain it to you. Thank you. R. CHAIRMAN: Are there any questions? Mr. Cherniack. R. CHERN IACK: Mr. Chairman, I do. I'm sorry, Ms.

Anderson, I was slow in asking for the floor lcause frankly, I was somewhat moved by the way you said it, I think your mother deserves a eat deal of congratulations if she had, in fact a role in your presenta tion. One point you made which I want to explore. The Maintenance Act provides for an order to l made and that includes the prohibition of a spouse entering the premises of a separated wife. >u have suggested at two in the morning, how do you get help? Are you saying that you cannot !t police pr otecti on? S. ANDERSON-JOHNSON: Not easily. R. CHERN IACK: Did your mother have an order, a court order? S.

ANDERSON-JOHNSON: No, we didn't have an order, but we phoned the police on the night � left, because, it definitely was not safe. But the RCMP from Selkirk didn't even show up and e town police decided that maybe they should take him home and put him to bed. And things e that happen often. R. CHERN IACK: 1 am sorry. Was that one instance, or have there been instances after the paration? S. ANDERSON-JOHNSON: No, that was the last instance; the one and only. 59

Statutory Regulations and Orders Saturday, July 8, 1978 MR. CHERNIACK: I see. All right. Now, what you have described is a situation that makes rr feel kind of helpless, because you say that imp roved family law would assist, and I'm not sure i what way this new law would have helped you or your mother. And the old law - I feel kind c frust rated about that. . MS. ANDERSON-JOHNSON: We ll, it would have helped if we would have had maybe sorr maintenance payments to help out. My mother went through a whole retrai nin g career in un iversit: simply because she was not trained for any other job.

Renting a house and supporting two kic and having to use a car, and you know other thi ngs like that, is not something that come cheaply. MR. CHERNIACK: Well, in The Maintenance Act there is a sect ion of which reads that a cou may order a person to deposit a sum of mone y in court or to enter into a bond to make th maintenance payments. lt has been suggested that the sect ion be changed to a court "shall" order, would that ha� made any difference in your situation? In other words, was your father capable of making a paymen1 Did he have assets? MS. ANDERSON-JOHNSON: Yes. MR.

CHERNIACK: Wel l, if there had been an order made, a requirement that there should be bond posted which would be his personal pledge, or a specific sum paid, do you think he coul have done so and would that have helped? MS. ANDERSON-JOHNSON: lt might have helped, but if anybody really wants to skip out o maintenance payments they can always just lea ve the province. MR. CHERNIACK: Did that happen in your case? MS. ANDERSON-JOHNSON: No.

Wha t you don't realize is that for every woman and childr en, c any spouse who tries to get something done - maintenance payments two months after you lea� don't help much, you've starved to death already. lt's just that every time you turn around ther is always somebody there saying, "Wha t am I supp osed to do? Here's five bucks," you know. An it's total degradation of the family unit to force part of that family unit to take a short trip throug hell is basically what it is, and you keep overl ooking the fact that only rich people get divorcee but that's not true. MR.

CHERNIACK: Could there have been a situation that would have been more helpful had ther been a distribution or equalization of the ownership of assets in that? MS. ANDERSON-JOHNSON: lt doesn't matter. Even going for, say, half the value of the house First, the house has to be sold, and it's lik e pulling teeth with pliers. Getting furniture out of th house can even be a hassle. The lis t is so end less that it doesn't really matter, it's just on an on and on, and it doesn't stop even after a divorce is finalized or a separation agreement finalized. MR. CHAIRMAN: Thank you kindl y.

The Coalition on Family Law, Alice Stein bart. MS. STEINBART: I have copies of my brief here. Mr. Mercier, we are glad to see that you're bac but the Coalition is still critical of the decision of your government to hold these hearings on July weekend, particularly one that is in conflict with a major annual event, the Birds Hill Folk Festiva We are critical, /e, not because of our own convenienc I know some people have misinterprete that saying, "Well, you want to go to the lake and you don't want to be here." We' re here. We 'r critical because of the public.

The public will not have the same access on a July weekend as would on a different kind of a weekend . I know we have had hearings before in October, Novembe May and 1 think the beginning of June last year, until about June 4th; those weekends are differer from a July weekend . We are also critical, of course, because the hearings started in our absence. We know that ye had an imp ortant meeting to atten d, but this is also an important meeting and we had asked th; you put it over to Monday, which would have allowed people to be here.

The Coalition on Family Law supports The Marital Property Act and The Family Maintenanc Act passed in June, 1977, by the pr evious government. The Coalition's position is that these Ac· must not be repealed and this position is supported by many indi viduals and the followir 60

Statutory Regulations and Orders Saturday, July 8, 1978 manitoba Action Comm ittee on the Status of Women Voice of Women Canadian Congr ess of Women UN Associa tion A Woman's Place Manitoba Teachers' Society Women's Liberation Manitoba Libr arians Association ND P Status of Women Comm ittee Liberal Association of Manitoba YWCA Un iversity Women 's Club Provincial Council of Women Diocese of Rupertsland Federal Advisory Comm ittee on the Status of Women Provincial Organization of Business and Professional Women 's Clubs Winnip eg Council of Self-Help Comm ittee for Women Artists, Winn ipeg Manitoba Associat ion of Social Workers Women 's Ins titute Manitoba Association of Registered Nurses Law Un ion Manitoba Federation of Labour Manitoba Division of Canadian Union of Public Emp loyees Manitoba Associat ion of Women and the Law In the fall of 1977, you suspended The Marital Property Act and The Family Maintenance Act, nd for the purposes of this brief and in keeping with the principle of calling a spade a spade, shall refer to this legislation as the good legislation and Bills 38 and 39 as the bad legislation.

Vhen you suspended our good legislation, you said that you did not intend to change any of the rinciples of equality.

Bill s 38 and 39, ho wever, do change the basic principles of the good legislation. here have been five main principles which have been attacked by opponents of the good legislation, .amely, 1) all assets acquired during marriage, including commercial assets, be shared equally; 2) 1e family home and family assets be equally owned dur ing the marriage; 3) the new law apply equally ) all Manitobans - no unila teral opting out; 4) all assets be shared equally with only lim ited judic ial iscretion to allow un equal sharing in rare hardship cases; and 5) maintenance should depend on eed and not fault.

You have watered down or elim inated th ree of these five principles of equality, namely, 1) the imily home and family assets are not going to be equally owned dur ing the marriage; 2) maintenance ri.ll be reduced if there is fault, even if there is need; 3) commercial assets will not be hared equally, 1e wife will receive less than one-half. Let us look at these principles of equality which you said you would not destroy, but which you re now trying to. First, the family home and the family assets will not be owned by the couple uring their marriage, but only if there is a separat ion.

Your government has said it believes in the rinciple of equality and that marriage is an equal partner ship. Bill 38 does not say marriage is n equal partner ship. Bill 38 says there will only be equality, at least in respect to the family home nd the family assets, if there is a separation. lt is obvious that there is a vast difference between equality in marriage and equality only if 1ere is a separation. So what are your reasons for legislating inequality? Mr. Chairman, I would be prepared to continue when the members are prepared to listen. I am till waiting for the members to listen. IR.

CHAIRMAN: Would you carry on, ple ase? IS. STEINBART: I will carry on when the members are prepared to listen. IR. CHAIRMAN: Wel l, who are you waiting for? The Attorney-General is sitting here listening. IS. STEINBART: I believe that Mr. Domino is not paying atte ntion, and I believe he is a 1ember. R. CHAIRMAN: Mr. Spivak. R. SPIVAK: Mr . Chairman, just on a point of order, I think that the conduct of the meet ing is 61

Statutory Regulations and Orders Saturday, July 8, 1978 entirely in your hands and I do not think it's in the hands of the witness. With all due respect, think that she has a right to make her presentation and we certainly have a right to listen, bl she has no right to dictate as to the conduct of any indi vidual member. And that is really in yol hands, if we are not proceed ing in the normal way, then you can certainly advise us; if we an I think we should just continue. MR. CHAIRMAN: Ms. Stein bart, would you continue on? MS. STEINBART: Yes. So what are your reasons for legislating inequality?

The Attorney-Gener: in introducing Bill 38 for second read ing said that it was due to tax impl ications and creditors' right: What tax impl ications? The Federal Government in its latest budget has said that the Inc ome Ta Act is being amended so that there will be no tax imp lications on equal sharing. So why do yo rely on the aargument of tax imp lic ations? Well, the Attorney-General has told us privately that h still feels that there is one tax im plication. I disagree with him.

However, he says that if the goo Marital Property Act is reproclaimed a couple cannot claim two principal residences - the city horn and the summer cottage - and thus avoid capital gains twice. Let's examine this tax implication. A couple could still claim two principal residences. They coul opt out by agreement from equal ownership of the city home and the summer cottage and eac own one and each claim one as a princi pal residence' Ts, there is no capital gains. So where ar the problems? They never existed. The second reason given by the Attorney-General is due to the problems with creditors' right: Mr.

Mercier, of course, has never been more specific because this problem evaporates as quickl as the tax impli cations. Again, let's look at it. A creditor, before the good legislation was passec may have lent money to a husband to pu rchase a car and put a chattel mortgage on that car. Doe the creditor suddenly lose half of his security because with the good law the wife would own ha the car? No. In California, where all the assets are equally owned by the couple dur ing the marriagl each spouse has the right to deal with their joint property.

In Manitoba, by the laws of partnershil each partner can make the other partner legally liable or responsible. My law partners can dispos of our assets and I am stuck with that decision even if I don't like it or know anything about i In the same way a husband or wife can deal with the family assets, can sell or rent or mortgag the assets. The pu rchaser or creditor does not have to obtain the consent of the other spousl but the spouse who sells or mortgages must account to the other spouse immedia tely, and ne just on separation. The third party or creditor is protected.

The creditors' rights are protected, ther is no problem . lt works. What is amazing is that despite these two examples, that is, Californi and the law of partnersh ip in Manitoba, you are unable or unwilling to allow equality i marriage. Tax impl ications and creditors' rights are red herrings. You are trying to pull the wool over Ol eyes.

The Attorney-General when confronted, dur ing our interview with him, with the facts that ther were no problems on equal sharing of the family home and the family assets, then resorted to th argument that equal sharing of the family home and the family assets on separation gives wome enough protecti on; that there is no need to have equal sharing during the marriage. That, of cou rsl is simply not so. Bill 38 gives the husband the right to do whatever he wants with the family assets without an say from the wife. lt doesn't matter what she wants. That is not protecti on.

And for many wome the option of breaking up the marriage to get her share is simply not acceptable. Th Attorney-General has pointed to

Section 6(2) and 6(3) of Bill 38, which gives the wife the right t use and enjoy the property, and to

Section 6(6}, 6(7) and 6(8}, dealing with dissipation, excessiv gift, and selling for less than fair market value as examples of protection of the wife and as reason why equal sharing is not necessary. Let us examine these sections.

Section 6( 1) gives the husband the right to do whatever he wan1 with the famiy home and the assets, although the wife, un der The Dower Act, still has the rigt to say no to a sale or mortgage of the home.

Section 6(2) and 6(3), the wife can use and enja these assets as long as her husband has not sold, rented or mortgaged them. As soon as the husban decides to sell, rent or mortgage, the wife loses her right to use and enjoy.

Section 6(2) and (: are meaning less. Some protec tion. As for dissipation, gift and sale for less than value, these

definitions are extremely narrow s that there would be very little protect ion. A husband can, in many instances, sell, rent or mortgag an asset without that being dissipation, and in many instances, give away assets without that bein excessive. ' . Again, some protec tion! So the last of your reasons for denying equali1 evaporates. The Review Committee has argued that the right to own property during the marriage is a papl right, and th erefore does not need to be granted. That is not true. lt is a substantial right and is for the very reason that it is a substantial right and not a paper right that the opponents war 62

Statutory Regulations and Orders Saturday, July 8, 1978 J deny it to women. You have all heard the rumour which has been going around the province 1at the good law meant that men had to share their busine sses with their wives and that the wives rould have a say in how the businesses would be run. In fact, the good law never said any such 1ing, because that was so substantial a right so scary to men who might have to give up control, J share ownership that even the NDP backed off and would not accept it. The right to own dur ing 1e marriage is no paper right, it's the real thing.

The Attorney-General, in arguing against equal sharing during marriage on second read ing, said, nd I quote: "there is also the question of whether governments should interfere in the lives of 1arried persons living together, whether or not they are responsible enough to make their own ecisions ... " Another red herring. The old law which Bill 38 is re-legislating and which Mr . Mercier ; arguing for, inter feres grossly in people's lives. Whenever a couple marry, the law imposes a 1arriage contr act.

That contract says that this couple will have separate property. lt does not matter 1at the couple when they marry intend to enter upon a life e together and so vow dur ing the marriage eremony, that they intend to share every thing. The law (Bill 38) will inter fere anyway and im pose separation. Why do you assume that on getting married, a couple is now or will un der Bill 38 ,e able to plan their life together? Where do you get the idea that the present law and Bill 38 re not interfering in people's lives? What do you think a marriage license is - just a means of :�.ising mone y for the state?

A marriage license has legal impli cations. lt imposes a legal status nd a legal contract on a couple. lt means that the husband who is out earning the income owns very thing, while the wife, who is at home looking after the childr en, owns noth ing, because she as no money to buy anything. The only way she gets anything is if he gives it to her - the law f gifting. If her name is on the house title, he is deemed to have gifted one-half of it to her.

If 1ere is no title, as with the family furniture, then it becomes a matter of evidence whether he intended :> give her part of the stove, fridge, chesterf ield, etc. A very dic ey situati on, and sometimes very ifficult to prove. That is the lrene Murdoch law - no gift, no mone y, no ownership - and that ; the law Bill 38 is set ting up. The wife must either pay for it with her own separate money (not is) or it must be gifted to her. And you think that is not interference in people's lives?.

Perhaps you think that's fine; he can always give it to her if he wants, and that because he as the right to give, there is no interference. What about her? Do you ever see it from her point f view? Where are her rights when the law says you do not own because you have no money, nd your right to own depends on his largesse? lt does not depend on your marriage, on your ontribution, or on your devoting your life to home and family, on your belief that you are sharing. hat is not interference?

Your refusal to legisla te equal sharing dur ing marriage flies in the face f the intention of the parties and equity, and contradicts your own reasoning. This argument, like our others, holds no water. So, if all the arguments you have given us as to why ther e should be no equality dur ing marriage re grou nd less, where does that leave you? lt leaves only one possible conclusion. Bill 38 does ot allow equality dur ing the marria ge because you do not believe in equality dur ing the 1arriage.

The second principle in the good legislation which you are destroying is that maintena nce should e based on need and not fault. Bill 39 has re-introduced fault - a lim ited fault, but fault nevertheless. means that while the defaulting spouse will not be denied maintena nce comple tely, maintenance an be reduced so that that spouse's needs are not being met. Presumably, the opposite might e true, that the spouse who does not need maintenance can get it. However, the realities are that lis

section will be used to reduce maintenance to a woman who needs it, and not to give it to woman who does not. I have many times heard lawyers in Court argue that a woman should be enied maintenance or maintenance should be reduced because she is at fault. I have yet to hear 1e argument that the man should pay more because he is at fault. Those are the realities of the ituation. The purpose of maintenance is to provide suppor t to the spouse who needs it. The purp ose f maintenance is not to act as a reward for the good spouse or punishment for the bad.

The purpose f maintena nce is not, as the Attorney-General argued on second reading, to provide an "example" l the childr en, to influence the childr en as to "the indi vidual and colle ctive responsibilities in tarriage." The purpose of maintena nce is to provide support.

The Coalition envisions three common examples of where maintenance would be required: (I) >r a mother with young children who must stay home to look after those childr en; (2) for a woman ho has, because of the marriage, been out of the workforce for some years and therefore requires 1b retra ining; and (3) for a woman who has been in a long-term marriage, has not been in the orkforce and is approaching retirement age. Maintenance for a young mother and for re-trai ning ould be short-term.

Maintenance for the older woman would be .long-term, for the rest of her life. fault were introduc ed into any of the se situations, it would distort the whole purpose of 1aintenance. Let us go through the examples. Mr. Mercier, in introducing fault, listed a nu mber of cases. One 63

Statutory Regulations and Orders Saturday, July 8, 19 78 of them, West against West, was used by the Attorney-General as an example of "gr oss and obviou repudiation of the marriage" - as a flagrant example that could not but rouse people to feel thi: woman doesn't deserve maintenance. In that case, the husband purchased a new home and th1 wife refused to move into it with him. She continued to live with her parents and he went to liv1 in the home. They maintained their marriage, however, and subsequently had two childr en .

Finall} the husband decided to separate after six years of marriage and the Court of Appeal in Gr eat Britai1 said the wife's behaviour was a gross and obvious repudiation of the marriage, although she wa given custody of the childr en . Under the fault system in Bill 39, this woman would receive child maintenance, but an· maintenance she would receive for herself so that she could stay home and look after her youn! childr en would be reduced, perhaps even to the nominal sum of $1.00 per year (and thes1 $1.00-a-year sums are now very common).

This would mean she and her two young childr en woul1 not have enough money to survive. Is that what you want? Exactly what example is this going t1 set for those two young children? Are they going to feel better? Is it going to help them that th< court has said their mother has set "a foul example?" So foul an example that she has been give1 custody? Are these two childr en going to be better off because the Ccourt has upheld "the indi vidu� and colle ctive responsibilities involved in marriage?" Mr . Mercier, you have been citing this exampl' in your public in terviews.

We suggest you look again at your fault provision and this case from th1 point of view of the consequences. In Hansard, and speaking on fault, the Attorney-General quoted the Review Comm ittee as sayin! "n o-fault maintenance flies in the face of what ordi nary people perceive as justice, fairness an1 common sens e." The trend today is towards no-fault, in particular, no-fault divorce and no-faul separation. The Coalition, which speaks for a large num ber of indi viduals and organizations, support no-fault. In view of this, what evidence do you have that the public wants fault?

There has bee1 no evidence of a groundswell in support of fault in the way the Coalition supports no-fault. Th1 evidence does not come from the Review Comm ittee. They don't represent anyone excep th emselves. So where do you get the idea that people want fault? Do you just feel this in the marrm of your bones? Gut reac tion, or man's intuition? Or do you have some evidence? The Attorney-General in arguing for fault on second read ing said "the idea of no-fault maintenanc ' rem oves an element of indi vidual responsibility from the law that relates to the behaviour betwee1 the spouses ...

" The Attorney-G eneral, of course, refers to assessing responsibility for marria g' breakdown and not the respo nsibili ty to support a spouse who needs maintenance as a result o the marriage. The question is, why is responsibility for the marriage breakdown given more weigh than respo nsibili ty to support? There's two responsi bilities here - why is the respo nsibility for marriage breakdown supersede1 by the respo nsibili ty to support? Or, to take the question further, why is the assessment c respo nsibility for the marriage breakdown tied in with money? What possible rela tionship is then between the two?

If you feel such an assessment of the responsibility is necessary, then let th' judge make the decision, but make sure it does not affect maintenance. Or, even another questior if responsibility is so impor tant, then it's possible to tie it to the right to obtain an order for separatior provided always, of course, the right to receive maintena nce is not affected, that the spouse ca1 get an order for maintenance without getting an order for separation.

Considering all these questions, and solutions, it appears that the key is mone y - maintenano - that the unarticula ted major premise (to use the words of the Review Comm ittee) is that th< husband must be protected from paying maintenance to that bitch. Und er The Wives' and Children's Maintenance Act, a husband had to pay maintenance to hi wife and his only protection or loophole was fault. If he could show fault on her part or no faul on his, then he was free. There is, however, no need to continue this protection for the husbanc because he is already adequately protected by The Family Maintenance Act.

The Act says a wif, will not get maintenance unl ess she needs it, and she must prove her need. Even more than thal she is obligated to try to become financially independent as soon as possible, and before she get maintenance, she will have to show the judge why she is not financially independent. Therefore in the hypothetical example which the Attorney-General cited to us during one of his meetings wit us - the woman, on a whim (on a whim, no less) who runs off with the milk man may not nee1 maintenance because the milkman is supporting her, or she is financially independent.

Therefore it would be un necessary to consider whether she has repudiated the marriage. The Coalition is opposed to fault- finding, as it is not possible to blame only one person. lt take two to make a marriage, and two to break it down. On the surface, it may look like one perso is at fault, but how can any outsider truly know what went on in the privacy of that home?

Ho1 can anyone truly know what drove the defaulting spouse to repudiate that marriage so obviously If you feel tha t one person would leave a marriage on a whim, then you don't un derstand huma needs and hopes and desires, because people don't treat marriage that casually. Maybe on th surface they do not want to reveal their hur ts or needs, but they are still there. No one shoul 64

Statutory Regulations and Orders Saturday, July 8, 19 78 3 saddled with blame for marriage breakdown, because that marriage did not work. The Attorney-General, on second read ing, gave a list of a numb er of cases dealing with fault Britain. There has, unfortuna tely, been some confusion about these cases, as some people have terpr eted them to mean that fault is all right and that every thing is clear and will cut down on igation. That does not follow.

These cases show only one thing - that the words "gross and )Vious repudiation" have been considered in British cases and these cases may or may not be 'll owed here in Manitoba, but whether they are followed or not, in the meantime there will be creased litigation in Manitoba on this point while our courts decide whether to follow these cases · make their own precedents. Last November, when you suspended the good legislation, you said that you would not change 1y of the principles in the new laws. That was part of your promise.

On May 29, 1978, on second 1ading, in summa rizing Bill 39, the Attorney-General, in Hansard said, "I believe, Mr. Speaker, there ·e relatively few other changes in principle. I believe the real principle involved in the change in tis particular piece of legislation is the introduction of conduct as it may relate to the quantum I maintenance." This is an admission by the Attorney-General that you are atte mpting to do the �ry thing you said you would not, changing the basic principles of our good legisla tion.

The third principle which you are destroying in our good legislation is the principle of equal sharing I all assets acquired during the marriage, except in rare hardship cases where there would be nited jud icial discretion. Bill 38 has retained equal sharing of the family home and the family assets, ut commer cial assets, that is the bank accounts not used for family maintenance, bonds, busin esses, trms, revenue homes, pension plans, are not going to be equally shared. The Attorney-General has said that there will be equal sharing, that

Section 12 provides a resumption of equal sharing which will only be varied if the judge finds it inequitable, having in tind all the circum stances of the case and considering factors (

a) to (j). That does not sound so ad at first glance, but let us look at it more closely than a glance.

Section 12 says there is to e equal division of all assets.

Section 13 deals with the exceptions, the buts, maybes and ifs. IR. CHAIRMAN: Mr . Domino. IR.

DOMINO: While we have this refre shing brief moment of silence here, I wonder if it would e order for me to point out to the lady who is prese nting that it is her time she is using up, and 1at this comm ittee only allows a certain amount of time and that members of this comm ittee, as 11 Members of the Legislature at all times have the right freely to consult with other members and 1at if she, as I take it, is offended by our consulting while she is presenting her brief, that she 1ight consider the lesson that I learned as a school teacher some time ago, that it is very difficult > dic tate to students or to any audience that they must pay atte ntion.

The best manner in which > do that is to present an intelligent and a reasoned and a very appropr iate lesson to eople. I notice that women are just as capable, I see, of being offensive and insulting as men can be )0 ... IR. CHAIRMAN: Order please. Mr. Domino has the floor. IR.

DOMINO: I'm not quite sure if these remarks are even in order but I think they would be f assistance to the lady who is making her presentation because I'm listening and I may assure er most mem bers of this committee are and that we are going, as we do for many different groups n various pieces of legislation, at all times we make ourselves available to listen to the comments 1at are made by the public and we'll conti nue to do that. We make reasonable effort to do this ut I don't think ... Pardon me, that's good enough for this point. IR. CHAIRMAN: Ms. Steinbart, would you carry on please.

You have used 30 mi nutes but I will rant you some extra time. Please carry on. IS. STEINBART: I'm glad, Mr. Domino, that it is just consultation and if that's the case, that's ne. The family home and the family assets will be shared equally unl ess equal sharing is "grossly nfair or unconscionable having regard to any extra ordin ary financial or other circums tances of the )Ouses or the extiaordin ary nature or value of any of their assets." lt is obvious that these words re very li miting. There will be equal sharing except in rare hardship cases.

The commercial assets, n the other hand, will be shared equally unless equal sharing is "inequitable" taking every thing 1to account, not just the "extraordin ary" things, but every thing, not where it is "grossly" inequitable, ut only inequitable. Now, of course, that may seem like a bantering of words, like splitting hairs, but that's what 65

Statutory Regulations and Orders Saturday, July 8, 1978 lawyers do, and that is what the judges are going to do. They have to, because of the Rules Construc tion. Our laws on the Rules of Construction have grown up over the past centuries a1 they are going to be applied to

Section 13 and the judges are going to have to find that the is a difference between

Section 13(1) and 13(2), that there is going to be a difference between family home and assets and commercial assets, and the difference is going to be between eqL sharing and unequal sharing. lt is not going to be between equal sharing as opposed to equal shari1 because that is not a difference. There will not be equal sharing of commercial assets except rare cases. In other words, the exact opposite of the family home and assets. The family home and assets will be shared, except in rare cases. The commercial assets y, not be shared equally except in rare cases.

The Attorney-General, in a letter to the Editor of The Tribune, June 16, 1978, stated that tl amendments to the legislation would make Manitoba's law better than Alberta's or Ontario's becau those two provinces had wide judi cial discretion. The Attorney-General meant, of course, th Manitoba's narrow judicial discretion on sharing the family home or assets is better than Al bertl: or Ontario's wide judi cial discretion. Or to put it more sily, narrow jud icial discretion is better th• broad judicial discretion. Finally, you have admitted it. But having admitted it, why do you legisla wide judicial discre tion?

Again, the only possible conclusion - you don't believe in equ sharing. You all know what judi cial discretion is. lt means the judge must decide what he thinks is rigt

Section 13(1) allows very limit ed jud icial discretion.

Section 13(2) allows very broad judi cial discretio You say you trust the judges. I'm sure you do because you know exactly what they are going do. In New Zealand and in Britain, the judges have broad jud icial discretion in deciding how t1 property should be divided. In Britain, the cases have shown that on an average, a woman receivE one-third and the man receives two-thirds. You all know this and you still want broad judici discretion, so the logical conclusion is that you want unequal sharing with the wife to receive les You have every reason to trust the judges.

You have no reason to feel the judges in Manitoba a going to be any different from the judges in Britain. In fact, on the very question of fault, t1 Attorney-General listed only British cases, expecting full well that the judges here are going to t exactly the same as the British judges and give those words exactly the same meanin -(I nterjec tion)- You don't want them to have the same meaning? You know that

Section 13( is going to mean unequal sharing. The Attorney-General has admitted this by imp lication in second read ing when he said Bill � was better because it pr otected women's rights better, as now they can get more than half. Th is a classic statement, a classic red herring, a classic distracti on, a very interesting bait to dang before .our eyes. Mr. Mercier, why do you want women to have more than half of the commerci assets but not more than half of the family assets and the family home?

Does it sou nd logical th; a woman will get half of the home and the furniture but more than half of her husband's busines or more than half of the family busine ss? Now perhaps you were thinkin g of ins tances where tt wife had her own business; she started it; she built it up. Maybe you were thinking that she shoul not have to share it. Why, because she is female? If that is the reason, then that is truly dangerou Or perhaps you use the rationale that she started the business and built it up and he did not wo1 there.

That, too, is a dangerous argument, because the reverse would leave thousands of housewivE in the same position they are now, in the same position as lrene Mur doch, with nothing. Marriage is an equal partnership, each person contribu te

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-2-sro2
Type	hansard
Volume / chapter	31st 2nd hansardpdf sro2.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	b7692fcd1c570c4bfb335b9577985f2647933b86

Source file is stored in the law ingest library (pdf).