VOL. 2 PRELIMINARY utiED!TED TRANSCRIPT HOUSE OF ASSE!-!BLY FOR 'l'HER PER!OD: 3!00 p.m. - h':'OV J:. • .-.• THURSDAY, NO~~ER 22, 1979 NO. 35

~:ove:trb11r 22,1979 '!'ape No. ::!.275 lt!1-l '!he Mouse ~et. at 3:00 ?.!!. ~r.sreaker in t~e c~air. :A.R.Sl?FAYEF: (Simms} OrCler, r:lease ~ S'!'ATEHENTS BY !UNISTFP..S The hen. Hinister of Education. 1-!r. Speaker, ! have a statement about schoc!. cons'!:ruction funding. !1t the present there appears to l:::e a great deal of pcl:lic concern about t..l.:e inadequ<>.C'f of sdl.Ool buil::i:tgs in a nur.ber of ~-tewfoundland cornr.<unities.

In recent weeks, I have received nuil'.erocs sutnissions: from both inCiviruals and groups, all requestinq new or improved educational facilities for their children. ! would like at this tiil'e 1 Hr. Speaker, to ~ake it clear that under our denominational system of education,whi~h is a partnership bett,:een tr.e government and t.l;.e recognized churches, the Department of Education Coes not !'l',ake decisions on t.~e distribution of building grantn to SchC'1cl roards cr on ~~here new schools are going to be built.

UnCer this partnership, the ~overnment apportions capital gr~~ts arnonn church au~~orities on a per capita basis. These grants are distr.!l'-uterl ry..: the church aut,hori ties, or tteir nencr..inatioral education committees, to their scnool boards and they (e.encminatienal committees ~~d school boards} CeciCe precisely which s~~cols are going to be build in any given year. The government's other involvement in this procedure is simply to approve architectural p!.ans to ensure that t.'ley rncet all building codes and minimum educational requirements.

This year the goverr~ent voted $17,200,000, an increase of $500,000 over last year, for school construction and it has committed this amount to the churches fer the next seven years. This means that we will be providing, including this year, $138,000,000 to the denominational committees for s~~ool construction over the naxt eight years. Under normal circumstances this amount would be sufficient for the denominational c:omntittees to a.-:10rtize t:1eir 3194

:1ovember 22,1979 Tape No. 12i5 AH-2 debts on existing buildings and to construct several million dollars worth of new buildings each year. The difficulty arises, hm1e•.;er, in that interest rates have increased almost seven per cent in the last t1o years, and three percentage points in the last several rnon~~s. This means that in some cases existing grants are barely enough to pay the Cetts on schools already built. I am very pl€:ased to announce, !1r.

Speaker, that the govern~~nt, recog~izing ~~is problem, ~as agreed to provide additior.al funding to the denominational committees to enable the~ to undertake approximately Sl2,000,000 worth of capital projects that are critically needed at th~s time, 3195

November 22, 1979 Tape 1276 EC - 1 soME 'nON ..... !:i£r1BEP.S: Hear, hear~ MS VERGE: These committees will be authorized to borrow this amount and appropriate increases will be made in future grants to enable them to amortize the debt. I would also like to inform hen. members that senior officials £rom government have been meeting with representatives from the deno=inational education committees in an attempt to develop an alternate arrangement for the long-term financing ot: school construction in the Province. I am hoping that these officials will be able to submit a proposal to government later in the Winter.

In conclusion, Mr. Speaker, may I say t..~at we have built in excess of $200 million worth of new schools in this Province in the last ten years, In spite of this enormous effort, there is still an urgent need to improve school facilities in a number of areas. It is our intention to do everything within our power to provide the necessary resources to church authorities and school boards to permit th.em to meet this need within the next five years. SOME HOO • MEMBERS: MR. SPEAK::ER: {Simms) MR. TUI..K: Thank you, liear, hear~ l'ha bon. th-e member .for Fogo. Ml:.

Speaker, in tile absence. of ':ltf 'friend from Port au Port {Mr. Hodder), I would like to respond to the minister's announcement and say that for me, personally, as, I am sure, for other people in Newfoundland, this comes as a welcome surprise. As the minister says, the o.E.C. in conjunction with ~ards does decide where funds will be spent, and in that light I welcome this on behalf of l'l'lOSt school boards in Newfoundland who do have critical problems. We welcome the $12 million. But I wonder, Mr.

Speaker, if the minister has any indication of when we will know what schools are going to be built? can she also give us a breakdown of what the various committees will receive? Thank you, Mr. Speaker. SOME HO."i. MEMBERS: Hear, hear! 3:196

Hovember 22, 1979 MR. SPE~~R: {Si~} XS VERGE: 'l'ape 1276 EC - 2 ~e hen. ~~e Minister of Education. H.r. Speaker, it would not be proper for me to anticipate t.'le prio:ities which the denominational education commi. ttees will assign to th.e spencling of these r.ew funds. What 'this decision amounts to is authorizati~n for the church committees to proceed with the planning and construction of $l2 million wor~, of schools and this will b<:~: broken down among the three C.eno:r.ina.tional committees on a per capita basis. Mr. Speaker, at this time, the amounts to act'..!ally be paid ~ the committees are not known.

This will depend on the long-term financing arrangements which are worked out by the committee whic.lo is now looking at that important question. 3197

November 22, 1379 MR. ~P£1\KER: (Hr. :::Oiir.msJ MR. W. HOUSE : 50 - 1 Mr. Speaker, we had a question yesterday regardL~g tn~ insulation progr~e and also there has been a public affairs programme t.hat made referenc:e to it and, of course, some extra calls and I thought perhaps the best thing tc do would be to ma.ke a statement on the matter. In recent days 1 there has Leen considerable publicity relating to a potential problem with one of the types of insulation processes used in Canada ana the United States.

The specific process involved is an injectdble foam ti~e insulation and it is ~~e formaldehyde foam which is injected in the walls of the house by some torce. In the process of this,it is not uncccoon for an odor to be present in ~~e house and apparently there is some potential for ongoing leakage from ctle foam wnich tends to be mere likely to occur at high temperatures and the result, of course, being a forrnaldenyde odor that can be a very significant nuisance. --2-~.AOU-~-~ ~,cf inswlation programme - the canadian Home Insulation Programme.

It is recomme~ded for use in walls only and not reco~~nded for ceilings, and the material, as I said, is widely used in Canada and the United States. We have discussed the situation with officials of the Health Protection Branch of Hea~th and Welfare Canada. They advise that in spite of the widespread use across Canada, the Protection Branch has received no complaints or axpre~;ions of concern from health agencias or from individual consumers rt~arding ~~e material. However, the minister, we mentioned this yester~ay, ~~e Minister of Healch and Welfare, ~~~hen.

David crombie, has ir~icated that his depart::::nenr. will be further investigating the story that came by the public affairs programma and will be investigating where 31.98

NovmeOer 22, 1979 Tape :~o. 1277 SD - 2 :1R. H. HCUSE ~ ~~ere ~ay be a potential fer health hazard. In this regara,he has invi~ed citizens who have had nealth probl~~ which may be attributable to that oCor to contact him directly and obviously I would be pleased to receive such letters and pass them on to the oinister's department. In sw:unary 1 ! woulU like to reassure tne many individuals in tne Province t.>,J.t:. ·...re have had this insulation for a long time• ?here is a sligh~ odor, normally it disappears quickly, generally speaking ti1ere is no haalth hazard as far as we can detect it at ~~is point in time.

If individuals do have any symptc::ts which t.hey attrihu~e ~o it 1t.hey ::>hould contact their family physician or the department and we will see that it is forwarded to t.he federal health minister. MR. SPEAKER: MR. L. STIRLING: The hon. member for aonavista Nor~~. Thank you, Mr. Speaker, I wish we had tha~ information yesterday, There would be no need for me to take the action that you suggested I need to take which was to get it on the Late Show. 3199

:~ovar;..ter 22, 19 79 Tape :.c. 1:!75 ;:;;; - 1 1--:R. L. ST!?LI!;G: Even in tne i~fo~ation that ~~e ~~niscer gives 1 it is nee ?recise enow;il for a lot of people.

Thi:; ex:ccc proC.uct is nc"W being used, tl:e ciescripticn of the l;rcduct ti.at he is talking about. is now being usee in the district of Bona vista :1orth 1 and if tlle fed-eral !~linister of Health still has a concern ,I think the ;-tinister of fiealt.'l needs to give a bit rr;ore infomation t..'J.&.n he has., For exarr.ple it says that if scrr;ebcdy has any problem chat he thin};s might ha\•e been caused by the o..lor, he should get in touch with his doctor. ::ow I think t.'lat the tr:inister could proviC.e a bit rrore inforn:aticn in describing sorr.e of the appearances that this might have.

Does it affect f<eople .. no have asthrr.a? Is it a product tha':. you only get the problem ,.:ith if heated up to what temperature? Are you talking about nott.al Su.'r:.ter terr;peratures? P..nd what are t.~e syt!'.ptotr.s of the disease that 1 say, tae federal minister is concerned about? 1 think that the information that anyUody who feels that he rr:ay have something wrong ""ith hin: should go see his doctor if he thinks it cay be caused by this 1 and if it is caused by this get in touch. tty concern, !~~r.

Speaker, is t..~at the ~'dinister of llaa.lth should have had this L'lformation out J.rrrediately aiter the prohler •·as -.reccgni.ud by the fede-ral peopl.e aru.i a.lsc t!-..at is nat precise enough right now. HR. SPEAKER (Snt.\15) : Order, please! Order, please! I was just rising on a point of order, Hr. speaker. MR. SPEAKtR: I was about to interrupt the bon. ~errber and if you will allow me to do that 1perhaps the hon. President if he wishes ·" ~ay raise his point of order. I was going to point out to the han. rnerrber for Bona vista t.;-orth (Hr.

Stirling) the tirr.e allotted after ministerial staterr.ents is generally rr.eant for corr~nts, clarification, brief questions and not for debate •. I fear the han. rnerrher cay be entering a little ~it into the area of debate. So if you have sor.a points of clarification or con:mcnts you 'would like to rr.ake 1 I think that is what the time is allotted for. 32!10

.tlove::-l:er 22, 1979 'l'atce !lo. 1278 m·; - 2 toes the hen. r.-er.i:er fer f!cnavist.a North wish to continue? t·:R. STIP;.WG: 'f~.a:1.k you very ~ucn , :·!r. Speaker. I thom:;ht t."'lat "'as ;.;hat ! was doing. i.ct n:e be s.;;ecific. \-,1-.at is the procb.ct? Does it have a brand narr.e?

How rr.an'l brand na::-es are in use in ~iew·fou.'1dland? i'<hat is the situation for people who hn.ve already corrpleteC. the insulation? ·,;bat should they '.:a i.:: they have put the insulation in the ceilings '.-.'here it is not rccor.r..ended? h"hat i(inG of syrrptorns are related to t."'le diseases or the ;;;iC.e effects that the t:'.inister refers to? ;~hat kind of infor:~.atian should the; take? >·,ilat ~~ind of action should the taKe? ·,;r.en shoulC they take it and 'Hhat shculd they Co if t11ey still have other quest:.on.s? hear, hear! 3201

November 22, 1979 ~.R. SPEAKER (Sirr~sl : i-t.T:t. HOUSE: '!'ape No. 1279 N:-.1 - l The han. Minister of Health. Hr. Sp:O!aker, t.'1.at. is quite a number of questions and I am not going to respond t~ all of them. I think what I did say is that the Health Protection Branch had nat received any complaints.

The Health Protection Branch had not recei•..red any complaints, that tr.e minister had been asked a question as a result of a programne that had been dane by CBC1 I think, a public affairs progra%~e, and he said ~at he would be glad to receive any complaints that. people had about the product and invited people to write to him, ~d I just extended that on. Wbat our people have said in their investigation is that as it stands today, generally, there is no health hazard.

Presumably because the federal minister is investigating or having an investigation done, we will be keeping in contact with them and of course •·.;e will be giving tile information as we get it. MF.. SPEAKER: Order, please~ First of all 1 I am sure han. members would like to welcome to the gallery today the Member of Parliament for Bonavista-Trinity-Conception SOME HDN.. HEMBERS: Hear, hear! MR.

SPEAKER: With respect to the matter which was raised yesterday near the end of the debate on Private Me~ber's Day 1 I would like to first of all point o•.lt that a Speaker does not or cannot decide questions of order in anticipation. Yesterday, however, a point of order was raised in relation to the right of a member to speak after yielding to another member. Yesterday's situation was resolved,of course,.when the member who yielded .,...as given leave by the House to rise again and speak. It is appropriate at t.~is point to say a few words of clarification on yielding.

And looking through the precedents of this han. House 1there appears to be accepted practice on tWo types of yielding. 'l'here is the situation where a me!I'ber is recognized by the Chair, atands,but right away indicates he is willing to yield to another member. In w~is situation it i3 clear ~~at the member yields his complete turn to speak. He has not spoken 3202

November 22, 1977 Tape No. 1279 MR. SPEAKER (Simms): at all to the question and therefore does not lose his right to speak an ~~at question at a later time. The second type of situation for which there is a precedent, is the situation 'Hhere a :nem.ber is speaking to a question but allows another member to interrupt him with some information or an answer to a question. The former Speaker ruled on this situatl.on, t.l<te reference is Hansard, !1arch lOth,, 1918, and the qc.ote, he said, "W"hen an han. member is speaking he has the right to speak without anyone else interrupting. He asks questions of other members.

Number one, they are not obviously required to answer and, number two, they may not answer unless and until the original speaker yields. Then of course ~~other difficult point comes in1 after yielding a while, a person who has yielded decides that he has heard as much as he wishes to, and when he then insists on his right to speak again I do not think the Chair has any choice but to give it to him." Now,obviously there are differences in ~~e time ~en by members speaking before he 3203

Nov~~ber 22, 1979 Tape 1280 PK - l HR. SPEAKER { S UL'1S) : yields, and going by the precedents in this souse it appears that once a mew~er starts speaking to the question he has the right to yield to another member, but also the right to call on his right to speak any time during his time to speak as determined by the Standing Orders. And once the member's timehas expired and he has spoken to the question, either with or without having yielded part of that time,he may not,subject to Standing Order (53) 1 speak twice to a question.

Now just a few comments in relation to the person to whom the original speaker yields. The first situation I described 1where a member L~ediately after being recognized by the Chair yields to a mer..ber, the mer..ber yielding merely delays his turn to speak. The m~.ber to whom he yielded, once recognized by the Chair, speaks to the question in accordance with the Standing orders and has the full time allowed to him. In the second situation,where the yield is to a member who offers information or an answer, the member yielded to is speaking at the discretion of the original speaker.

The m~~er yielded to in answering the question does not lose his right to speak.later to that question. When he later stands and is recognized by the Chair 1 he speaks then in accordance with the Standing Crders and has the full time allowed to him by the Standing Orders. I make these general comments recognizing that circumstances will arise that do not fall exactly into one type of yielding situation described before, or exactly into the other described situation. I cannot rule on hypothetical questions, but when a situation arises I will have in mind these comments that I have made today.

It is L~portant, I believe, for hen. members to recognize the effects of their manner of yielding. once a member starts speaking to a question,he is exercising his right to speak. And under the practice 3204

Nove..'!'.ber 22, 1979 Ta.pe 1280 PK - 2 2:R. SP!:l!..KER (S!!-!}1S) : in the House, if a ~~~ber wish~s to yield his turn to speak he cannot have started to s;::eak to the question • lf he has spoken,he will forfeit whatever time he yields. ORAL QUESTIONS }1R. SPEAKER: The han. member for Terra Nova. MR. T. LUSH: Mr. Speaker, I have a quPstion for the Minister of Labour and P~npower (Mr. Dinn). Questioned in Committee in Ottawa some weeks ago prior to his trip to this Province, the han.

Ron Atkey, Minister of Employment and Immigration, stated that the purpose of his visit to this Province was to discuss or announce with Provincial Gover~~ent officials a specific Federal Government job creation programme for this Province. My understanding was that the minister merely announced,in vague terms, the Federal Government's overall a~ployment strategy for the nation as a whole.

And my question to the minister is, did che Federal ~inister indeed discuss with him or with other government ?fficials any specific job creation programme for this Province? !f so, can the minister px'OVl.O.e non. rnembMs Wl.Cn some d.e"Cal..LS or some spec.;.t:l.CS -oi ~a.l.z special job creation programme. When will it be set in motion7 When can we expect this special job creation programme to be set up? This Wincer; this Spring, or over the next couple of rr.onths? 3205

Nove~ber 22, 19i9, Tape 1281, Page 1 -- apb MR. SFEA.'<ER{Simms) : The hon. the Minister of Labour and Manpower. MR. DHiN: Yes, Hr. Speaker, I welcome the question from the hon. member. Actually the question was answered about a week and a half or two weeks ago when the hen. minister was here and I was asked a similar question by one of the hen. members opposite.

So I welcome the hon. member back to the House of Assembly and say ~~at there were many specific ideas Put forward by the bon. the Minister of Employment and Immigration when he was here. one of the conditions of informing the provincial governrnent discussing some of the ~~anges that may be made in those programmes so that they would be mere in line with what we were planning here in Newfoundland ourselves, one of the conditions was that we not discuss the specifics of the programme, although they were announced to me, that we not discuss the specifi~s of the programme until the budget came down and then we were at liberty to discuss the different and various.aspects involved in the programmes that were announced­ not programme but programmes.

MR. LUSh: A ~l'ement::lr:, . MR. SPEAKER: A supplementary. The hon. the metr~er for Terra Nova. MR. LUSH: The minister was not clear in his answer. The answer I am seeking from the minister is, is there a specific job creation progr~~e for Newfoundland, for this Province as differentiated from that for other parts of Canada? MR. SPEAKER: Labour and Manpower. MR. DINN: The hon. the Minister of Mr.

Speaker, obviously if the hon. member listened very carefully he would understand what I am attempting to say and ~~at is that we discussed specific programmes, programmes that would fit in very nicely here in Newfoundland. The condition was that {

a) we want consultation, but (bl we are not to announce these programmes until they are 3206

November 22~ 1979, Tape 1281, Page 2 -- apb MR. DINN: announced federally and they are going to be announced in the budget, they are going to be specified more clearly when che Minister of Employment and Immigration puts his estimates through the House. So having given the han. minister that condition, obviously I cannot say in specific te~s what projects or what employment strategy we have in mind, nor can I very well call o~~er provincial Ministers of Manpower and Ir.~gration, or Manpower and Employment, or Manpower and Labour, as their various names go across the country, to compare programmes.

So I really do not know if the programmes he is telling me, which fit in very nicely here in Newfoundland and Labrador, are exactly the same as are being offered in other provinces. But I will be able to do that when they are announced in the budget which will be forcl1corning. HR. SPEAKER: the member for Terra Nova. MR. LUSH: A supplementary. The hen.

With the federal governnent's announced decision to drop canada Works from its er.~loyment strategyr has tha minister er..quired into what will happen to the '115 employees in this "'?rOVi:tte€ "Wttc ''"WQ'rk sol.-aly -1f±t:h the ,:canad; Works Div~sion7 Will ~~ese employees be laid 3207

November 22, 1979 Tape 1282 EC - 1 HR .. LUSH: off, or will they be absorbed into some other division of the federal government? Has ~~e minister inquired int:.o the future status of these employees? MR. SPEAKER: (Simms) Manpower. MR. DINN: The hon. the Minister of Labour and Mr.

Speaker, in consultation with the federal minister - and hopefully this consultation will go on until we get to a final conclusion as to what all the programmes are that we will be involved in here in Newfoundland - as a result of some of ~~at consultation, we get our Canada Works increased this year from $17.2 million to $19.4 million, and it looks as though, as a result of the programmes announced to me by the federal Minister of Employment and Immigration (Han. Ronald Atkey) 1 that we will be involved even more next year than we were this year.

They will not be Canada Works type jobs but we have programmes ~~at will be co-ordinated through var~ous departments in this government, through Employment and Immigration in Ottawa, and it is my opinion that we will come out on the better end of the scale. ~Xhe~ -~ ,pr:oa:~ Joti.th -~ _,t:c di!'ferent areaa of the :Provi.ru:::e, hiqh unemployment areas, and ~ course, we will qualify for those. We will not qualify in a couple of years time because we intend that we will not have a very large unemployment problem at that time. SOME HON. MEMBERS: MR. LUSH: MR. SPEAKERt (Simms) member for Terra Nova. MR.

LUSH: Hear, hear! Mr. Speaker, a supplementary. A final supplementary, the hon. the Againt Sir, the Chairman of the Public Service Commission speaking in Committee in Ot~awa, stated that as a result of federal government belt tightening over the next few months/W'ithin the federal service in particular, resulting in lay offs, cutbacks, freezes and the like, that this Province could expect to lose upwards of 600 jobs within the federal public service. 3208

November 22, 1979 Tape 1282 EC - 2 HR. LUSH: My quest:.ion t:.e the minister is, Do these figures correlate •,.tith any studies or any inquiries that he has initiated in this area? And if so, how these cutbacks and layoffs and figures, etc., will affec~ unemployment ~~d what departments or divisions of governments will be affected, and 1 very generally 1 how this . .,ill affect the level of service or the quality of service offered to the people of this Province? MR. SPEAKER: (Simms) Manpower. MR. DIHN: The hon. the Minister cf Labour and Mr.

Speaker, from ongoing consultation with the federal minister in Ot~awa and all the other federal tr~nist~rs who have come to this Province since May and June, we Co not ant!cipate that there ...,ill be any increase in unemployment in this Province as a result of cutbacks in the federal pclJlic service. We have just opened a new ~ortheast Atlantic Fisheries Environmental Cencre down in the great district of Pleasantville, we will be opening a new data centre in Western St.

John's,and we anticipate that the employment figure will increase as a result of those and many, many other projects that will Hear* hea.r! 3209

Nover.ber 22,1979 :lP..Hr.'M:FP~: (S:!.rms) !:!!!.·~= Tape •rc. 1283 ~e hen. ~etrber for ~aPoile. :'-!r .Speaker, I v•ould like to ask the Hinister of Pt!blic Wor~s (l~r _.Young) a couple of questions at out !-!aunt Scio House. We have not heard verJ much about it lately. Is the Premier now comfortably situated in Mount Scio ~ouse? Would the hen. gentleman tell us the renovations ~~at were necessary in order to set up Xount Scio House as the Premier's residence and how much CiC it ccst t.l-te ta,cpayers of _!.his. Province? The hen. Minister of Pubbc i<!orks. ~m. YOt1tTG: !!r.

Speaker, the Prelllier has noved into !<!ottnt Scio Rouse. ! could not answer if it is comfortable,but t.,_,e Pre!t'ier could answer that hit.1self. H? .• !-TEAP.Y: \!R,SPEA.tr.ER: for LaPoile. MP.NFAPY: Nurr.ber t•"o question, Sir. A supplementary. The l':or_. metr.l:er Hew rruch rlid it cost the taxpayers? W!lat was involved in rencvatir:g Mount 8cic }!ouse and what kind of services are now being provided to the official r~C>sidence of the Pre~ie~which is the only one in canada, I believe? t-!R. YOUUG: the Preroier, all t.;_at information will be tabled when it is finalized. MR.

NEARY: MR.SPEAKER: !o!P..NEARY: A supplementary, A final supplementary. Would t.,_e hen. gentleman tell ~~e House if Haunt Sdo House has been transferred from t."le university to t.."''e Departrr.ent of Public Works and, if so 1what rent will be charged the Premier? Will it be an nominal fee or will it be the same rent, I believe $650 a month,that was paid by the former Premier of the Province? The minister should know what rent is being charged for ~our1t Scio House. !:!!.:.§!_E~: The hen. Minister of Public Wcrks. HR.'fOUHG: I will take notice of t."''at, Mr.Speaker. 3210

November 22,1979 ~R.SPEAKEP.:(Si~sl MR.HISCOCX: Tape Ho. 1283 ;..H-2 ~e hon. me~ber for Eagle River. I would lL~e to direct my question to Haclam ~Hnister of Consumer Affairs & Environl':'er.-:. ! haC the priviler;e of being down in the cornnunity of Gaultcis in the district of Fortune­ Hermitage. AN HOU. MFl-'!BER: !i!h!!_I~: ~bat were you doing down there? Well, in actual f~ct,what I was Coing down there,! was visiting a lot of friends whom I had made acquaintance with while ! was in university.

HP..STIRLING: It turned out very well 1 too. }!P-.F:!SCOC<: The ouestion that I was asked \orhile ! was down there to bring up to the House is that basically Newfoundland and Lahrador Hydro has closet! two wells Cown t.~ere 1-ecau!'l:e of th.e possible pollution and in this regard they are paying a man to bring water for ~~ese two people, only one turn a day instead,basically 1of - I do not know what t.~ey do on laundry days. But in that question, the men that were working on this clean-up and looking into it and closed the wells said that there was a PCB.

I would like to ask the minister if she }-.news anything of this and, if she does not, would ahe look into the ~-·;~cn!;s±t.t.l-i~· \Of "ttha~ ·~'Ci!il- :i"t- 'l.'l!t~C----~ -~-e-se '\Jiel."is·--rtre -el;e-sc£ ?r- -what .!ur-J:.er actiC!I .is qoi!"lg to be taken before the frost comes in tc ~'1-te ground? 321:1

November 22, 1979 MR. SPEAKER (SH-1!-1.5}: and Environment. MRS • NEW'HOOK: Tape 1284 PK - 1 The han. Minister of Consum8r Affairs Yes, Mr. Speaker, we did get a report of this spillin our department. It was reported by the Federal Environmental people. It was indicated that it might be a PCB spill, and samples of the water were taken and sent away for testing. And I am sorry I have not had a report on that testing, but I do know that the wells were closed and will remain closed until the tests come back. MR. HISCOCK: A supplementary. MR. SPEAKER: A supplementary, the hon. member for Eagle River. MR.

HISCOCK: Also in that regard, there was an annour~ement made today by the federal regional environment progra~me that 1 because of the PCB clean up in Hopedale and Cartwrigh~it puts a strain on their budget. And in this regard 1 I am rather concerned at that. If a ?CB regional progra~e has to strain financially, where does that leave us or the Department of Environment in case of oil spill? What ,financial situation .is .the Daparbnent: Df ..Envir.cnm.en.t .i.n now hecausP of this clean up in Hoped.ale and ,i.n Cart:wrii;ht? P.R. SPEAKER: Environment. MRS. NEW 'HOOK: The hen. Minister of Consumer Affairs and Mr.

Speaker, again this was taken care of by the Federal Environmental people and it is their Budget that they are speaking about, not our Provincial Budget. I really could not tell you just how much of a strain it is going to place on their's, but it does not influence our Budget for any spills that we might have to clean up. :.rn,, HISCOCK: A supplementary, Mr. Speaker. MR. SPEAKER: A final supplementary, the hen. member for Eagla River. 3212

November 22, 1979 Tape 1284 PK - 2 I-1a. HISCOCK: Also I would like to ask the Minister, an announcement today from the Royal Hilitary College at Kingston said that they have now invented a new reactor to look after PCB spills and other forms of dangerous chemicals. Is the minister aware of this? And basically,will this type of equipment be brought into Gaultois, Hopedale, and Cartwright? MR. SPEAKER (Sil-'J.lS) : The hon. Hinister of Consumer Affairs and Environment. MRS. NEWHOOr.: Mr. Speaker, I am not quite sure on this.

We are co-operating with the Federal Depar~~ent of Environment, and we have been doir.g this for quite some time, and I am sure if this is available then we will know about it in short order. MR. HISCOCK: A final supplementary? MR. SPEAKER: I indicated a final supplementarj at the last question. r recognize the han. :nember for tiindsor-Buchans (Hr. Flight), unless he wishes to yield? HR. FLIGHT: MR. SPEAKER: 11R, ZLI<~P""' No, s.ir. The han. m~~er for Wi~dscr-E~chans. of Lands anC. ForestslMr~ .M::trganJ.

And hy -war of cla::ificat:~C."l 1 would indicate to the minister that I a."'\ holdi..-lg here a report tabled by the minister quite recently, about two weeks ago, the spruce budw~rm in Newfoundland 1 l949. It is strictly a statistical report showing the extent of infestation in the Province 1 the cordage that is moribund or dying or will die. SC1.'1E hUN. MEMBERS : oh, oh! MR. FLIGHT: I point that out because, Mr. Speaker, I want to ask the minister about another report, that we understand is long over due, that is in the ~~king. 3213

Nov~mter 22, 1979 Tape. flO. 1285 so - 1 L1R. G. f:LIGH'r: people expect to receive the report from the environmental group who was set up to monitor the ht spray programme and the report:. indica1:.ing t:.'1e effect that the at programme had on the population of buciworms in the area sprayed? 1-ffi. SPEAKER: (Mr. Simms) HR. J. HCRGA:1: The hon. Minister of Lands and Forests. Mr.

Speaker, maybe the question could be more adequately answered by my colleague, the minister responsible for the Environment, aowever, in checking on that report no later than this morning,in fact 1 I understand t:.he report is now being compiled and, I think, will be available to the Department of Forestry sometime in the next couple of wee~s. MR. G. FLIGHT: A supplementary, Mr. Speaker. HR. SPEAKER: A Supplementary, the hen. member for Windsor - Buchans. HR. G. FLIGHT: I would like to ask the minister, Hr.

Speaker 1 on what scientific background or on whose advice did the minister ac~ or ~~e ~epartment of Forestry act in designating -tre<ar4a.S --,.:to-~ ~averl~ dit. .. and 4..u ,da4:idlnc .the ~ J:ha_t 11r spray woul4 'take Place? On whose Advice was~~,,~ o~ department's, CPS or ~~e paper companies? or. whose advice were the designated areas selected and the dates to spray determined? MR. SPEAI<ER: (!>tr. Si.mms) The han. Minis.:.er of Lands and :E'ores~s. MR. J. MORGA."-h Hr. Speaker, the area sprayed, of course, is a ·-;ery small area, the total acreage is 15,000 acres.

And determining the location, that was in consultation wiUl the Canadian Forestry service and witn. in this case, because there was none in the western part of the Province 1it was all in Eastern or Central 1-lewfoundland, it was in ccnsultation with Price (Nfld) so it is in consulbtion with all concerned. MR. G. FLIGHT: MR. SPEAI(EH.: member for Windsor - Buchans. A final .:oupplementary, Mr. Speaker. A final supplementary, the hon. 321.4

Novmeber 22, 1979 Tape ua. 1285 so - 2 MR. G. FLIGHT: Sir, I would like to aSh ~he minister that,in the course of t.his consultation he refers to and in the course of receiving the advice on the Bt programme, was the minister or the department advised not to proceed with that Bt programme, that in view of the fact that the timing was off there would not be time for a second application, "'e have passed the incubation period of the budworm, that in effect the Bt programme that you were proposing was indeed a futile, a waste of time and a waste of $150,000?

Did the minister not receive that kind of information while he was deciding to go ahead with the Bt programme? 1-'.R. SPEA.K.ER: {Mr. Simms) MR. J. MORGi\.N : The hon. Minister of Lands and Forests. Mr. Speaker, the answer is tiefinitely no because the situation was the decision to spray the 15,000 acres was made months before the actual spray occurred.

I mentioned in the House when the han. gentlelllan was absent last week that the material was late. arriving in ~~e Province 1primarily because of the truckers' strike in the States 1 and the second reason because of the ·~the.:: ~:tilim.S. --,Atlli--i::_,,was_:.J)eca..use J:<£_ :he -~ . ..:conciitio~_,­ there wa.s no sacor.ci a?plication. "There were supposa:i 'tO t:.e 'tWQ spra; applications, but in this case only one. And because there was only one spray application that was the major reason for the report pointing out it was inclusive with regard::> to the effect of the spray. MR.

SPEAKER: I indicated a final supplementary. The hon. member for Saie Verte - White Bay 1 unless he wishes to yield. White Bay. MR.. RIDEOUT: The han. member for Baie Verte - Mr. Speaker, I have a question for the Minister of Lands and Forests also and the minister will remember that last Friday, I believe, I rose in Question Period and asked a few questions regarding the request made to the government from the Town Council of Roddrickton that a commission of inquiry of some sort be set up by the government to investigate and to make recommendations 3215

November 22, 1979 Tape No. 1205 so - 3 i>ffi. RIDEOUT: on the serious lal::ou..r problems t.hat are currenely facing that community. In view of the fact that this is Thursday, I wonder if the minister could give me any indication whether the government has made up its mind to move in any positive way on that request? MR. SPEAKER: (Mr. Simms) ~'iR. J. MORGA..'Ii: The hen. Minister of Lands and Forests. 'l'he answer is yes, ar. Speaker,.

In consultation with the Premier, and as a result of the representations made to the Premier 1 s office 1 the Premier has now asked the Department of Forestry to coordinate an ~nvestigative team to be sent to the area. The team will consist of representations and representatives from the Department of Industrial Development, t:he Newfounc.land and Labrador Development Corporation, the Depart~ent of Rural Development and 1 especially in this case, the Rural Development Authority which makes loans for sawmilling operations, etc., and the Department of Forest Resources and Lands.

The team will be headed by t:he ADM of the l:Jepartment of Forestry, Mr. Hoddinott, a.nci their inter.t first:. of all is to travel to the area. to meet with all concerned '~ '!WllC ':1Dd.e ~.S<t::l ;;'t:he <~ ,,ir,,,;t!:'<.j.-$ --~ ,;me ."t'" myself, both the council and ·tne committees l.n the araa, t:o cete.r.nine the problems as outlined by these committees and people in the area,~ ho~fully 1 ~o det:.erwine poss~ble 3216

i~ove!!'.ber 22, 1979 Tape 1286 EC - l !-'..R. MORGAN: solutions to the problem by means of coming back a.t'ld makir.g repor':: to government with possible recommendations. MR. R!DECC'r: MR. SPEA.l(ER: (Simms) for Ba..!..e Verte -White Bay. MR. RIDE:OL'1': Mr. Speaker, a supplementary. A supplementary, ~~e han. ~~e tramber Mr. Speaker, I thank the rr.inister for t.l-te information and for the very positive step that the govermr.ent ha\•e taken in this regard. I want to say publicly now that I am ver; pleased wit.":~. it.

Can the minister give me any indication when this - I Cc not knC\11 if it is going to be called a Commission of Inquiry or a task force or whatever t.'le official title is going to be - when t.'le minister anticipates that the group will be formed and when we can expect that they may be able to go about their business of Coing the investigatiCns in P.odCickt.on? MP •• SPEAKER: a:R.. MORGA..~: The hen. the Minist:er of Lands and Forests. Hr.

Speaker, t.~e committee has now been formed and ,.e can call ie an i:tvestigative committee or a task force '::"he imporeant 'th.ing is tile.y go ir.. and do a job~ r am hoping t.o be l.n b position tomorrow norning to announce tO the House the names c£ the members of the committee. They are now in the process 1 ar1d :1r, Hoddinott, who will Chair t.1e committee 1 is in the process of making contact: with those people in the area who have asked for meetings, to dete:T.ine 3 convenient time for a meeting or meetings in bot.~ Main Brook and Rodd.ickton sometime over the next week or ten days. MR. RIDEOUT: Mr.

Speaker, a supplerr.ent:.a-'")'. MR. SPEAKER: A final supplementary, t.'le hen. the member for Baie Verte - White Bay, followed by the hen. the member for Grand Bank. MR. RIDEOUT: I wonder if the :ninister could tell the House, Mr. Speaker, whether, in drawing up t..,_e terms of reference of this task force - we will stick that nat:le. on ie for the time being - 3217

November 22, 1979 Tape 1.286 EC - .2 MR. RiDEOt.iT: whet,h.er ir.. Cra•,.tin; up t."J.e tar:!ls cf reference for the task force, any defi:lite ti:r.e li.mitations have been pluced on the task force? In ot.her words, have they been asked to report to government within a particular time frame or have they been given sort of open-ended terms of reference to report when they wish, or is there a particular time frame about to be placed on their deliberations? ~n. SPEA.l(ER: (Simms) The bon. the Minister of Lands and Forests. MR. MORGAN: Mr.

Speaker, in discussing the ~tter wi~~ the assistant deputy minister who will be heading the committee, and he following up with the members of the committee, they looked at the possibility of a two month period being a reasonable time. So we are looking at around the ea.:ly part of the New lear having a report back to government:. MR. SPEAKER: HR. THOHS: The hon. the member for Grand Bank. Mr.

Speaker, in the absence of the Minister of Justice (Mr, Ottenheimer), I would like to direct a question ··to ~e.-ll'~.af ;t:h!! . .council .!Mr. ,'iersh;;l lJ~ _ J .. £ul!.:y_, . .rfl&l~ tha:t ,in -this par"..icular ease, t.-~ --?.t:e.siden1: c£ the Council might not ,be able to give an answer at ehe present time, bue I would like for him eo look into the matter and to get back to the House. As the President of the council probably ,knows, a recent decision of the Supreme Court of Canada ruled that a motorist or a person 1before taking a breathalizer test, does not have the right to contact his or her lawy'!r.

Also, I think, as the President of the Council proOably realizes, it has been the practice in this Province to allow a person,before taking a breathalizer, to contact his or her lawyer. What I would like to kna~ from the President of the Council - naybe he could get the information for me - iE whether or not the provincial Department of Justice will be making representation to his counterpart :!.n Ottawa to have the Crimi;,.al coe.e amended so that a person would have ~,is particular right? 3218

November 22, 1979 MR. SPEAY.ZR~ (Simms) MR. HARSHALL: Tape 1286 EC - 3 The hon .. the President of the Ccuncil. Well, Hr. Speaker, as the hen. merr.ber is aware and as I know from the question, this is a matter of substantive law, it is a matter of the criminal law and it is a matter of the federal government. Whether a person is allOW"ed to contact his lawyer or not 1 the effect of it would be as to whether or not he had a defence in court on those grounds. Certainly, this is a matter that we will be cons iCe ring.

I kr.ow that the government has had a dialogue with the federal government relating to proposed amendments to the Criminal Code of canada and this is one of t.~e i terns that the government will take under consideration. But before one gives a definitive answer, and I know the hon .. gentleman, Mr. Speaker, was not asking me for a definitive answer at this present time 1 you know, the implications of any such representation would have to be weighed very carefully by us 1 but I thank the hon. member for his observation an~ it will certainly be taken under consideration, Mr. Speaker. MR. THOMS: A supplementary, Mr.

Speaker. 32:19

!';cverr.Ler 22, 19 i9 a:-, 1 A supplernentarJ, the non. rret:ber for Grand Dank. _:m. L. 'rHGHS: As I saiC.: in r:".t· original re~arks, it has been the custcm in this Province fer tl1e police to give the j?erscn who is about to take a breathaly:::er test the opportunity to contact a la.,.-:;er. That has been the procedure that t~ey have followed.

I happen to believe that this should be an inalienable rig;•t of a person who is about to tilke a breathly:::er testj that he should have ~~e right to contact a lawyer. ~ihat I a.'n afrai2 of is that with this recent decision the custom that is in practice in :-.ewfoundlar.d lllill no\1 be changed. I wonCer if the PresiCent of th!! LOuncil (Hr. l,!arshall) could advise whether or not all law enforce­ ment agencies will be advised to continue the practice that they have been carrying on all along? ~.R. SPEAKER: 'l'he hen. Presic!ent of the council. MR. H. MAPSilALL: Mr.

Speaker, as I have indicated ~~is is really a matter of substantive criminal la~, the rights of the individ- ual who is charged with a crime.

Obviously, I think ever-;boCy Would agree with 'the hen. r.ember that a ~rscn :..bo has teen charged 1 whet.'ler for an offence for iP?&irLC driving or for any ether offence for that have really the right to council. 5ut within that there would have to be also certain par~ters# The hen. merrber knows that ~~is could also be used as a device 1 in certain cases 1 for someLody to avoid having to take the breatha­ lyzer until the crucial period is over and then it cannot be C:etenr,ined as to whether or not the person has been operating the car in an impaired ~anner.

It is not really the function of the Provincial Govern­ ment, which is charged with durf wi~~ respect to ti1e aCrrinistraticn of Justice itself 1to take it upon itself. As a matter of fact, it would be ultra vires of the Provincial Govermrent, so to do, to make rules and regulations with respect to rr4tters affecting the sUbstance of crirr~nal law. But of course, if any federal law comes in which is not of benefit to the citizens of this Province, we will tr.ake 3220

Tp.pe Jo. 1237 =epresentaticns to ~~e FcCeral Gove=n- r-ent. :~11 ! can tell tile hen. r.:er.her at:. t..'"lis ztage is that ·..,;1atever applies, it cannot just to apFlY in lie•tffou..'1dlar..d, ! tl1ink. it has Lo apply throughout Canada because crit:'.ina.l la·,., is a rr-atter for the Federal Government. But we will certainly take the observation that he made un~r advisel'!".ent and weigh it carefully and I know the Hinister of Justice (Hr. Ottenheimer), when i1e returns 1 will be verf interested in it and will include it in the repres~ntations which he rr,akt.s. P. . .t-1 HOtl.

HE~·!BER: \\'"hen does he rc turn? <iell, Your Honour, if that is just a question I rright say where the han. z-tinister of Justice is. At the present tirt.e the hen. Minister of Justice is CO'n-'n sottewhere in 1<ew ZealanC attendinq the Comn:onwea1 th Parlirur.entarv Conference, Conference. !.H !-!ON, ~!l::~!DEP.; (Inaudible) representing us. Yes. As all werrbers kncw1 he is tne C."lain.an of the Canadian Delegation of Farli~ntarians, the CanaC.ian brt.nch cf the Ccr.!"",cr:!i.•ealth. Parliazrentarj Jl..ssociation, and ns su~1 S:ll..Stantive nonour.

Hear, .oear! ;.,.nd ¥ihile the non. gentlerran is very assich:.ous and conscier.tious in the carrying out of itis J.utie::; 1 : tnink all r.crrbers will realize •,.,rith a great deal of priCe that he is rev resenting Newfou.u.dland,anC. indeeC canada ,very '"'ffectively in this ir.ternational· forum. The hon. ~r:-.ber for Et. Bart-e. ~1R. T • BEHNET'l': ~r.

Speaker, my q'.la!;tian i:: directed to the hon. ;!inister of ':'r.:msportation and Cor..rowtications and. it. concerns t:1e feC.eral ferry which connects the IslanC. to Labrador, tile Straits ferry, I ilm .... ,ondering if there is a line of co:::t".t: ... .'1ication bet·.,een the two, the hen. minister and his colleague in Otta,.-a. 'lhe peof-le in Labracicr every year at t.:Ois time becotl'e gravely c~ncerned fer tile taking away of tnat. ferry and the conmmnicationa to ~'le island. ,, 322:1

~·loveml..·er ::2., ]979 Tere 1:o. 1287 ;:;.-, - 'rhe:r ar.; wcn~ering if it '"oult: De ;;:cssil:..le t.':.at the :n.inist.er .,.,ould Le able to suj;port t.~:e federal aathority to have that ferry extend its servL:::es until at least Christ:r.as and if, i:-.deed ,':hat is not: pos::ible 1 there could be other rreans of trunsportation provided. ;.:P.. SPEA.I.3R ( S I!·~HS) : and Conu::unications. :·m. EF.E'l"l': The hon. lhnister of Tl·ansport.ation Hr. Speaker, the hen. tr.errl;;er inC:i::o::r::.ed taat is strictly a iu:'!eral responsibility, that the ferry is paid for 100 r;OJr cent by t.'le reC.cral Govermrc.nt. the non. t'.-err.ber1 1.e ·,-.·ould 1 3222

November 22, 1979, ~ape 1288, Page 1 -- apb MR. BRETT: the hon. ~ember would like to see it going across the Straits as long as possible and I would be verJ happy to put in a plug for my friend with the hon. minister, Mr. ~mzankowski. MR. SPEAKER(Simms}: Questions has expired. Order, please~ The time for Oral REPORTS BY STANDING AND SPECIAL COMMIT':'EES MR. SPEAKER: Public Works. MR. YOUNG: The hen. the Minister of Mr.

Speaker, I should like to table 1 in accordance with Section (4) of the Public Tendering Act, all tenders awarded other than to the lowest bidder and it covers the period from January l, 1978 to December 31, 1978. MR. SPEAKER: which Notice has been given. MR. NEARY: answer the questions? MR. SPEAKER: 'MK. NEAP:~ Speaker. M..tt. SPEAKER: the member for LaPoile. MR. NEARY: Answers to Questions for Is the Premier going to Presenting petitions. --A -point: uf order, !·: A point of order. The hon.

The hon. the Premier, Sir, indicated two days now in a row that he was going to provide the House with information that he was asked for three days ago. MR. MORGAN: That is not a point of order. Sit down! MR. NEARY': I know the hen. ~~e Premier was distracted there by one of his colleagues but I would like to find out if he is going to give the House the inforw~tion. MR. SPEAKER: To the point of order. The hon. the Premier. 3223

November 22, 1979, Tape 1288, Page 2 -- apb PREMIER PECKFORD: Yes, Mr. Speaker, I thank the hen. member for LaPoile for reminding me. The question that the hon. the member for LaPoile asked me a couple of days ago had to do with a lette~ a piece of correspondence from a fish processor on the Southwest coast.

The fish processor was asking that the government provide some financial assistance to the processor so that that processor could pay prices for fish that the fishermen were demanding,and he was asking it because he understood, the processor understood,that some assistance had been given to other processors in the general area of the South coast and that,therefore, it should also apply to his processing unit. I think that was the question.

My answer to that question, Mr Speaker, is that there was an amount of assistance totalling, perhaps, somewhere in the order of $50,000 to $70,000 provided to processors - to fishermen~really - for the payment of fish they had provided to a number of fish plants in the Gaultois, Harbour Breton, Hermitage area while those fishermen in the union did not h'a-ve ·a,· :roneat.t 'ti.'t..'l '-:t:ln!'"MSpettJ."Vt "P%¢Ces30TS :in 1i1:l:nn:t:alJ· Harbour Breton and Gaultois.

The present request by Billiard Fisheries is not in ~~at category and the negotiations between Billiard Fisheries and the union was separate from, and distinct from,the group of fishermen to whom the original assistance that was provided by government applied, totally different altogether, and it covered a period of time for those fishermen when they did not have a contract, when there was no contract in operation. That is why it was paid.

A two ~ent subsidy, I think it was,was paid because it was in a period of time when a contract had expired and another one was due to begin that we filled in the different period of ti~e. MR. NEARY: PREMIER PECKFORD: 3224 Exactly ~~e saue thing. No. Billiard Fisheries

Nove~ber 22, 1979, Tape 1288, Page 3 -- apb PREMIER PECKFORD: negotiate separately with the union. T.J .Hardy negotiates separately ;.-ith the union. The Fisheries Council of Newfoundland, or whatever ic is called, negotiated· for all the fishermen who sold fish to Hermitage, Harbour Breton and Gaultois and it was a period of time when the fishermen were not covered, January to April 1, as the Minister of Labour and Manpower can tell you, and we filled in the gap there in between to make up the difference because it was not a part of any contract.

So it is a entirely different situation that e:dsts here, it is not apples and apples. we will be responding and giving a detailed answer to the letter that the hen. member for LaPoile (Mr. Neary) has presented. I appreciate his question and I can say to him quite categorically that the srune situations io not apply, because if they did we would, obviously, have to honour the same kind of thing.

But it was to a group of fishermen who were not under contract from January to April that this money applied and th~refore it was that kind of a subsidy and had notiling to do with us discrilninatinq against sroall processing people versus bl.g processing 'PeO'Plt:. 1.t. had. 'ndthl:nt;f -t,.u- dQ·,wtt that; it had to do with helping the fishermen who were caught i~ L~e lurch between two different contracts in Hermitage, Harbour Breton and Gaultois. SOME HON. ME..\ffiERS: Hear, hear! 3225

November 22 1 1979 MR. SPEAKER {Simms): Order, please~ I should, for the record, indicate that there was no point of order there but I believe there was an agreement to revert back to Answers to Questions. MR. SPEAKER: MR. WOODROH: PRESENTING PETITIONS: The han. member for Bay of Islands. I would like to present a petition signed by 187 residents, about 70 families, on Hillview Road in the Community of Benoit's Cove, calling for immediate emergency repairs to the water line in ~,e co~unity, I would like, !1:'. Speaker 1 to r']i:ld into the record also the prayer of the petition.

It reads as follows: "We, the undersigned, residents of BenoitS Cove, who come under the water supply from Hillview Road, hereby request that we have sufficient repairs done to our water line to get us through the Winter, ~nd furthermore request that we have a permanent and adequate water supply installed starting hopefully in the Spring. "At the present time we have no water wnatsoeve.::: 'anc. "Wta :1re -::crcec --::o ca:rr-::r.:m ,an, oper; ':b':::oo-X -a~t<o half to a quart:et of a mile away.

This C<:lndition repi!:lo!.t;S i'tseJ_f each year and as taxpayers and voters we feel, indeed we know, that we deserve better." I would like, Mr. Speaker, to add the following comments to the petition. The water system in Benoits Cove, at least in the particular area, has been a recurring problem for some time now due to design and installation problems. The main water line running from the dam in the community is very poorly installed and in places is at or above ground level causing obvious problems during the Winter mon~,s.

The outlet from the damn itself is in a running brook and during heavy or light rain, sediment and debris turn up in residents• drinking water •. l\nd I just have here, Hr. Speaker, a sample~ ~~is was taken f:rcrn the tap of one of the residents on November 12th., 1979. I am going to put it on the table of the House with the petition. 3226

November 22, 1979 Tape No. 1289 N.\1 - 2 MR. ROBERTS: Pour it on the table, MR. WOODROW: The problem is then, Mr. Speaker, a very serious one and area residents are not guaranteed a stable water supply and indeed during Winter months are not assured of water at alL Now, ~tt. Speaker, in all fairness to the Department of Municipal Affairs and Housing, some measures have been initiated in an effort to alleviate the problem. In fact 1 several times during the year I have had to bring this matter before the regional office in Corner Brook and from time to time 1 in fairness 1 work has been done.

However, in view of the quickly approaching Winter months, given the resultant problems with the system, emergency repairs must be carried out by the department. And I must stress that any repairs should be supervisee, important word, Mr. Speaker, to be supervised by officials in the regional office in Corner Brook to ensure ~~at the necessary work is carried out in a correct manner. ~_1 :must aiso ~"stre.at>, M=.

S~ ~ .-:th.::t while area residents and the govern!.ng municipal body, i.t is a commission of administration at present, which incidentally is not collecti~g water fees from those using the service, are requesting temporary repairs to avoid the hardship over the Winter months. A more permanent solution to the problem hopefully will be effected in the Spring. And in view of the above, Mr. Speaker, in view of the present circumstances facing the residents of Benoits Cave, I trust that the department will take compassionate and immediate action on this petition. I would like now, Mr.

Speaker, to table the petition and have it referred to the Department of Municipal Affairs and Housing. Thank you, Mr. Speaker. 3227

Novell"ber 22,1979 MR.F.S~~ (Sir:1rns) MR. STIPLING: Tape No. 1290 AH-1 The hen. member for Bonavist North. Being a former resident of the West Coast and ~~e area represented by the member1 I would definitely support his petition to the House because it cries cut on behalf of many of the communities in Newfoundland, many of the communities represented on this side of the House.

I would be interested in having the cotr~ents of ~~at same metl"ber, as I support the petition and ask !or urgent attention, interested in comments from ~~at same mell"ber when we get arour,e! to looking at the act in a few ru.nutes or a few days. Does this mean ~;at they have to put in property tax now in order to get that e~ergency water service looked after? And would you agree ~~at they should have property tax installet:"? I would be interested in the memb~r's comments when he takes a look at this act to see whe~~er or net he can send a telegra.."n back to the r.en-.bers of Benoit's Cove anC - HR.

WOODROW: (Inaudible) MR.STIFLP1G: In that case, Hr. Speaker, I a.>r. sure t.~e mell'.ber will send a telegram back saying either ycu e.re suggesting \'Je delay that a few days until you get your water repairs ~ade,or you hetter qet t.'1em to indicate that the SJOO or S400 _property tax per ~perscn ""ilJ have to be installed prior to ~th.at water proble!%1 beinc corrected. Definitely every mew.ter on this siCe of the l!ouse, Hr.

Speaker, representing many of the small communities, understan~_s completely what the member is tringing out in his petition and I hope t.'1at he has tl:'.uch better luck than most of us have had. MR. SPEAKER: Housing. td~.WINDSOR: Hon. Minister of Municipal Affairs and Mr. Spea~er, I rise basically to thank t.~e hon.mernber for once again bringing the situation to our attention and I assure him and the hon. House that the department is very aware of the situation as it relates to the particular cor.munity and the problems that have been experienced with the water supply there. We will 3228

November 22, 1979, Tape 1290, Page 2 - apb MR. WINDSOR: be taking a look at it immediately, again, to see if there are any immediate reparis that can be done to alleviate the situation somewhat for the Winter months. And, of course, any future consideration for long-term solution, the permanent water supply system will be considered in view of the capital expenditures for next year. ORDERS OF THE DAY MR. SPEA.l-\ER(Simms): Order 2, Bill No. 1.

Committee of the Whole en the bill, "An Act To Reform The Law Respecting The Property Of !A.arried Persons." On motion, that the House resolve itself into a Comrr.ittee of the h"hole on said bill, Hr. Speaker left the Chair. COP-~TTEE OF THE WHOLE ~z. Chairman(Baird): Order, please: Bill No. 1, clause (32). MR. RIDEOUT: Mr. Chairrr.an. MR. CHAI~~N: The hon. the me~~er for Baie MR. RIDEOUT: Mr.

Chairman, 1: just want to take a minute or so, and I assume the clause will carry, but I just want to take a ~.inute or so to say once again, an not to be repetitious of the arguments that ! made against the clause on the last day.

I was hoping that since Private Members' Day intervened since the last time we considered clause (32), that maybe the government House Leader, who is looking after the piloting through of this bill in the absence of his colleague, the Minister of Justice, might be able to tell us whe~~er or not any of the objections we made to the clause were going to be taken care of and ~~fortunately, he did not rise to his feet sc I can only take his silence to mean that what we have said so far ha£ fallen on deaf ears. I have no desire to hang her do~~ on clause {32}, Mr. Chairrran.

The facts of life are such that the clause is going to go through. I have registered my objec~ions 3229

Nove~her 22, 1979, Tape 1290, Page 3 -- apb HR. RilJEOUT: to it and r want to say once again to the minister, and to the Committee, that I support the principle of the bill, I voced for the principle of the bill and I will continue to support ~e principle of the bill but I find clause (32) 3230 /

November 22, 1979 Tape 1291 PK - 1 MR. RIDEOUT: very offensive for the reasons that I stated to this Committee an the last day. I do not think it is right or proper for us,as legislators, to put into statute law in this Province that kind of clause. And I intend, although supporting the bill, I intend to stand by what I told the Committee on the last day and to vote against the clause. SOME HON. HEMBERS: Hear, hear! MR. CHAIRMAN (BAUD): Shall Clause (32) carry? MR. CH.\IRI-'.AN: The hen. member for Torngat Mountains. t!R. tvAnrum : on Clause (32}, Hr.

Chairman, as you know on the last day when this bill came up, I did speak, also on Clause (32}1 in an objective mood. I still stand by that. I hate to see a bill going through this House that does give encouragement to cohabitation. As I said earlier, this

section of this bill, Section (32) 1 in my estimation should be deleted from the bill altogether. I am in principle supporting the bill. I think it is high time that we had such a bill brought into this House1for people throughout Newfoundland and Labrador, that will very reuch in the future set. a t-rend for their lives. But in

Section {32) itself I am afraid, ..Mr~ Chairlnan, that we have something in that bill 1 and it could be years down the road that people are going to look at it and it is going to be the sorriest thing that this House ever pussed 1 pas~ing this bill with Section (32) in it. MR. CHAIRHAN: The hen. member for LaPoile. MR. NEARY: Mr. Chairman, I was hoping that the representative of the Newfoundland Status Of Women. in the House. would have a few words I and try to answer some of the questions that we put to the representative the other day in connection with this ~lause and with this bill.

The only objection I have to Section (32) , the only objection is the fact that this is the clause that should apply to married couples as well as non-married couples. People should 3231.

November 22, 1979 Tape 1291 PK - 2 Mr. Nearv: should be able to opt in to this bill instead of being forced to opt out. That is the weakness in the bill. And the minister put up a very weak defence the ather day in trying to defend this clause and defend this bill. What we are doing, I do not know if the members of the House realize what is happening here, but I think the government have overstepped their jurisdiction. I would not agrue that it is unconstitutional. But the goverr.:nent, and especially the Minister of Education (Ms.

Verge) in trying to point up a problem in our society, in r:;ur ~lewfoundland society, in trying to point up that problerr. 1::as brought in a law which forces every married couple,and unmarried couple in the Province to come under that law whether they like it or not. AN HON MEMBER: (Inaudible) . MR. NEARY: This bill, Mr. Chair~n, let us face it, this bill has nothing to do with divorce, nothing to do with separation at all. This bill is dividing the matrL~onial prcperty. It has nothing to do with what the minister told us the other day in giving us th~ horror stcries~ It ha.s notl1ing to do with that at all.

This bill forces every ~arr1ed co~ple ~n ~ewround~an4 to d~V1ac tnt'~~~+~­ home, that is what it doeE. AN HON. M£.!.1BER: M.t!.. t~EARY: AN HON. ME11BER: MR. NEARY: wrong with that. Happy marriages. Pardon? Happy marriages. That is right. tlaw it could be argued that chere is nothing But, Hr. Chairman, what is wrong with it is that the minister, the Miliister of Educatior. I am talking al::out, in trying to zero in on a spec fie problem in cur society, has brought in a bill of general ap :lication applying to every married couple in the Province. Now that is my objection to the bill, Sir.

And it should be a piece of enabling legislation where if married couples want to enter into contracts they should be able to do so under the law. They 3232

Nov~~er 22, 1979 Ta:;::e 1291 PK - 3 should have the protection of t:.he lat<~, And if Judge Goodridge ~~d the other people down in the courts cannot w~ke up their minds then the legislation should lay do~n guidelines for people like Judge Goodridge 3233

November 22, l979 ':'ape 1292 EC - 1 MR. NEARY: so that he can figu.te out the matrimonial property. If he cannot figure it out now, well, okay, let us give hi:n some guidelines. But you do not make a law affecting every married couple in Newfoundland to get at that specific problem. That is the thing, Sir, I think we should take a look at. Clause 32 is probably the only clause left - t.'"lere may be one other clause where we could bring out this point. An.d I thir.k, constitutionally, it is wrong.

It is not t.'te pu.rpose of government, it is not the job of the House of Assembly when you are trying to get at a specific problem 1 to make a law for everybody. '!he argument with Clause 32 - 1 am not arguing on arJral grounds, I could not care less or otherwise -but I am merely arguing that it is married c:)uples who should be given the right to opt. in and not forcing th~ to opt out. What we are doing now is the reverse - we are giving :..on-married cOuples the right to opt in if they want to and forcing the law on married couples.

That is what I would like to point out to the House, where I think the bill has gone wrong. I subscribe to the principle. All of us have agreed wi~~ ~~e principle of zeroing in on the injustices and (Ms Verge) i.s ·no-e tile on11 one who can c:;et up and tall a !ev bl:lr=o= stories ir. this House. I happened w be Minister of Welfare in this Provinca for three and one-half years and I rould tell the minister stories that would make her little hairs stand on end. But that is no justification for bringing in a law of general application p~~liinQ ~, every married couple in Newfoundland. HR. J.

CARTER: Welfare on Bell Island, MR. NEARY: AN HON. MEMBER: MR. NEARY: Yes, I could do that too. By leave. Yes, by leave. I ~ould tell the hen. gentlEf!l!!n about A. B. Walsh and I could tell the hon.qentJ.e~ about the trust fund down in dte Royal Trust Building and I could tell t..'le hon. getltleman about the biggest scandal in the history of Canada, 3234

November 22, l979 Tape 1292 EC - ;.; HR. NEARY: tile Linerbo<lrd mill that he and his colleagues have refused to do anything about. I could go on and on and on with a list of scandals involving the Tory administration the length of the floor of this House and nothing done about it. And the government refuses to do anything about it, SOME HON. MEM!IERS t MR. NEARY: Sir, by ~~e hon. gentleman. P.A HOr~ , :1:::1 !BE?.: MR. NEARY: Oh, oh! I will not be distracted any longer, He is not even in his seat. No, that is :ight, not even in his seat.

It is either raining or it is cold today ar ~~e hon. gentleman would be out in his savor; patch. Only on rainy days ~,d cold days, frosty days, you will find the hon. gentleman in1being nasty in the House. Mr. Chairman, let the word go out that we are - and I am - all for the principle of eli~~nating this injustice in our society, but I am afraid now that we are going at it in ~~e wrong way. I am not sure if th.e way we are going at it is constitutional or not.

I do not know if the way we are going at it could be challenged certainly is a bill that has very serious ra.tl.ifications and verv s..-:r.l.ous implications t..l-troughout the Province, And I hope the Minister of Justice (Mr. Ottenheimer) 1 who is not in his seat, is sincere when he tells u.s that there is going to be a massive educational programme to make the people of this Province awa:e of the implications and the consequences of this bill.

As I said a few mments ago, Sir, it has nothing to do with divorce, nothing at all, It h~s nothing to do with separation, as the hon. the Minis 'tar of Education (Ms Verge) would lead us to believe. It has to do with dividing the matrimonial property. HR. CHAIR.l{A."h (Baird) MR. ROBERTS: MR. CHAIRMi\N: On motion, Clause 32, carried. Shall Clause 33 carry? M:. Chairman. M.r. Rx:lberts. 3235

November 22, 1979 Tape 1292 EC - 3 MR. OOBERTS: Mr. Chairman, I do not w~t. to malo;.e a speech, so I will not, but I have a question en

Section 33 which relates to a specific situation that arises out of

Section 31 in

Section 33. I guess probably my friend, the President o£ the Council (Mr. Marshall),would be the best one to speak for the ministry on this.

Section 31 provides that a marriage contract may be entered into by two spouses either before their marriage - I suppose that says their intended spouses - or during their marriage while they are cohabitating. And ~~en,

Section 32, of course, as has been pointed out, provides for the entering into a contract between two people who are not married to each other but are cohabitating - cohabiting, I guess, not cohabitating- or living together, to put a cocmon but not inaccurate description on it. 3236

November 22, 1979 Tape No. 1293 ~. ROBERTS: What I want to ask the minister is precisely what is the situation when a man and a "<~oman who are married to each other are not cohabiting, and I am not sure that is separation in law, it may or may not - I am not sure that is separation as is envisaged in

section 19 - It may be 1 but I am not sure it necessarily is. But let us assume, Mr. Speaker, and this is the question 1 that two people who are ~arried to each other are not cohabiting, how do ~~ey go about dividing up the prcperty, short of an application to the court? It is quite clear under the - and I know my learned friend, the Hinister of Education (Hs Verge) ,will follow and perhaps may be able to help us on this - I am just not sure what the situation is where you have two people who are married, are not cohabiting, whatever that may mean, and I suspect that is a matter that would require judicial

interpretation and Hr. Justice Goodridge and his brethren'· on the bench may yet have a bite at that particular part of the apple, but how do they go about dividing up the matrimonial assets short of a court action? Now, obviously, under aeet'l.'On 1 Sl "Uut<'i --can apft.L.! ~arid 11avt -an ~ _,;in .. .due.,,.._,, • ..,..._ gran~ed but supposing they can agree, they cannot agr.ee to li 7C together, they are not divorced, but can they not agree - they can agree 1 but can they not make a legally binding agreement? As I read

section 31 and

section 32, and,of course,

section 33 governs the both of them, or refers to both of them, how do people in that situation-and tha~,of course 1 I venture to suggest, Mr. Chairman. this is not a unique situation. The suggestion which I have pu~ is probably the most common situation in which this act will be envoked, that a man and a woman have ceased to live together, the marriage has not proceeded to the stage of an application to ~~e divorce courts ei~~er because there are not grounds or because the parties for good and legitimate reasons of their own do not wish to take a petition for divorce. 3237

November 22, 1979 ':'ape No. 1293 NM - 2 MR. ROBERTS: Now what does happen? If they are cohabiting they can make an agreement and split up the goods. If they are married and are cohabiting ~~ey can make an agreement and spl:t up the goods. If they want to go to court they can. But what happens if they can agree on two things, they can agree that they do not want to live together and 1 therefore 1 they are outside the ambit, as I read

section 31, they are outside its awbit, but they could also agree on how they are going to split up their various chattels. Now,do they have to qo to a court? It is nat an academic - I think it is a very goo~ point. Perhaps the minister, who is,I know1 fa~iliar with that, can set my concerns at rest. HR. !1..rutSH.l\LL: Mr. Chairman, if I understand the question properly, and perhaps the hen. t4inister of Education afterwards may wish to address herself to the question as well, these particular sections, 31 to 33 are permissive secticns 1 tha~ ?erzons may enter into an agreement.

If I understand the im?ort of the hen. gentleman's quest~cn, you ~~ow, r do not ~hir~ it preclude~ other agreements oc:..ng maoe. l mean ii: people are - i:i l am :::::.."';tl;-.;'1--be::..:t.-eve :.~ indicated t..'1at., you know, if people ·..;ere separa't.ed, now, could they make an agreement. 'lou know, it does not destroy the contractual right of a person to nuL~e an agreement wi~~ another person, no matter what their particular state at the - their de facto state at the ti~e ~n which the agreement was ~~de.

What the act is intended to do is ~o confer certain rights on persons but as there is an overall right to contract out of the provisions of the bill, you know, I do not think it interferes MR. ROBERTS: There is no overall right in tha~ situation. If my learned friend would allow me, ~tr. Chairman, perhaps I could put it this way - and I ~t.•as not here Tuesday when

section 31 was being discussed. Why are the words, "While tb.ey are cohabitating,'' and~incidentally1 it is cohabitating in one and cahabitir.g in the other, I do not knew what kind of gram."nar - I think both are syntactically incorrec~. MR. MARSHALL: Yes. 3238

November 22, o979 Tape No. 1293 HR. ROBERTS: But while ~hey are cohabiting why are those words in

section 31? Because I would submit, with all respect to my learned friend, that the presence of those words means that there is an area of a mazriage during NM - 3 which the parties may not make a contract under the terms of this act. If those words were taken out then I think it would solve the situation as I see it. Although there ~~y be some explar:tation -the learned ~inister of Education {Hs Verge) is smiling like the cat that swallowed the canary ~nd sh~ cay o= may not have reason to 1but maybe she could help out. MR. MARSHALL: MR. ROBERTS: Perhaps the bon. - Okay, let us hear, but 3239

!!over.ber 22,1979 TaFe No. 1294 J\H-1 MR.?DEERTS: is the presence of those words ~~at creates a situation Curing which no agreement, as I read

Section 31 1 may be maCe, MS \r"'EF'.GE: Mr.

Chairman, as I understand it under the present la"<• while a couple are married and cohabiting any contract which tP~y enter into which purports to deal with their respective rights - HR,ROBERTS: (Inaudible) MSVEF.GE: Yes, So for the benefit of the hon. member::~ who are not familiar with the law; •Nhile under the present la~before ~~is bill becomes Jaw next July lst 1 a couple who a:c married and cohabiting who enter into an agreement which purports to anticipate a separaticn or a divorce and deal with their property ri9hts in that eventuality, it is void as being against public polic:z•, This t..ill will change that provision of the common law to now enabl~ a couple· during their marriage and while they are cohabitin~to have a rnarriage contract which anticipates separation or divorce or rrovides for that eventuality.

Under the cotrn'.cn law, now, a :narried couple upon separation, that would be during the period Cetween their cohabitation anC ~~eir divorce 1 while they aze legally separated may,and in fact in 1l'i8l'J7 eases- 00,--en'tf!!: --mto -a ~O.U'tX'. -ayxet::n.et ..... "'il't'..!.t::'"-ea:z;-pro1.-~- ~c.­ their distribution and division of tr.eir pror~rty ~n9 ether ~~ngs. And ~~e law governing separation agreements would be the same after this act comes into force, su:tstantially.

Couple::: \,auld still have tht:: freedom to enter into a separation agreement in the way that d1ey do now after this act cowes into force and I would think that it would be, of course, preferable for couples in the situation of a separation 1 to work out their property affairs ~~rough mutual agreement in a form ef a private separation agreement,even after this act comes into force.

This act will merely give each of the partners to L~e marriage some security and will establish some guiCelines to enable them to more readily be able to co~e to a mutual agr~ement out of court.~ut,of cocrse,in cases where that is not possible they ~ill be able to resort to the provisions 3240

tfover.ber 22,1~79 Ta,~;e No. 1294 AH-2 of ~his act giving a right to apply to the court for a division of either matrimonial assets or business assets. MP..CHAIPMAli: {Baird) The member for the Strait of Belle Isle. MR. ROP.E?TS: !!r. c.;aiman, with all respect to rr:y learned fr!ar.C,I thit\~ I followeC what she said and with most of it I have no objection.

I ~~an,~;e question of contracts ir. marriage has never been tested in our law as far as I an'. aware -by our law I ._-~-:an the law of Newfoundland, but I think ! would agree with her opinion, in fact, I have had occasion to look into en behalf of some clients and I think one would be ill-advised,absent this legislation, to enter into a contract during a marriage,short of a separation,that purported to be effective on ~;e disilluaion of that marriage or upon the separation of the parties to the marriage. I do not argue with that.

But this is an important point, Sir, and let me go back because I do not ~;ink I have made it clear or if so I have not had an answer to it. The law at present say~ that, short of a separaticnfa contract to dispose of the property of marrier! people is not necessarily ~enforcea.olc. It r,.ay I void , it may be voidable, to use these terms in the legal contaxt,but of t.~e -ntetrl:.ers of the bar who !1ave had occasion from

titre to time tc look at it. This act varies the common law - and I think a n~ber of us spoke about it at second reading and ! think it is a wise variation cf ~e co~on law. It varies it in the sense, two senses.

Section 31 says that a married couple may make su~~ a contract which will be regarded as ~nforceable under our law.

Section 32 says that a man and woman who are not married to each other may make a contract t~at will be regarded as enforceable. Fair enough.' But t~e words in

Section 31 ,''while they are cohabiting seem to close 1:=-o create a' period, a closed period during which no agreement may be made. My submission would be this, that we are changing the common law to allow agreenents during marriage, to be made during narriage but only while ~~e parties are cohabiting during r.~rriage,, 3241

Nove~ber 22, 19i9, Tape 1295, Page 1 -- apb !1R. ROBERTS: so if this clause goes through, if (31) goes through ur.altered, we end up with a situation whereby an agreement cannot be made in the situation during which the parties are married but cohabiting.

I think that is a sound, logical argument and my concern is - this may seem to some members, Mr, Chairman, to be terribly academic, b•.1t I think when we think about it a moment, this is the most likely situation in which an agreement - an agreement is going to come up in one of two ways; either they are going to come when you go to get married- just before you say, '! do 1 , your friendly solicitor whips your agreement in front of you and the man and the woman sign it, or they are going to come up when one or both parties to the tr~rriage comes in to see a lawyer and says, 'Look, we have come to t.l;e end of the road, tell us what our respective rights and obligations are.' Vest people are not going to be affected by this act unless the marriage gets in difficulties and they end up.

At that point, assucing they are not cohabiting, and if I u.."lderstand cohabitation, it is sJ.:nply lJ.vJ.ng together - J'OU eolild tta:VI;! ;;. -septtta:tzon wtu.J.e ;r--- are living together, if 1 understand t~e law correctly. I do no~ why we would use the term 'cohabiting', a separation, I think, has a precise meaning in the law of this country and, as I say, I do not underst:md why it is cchabitating in one clause and cohabiting in another, that is just sloppy, sloppy work. ~~nor, but sloppy. But we have the situation where in you come- somebody comes in to see me and ~ey say, 'Mr.

Roberts, I am married but I am not living with my wife and she and I wish to make an agreement to divide up the assets. We have come to th.e end of the rope,' New, I look at section (31) and

section {31) - I lock at the act and I say, 'The act applies absent an agreement to ~~e contrary.' Am I correct? The minister would agree with me? I mean, that is the law once this thing is adopted, as it will be. lind I say, 'Fine, but you have a right to contract cut, it is given by section (31) .' Correct? And I say, 3242

November 22, 1979, Tape 129, Page 2 -- apb MR. ROBE..'qTS: 'But, ole man, hold on now, you lose your right under section (31) because you are not living with your wife, therefore, it seems to me ~~ere are only two options left, one is to take the straight fifty/fifty division that the act puts down, the other is to go into court under section (19) .' And I agree completely with the Minister of Education {MsVerge) when she says, and any lawyer, I think, would agree, L~at a settlement is preferable to litigation. Litigation is expensive, it is uncertain. My hen. friend from St. John's West (Mr.

Barrett) in his private life is an insurance man and he, doubtless, has had a lot to do with lawyers from time to time wi~~ respect to claims and I think he would concur that he would rather have a settlement of a claim within agreed terms than let a matter go to court. I suspect that solicitors who act for the insurance company with which he is involved, that is their practice. I know in my own little practice, from time to time, if one gets a settlement within agreed limits you take it every time rather than go to court. Courts are expensive and ~eo; a-re "'tmeer:a::.:n and.

W::.'t:::n a se.t:t-.J.-e:en:., ;rou )C:te\;i"'-wr.a.L ~yo:,;;. -!nl<~, Win, lose-or draw, you kno;.;. I am not sure that I have necessarily convinced anyone, buc I think the point I have raised is a valid one 1 I would suggest, because this act is going to have far-reaching ramifications, Hr. Chairman, far further than any of us in this House have realized.

I only realized the other day,myself, that it will no longer be possible for any married person in Newfoundland to ~~ke a will with respect to his rnatriirOnial horne. !.t.ay I suggest - I notice my two learned friends, the Minister of Education and the President of the Council (Mr. ~.arsha!

l) have been conferring. If my point is valid, and I think - I have not heard an answer to it yet. ~.aybe we could agree - we a=e not going to finish this bill at Committee this day. I will guar~~tee that, if there is any question about it. 3243

November 22, l9i9, Tape 1295, Page 3 -- apb MR. ROBERTS : But I do not think I need to, I think there are sufficient concerns to be looked at, Could we let this clause stand? Because I can see a problem and the result of it would be to prevent people tr,aking an agreement in a situation where it is likely that many of them might want to make an agreement.

The result of that, in turn, would be to force them to go to court ~~d that, surely, is improper in public (inaudible) for two reasons, number one, we should not force peopl~ to go to court if they do not want to, and number two, the courts are burdened encught as it is without putting extra litigation, extra actions before them. :If the hon. minister can allay my doubts I will back off, but I may say I have not had them allayed yet. HR. HARSHALL: ~~. Chairman, I come back to the position that I took whe.n I first addressed myself to the observation and that is that 3244

November 22, 1979 Tape He. 1296 SD - 1 ic does not prohi~it en~er~ng i~to contractual relationships where the parties are separated and r.ot cohabitating •. ;ll i':: sd.ys is,"They may enter into," ~md the reason why it is ther~ as the han. Minister of Education {Ms. Verge) indicated 1 is that such agreements would be void as a matter of public policy before the passage of ~~is act and this is the reason why it is there.

I do not ~~ink that its presence precludes the entering into of contracts where the parties are separated but I could say this tv the hon. gentleman, when he was dway the othar day we dealt wi~l the matter of the statutory limitation period. This bill does not come into effect until July 1st.

We are very concerned and very interested in the remark.;; that are made in comnittee and this is cert.ainly one oi t..'l.em1 as ;.,•elL I think we would certainly take it under advisement ar.d we will lead in an amenclm.ent if an amendment is, in fact, necessar;, I oean, we will deal with it before the act comes into effect on July 1st. But I t..~ink the hon. member will agree with me, I mean, we could argue it back and forth and I can see the position ar.d the reason stnigh't i.:t.terpretatic.."l of i1:. but I ·loolt at .it and .I ge1:. a.'\Cther

interpretation. So, it is not the desire:in this act to preclude persons not cohabitating,who are married, from making contracts and if it is necessar; we will lead in an amendment after the act J.S passed. HR. E. ROBERTS: M.t. Chairman, I appreciate what the minister says and I will back off at that. I mean, that is a reasonable response. I would, perhaps, best sum up ""nat I am ,, trying to say by saying it is the words, ';..hile they are coha.bitating, as they appear in

Section 31 which cause the concern on my part. You know, if those words were r.ot there. I think the oatter would be crystal clear that whether - A..ti HO:~. MEt4BER: (Inaudible) MR. E • ROBERTS: I am sorry:r I just had a note handed to me 3245

November 22, 1979 Tape •~o. 1296 so - 2 .:1R. W. MARSHALL 1 that I t:.ru..nk will probably solve it a bit. MR. E. ROBERTS: Well, alright. MR. W. MARSHALL: Perhaps we nave all looked at this bill so many times and when you luok dt a bill and you read it so many times you can still miss things. There is

Section 34 here which provides for the specific provision, now, with respect to separation agreementsJ when a man and woman who have cohabitated and they are living apart may enter into an agrea~ent in which they agree on ~~eir respective rights and obligations including the ownership of properties, support obligations and what rAve you.

Tnat would certainly seem to meet the observations made by the hon. member but I would say wieh respect to i~, I mean, we value the observations and we will take them certaL~ly into consideration and look at it from that aspect to be quite sure because it is certainly not intended in this act to preclude persons in that particular position from making an agreement without hav~ng to have them resort eo court. observation and I nave seen

Section 34., The trcr.!blu is Sect:;l;~;m 34 refers to a man and. a woman who have cohabit:at.ed 1 i~ does not refer to a man and a woman who have marrieU and I realize that cohabitation may involve marriage but, I am not going to conduct a filibuster on

Section 3J but I do not think

Section 34 - it may have been ir.tended to meet the need, but it does notmeet t.he need, so I will simply say again 1 where I was when I yielded to the han. gentleman 1 that ~~e .. ,, words, while they are cohabitating, I .....auld suggest that consideration be given simply to dropping those four words and that would then have the effect of saying that you may make a contract during ~arriage, remember marriage exists, of course, up to the granting of an absolute decree not simply the nisi.

The marriage is just up to- and at any time during the marriage two parties may, by agreement, vary this act which, I think 1 is the principle that the government wish to put forward and it is certainly one that we are prepared to accept 3246

Hovern.ber 22, 1979 '!apt: No. 1296 SW - 3 HR~ E. ROBERTS: on this side. I just do not ,, understand why the words, while they are cohabi.tating, are in there. With all respect to been my learned friends, I have not heard any reason why they are. Now 1 there may be a reason - MR. P.ARSF.ALL: Would the - 324'7

Nov~mber 22, 1979 Tape 1297 PK - 1 f<:.R. ROEEFSS: Go ahead! MR. VJ\RSHALL: You know, the problem is, as 1o·e see it, the existing law. Now,we would want to weigh t.he observations by the han. gentlen:an. I think, you know, ament:hr.ents in Committee of this nature ,·cOuld cause real problems. The point is I think we would have to have the aspect in1 that where people are cohabitating 1 } they are able to make separation agreements (inaudible) you see. SR. ROEERTS: I agree. I am net accusing my learned friend of Ceing rigid or stubborn. I mean, I am not.

I would if I thought he was, but I do not think he ~s and therefore I do not. I agree completely t:hat it is necessary to have a Section (31). Because as my learned friend, the MUtistcr o! Education (Ms. verge) said, a. contract now betwe~n t-..rc ;:ecole who are married to each cth~r and are not separated - And I think it requires separation now, if I U11derstand law, but certainly, you know, people who are not either- people who are cohabitating with each other 1 such a contract, I think almost any lawyer in Newfoundland and Labrador whc looked written on because i~ is not~enforeeatle policy, and that is that.

I had an occasion to do some research, Z: may have missed a case or I may not know about it, but: I am not awa=e of any case where that matter has been put to the test in the courts of this Province. So all I Hill say is sitrply, and I .;.gree with the han. minister, you know, amen~~~nts ir. Committee are a very dangerous thing, Mr. Chairman, unless they are reasor ao.endn:ents tlut the drafts people have worked out and the minister tc bring in. You know, I mean we have all seen amendments that seem to be straightforward, accepted,and then not propose to. that cause problems.

So I have not moved an amendment and I do Put I •.;auld simply say to the minister that it is the words "while they are cohabitating" that: cause the trouble.

Section (34} 1 with all z:espect to whoever 3248

November 22, 1975 Tape 1297 PK - 2 M.r. Roberts: passed the note to the minister, Section (34) does not meet the need. section (34) speaks in exactly the same terms as Section (32). And I would thL~k any judge who looked at it would be draw~ inevitably and unavoidably to the conclusion that (34) deals with the sarne situation as (32) and no other. Now 1 if ( 34) said, • A man and a woman who have cohabitated and are living separate and apart or a man and a \«Oman who are married to each other and are living separate and apart". If my learned friend follows me? MR. HARSHALL: >lR. ROEERTS: MR. HARSHALL: MR.

ROBERTS: That is right. But I do see- I nean,I will let it go by. One of the benefits of having - Go ahead! - people in the House from the Legislative Draftman's Office, the Chief Legislative Draftsoan himself, is the NFI.. HARSHALL: fact, that, these ':.we- t!lings, both ~e limi"t:ation period. and this, you know, are being noted,I know, and will be very seriously }lR. ROBERTS : You k~ow, I appreciate that. And I do not. think the minister could say much more. I just wanted to be sure that the point was there.

Because I see it as probably one of the real problem areas in the application of this Act because this is the situation, I venture to suggest 1in which it will most likely will arise. And I know the minister would agree with me, that we should not force people into court. They should have a right to go to court - MR. MARSHALL: That is right. MR. ROBERTS: - if they cannot settle the matter by agreement. MR. MARSHALL: Keep them out of ccurt all we can. !1R.

ROBERTS: We should not force tbern into court if they are able to make an agreement, if they have had - one of the things that is not in this act, interestingly enaugh,thac we might have looked at - if it is I have not seen it - is a requirement that people ought 3249

November 22, 1979 Tape 1297 IB-3 MR. ROBERTS: to have independant legal advice A n~~er of provinces require a certificate of independant legal arvice before a~ agree~ent can be considered valid because,obviously 1 thes~ are situations t>:hicn, you know, are not necessarily duress but where the p~rties might not be quite as free to engage in contractual discussions as they might in a normal bus~ness context. But that is aneth~ story. So I will rest content with the minister's commit."Ttent to have the matter looked into.

I suspect that there are going to be a lot of amendments to this act over the 1ears because I think that it is - I will not say it is badly drawn but I do not think it is fully thought through. I am not sure that anybody in this Province really has been able to think it through and it is the sort of thing we are going to find out as time goes on, that there are holes and problems. BUt I do say again that those words,"while they are cohabitati.."lg;'in

section 31, I think cause a problem and the draftsman who, by the way, should not be on the staff of the Department of Justice - I find it offensive. Are they on the staff of the House? They sl'-.culd te paid by the House. And if the House ~~:: ::hooses: t.c Sl:'oCanu J:hen to the JustJ.ce Department. NR. MARSHALL: MR. ROBERTS: !1R. HARSHALL ~ MR. ROBERTS: v;o passed this in (inaudible} . But that is not the way the estil"'.ates read. Yes, right. I venture to say that it is a major point but it is not strictly speaking, Your Concur, relevant to clause 33 of this 3250

November 22, 1979 Tape 1298 EC - 1 MR. FJJSER'l'S: particular b~ll. But nonetheless, the point I had been making about the defective -

Section 31, those words, "while they are cohabitat.ing" - t..,_ere must. be a reason for having them in there. I have not heard it expressed, they are there. We do need a clause to make the agreement valid, if not, really, the whole bill is a waste of time. It would be a terribly restricted piece of legislation. With the allowing or t.~e validity of domestic funds, actually, it could be worthwhile. But those words do cause me some concern and I will rest content:. with the minister's undertaking to consult with the authors of ~~e bill and see where we go from there.

Section 34 - the minister ought to have a word with whoever passed him the note, because whoever passed him the note either was not listening or did not understand, because

Section 24 does not meet the concern we now have. Other than that, I am Willing to let- althoug!i. I wculC ask the minister why

Section 33(2) "11Did£,,.atc, i:ni.tin-~ts,:Wi!:.~--re.s;>eet~.:t.o-~1:.Cdv. wl\i.t::h .. _of course~ _.Lr' a matter beyond the purview of this House anyway, i.s it not? -- Whitreas

Section 34(

d) allows it. You know, I know the difference is before or after separation but we are allowing people to deal with custody after separation -we are not allowing - these are people who have cohabited. In other words, what you are saying is you have to live apart before you can discuss who is going to have custody of the c.Uldren or who is going to have access under what conditions to them. I just do not understand why that particular principle is drawn. Is there an explanation for it? There must be. ·What is it? AN HON. MEMBER: (Inaudible). MR. ROBERTS : Well, one of you drafted the bill. I mean - A.l-1 HON. MEMBER: That is a good point. MR. ROBERTS: Just again while ~~e ministers are 3251

November 22, 19i9 Tape 1298 EC - 2 MR. ROBERTS: gathering thei= ~~o~ghtz,

section 33 (2) says that "a marriage contract or a cohabitation agreement may not include an agreement of t.'1e parties as to rights of custody or access to children," and ~~at is straightforward. And, in fact, 1 am not sure this House could go very much further. I mean, the Divorce Act has some provisions in it, doe& it not, about this? We might get into a very neat constitutional point.

Section 34, which refers only, Mr. Chairman, to a man and a woman who have cohabited and are living separate and apart, may enter into an agreement incl~ding t.'1e right of custody and access to children. Now that sounds fine. Why t..~e difference between the two?

Section 33 is before separation, before a break in cohabitation.

Section 34 deals only with people who have never married each other, and it may include an agreetr.ent for right to custody and access - it may or may not, because the pa=ties may not have the au~'1ority to make agreements with respect to the custody of children, as, for example, a person was marr1ed, had a child, subsequently became divo~ced, a court order was granted, a corolla.::y relief on the di'lo"'rce application - ynu Jcnow~ .J::hJ.s .ac::... ,the =ore ycu l.ool; .at,.U. .• .Mr. "-t:::ha.i%:1Wln. Zbc ,lbOr~ questions Ari.ae. MS VERGE; Mr.

Otairman, as I understand the existing law, the question of custody of children is always one which can be decided by t.l1e court regardless of any contract which the parents of a ch.il(f-may have purported to enter into and the court in :na..r;;i:1g a decision on custody of children has as its paramount consideration - and this is something that is laid out in t:"le Child Vielfare Act of the Province - what is in the best interests of the child or children, so ~~at even if, the parents of a child enter into an agreement, it is now commonly done in the form of a separation agreement after the marriage breaks up, which purports to deal with custody of the ch.ildren.

If the arrangement subsequently does not work out, an application may be brougnt to ~~e court either with a divorce petition under the Divorce Act or as is sometimes done - MR. ROBERTS: The Director cf Child Welfare can at any time - 3252

November 22, 1979 Tape 1298 EC - 3 MS VERGE: Yes, and sometimes there is a - MR. ROBERTS: - '.>i'hether they are separated or not. MS VERGE: That is right. That is a separate 3253

lloverr.ber 22, 1979 Tape 1299 ~atter not one rrerely between che two parents but where the :..irector of Child Kelfare nay step in in the best interests of t-,c child where there is evider:.ce that the child is being neglected. ~~so, a parent cay apply to the court by way of a habeas corpus application to get custociy of a child. So, in any one a= those circ~~tances an application aay be brought to the court, which the court will rule on ,bearing in rr.ind what is best for the children, regarC.less of what the parents mar have purpcrted to proviCe in a contract. That is just a bit of background explanation. MR.

FD:.JLR'l"S: question. ~.S. VERGE: It has nothing to do with the 'Ihe question precisely is - l·i11y is there a discrepancy between What couples are permitted tr provide for relatir.g to their c..l-tildren in a rnarrl.age contract entered into either before the ~arriage or during the perioC of cohabita;ion, or in a separation agree~~nt ~ntered into after the tr4rriage bre~~ up7 MR. P.CS.t:RTS: No, that

section {34) deals on.ly with cona.bl.tatl.r.-g people wno nave cease c. to ccnabl..t, l.t aces ~not;. t:.ea.l. WlXn marrJ..ec pee..:_·.:..~ or se~:-aration. It: could be. I asked the question. 1 do not know· t:.he ans-wer. Hell, I am not getting the answer. MR. H~.RSn;...LL: I thank the hon. minister for her explanation.

I have had an opportun.it:;, r.cw, t.o aCdress the question on (33} and (34}. ltS I see the situation (33) addresses itself to a marriage contract or a cohabitation agreecent '•••here \_ parties are living together, and I think it -would be deemed to be against policy for persons who are living together with children to Cecide how t..he children are going to go in the even~ - which parent or which person is going to have custody while ~~ey are living together,

whereas, afterwards, after a separation :1P.. ROBERTS: You allow them to decide what to de with ~1-teir property Cut net. their children. 3254

Novetr.ber 22, 1979 Tape 1299 HB - 2 "lou allow the::J.,of course, to jointly bring up their children, but I Co not think. where ti1ey are living together it would seem to be against public FOliC'; to provide t.'1at if dad and n:other split up that ycu will go to - HP.. RO.m:F.l'S: rs is not paraCc:.dcal that he allow cad and tr.otr, to decide who gets the :1ouse, a."ld v;ho gets tl'le car, Lut we will not allov; them to decide who gets the children. Yes, but the principle of t.~e bill, the n.s.ture of the Li11, relates to the property of rr.arried persons. MR. RCELRTS: cnil dren here. l1R. HAPSHALL: property.

HR. P..05EP.TS: the ~ill. HR. 1-'..ARShA.LL: Yes, but now we are bringinq ~ell, children are not really the I agree. I did not bring ther:t into The reason why it is after se~araticn is that it is after separation these t.~ings are decided, when there is a separation between two parties~but while the1 are living toge~~er .:.t. woula seetr. to ~e really, 'L"l our Vl.e..,., against:. publ.::..::c poi'l.-cy "LW 1-i.-'­ in the bill that they will decicle during the period of tt.eir tr.arriase where tne children will go if mom and Cay split up. MR. ROBERTS: I do not argue with that. That is fine.

I am not getting an answer to the question. Section (34), and I kno .. .­ we are on (33), but real!~ Your Honour, like any act they are all tieC in, necessarily, to one another. section (34) confers only upon people who have cohabitated and are living separate and a;:>art. It does not confer or purport to confer any rights with. respect to chil<idn an people who are tr.arried but have separated. Hew, I know the gen ral law, that is done today and we do not need to change the law the e. I do not understand why the distinction is made.

I do not understand why the drafts~~ who wrote c~is bill, or why ~he instructions given by the minister who instructed t.'le draftsr..an who wrote the I::.ill, said rr.ake a distincticl"'. please bet:..:een pecple who have cohabitated and are 3255

Nove~ber 22, 1979 'tape 1299 :-IR. ROE:t.?.T.S: living separate and apart, and people who have not. :-:cw, :tou a.lso get:. into another interestins point of law.

If a man and a v;o:zan are not marrieC to each other and they produce a chile by the r,hysical proceas,-righti-and (34) (1:::) talks about their children, so presumably it r::eans children of the union, of the physical union. :1ow, what rights, presently exist in our law, if I understand i~ correctly, ~ld I Co not pretend t.l:' k::e much of an expert or:. this a~ all, thtt mother of tJte child has the great part of the bur.dle of "rishts" ~ i-le are not talking of a piece of property, t,.;e are ta.!king of a child, and the over-riding concern is al.,.,.ays, as the :·tinister of Education (!1!>.

Verge) quite properly says, the best interests of c.he childre:J.. That is reflected eo~n in section (38) of this bill now. You know, Coes ~ection (34) purport to atr.end t:he general la;..· of this J;'rovince in a backhanded way? 3256

Ncv~Il'ber 22, 1979 Tape tSo. 1300 PJ\1 !4R. E. FDBEP.TS : People thir.k these are academic questions but darn it they are not, they will all come up and probably con-,e up very quickly. If I understand the law in this Province correct!~· today, a woman who has a child out of wedlock and in law that t:hild is a bastard, that is not a term of opprobrium or a term of slang that is a legal term. The child is illegitimate.

The father of that child has no rights in our lat-:, If I understand the laH he has scme obligations under t.l-te 6.ildrcn of Unmarried Parents Act. !tow, t."lat, if I state< it cor:-ec~ly, is what I under­ stand to be the ger,eral law of this Province toCay. The !'!'other has all of the rights to that child for exawple, t.~e riaht to adopt or the right to place out the child for adoption. If I understand it corr~ctlV that is the law.

No-,.,, what happens in this sense~ Supporting the man and the woman who have had the child are not married to each o~~er Cut ~~ey are just living together. rohabitation can !:.e one night it Coes not have to be one •..:eek or sc many acts of intercourse ·1'he judges rr.a:.· ccrr:.e up with that in due courseJbut let us put it one ni9ht and they ~ake an a~reement ~= ~etier.- ---~<4- -anc tire ·-p:uta-".:ive ~·:Oat..~!: t, l ~·-'!r:Ort"':i , -~ '1:-lOthe:: ~er.d -~~ putath--e father malce an agree:-ent. and the agree:r.ent is that I, Jane Do~ having teen informed of my legal righ_t under

section 34 of the Matri:r.onial Property Act 1979, hereby do agree that any child born of the physical union I am about to enter into shall be in t.~e custody of the man who is about to enter into the union with me fran w~i~~ the child will spring if a ~~ild in fact does spring MP. STl\GG-t HP.. · , ROBEPTS : A pretty serious one-night stand. W~ll, I do not know ve~ much about one-:-:ight stands. I will bow to my friend frel!". Stephenville if he holds h' ::;self as {inaudibl2), SL J~tr H0~1. r1F.:MBFPE: Ch, oh. HR.

F'Of!FFITS: But I a~ concerned about adopting a statute law t~at may have affe~ts that nobody in ~,is Hous~ knows about or thought aboct. :Otf'. S tacg : Reductio ad absurd~~. 3257

Nover.:her 22, 1979 Tape No. 1300 M2 MR. P.OBFRTS: Yes, it is reductio ad atsurd~~ and lawyers get damn wealthy out of t!".ese situations, and I do not want to see people in the courts of ~~is Province,! do not want to see litigation needlessly, when a bill that can be debated in the House as it has been quite fiercly until ~/ learned friend from Ste~henville choose to be unlearned about it. ttow1 Hr.

Chai:rnan, Jane Dee and John _,.ames have maCe this contract ; maybe it is a well thoughtout one-night stand, I do not know,! would not h.ave thought it was a stand 1 ! have al­ ways thought it was a different position entirely but again I bow to the hen. gentleman if he has ~ore knowledge than I do. Eut Mr. Chairman, what happens if they make that agreement purporting to confer some rights upon ~~e father of ~~at child? Does that c~ange ~~e general statute law of this Province ? If so, it surely ought to be done by act, Do we have one act in conflict with another ? You know, t.~is bill in ver}· many ways1 Mr.

Chairman, it is becoming obvious, is badly thought out. The principle has been well thought out and I have no problem with the principle but t.~ere are any number of loopholes in this bill they have been pointeC out by hon. members of this P.ouse. I will net gc ever the over4!1 ttinq 1 a."lcl I knOW" the minister says that there is always a possibility of a­ ~endments1 but the fact r~ains people are going to ~egin making arrange­ ments now. Once th.is bill receives the Royal Assent t11ere is going to l::e the greatest tonan%a for lawyers.

It really will be a banan%a for lawyers, this particular bill But what is the situation with respect to 34~ The ~~nister has not answered the question, Why have we asked to put ~~is Frovision in 1 you know, and does it go against the general law of the Pro­ vince? Are we amending legislation in a backhanded wayf We should not be. MR. MARSHALL: Mr. ~hairman, all I can say is that with respect to the observations made with respect to the

section 33: again 1 it is not in there tecause where a man and wc~an are living together ~~ey have joint custody over ~~eir chilCren and is deemed to be, as far as our weight and assessment of this bill 1 to be against public policy in such ch instance for ther. to agree as to the separation in ~~e ~vent that their parents separate. That is why t..~at is there. now, with respect to the other I do not believe that it, well it does alter the existing law, I t.'"link, ~ 3258

!lover.:ber 22, 1079 Ta.re No. 1300 RJ\3 ~P. t~.P...Sf'ALL: certain specific instances that the hon. gentleman referred to but what really it is 3259

November 22, 19i9, Tape 1301, Page 1 -- apb HR. V'.ARSHALL: intended to do is to strengthen the law as it provides to protect the child of a separated home, or an illegicimate child, for that particular matter, because it will thereby encourage and foster the parents of that child when they meet the reality of separation and gives them the right and really encourages them to sit down and discuss as to whom should have custody of the child. Be it the mother or the father, it is deemed to be in the best interest of the children themselves, which is the paramount concern, for this to be done.

And this is why it is there in the bill and I think it is for the benefit of the children, to make it quite clear that after separation, whether a man and a woman are cohabitating wi~~out the benefit of marriage as we know it under our law, or whether they are married then separated, that these people address themselves to, then, that issue which becomes a very important one at the time. Perhaps instead of (

d) it should be (a} in that particular circumstance, rather than the _ownership of property. That is the only criticism I would 1n01k-e 'Hlll.Y 'of'· tile: "'Sl!!t:t.±on",'±tsel:i., ·"i.n 'that !di -if <ib!Wa:re -La'~­ would have tt"Ore emphasis. perhaps. It should be the fi.rst thing. That is our reasoning behind it. HR. CHAIRMAN(Bairdl: Order, please! Under Standing Order 3l(

k) I do now leave the Chair for the Speaker to announce the topics for the Late Show. MR. SPEAKER(Simms) : order, please~ I can inform tb.e Hause now that I have received notice of one matter for debate at 5:30, when a motion to adjourn will be deemed to be before the House: notice given by the hon. the member for LaPoile (Mr.Neary) arising out of a question asked the han. the Minister of Public Works (Mr. Young) and the subject matter, Mount Scio House. MR. CHAIR.'1A."l: The han. the member for the Strait of Belle Isle. 3260

November 22, 1979, Tape 1301, Pase 2 -- apb MR. ROBERTS: Your Honour, I am not going to kick the dead horse fur~~er, I understar.d what the han. gentleman is saying, but I certainly cannot accept it. I think that {34) is a bad clause, it changes ~~e general statute clause of ~~is Province, and I venture to suggest that until tr.ls discussion came up in the House -the ministers just did not think of that at all. I do not find that, particularly, to be a serious crime.

This is a an incredibly complicated piece of legislation, not to look at it, but I will say again that it is going to create more work for lawyers than anything this House has done in the hundred and-some-odd years we have been here. SOME HON . MEMBERS : Hear, hear! MlL ROBERTS : Perhaps all of us who are lawyers ought to be banned, under the Conflict of Interest Legislation, from taking

part in it, taking

part in the debate or taking

part in the disposi~ion of the bill. I just want to say to the minister I will not argue, I will just ge~ ~~e answer, it is policy, and that is it. I cannot nrgu-= wit..~ that. I can change it in mind 0<.1:: the peopla instead will change the government. And I think anybcdy who counts on this act not being changed down ~~e road i3 a very foolish person indeed. I am not satisfied; I think that section (34) takes away from rights which now exist in our law, and it takes away in a backhanded way, and ! think it takes away in ~~ improper way, but having said that all I will say is ! am against the

section and that is that. on motion, clauses 33 to 36, carried. MR. ROBERTS: Boy, that sure points out an anomaly in the law, you can get ~arried but you cannot make a contract. MR. CH.UR.'1AN(Baird): MR. ROBERTS: Shall clause 37 carry? Well, Your Eonour, I have only one question on (37), it is with reference to subsection (2). 326:1

Nover.her 22, 1979, Tape 1301, Page 3 -- apb MR. ROBERTS; The principle of the clause, if there is such a phrase, is very good, that, obviously, a mentally incompetent person ought not to be entering into agreements, it is the guardian who acts. I do find subsection (2), it says, 'Where thL guardian is the spouse- not an uncommon situation- 'the Registrar of the Supreme COurt may act'. I would think it should be, 'should act' or 'shall act', or 'must act', whatever the correct word is. I mean, who do we leave it to?

We have John and Jane married to each other and Jane is mentally incompetent and John is appointed her guardian, and John ~akes a contract to dispose of the property of the marriage 3262

November 22, 1979 Tape No. 1302 GH-1 HR. ROBERTS: between John,in his own right and Jane, John in the right of Jane. !f Jane is no longer a minor, it never need came to court. I mean that is just an invitation for chicanery. Surely it should be 'shall' or 'should' or 'must', not permissive, it should be mandatory. MR. MARSHALL: I agree with that, Mr. Chairman, although, you know, I previously said earlier this afternoon 1that we would not - not that we would not - but that we should carefully weigh before we make it in Committee but - HR. ROBERTS: I agree with that.

MR. }'I.ARSliALL: - you know, it would appear to me that there ought to be somebody charged with the mandatory responsibility. We have not got a public trustee as such, and the Registrar of the Supreme Court often stands on that, and I think that we can entertain an amendment to that. I did not introduce ~~e bill, so if the han. gentleman would like to second it I would move that the word 'may' be deleted from Subsection {2) of

SectiOn 37 of ~~e bill and replaced with the word 'shall' so that _it w~ read that where ~~ quardian is the spouse of a mentally incompetent person, the Registrar of ~~e Supreme Cour: shall act in the place of the guardian under Subsection (lJ. MR. ROBERTS: I will simply thank the bon. gentleman. I do not know whether he intended me to second it; if so, I do, and I will simply say that he and I have now sewn up the mentally incompetent vote in this Province. carried. 40, carried. MR. CHAIR.4AN: {Baird) HR. ROBERTS: On motion, Clause 37 as amended, On motion, Clauses 38 through to Shall Clause 41 carry?

Hold on now, do not go quite so quickly- 40- I am not sure of this, but is 40, Subsection (2), analogous to

Section 37(2l{ It is where the executor or 3263

Nove~ber 22, 1979 Tape No. 1302 GH-2 :.J.R, R::JEEP.TS: a~~inistra~or of a deceased s~ouse is a surviving spouse - again that is not an uncommon situation - the Registrar of the Supreme Court may act in the place of executor or administrator, and you see we would have a case where the agreement would be between John Janes in his own right and John Jones as executor or a~~inistrato~ as the case may be 1 of the late Jane Jones, and the agreement would be, you know, in respect of the property of John and Jane Jones, a married couple.

Again, I am not sure that that - you know, that is a little different than mentally incompetent but it is still an open invitation to abuse. Perhaps the answer en that might be, if I could suggest to my learned friend, the President of the Council (Mr. Marshall), to have the draftsman look a~ that overnight. I am with him. amendments in Committee are always subject to consideration. I just raised the point, they may be comparable sections. MR. MARSFJ\LL: That one is not so patently obvious to me or so patently dangerous, Mr. Chairman, but - MR.

ROBERTS : Well, there could be rights of it has been traditional ~~at - well, as a matter of right, that a deceased spouse has the right to administration - or the surviving spouse has the right of - MR. ROBERTS: To the administration. MR. HARSHALL: Yes, to the administration. What I would prefer to do with that is to take this with the o~~er two points on limitation, and we will certainly look into it. MR. CF.AIR.t.{AN: (Baird) MR. ROBERTS: The hon. member for the Straits of Belle Isle. Okay,I have no problem with that, Mr.

Chairman, ~he surviving spouse certainly, I think, has a - I am not sure if it is a statutory right, but no judge in the courts - MR. MARSHALL: A commonly accepted right, yes. MR. ROBERTS: - would refuse to grant administraticn to a surviving spouse. I am just wondering - there might conceivably be the rights of third parties, particularly children in the 3264

November 22, 1979 Tape No. 1302 GH-3 MR. ROBERTS: ~a==iage or chilCren ~f a previous ~riage that might conceivably be affected and that might lead to a situation under

Section 40(2), where you could have a manifest unfairness. I agree with my learned friend, it is not quite as strong as the

Section 37 situation, but it is worth looking at. MR. CHAIRMAN: (Baird) MR. ROBERTS: MR. CHAIRHA."l: Belle Isle. MR. ROBERTS: Shall Clause 41 carry? On 41, I do no~ understand 41. The han. member for the Straits o£ 41, Your Honour, "A person may enter into an agreement under this Part to vary or exclude the application of this Act". Does that mean you can vary or exclude the application of

Part III of ~~is Act as well? If so, I could get around the

Section 31 problem by suggesting that you just make an agreement under the act to vary

Section 31 of the act. I am, you kr.ow, serious and I am half serious at the same time. I think those words ought to be perhaps meditated upon. You cannot put a clause in a statute saying that you can vary the entire statute. I think it probably "has ,to .have same. -limitation ,words. vnu know" .attached _to -it~ J irflt raise ·it as a point of importance, bu~ I am-not sure that ~t requires any debate or anything, I will if need be, but it is an interesting point. HR. MARSHALL: My only observation is that this part relates to domestic contracts and agreements and we can certainly take a look at the wording after, but it would appear 3265

November 22, 1979 Tape No. 1303 SD - l MR. '". :.iAP.SHALL: that it is quite effective ta..:'the words under this par~ refer to this part relating to Uomestic contraccs and in domestic contracts - HR. E. ROBERTS : :O.ut it says, ;:.o exclude t.'1e application of this ilct. MR. W. MARSHALL: Yes, of the entire act. MR. E. ROBER'l'S : •;he words under this part refer only to the authority to make the agreement. MR. W. !1ARSif.l'U.L: a look. HR. CHAIR."lA.tt: (Mr. Baird) MR. E. ROBERTS : MR.. CHAIR."il\N: of Belle Isle. MR. E. ROBERTS: Yes. But here again we will take Snall Clause 41 carry?

On motion, Clause 41, carried. Shall Clause 42 carry? Mr. Chairman. The hon. member for the Strait Clause 42 ""'lr.ake your Will and you do not even know it. WOuld the minister care to comment on one point _on .Sea±ian -42-? llnder _.our .WJ.lls Ac-t, ,and J:.his goes ,back .in .ccw.uu:w .law~h.at. - a thousand years;-~-a '1/ill must eithe.r be .in holog.rap.r. ::.cr:: mus-e be ~itnessed by tw people and there are certain formal reliui.rementy we do not need to go into.

Section 35 would allow one witness so what we are now allowing is a Will to be made with only one witness, is that - MR. W. MARSHALL:: : Mr. Chairman. MR .. CHAIRMAN: The han. House Leader. MR. fit., MARSHAI.J..: we are not really making a Will allowing a Will, Mr. Chairman, we are allowing, really, a contract and we are saying that that coneract can be made in accordance with, in effect.thc normal formalities anci procedures under the law.

As an inciCcnt t:o that, that contract may vary a Will and insofar as it varies a Will it will not be deemed tc ce a t:estarrentacy disposition under the Wills Act itself, that is the effect of the wordL,g. So, in effect, you are changing it to that extent but you nave to because otherwise 3266

November 22, 1979 Tape No. 1303 SD - 2 _ti.R. W. MARSHALL : the procedures would be far too involved I think. MR. CHAIRMAN; (Mr. Baird) The han. member for the Strait of Belle Isle. f.1R. E. ROBERTS: Well, I agree. It is interesting that we are allowing what amounts- to testamentary. From now on you do not need to make a~ '<oo'ill all you have to do is make 1 a marriage I . - con::ract and then die with the marriage contract J_n effect and it will have precedence over any ~ill made under the Wills Act.

In otiler wor<ls, people who have a will, ~~ey, withouc knowing it, forget the joint tenancy situation witn the house; I mean, anybody who is married and owns a house now does not need to make a Will from now on, they can not make a Will in respect of their house as long as their spouse is alive that is it, whoever lives the longest gets the bundle, you know.

But the people may not realize that if they make a carriage contract they have, in effect, ma~e a Will and if they have made a subsequent Nil~ it may be void or varied by th.is 1 assuming the words 1on effect 1 come into effect on death. tlu.s legislation, Mr .. Chairmanf that nobody ha~ ·.real.ly paid any attention to but it is going to be there to haunt us for a while yet. on motion Clacse~ 42 and 43 carried. !-lR. CHAIRMAH; Shall Clause 44 carry? HR. E. ROBERTS: I want to raise a point of principle on this, Hr. Chairman. MR. CHAIRMA.~: The bon. member for the Strait of Belle Isle. MR., E.

ROBERTS : It will not Oe at any length. but I would suggest that this Clause ought not to be in this bill- I agree wi til the Clause but I think it ought to have appeared as an ~~ndment to ~~e Intestate succession Act and I would suggest that this Clause should be deleted and that the government should proceed 3267

llovember 22, 1979 Tape No. 1303 SD - 3 to inuociuce a bill,

an act to amend the Intestate Succession Act. This is not an inciG.ental amendment as Clause 43 is, this is a specific amendment to a specific act and I think ur~er parliamentary practice, Sir, and I would raise this as a point of orde~ that this will require a special, a specific bill to do. Tnis bill does not purport to be a bill./ "l.n Act 'l'O Alr.ent The Intestate Succession hct", it is a bill/ "r.n Act Respecting flatritlonial Property And Certain P.ights 'thereunder, ''and I think we should have a separate act for it. MRw W. MARSHALL: Mr. Chairman. MR. CHAIR!1AH: (Mr • Eairci) The hen. House Leader. MR. H.

MARSHALL: There is actually on the order Paper now;notice has been given of an amendment to the Intestate Succession Act and, you know, I 1o0ndered ro.yself 1 .::eally, why it was in as a consequental amendment to this particular act. I think it should