2009 Legislative Session: First Session, 39th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

official report of

Debates of the

Legislative Assembly

(hansard)

Wednesday, September 23, 2009

Afternoon Sitting

Volume 3, Number 3

CONTENTS

Page

Routine Business

Introductions by Members

Introduction and First Reading of Bills

Bill 11 — Labour Mobility Act

Hon. M. Stilwell

Statements (Standing Order 25B)

Clean drinking water fundraising event in Okanagan area

N. Letnick

Port Alberni Toy Run for children's organizations

S. Fraser

Biotechnology industry in B.C.

R. Lee

Canwest Raise-a-Reader campaign

D. Thorne

French immersion

M. Dalton

Sooke Family Resource Society

J. Horgan

Oral Questions

Funding for repairs at Johnston Heights Secondary School

S. Hammell

Hon. M. MacDiarmid

J. Brar

R. Austin

B.C. Awards Online website

V. Huntington

Hon. M. MacDiarmid

Early intervention program for children with autism

M. Karagianis

Hon. M. Polak

Workshops at Housing and Social Development Ministry

S. Simpson

Hon. R. Coleman

N. Simons

Funding for domestic violence programs

D. Black

Hon. K. Heed

A. Dix

M. Farnworth

Petitions

M. Karagianis

Hon. G. Abbott

Orders of the Day

Committee of the Whole House

Bill 4 — Wills, Estates and Succession Act (continued)

Hon. M. de Jong

L. Krog

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Citizens' Services (continued)

D. Routley

Hon. B. Stewart

H. Lali

Estimates: Ministry of Forests and Range

Hon. P. Bell

N. Macdonald

B. Routley

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WEDNESDAY, SEPTEMBER 23, 2009

The House met at 1:34 p.m.

[Mr. Speaker in the chair.]

Routine Business

Prayers.

Introductions by Members

M. Karagianis: I have today in the House two sets of guests. First and foremost, I have a group of parents of autistic children here in the Legislature today to share the stories about their experience with the early intervention autistic program. I have Cher Sherwood — I don't see her actually here yet, so she must be on her way — Catherine Clark-Turnquist and her little baby Alexander, and Nicole Strong. I'd like the House to please make them welcome.

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In addition to that, I have another distinguished group of guests here in the House. From the Vic West Community Association I have the harbour committee chair, Audrey Whittall. Also from the harbour committee is Diane Carr. From the Victoria Harbour Defence Alliance, Peter Pollen and Terry Milne — Peter Pollen, as many will remember, is past mayor in Victoria. From the Victoria Canoe and Kayak Club, Doug Linton and Linda Thomson; and from the Save Victoria Harbour group, Lynn MacDonald, Gordon Greeniaus, Carolyn Greeniaus, Richard Couch and Barry Hobbis.

They are here to shepherd through a very important petition, which I'll be presenting later on, in opposition to the mega-yacht project proposed for the Inner Harbour. I hope the House would make them very welcome.

L. Reid: I have three wonderful guests in the gallery today. Mary Gordon has joined us. Mary is the founder of the Roots of Empathy and the Seeds of Empathy. That work is well underway in British Columbia. She's joined by Sheri Fogarty, who does project development, and Monique Gray-Smith, who is the aboriginal adviser to the Roots and Seeds of Empathy in British Columbia and across the land. I would ask the House to please make them genuinely welcome.

G. Coons: In the House today are three special guests — two from Guadalajara, Mexico: Luis Alonso Mariscal Carvajal, who is an engineer, and Ximena de Alba del Castillo Negrete, who is a teacher and businesswoman.

They're joined by their good friend and my good friend Derek Reimer, who is retired from our Provincial Archives and who operates a very unique bed-and-breakfast in town where I happen to stay when I'm in Victoria. Please make them welcome.

N. Simons: I would ask the House to help me welcome three guests from Prince George. We have Mabel Louie, Travis Holyk and Warner Adam. Will the House please make them welcome.

H. Bains: In the vicinity we have 32 grade 10 students from Tamanawis Secondary in Surrey. They are joined by their parents and their teachers. Please join with me in welcoming them.

Hon. K. Falcon: I also want to echo the welcome that the member for Surrey-Newton made to the students from Tamanawis, both the humanities 10 class and the social studies 11 class. I had the opportunity to chat with them in my office today. They're an extremely bright and engaging group of students led by two very, very good teachers, Kathie Cybulskie and Lindsay Hutchison. They are all joining us here today. I'm not sure if they're in the galleries yet, but they are in the vicinity. I ask that they be made welcome.

Introduction and

First Reading of Bills

Bill 11 — LABOUR MOBILITY ACT

Hon. M. Stilwell presented a message from His Honour the Lieutenant-Governor: a bill intituled Labour Mobility Act.

Hon. M. Stilwell: I move that Bill 11 be introduced and read a first time now.

Motion approved.

Hon. M. Stilwell: I am very pleased to introduce Bill 11, the Labour Mobility Act. We first introduced this bill during the last session, indicating government's commitment to and direction for full labour mobility. This bill represents our support for interprovincial collaboration to full labour mobility and to the success of workers in skilled trades and professions.

This legislation enables British Columbians and all Canadians with the power to use their skills and experience to their best advantage. Now more than ever we must find ways to ensure that our businesses, skilled tradespersons and professionals can pursue every opportunity, gain every advantage, and lead our province and Canada in economic recovery.

This legislation removes longstanding, unproductive and archaic barriers, enabling British Columbia to attract the workers our economy will need in the years ahead.

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Mr. Speaker, I move that the bill be placed on orders of the day for second reading at the next sitting of the House after today.

Bill 11, Labour Mobility Act, introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

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Statements

(Standing Order 25B)

CLEAN DRINKING WATER FUNDRAISING

EVENT IN OKANAGAN AREA

N. Letnick: I had the exciting experience this past Saturday, along with many British Columbians, of participating in the second annual Turn on the Tap Motorcycle Ride. This very enjoyable ride through the beautiful scenic Okanagan, and other areas like it in Alberta and Ontario, raises money for Turn on the Tap, an initiative organized by Samaritan's Purse Canada, a Christian international relief and development organization.

Samaritan's Purse Canada is building and installing water filters in the developing world. They are using made-in-Canada technology, a device called a BioSand water filter. This filter transforms contaminated or polluted water into safe drinkable water almost instantly.

Almost one billion people on our planet are forced to drink contaminated water every day, causing a wide variety of diarrheal diseases and killing people at a rate of one every 20 seconds with most of the dead being young children.

The BioSand filter, which has been studied by a variety of experts including the World Health Organization, is helping to save lives. Each filter, with an average cost of only $100 including important health and hygiene training, serves eight to ten people. Clean water restores good health so that children are able to stay in school and parents continue to work. Families benefit; communities benefit; entire nations benefit.

Samaritan's Purse has built and installed more than 100,000 BioSand filters in the developing world, and in recent years they are committed to building and installing many, many more.

I would like to acknowledge B.C. event organizers Alan and Bonnie Mackenzie; Carly Simla; Ed Weiss and Harold Bewnerick; Cobb's Bakery and Choices Market for their generous sponsorship; and Trinity Baptist, Alexis Park Church, the House, as well as Evangel Church for hosting the riders.

Recent Turn on the Tap motorcycle rides are helping to raise the funds to ensure that Samaritan's Purse and British Columbians continue to provide these important water filters.

PORT ALBERNI TOY RUN

FOR CHILDREN'S ORGANIZATIONS

S. Fraser: The largest children's fundraiser on the west coast took to the road last weekend. The 25th annual Port Alberni Toy Run rumbled to life to raise money for the west coast children's charities.

Since 1984 the Port Alberni Toy Run has grown from a December run of six motorcyclists to a must-attend event in September, with this year bringing in 1,200 motorcycle riders from throughout Vancouver Island, the rest of British Columbia and the western provinces and states.

The chair of the society, Scot Loudon, said it best: "The Port Alberni Toy Run Society is a volunteer organization, and every dollar raised goes to support children's charities and programs in Port Alberni, Ucluelet and Tofino. Because of the generosity of the motorcyclists and the people of Port Alberni, we've distributed more than $1 million in money and toys to children's groups through the past 25 years."

Last week's toy run was a major success. Motorcycles roared to life at noon on Saturday and moved in convoy from Little Qualicum Falls, making their way over the hump on Highway 4 and convening at the Glenwood Centre in Port Alberni. The fun continued there with games, face-painting, popcorn and all-around family fun. By Sunday $62,000 was raised and an additional $25,000 in toys was collected.

Some of the charities supported by the Port Alberni Toy Run include the Kiwanis Hilton children's centre, the Salvation Army, the Bread of Life, district 70 healthy lunches program, Raise-a-Reader and dozens of other services. The Port Alberni Toy Run is the largest motorcycle event on Vancouver Island. As I mentioned, 1,200 motorcyclists participated in this 25th anniversary event, and it was all about the children.

BIOTECHNOLOGY INDUSTRY IN B.C.

R. Lee: This week is National Biotechnology Week in Canada. It's time to recognize the contributions of tens of thousands of British Columbians who work in this field as students, researchers, mentors, investors, entrepreneurs, technicians, engineers and scientists. Biotech is a growing industry in B.C., and it includes biopharmaceuticals, medical devices, bioproducts and bioenergy, industrial and environmental biotech, bioinformatics, forest biotech, agriculture biotech and marine biotech, etc.

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Many of B.C.'s hundreds of biotech companies are located in Burnaby. Amgen British Columbia, Xenon Pharmaceuticals and CANTEST are just three. Amgen British Columbia is one of several research facilities operated by Amgen Inc., which specializes in the discovery

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and development of human therapeutic antibodies. Xenon Pharmaceuticals is a privately owned clinical genetics-based drug discovery and development company engaged in developing small molecule therapies based on the genetic courses of select metabolic, neurological and cardiovascular diseases.

CANTEST BioPharma Services is an analytical laboratory company specializing in validation and testing services. It conducts clinical drug studies and works with other pharmaceutical and biotech companies to solve scientific problems.

As we navigate through this global economic crisis, we must reinforce our strengths so that we emerge stronger. We must not only continue to develop our rich heritage of natural resource industries; we must also be innovative to increase our productivity and competitiveness. Our biotechnology industry is a prime example of an area where we can do just this.

I ask that my fellow members join me in congratulating all who work in this important and exciting new industry.

CANWEST RAISE-A-READER CAMPAIGN

D. Thorne: I am pleased to rise today to acknowledge and support a campaign that for 13 years has brought together hundreds of volunteers, community leaders and celebrities. I'm speaking, of course, of Canwest's Raise-a-Reader campaign.

With the goal of eliminating family illiteracy in Canada, British Columbians have been generously donating their time and their money. Over the years Raise-a-Reader has donated millions of dollars to literacy programs, libraries and public schools.

This campaign reminds us that 40 percent of adults in B.C. have poor literacy skills, and nearly 30 percent of children entering kindergarten do not have the language or literacy skills they need.

Poor literacy skills are a barrier to full participation in society. Income levels, civic participation and even health are directly related. Researchers estimate that the rate of return from investments in early literacy intervention programs is up to $8 for every dollar invested.

It's tragic that in B.C., important literacy programs are being cut. We now know that higher levels of literacy are associated with more stable employment, higher wages and a healthier economy. Literacy programs have a huge impact on an individual's ability to adapt to changes in the labour market and increases their employability. Ideally, literacy issues should be dealt with early in life with programs such as Books for Babies.

To abandon child and youth literacy programs for any reason is a mistake, because as we know, children are our future. Poor literacy is B.C.'s hidden deficit.

I applaud Canwest's Raise-a-Reader campaign and all the volunteers whose hard work will pay off in dividends, because promoting a child's healthy development in their earliest years is never a bad investment.

FRENCH IMMERSION

M. Dalton: Today I would like to recognize the teachers, parents and students who have made French immersion the great success story that it is in the province of British Columbia and in the school districts which I represent — school district 42, Maple Ridge–Pitt Meadows, and school district 75, Mission.

There are now over 42,000 students in French immersion and another 5,000 students in francophone programs. Hundreds of thousands of British Columbians have taken French immersion, and it has grown every year for the past 11 years in spite of declining enrolment. In Maple Ridge and Pitt Meadows over 1,500 students, or 10 percent of the student population, are in the program. In Mission there are hundreds more.

In Pitt Meadows Elementary School, where I taught last year, parents lined up for hours before kindergarten registration in order to secure a spot for their child. This has been the story in many public schools across the province. French immersion is not an elite program. It is open to all students at no extra cost.

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Parents recognize that fluency in French can open up a world of opportunities for their children. French acquisition expands possibilities of employment in Canada and abroad. Travelling becomes easier and more enjoyable. An increased appreciation for other cultures is instilled, and other languages are more easily acquired.

I applaud the French immersion teachers, who not only face the usual instructional challenges, but they must do so in the students' second language. Obviously, they're doing a great job, and the numbers speak for themselves.

In Maple Ridge and Pitt Meadows there are six elementary schools and two secondary schools that offer French immersion, and in Mission, Mission Secondary, Ecole Christine Morrison and Mission Central also offer it.

Félicitations et bravo aux étudiants et aux professeurs dans ce programme exceptionnel.

[Congratulations and bravo to the students and teachers in this exceptional program.]

[French text and translation provided by M. Dalton.]

Congratulations to all those involved.

SOOKE FAMILY RESOURCE SOCIETY

J. Horgan: All of us have been touched by organizations that provide invaluable services and resources to residents in our communities. Today I rise to speak about an important group in the western reaches of the capital regional district, the Sooke Family Resource Society.

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Established in 1984 by a dedicated group of women who aimed to provide families with opportunities for support, sharing, learning and relaxation in an informal, neighbourhood house setting, the Sooke Family Resource Society has become a vital agency providing essential and supportive services for local children and families.

Serving families in Sooke, East Sooke, Jordan River, Otter Point, Shirley and Port Renfrew, the society offers parenting and life skill courses, preschool programs, a used clothing exchange and toy lending library, and child and family referral and counselling services. Just recently they received international accreditation for meeting standards of excellence in service delivery.

A quarter-century of service to children and families is cause for celebration. This Saturday from 12:30 to 3:30 the society is marking its 25th anniversary with a family festival at the CASA building on Townsend Road in Sooke. The party will include live music, art activities, a barbecue and fun family activities as well. I encourage community members to join in the fun at the CASA, and I ask members of this House to join me in wishing a happy 25th to the society and hopes for 25 more.

Oral Questions

FUNDING FOR REPAIRS AT

JOHNSTON HEIGHTS SECONDARY SCHOOL

S. Hammell: For years the roof, skylights and windows at Johnston Heights Secondary in Surrey have leaked. With little support from this government, buckets have been used to catch the dripping water. Finally this spring, just before the election, the government agreed to provide a grant for repairs. In the middle of the summer, in an about-face, the grant was pulled, and the students are stuck in leaky classrooms.

To the Minister of Education: is it acceptable for our children to be learning in leaky classrooms surrounded by buckets catching dripping water?

Hon. M. MacDiarmid: I'm certainly aware of this situation, and I would like to reassure the members opposite that students' health and safety is a top priority for this government. It remains a top priority for this government.

School districts are responsible for environmental quality. They continue to monitor that in this school, and that continues. It's their responsibility.

Interjections.

Mr. Speaker: Members.

Hon. M. MacDiarmid: We've been in contact with this school, and we're discussing the possibility of them using some of their local capital reserves for this project. We're working with them, just as we've worked with the Vancouver school district for a similar problem.

Mr. Speaker: The member has a supplemental.

S. Hammell: This is as much an example of this government's ineptitude as it is of their neglect of our children. After receiving confirmation of a $3.5 million grant and being advanced about half of it, the school hired a contractor and moved in portables as temporary classrooms.

Weeks later they were told that the funding no longer exists and students are out of luck. This government's incompetence has meant that $700,000 went down the tube to move around portables and pay severance for a broken contract.

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Again to the minister: why should students at Johnston Heights Secondary pay the price for a government in chaos, and why should they suffer because the Liberals don't get their priorities right?

Hon. M. MacDiarmid: This government clearly has its priorities exactly right.

Interjections.

Mr. Speaker: Members.

Continue, Minister.

Hon. M. MacDiarmid: In the face of a global economic downturn, this government is investing record levels in education — $4.5 billion, an $84 million increase from last year's investment in our students. In a time of an economic downturn, we're keeping British Columbians working. This year — $177 million in Surrey alone on school buildings, on seismic upgrades.

This government has its priorities straight. We are absolutely working with this school district and all school districts to make sure that student safety and health is addressed.

Mr. Speaker: The member has a further supplemental.

S. Hammell: Maybe the minister didn't hear me. The work had begun. The portables had been moved onto the site, 20 percent of the grant money had been spent, and then the government shut down the program — $700,000 wasted. Now the children in our classrooms will pay the price.

To the minister: what does she say to the students of Johnston Heights Secondary who were told before the election that the school would be fixed and, after, were told they were out of luck? How does this government explain to them their about-face on education?

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Hon. M. MacDiarmid: It is particularly rich to hear from the member opposite about Surrey's portables. When the members opposite were in government, they had enough portables to form a very large school district in Surrey.

Interjections.

Mr. Speaker: Minister, just take your seat.

Members.

Continue, Minister.

Hon. M. MacDiarmid: We are working with school districts to ensure that students are safe in those districts. We're continuing to do that in every district, including this one, and we're working closely with this particular school district on this issue.

J. Brar: The situation is very clear that this government chose to cancel the funding of the school and waste $700,000 of taxpayer money to cover up their own budget deception. That's the situation.

This government's incompetence is taking a toll on our families. This is what the parent of a student had to say to the Premier: "I'm sure if you were to visit your grandson at school, you wouldn't tolerate the bucket placed in the corner of the classroom. You would do something about it." Clearly, this government's approach to education is impacting our students, families and our entire school system.

My question again is to the Minister of Education. Can the Minister of Education tell this House today what steps the minister will take to fix this mess at the school, and what will she say to the families who are asking for answers?

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Hon. M. MacDiarmid: As I've already clarified, we are working with this school district to see how this problem can be addressed. Many of the school districts have capital reserves that can be used for this kind of project, and we certainly are working with this school district to see if that is a possibility.

The record is very clear. British Columbia's schools are safe. They are continuing to be invested in. Not only that, we have some of the best performances in the world coming out of our schools. I find it reprehensible that students' and parents' confidence is being undermined by the members opposite.

Mr. Speaker: The member has a supplemental.

J. Brar: Again, the reality is this — 175 less schools, a thousand classrooms over the class size, funding cut to libraries and leaky schools. That's the legacy of this government.

Students of Surrey and their families don't trust this minister and this government and their ability to manage the school system. Johnston School is a prime example of that.

In the letter to the Premier, the parent continued to say: "These kinds of actions are the reason the funding is so short. Not only should you be ashamed of the wasteful actions, you should be motivated to correct the situation."

My question, again, to the Minister of Education: will the minister stand up in this House today, correct the mess they created in this school and restore the funding to fix the leaks at this school?

Hon. M. MacDiarmid: Year after year after year over the last eight years, there have been increasing investments in schools — increasing investments in per-pupil funding every single year. This year is no different.

Interjections.

Mr. Speaker: Members.

Just take your seat.

Members.

Continue, Minister.

Hon. M. MacDiarmid: As the member opposite is well aware, we've had declining enrolment in this province — 60,000 fewer students this year than there were in 2001. Yet in spite of that, we've consistently, every year, increased the funding. Since 2001, $177 million for new schools in Surrey alone…

Interjections.

Mr. Speaker: Members.

Hon. M. MacDiarmid: …and 34 capital and seismic projects, including the new Adams Road Elementary School and Rosemary Heights Elementary School.

R. Austin: All we get from this minister are excuses and false assurances. Johnston Heights is just one example of how this government's decisions are directly impacting our classrooms. Cuts to PAC funds, cuts to annual facilities grants, cuts to libraries, cuts to literacy programs — the cuts keep coming while school districts are expected to balance their budgets.

To the minister: is she just ignoring what these cuts are doing to our schools and our classrooms, or does she just not get it? How does she expect school districts to balance their budgets without affecting the classroom?

Hon. M. MacDiarmid: I feel I must be in some sort of parallel universe here.

Year after year after year, the funding….

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Interjections.

Mr. Speaker: Minister. Minister, just take your seat.

Members.

Continue, Minister.

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Hon. M. MacDiarmid: Year after year, funding has continued to increase. It has increased. We have invested, this year alone, $447 million in new schools and seismic upgrades.

We have increased our per-pupil funding to record levels. This is the correct direction for things to go — increased funding and increased investment in this precious resource, the students of British Columbia.

Mr. Speaker: The member has a supplemental.

R. Austin: Last week the minister stated: "We've been very clear that any issue around student health and safety we will work with them to address." My question to the minister is very simple. Will the minister confirm that she will return the money to Surrey school district so they can fix this leaky roof, or is this not a matter of health and safety?

Hon. M. MacDiarmid: I will gladly confirm with the member opposite what we have already done and what we're doing on an ongoing basis with every school district, including this one. We're in consultation with them. We're talking with them about how they can meet their needs at each individual school district level. Health and safety of students is absolutely being addressed, clearly.

B.C. AWARDS ONLINE WEBSITE

V. Huntington: This question is, coincidentally, for the Minister of Education. I'm wondering if the minister could advise the House of the reasoning behind the sudden cancellation of the B.C. Awards Online website.

Hon. M. MacDiarmid: I'll take that question under notice.

Interjections.

Mr. Speaker: Members.

EARLY INTERVENTION PROGRAM

FOR CHILDREN WITH AUTISM

M. Karagianis: During the election, the B.C. Liberals did not once mention that they were going to cut the intensive early intervention program for autistic children, but last week that's exactly what the Minister of Children and Families did. The cuts surprised and devastated families right across this province.

To defend the cuts, the minister said that the program had not been effective, but then yesterday she backtracked on that statement. So my question is this. Exactly what kind of data or evidence did the minister use in order to cut this very successful program?

Hon. M. Polak: The decision that we made was based on the principles of equity, access and increasing funding for children with autism across this province. There's no question that for the children who are enrolled or were enrolled in EIBI, as we move towards the transition at the end of January, this is going to be a difficult time.

We will be working with them and working with the agencies involved to ensure that there is a transition plan in place as they move to our autism funding program, but there's no question that the basis of this decision was not the quality of the EIBI program. That's not in doubt. This decision will provide greater equity, better access and increased funding for hundreds of parents across this province.

Mr. Speaker: The member has a supplemental.

M. Karagianis: The minister has admitted no evidence whatsoever, no data to back up the decision to cut back this very successful program. And yet the minister has admitted today that the increase in funding to the lowest common denominator only buys an extra hour of program support for these families.

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Today families are here in the Legislature to talk about the difference that this program, the EIBI program, has made — a significant difference to their children. Cher Sherwood said that she didn't know if her son would ever talk, look a person in the eye, or have the skills to feed or clothe himself. Yet after going through the EIBI program, her son has just entered the public school system without any aides or any other support systems — not required because of the success of the EIBI.

So I'd like to know from the minister why she did not think about the children like Cher Sherwood's children and all the other families that have similar stories. Why were they not the first consideration? Why did she not consult with families before making these devastating cuts to this program?

Hon. M. Polak: The member may be unaware that for thousands of parents who are dealing with children with autism across this province, the financial burden goes far beyond what governments in any jurisdiction have been able to provide.

What we do know is that we have to make those decisions based on the principles of equity, based on access

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and based on providing the most funding we can to the most children around this province. There is no question that for these 70 children who are enrolled in EIBI, we will have to provide them with support and assistance as we move to transition them into the autism funding program.

But right now, at this very moment, there are also hundreds of parents around this province who are not receiving that additional support, and we seek to try and provide the greatest amount of support that we can for the greatest number of children across this province.

WORKSHOPS AT HOUSING AND

SOCIAL DEVELOPMENT MINISTRY

S. Simpson: The Ministry of Housing and Social Development recently spent $19,000 on a half-day seminar entitled "Emotional Intelligence and How It Relates to Leadership." Can the minister tell us: what was the purpose of this workshop? How does it meet the minister's priorities around vulnerable citizens?

Hon. R. Coleman: I'm not aware of that, so I'll take the member's question on notice, and I'll get back to the member.

N. Simons: Tomorrow the Ministry of Housing and Social Development is offering a course called "Vibrational Facilitation," which is apparently supposed to help people increase their vibrational frequencies. Can the minister please tell this House what that means?

Hon. R. Coleman: I'll take that question on notice as well.

Interjections.

Mr. Speaker: Members. Members.

FUNDING FOR

DOMESTIC VIOLENCE PROGRAMS

D. Black: Family Services of Greater Vancouver has been informed that funding for their domestic violence response team will end in December. This program, which has partnered with the New Westminster police since 1996, provides rapid follow-up to the most severe and high-risk cases of domestic violence. With zero percent recidivism and a 98 percent charge approval rate, the program has saved the lives of countless women in New Westminster. This government is cutting their $44,000 grant.

My question to the Minister of Health is this. Doesn't he think a woman's life is worth $44,000? If he does, will he commit today — commit today — to reinstate this funding?

Hon. K. Heed: Well, I can tell you from my experience as a police officer that domestic violence has a profound impact on our society. The recent tragedies in Burnaby and the unfortunate incident in Vancouver touch us all, and my sympathy goes out to what the families are going through right now and to those children who witnessed that particular event.

I can tell you, Mr. Speaker, that the issue of domestic violence is taken seriously by this government and will continue to be taken seriously by this government. That is why we're working closely with the police and other service providers to coordinate our response and integrate our services to people that are victims of this violence more so than we ever have before.

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This year we have increased funding to domestic violence — and violence in general — programs by $2.4 million to $43 million. This is on top of the $32 million that we provide to run the many transition houses that we have operating throughout the province of British Columbia.

Mr. Speaker: The member has a supplemental.

D. Black: I don't doubt the minister's sympathy, but what I want to see is leadership from this government.

We're talking about the lives of women and children. Without this program, they could be seriously injured or killed. New Westminster police credit the structure of the unit and the unique partnership with the counsellor for saving the lives of women. Cutting this $44,000 contract will not result in savings. Doctor visits and emergency room visits will go up, and so will mental health services costs. It's false economy, Mr. Speaker — false economy.

Again to the minister: will he commit today — commit today — to protect women and children who suffer domestic violence, and will he reinstate this funding?

Hon. K. Heed: I know all too closely what experiences victims go through. I have been dealing with this for several years. I know what it's like to go into a house and see a four-year-old child, a son, hugging his mother on the floor, who has just been the victim of domestic violence. I can tell you the look on their face when we take them, put them in our car and take them to one of the many transition houses we have.

I also know the impact that it has when a life is taken. I've gone into a house, and I've witnessed a young girl crying and hugging her mother on the floor, who has just been killed — and to take that young girl in my arms and comfort her.

Interjections.

Mr. Speaker: Members. Members.

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Hon. K. Heed: We have increased funding around victim services by $2.4 million. With regard to the specific program in New Westminster, I have asked staff to look at that particular program so we can integrate that into our existing response to deal with domestic violence. We all have a responsibility. Everyone in this House has a responsibility to ensure that we put a stop to domestic violence.

A. Dix: What we have here is a profound contradiction between what the minister just said and what actually happened this summer. This program had been successful for years. The Minister of Health and the Fraser Health Authority cut this program. They went to the program offices and cut the program on 30 days' notice.

This is an extraordinarily successful program. Doesn't the Solicitor General think that the government owes an apology to the people who worked in that program? And doesn't he think today the right thing for him to do is to go and talk to the Minister of Health and get the funding from the Fraser Health Authority restored — not weeks from now but today?

Hon. K. Heed: The program, working with the New Westminster police department, is continuing and is funded to the end of the year. The staff is working wholeheartedly to find out how we can bring that aspect of it into our area so we can carry on with the good work that has been done with domestic violence units across British Columbia.

Mr. Speaker: Member has a supplemental.

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A. Dix: Hon. Speaker, they cut a program which they clearly gave no thought to. They walked into the program offices and closed it with the minimum of possible notice. What we're asking the minister today to do…. You know, it was this summer….

Interjections.

Mr. Speaker: Members.

A. Dix: It was this summer that it happened, and there were no cabinet ministers around to defend it. No cabinet ministers signed off on it. It was the wrong decision. It's what happens when you're running around in the middle of the fiscal year trying to make up for an election mistake.

My question to the minister is very simple. Will he or the Minister of Health or one of those ministers over there restore this funding today?

Hon. K. Heed: We have increased funding to victims of violence programs in this province by $2.4 million. I recognize the value of the integration of domestic violence units in British Columbia and the success, having worked alongside one for many, many years in Vancouver. Our government is committed to integrate those services and coordinate those services so that we can make meaningful changes around domestic violence.

I am advised that the funding is in place for this particular program until the end of 2009. I have also advised members opposite that we are actively working on determining how we can carry on with the good work that the program delivers.

M. Farnworth: The domestic violence response team is unique. It has a proven track record of success. It is not discretionary spending. We're not getting an answer from the Solicitor General. We're not getting an answer from the Minister of Health. So perhaps we can get an answer from the one person in that government who can restore the funding.

Will the Premier stand in this House today and do what his Solicitor General will not do and what his Minister of Health will not do, and tell this House…

Interjections.

Mr. Speaker: Members.

M. Farnworth: …that the domestic violence response team is not discretionary funding, and restore that funding and ensure that it continues into the future?

Hon. K. Heed: Mr. Speaker, with respect, I am going to repeat myself so that it's quite clear. This program is continuing to the end of the year. We are actively working on determining how we can carry on with that program. We are working on that.

I want to point out….

Interjections.

Mr. Speaker: Members.

Hon. K. Heed: With respect, I don't know how much clearer I can be. The program is continuing to the end of 2009. We recognize…

Interjections.

Mr. Speaker: Members.

Continue, Minister.

Hon. K. Heed: …the value of integrating our programs and our services, again, so that we can deal with domestic violence in a very, very meaningful way.

[End of question period.]

[ Page 725 ]

M. Karagianis: Hon. Speaker, I would like to submit a petition.

Mr. Speaker: Proceed.

Petitions

M. Karagianis: I have here in excess of 7,000 signatures protesting and opposing the proposed mega-yacht marina on the north shore of Victoria harbour, and I would like to present that today.

Hon. G. Abbott: I have a petition from residents of the Shuswap-Okanagan with respect to a proposed animal waste composting facility.

Orders of the Day

Hon. M. de Jong: I call in this chamber continued committee stage debate on Bill 4, Wills, Estates and Succession Act; and in Committee A, Committee of Supply — for the information of members, the estimates of the Ministry of Citizens' Services, to be followed by the estimates of the Ministry of Forests.

[1425-1430]

Committee of the Whole House

BIll 4 — Wills, estates and

succession act

(continued)

The House in Committee of the Whole (Section

B) on Bill 4; L. Reid in the chair.

The committee met at 2:32 p.m.

section 2 (continued) .

Hon. M. de Jong: Yesterday I indicated that I would confirm some information for the member. I gave him, in response to one question, a figure of $50,000. I've since been able to confirm that that was correct.

The second question that I think I undertook to deal with related to whether or not a fifth wheel could be considered a spousal home for the purposes of this act in the definition, and the answer is: under certain circumstances it indeed could.

L. Krog: I want to thank the Attorney General for the certainty of his answer.

We are still dealing with

section 2, and I just want to ask if the Attorney General has had an opportunity to consider his position, in light of my comments around

section 2 — in particular, the

section that deals with "terminate the relationship."

Hon. M. de Jong: I did indeed spend the better part of my evening ruminating on the hon. member's submissions, and persuasive as they are, they have fallen just short of convincing me to amend or offer an amendment to the chamber.

Sections 2 and 3 approved.

section 4.

L. Krog: I just wonder if the Attorney General could explain the benefit of

section 4 to me and to the House and advise if this represents any substantive change from the existing law.

Hon. M. de Jong: As we get into the details, it can be a little bit complex. But it relates, as I think the member knows, to the admissibility of extrinsic evidence of testamentary intent.

[1435]

The objective that I understand was being sought by the wording included here is to avoid circumstances that would have existed under the present wording where evidence would be excluded that actually could provide assistance to a court in determining what the testator's actual meaning was.

There is a distinction in that respect drawn in evidentiary matters between latent and patent ambiguity. We can talk about that in a moment. But the general rationale for the change here was to address situations that presently existed where, in endeavouring to ascertain the actual testator's intent or meaning, evidence that would be helpful and relevant was required to be excluded.

Section 4 approved.

section 5.

L. Krog: This is a very significant change in the law as it stands now and refers to the death of two persons who "die at the same time or in circumstances that make it uncertain which of them survived the other…."

It makes reference to the fact that "unless a contrary intention appears in the instrument" it's "determined as if they each had survived the other or others.

(2) If (

a) two or more persons hold property as joint tenants" etc., "unless a contrary intention appears…for the purpose of determining rights…each person is deemed to have held the property…as tenants in common...."

I appreciate that this represents, arguably, progress in some circumstances, and certainly, it's not a statutory presumption that many people in the general public are aware of. I'm just wondering what the rationale for this change is and whether in fact it conforms or not to other jurisdictions.

[ Page 726 ]

Hon. M. de Jong: First of all, I agree with the member that this represents a significant shift. It was, as I recall over the years of work that has taken place leading to this point, the subject of significant discussion.

I can advise the member…. Maybe dealing with his questions in reverse, I am advised that the

section adopts a general presumption around survivorship that is identical in substance to that which exists in the uniform Survivorship Act, which has been implemented in the following jurisdictions in Canada: Saskatchewan, Ontario, Manitoba, New Brunswick and the Yukon.

The last thing I will say before, I'm sure, the member pursues the questioning on this

section is that there was a general belief that the existing rule around the presumption of survivorship based on age led to circumstances or situations that in no way reflected what would either be logical or be the intent of the deceased.

Section 5 approved.

section 6.

L. Krog: I wonder if the Attorney General could just explain the impact of

section 6.

Hon. M. de Jong: I think, a straightforward response here. It does re-enact

section 2(3) of the Survivorship and Presumption of Death Act, which gives the deceased the express authority to displace the general presumption of survivorship. It takes those provisions and embeds them in this act.

While I'm on my feet, since I have and will continue to rely on their guidance through these discussions, I wonder if I might introduce, to the House and the learned opposition critic, Nancy Carter on my left and Tyler Nyvall on my right — who, I am not ashamed to admit, are of invaluable assistance in guiding me through some of these provisions.

[1440]

L. Krog: Some truths are self-evident.

Dealing with

section 7 now, yes?

Section 6 approved.

section 7.

L. Krog: This section, I believe, and I just want to confirm, simply carries forward the provisions of

section 2(4) of the Survivorship and Presumption of Death Act.

Hon. M. de Jong: That is correct.

Section 7 approved.

section 8.

L. Krog: Again, with respect to

section 8, my understanding is that this carries forward

section 91 of the Estate Administration Act. I'm sorry that I haven't had an opportunity to check. Is it in exactly the same language, or does this represent any change whatsoever?

Hon. M. de Jong: That is true with one noted exception. The existing statutory provisions do not include the five-day survivorship requirement that is part of

section 8.

L. Krog: As I recall, starting out in practice, the standard will said if you survive 30 days…. Then it dropped to 14, and the statute now refers to five. Is there some particular reason for picking five days as opposed to seven as opposed 15 as opposed to 14, and does it bring us into concurrence with other jurisdictions?

Hon. M. de Jong: I'm not sure there's real magic around the five number. I can advise, and would and will when we get to sections 9 and 10, that there are a couple of rationales for settling on that figure. It was the B.C. Law Institute's — and actually, the Law Reform Commission's — recommendation to settle on five days. Apparently, the American Uniform Probate Code sets a period of survivorship of 120 hours — interesting that they measure it in hours — roughly five days.

The member is right. In standard testamentary instruments, solicitors will opt for 30 or 60 days. That option, of course, still remains to those who choose to execute those documents.

Section 8 approved.

section 9.

L. Krog:

Section 9 contemplates that if a right to receive property is conditional upon the beneficiary surviving and "the beneficiary dies at the same time as the other person or dies in circumstances that make it uncertain which of them survived the other, the beneficiary is conclusively deemed to have predeceased the other person."

This, I believe, does represent a change. Again, the rationale and other jurisdictions that have similar provisions? If in fact they do.

Hon. M. de Jong: The general reason, rationale, for the change, as is the case with many of these provisions, is an attempt to better reflect the will-maker's wishes.

I might be able to do this by trying to draw on a bit of a scenario. Sometimes that's the best way to analyze some of these circumstances.

We have person A, who is now deceased and has left a gift to B and C for life, and then to the survivor of

[ Page 727 ]

them. B and C die in circumstances rendering it uncertain which of them survived the other, and B is younger than C.

[1445]

The idea in that circumstance is…. The assumption is the testator — that is, A, the original person — did not mean to distinguish between B and C. Under the previous presumptions that existed in that scenario, one of them would have been preferred. So this provision is designed, as best one can, to preserve what would have been that testator's intention to have the proceeds split evenly between those two individuals.

L. Krog: If I can understand this, the way I read it. If a beneficiary is entitled to receive property and it's conditional upon the beneficiary surviving another person and they die at the same time as the other person or die in circumstances that make it uncertain, then what we're saying is the beneficiary is completely out of it. That's the way I read

section 9(a). In other words, they don't receive the benefit.

Am I wrong in my

interpretation? I'm sure the learned assistants to the Attorney General can assist me.

Hon. M. de Jong: I think, as it relates to 9(1)(a), the member's description is accurate.

L. Krog: With reference to (2). Again, I believe this represents a fair bit of a change. My reading of it is that if you have two or more beneficiaries and they all die at the same time and in circumstances that again make it uncertain which of them survived the other, unless there's something in the instrument that says to the contrary, then it's going to go equally to those beneficiaries. Fairly straightforward presumption.

Is that…?

Hon. M. de Jong: That is also a correct analysis.

Section 9 approved.

section 10.

L. Krog: This is the fuller version, if you will, of the five-day survival rule, not making reference just to posthumous births, the children en ventre sa mere and those sorts of things. This makes the presumption that if you don't live the five days or a longer period provided in an instrument, you're conclusively deemed to have died before the deceased person for all purposes.

If you hold it as joint tenants and it can't be established, then half passes as if one person had survived the other — in other words, if they both died at the same time. So in theory, I would say, if I'm correct, a husband and wife killed in a joint accident…. Property doesn't pass to either estate, is dealt with separately. One half goes to the estate of one, and one half goes to the estate of the other.

Is that essentially the

interpretation?

Hon. M. de Jong: Again, I believe that is correct.

L. Krog: Just so I'm absolutely correct. So what we're really saying is now that if you don't make it to that fifth day — so one of you is killed, the other seriously injured — on a joint account, then again, it's going to go one half to the estate of one, one half to the estate of the other.

[1450]

Hon. M. de Jong: Yes to the member. It is as if one would have predeceased and the disposition is as the member has described.

L. Krog: I'm not being critical of the reform of the law, if you will, but I come back to my point made yesterday during the course of debate. That is that this is a remarkable change in terms of how the average person…. If they understand joint tenancies at all, it's a remarkable change in even that understanding. I come back to my point about public education. It's great for the legal community, notaries and explaining to their clients, but not everybody comes through your door for a bit of legal education.

Again, I want to emphasize to the Attorney General that if we're going to make these remarkable changes, then we have to ensure that the public's aware of it. I think the Attorney General knows from practice himself that people have a very basic understanding of a joint tenancy, joint account. I die; you get it. You die; I get it.

Joint tenancy in a home. That's the way the vast majority of couples — married, common-law, same relationships — in this province hold their property. It's sort of a remarkable concept, because unless I'm mistaken — and I will flip back — "property" means "land and personal property." I don't think there's a different definition for property in this section.

Is my understanding correct that this will apply to joint tenancies and real estate as well?

Hon. M. de Jong: That's correct.

Section 10 approved.

section 11.

L. Krog: Just to confirm, this

section essentially means that the change to the joint survivorship rules that people commonly understand, which have existed arguably for hundreds of years in our legal history, won't, in fact, apply with respect to anything involving insurance. I'm just wondering if the Attorney General can explain what does that mean?

[ Page 728 ]

Hon. M. de Jong: I think two parts to the answer. One is that the literal

interpretation is the correct one, and that is that the rule set out in the Insurance Act will govern insurance proceeds. I'm further advised that although they are not identical, the general presumptions set out in this part as it relates to survivorship rules closely follow the general presumptions set out in the Insurance Act, but it will be the Insurance Act that governs insurance proceeds.

Sections 11 and 12 approved.

section 13.

L. Krog: Just so that I'm fairly clear,

section 13, — and this division 3, for that matter — makes reference only to property covered by the Nisga'a government

chapter of the Nisga'a final agreement, — that this is strictly in order to protect the cultural property of the Nisga'a people.

[1455]

Hon. M. de Jong: The member is correct and will note also that there are sections coming up that make reference to treaty first nations, which would include first nations like the Tsawwassen and Maa-nulth.

Section 13 approved.

section 14.

L. Krog: Just to make reference to what the Attorney General has told the House,

section 14 is a contemplative section, so it's obviously designed to take into account those treaties that have already been approved, such as the Tsawwassen, but also any treaty as long as it uses the language specific to this section. Is that correct?

Hon. M. de Jong: A slight variation on that. The way we tried, through the

Interpretation Act, to develop this is…. The magic will be in the use of the term "treaty first nations." So where those agreements are signed between the Crown in the right of the province of B.C., the Crown in the right of Canada and a treaty first nation, the objective is to have that group, that first nation, captured by these provisions.

Section 14 approved.

section 15.

L. Krog: With reference to

section 15, again, we are back to dealing strictly with the Nisga'a peoples and how notice is to be properly given to them with respect to any claims that they might have. I take it that it applies only to Nisga'a peoples themselves and with respect to a Nisga'a citizen.

Hon. M. de Jong: My understanding is that what triggers the entitlement to notice and involvement standing for the Nisga'a Lisims Government is a case involving the will of a Nisga'a citizen as that is defined in other legislation.

Section 15 approved.

section 16.

L. Krog: I wonder if the Attorney General can just explain the effect of

section 16. My reading is that it simply extends rights under the Wills Variation Act or division 6 of this act to Nisga'a citizens. Is that essentially it?

Hon. M. de Jong: The

section is designed to ensure that the Nisga'a and a treaty first nation government are provided with notice of a wills variation action. If that's going to be heard, if it involves a Nisga'a citizen, then Nisga'a government is entitled to notice. A citizen of another treaty first nation — that treaty first nation, as well, would be entitled to notice.

L. Krog: I wonder if the Attorney General can explain the point of allowing for notice. Is it to deal with the issue of cultural property? Is it to deal with the issue of jurisdiction, some combination of that, or other reasons?

[1500]

Hon. M. de Jong: The sections are designed and included as a means of taking into account the collective nature of ownership of some items of personal property or artifacts. A talking stick, for example, may not attract the same ownership that we might assign to it within a first nation. There may be an element of collective ownership. The sections are designed to try and provide a means for giving expression to that where actions come before the courts.

Section 16 approved.

section 17.

L. Krog: Just to be clear with respect to

section 17, that is simply ensuring that there's no question that a Nisga'a citizen is captured by the same benefits, if you will, of the small estate sections of the statute. Notice, likewise, must go to the Nisga'a government again, I presume, on the same assumption that we're trying to protect what may be culturally sensitive artifacts or where there's a question of collective or community ownership.

Hon. M. de Jong: That's correct.

Sections 17 and 18 approved.

[ Page 729 ]

section 19.

L. Krog: With respect to

section 19, does this represent any change from the existing law?

Hon. M. de Jong: I'm looking also at the existing

section 99. I don't see any substantive change. The language is not exactly the same. It is designed to promote uniformity with the laws of other provinces. I don't see any substantive difference.

Sections 19 and 20 approved.

section 21.

L. Krog: This

section includes a couple of

definitions, including the one for household furnishings. I just wonder if the Attorney General can confirm that in fact, that definition represents no significant change from

section 85 of the existing act.

Hon. M. de Jong: I don't see household possessions in the

definitions

section of the Estate Administration Act. Why don't I check? I'm not in a position at this point to say whether it's different or whether there was a definition. Let's check on that, and I'll endeavour to get back to the member.

L. Krog: I appreciate the Attorney General's commitment.

This section, by definition, is again a remarkable change from the existing law. In British Columbia now a surviving spouse is entitled to a life interest in the family home — the first $65,000 — and then, if there's one child, shares the residue 50-50 with that child and, if there's more than one child, one-third to the surviving spouse. The rest is divided amongst the children, regardless of the number.

[1505]

Given — and I come back to my point from the other day — that you establish a spousal status in this province by living together in a relationship for two years, I would hesitate to use the term "you've hit the jackpot." But in some respects you may well have hit the jackpot in a very short-term relationship, based on the statutory definition. Although it may well work in — how shall I say? — an appropriate manner in many cases, in others what it means is….

For instance — and the Attorney General can correct me if I'm wrong — say I'm divorced or I'm a widower. I have two children. They're, say, 19 and 20. They're embarking on university. I don't have a lot of money. I've lived with my common-law spouse for two years. I die. My estate is worth $200,000. My reading of this

section is that $150,000 goes to my surviving spouse of two years. Of the rest, $25,000 goes to her, and the remaining $25,000 is divided between my two children.

I just wonder if the Attorney General can confirm whether or not the example I've used is accurate and whether my

interpretation of this

section is accurate.

Hon. M. de Jong: Let's deal with it in reverse. I think the division that the member has presented is accurate. The member has some thoughts and has used some language that I may not incorporate as fulsomely in my answer, but let's be clear. Under these provisions in the simplified example, that would be the division.

I think the Law Reform Commission, dating back to the early '80s and the institute more recently, in making the recommendations that have been adopted and included in the legislative package, consciously was promoting the notion that the share of the estate to which a spouse should be entitled on an intestacy should be increased from where it was. That, obviously, is reflected.

At the same time, an attempt is made to take into account and balance the fact that today there are many mixed families. The member has described one such example, and there's any number of similar examples that we can think of, taking into account situations where the children of the deceased are not children of the surviving spouse and ensuring that some provision is made there as well.

But there's no doubt that the recommendations and the approach reflected here place great value — and that probably is the correct term — on the notion of spousal survivorship, and it's quantified in a significant way.

L. Krog: To continue. As I understand it, in Saskatchewan they've got a preferential share at about $100,000, I believe, and in Ontario at $200,000. So British Columbia will have a two-tier system, if you will.

The way I read this section, the spouse — common-law, married, whatever the case may be — has $150,000 off the top. If they have children together — again, whether they're married, common-law, a marriage-like relationship — the first $300,000 goes to the surviving spouse, and then the children would share the residue after the $300,000. That's my understanding of this section, and I just want to confirm that.

Hon. M. de Jong: I think the member's description is correct. I lost a bit of track halfway through the example. But to the extent that he described a difference in situations where the surviving children are common to both spouses versus a situation where the surviving children are not the children of the surviving spouse, there is a differentiation that I think the member accurately described in presenting his question.

[1510]

L. Krog: Just to confirm, I take it that…. Obviously, the government is leaving it open to increase that

[ Page 730 ]

amount — the same with respect to small estates as well — and that it is an amount that can be a greater amount if prescribed.

So that would be by regulation in due course?

Hon. M. de Jong: That's correct.

L. Krog: I'm just curious to ask. It specifically says: "or a greater amount if prescribed."

I'm wondering why the government didn't consider the possibility that, in the exercise of this particular change — and experience provides numerous situations that might not be very appealing to the average citizen of British Columbia, particularly the children of deceased persons whose parent got into a fairly quick and rough-and-ready relationship….

Why didn't the government consider saying simply, "or a different amount if prescribed," as opposed to being so confident the $150,000 should be the minimum that the government hasn't allowed itself an opportunity to in fact raise and/or lower that amount?

Hon. M. de Jong: I think the short answer, given our history over the past century, is that inflationary trends would suggest that the ability to move the amount upward by regulation is a more likely scenario than the one described by the member. But I'm not ruling out the possibility he describes. The fact is that it can be changed, but it would require this chamber turning its mind to the amount in a very purposeful way, as opposed to by regulation.

Section 21 approved.

section 22.

L. Krog: This

section deals with a situation: "If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree" — which, with great respect I might suggest, is not overly likely in the case of a partner who is married to someone who has to share with the common-law mistress, if I may use the term in a somewhat sexist example; that's not likely to happen — "or if they cannot agree, as determined by the court."

It then goes on to provide that if "2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision."

I'm just wondering if the Attorney General can provide some example of where he would see this spousal situation arising and whether the language used in this

section is going to in fact invite more litigation than it is going to settle.

[1515]

Hon. M. de Jong: I am reminded that the distinction here, with 85.1 of the Estate Administration Act, which drove these disputes to court necessarily, is that

section 22(1) has expanded upon that format by encouraging the members to endeavour to seek some form of negotiated or mediated agreement — though I can imagine, as the member points out, the difficulties that might ensue in bringing parties together and the circumstances that would make this

section relevant.

Nonetheless, unlike

section 85.1 of the Estate Administration Act, some thought has been given to encouraging the parties here to find some means for reaching an agreement short of appearing in court.

L. Krog: I'm probably a bit obtuse today, and I'm sure the Attorney General will be kind.

Interjection.

L. Krog: The member from Malahat whatever doesn't agree, but that's beside the point.

I'm trying to contemplate the situation. When you go back to the definition of "spouses" under the act, you have to be married or you have to have lived in a marriage-like relationship for at least two years.

I take it we're contemplating the situation where you may indeed have…. I think it becomes a bit difficult, because if you separate for at least two years, in the case of a marriage, then you're not together. You're not a spouse. In a case of the marriage-like relationship, it can occur if one or both persons terminate the relationship. I'm just wondering whether we'd be able to get into this situation.

Hon. M. de Jong: The scenario that seems to emerge is a situation where someone has been legally married, has not yet dissolved that or triggered the formal dissolution of that and yet, at the time of passing — at the time of their death — also has a common-law spouse of two years who acquires entitlement.

So that's roughly the scenario we can think of that would render this applicable.

L. Krog: I'm just trying to get a grasp on the practical example of this in light of what the act says.

If you're married, and you've lived separate and apart for at least two years with just one of you having the intention to do so, then you're no longer a spouse. That's what

section 2, the definition section, says.

In order to become a spouse, you have to have lived together in a marriage-like relationship for at least two years. So are we talking about a situation of bigamy, or are we missing an intersection here somewhere?

I think the Attorney General is getting my point on this, and I'm just trying to grasp and get my head around this concept when you would have this intersection where two spouses would in fact have a claim. Or

[ Page 731 ]

does the Attorney General see it as legally possible that one can be — what? — spending six nights here and seven nights there and swapping back and forth?

[1520]

I mean, this almost contemplates bigamy in some respects, the way I'm seeing it, but I'm sure the Attorney General can assist me.

Hon. M. de Jong: I think the best way I can try to answer this in terms of legislation that, by necessity, tries to account for every conceivable circumstance…. The possibility that a relationship has commenced and satisfied the spousal definition prior to another relationship ending — such that the person no longer qualifies under a different definition of spouse, as unlikely as it may be — could occur. I'm not sure I embrace the description or the example the member gives, but maybe. So the challenge is to take account of circumstances, however unlikely but possible.

L. Krog: If the Attorney General will forgive me for putting it this way, you can have your cake and eat it too, arguably. You get to retain the status of marriage in the lawful, traditional sense and at the same time be in a common-law spousal relationship recognized by this statute at exactly the same time.

If the Attorney General can give me a better example. I can't see, given the timing — the two years and the living separate and apart…. I just want to hear an example that can explain to my very simple mind how this is ever going to function, given the way the act defines spouses.

Hon. M. de Jong: Two things. First of all, this notion of two or more entitled spouses is not new. It did exist in the previous act, so to that extent the drafters have not developed a new concept.

The hon. member began his question and submission with the old adage about having the cake and eating it too. Actually, the person having the cake is dead, in this example.

So a situation where, unknowingly, two relationships have existed, overlapping contemporaneously — perhaps the two unknowingly, perhaps not — and two people satisfy the definition was something that the Estate Administration Act considered and thought important enough to include in their provisions and the institute and the drafters of this document felt needed to be preserved. As distasteful or tawdry as it may seem, the possibility that an individual or two individuals might find themselves in this situation requires, we believe, the inclusion of the provision.

L. Krog: I hate to belabour this, but I'm trying to reconcile the language very specifically. If we go back to

section 2, it says that they are "spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time…." The relevant time is the time of death of the deceased person, and "(

a) they were married to each other, or (

b) they had lived…in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least 2 years.

(2) Two persons cease being spouses…for the purposes of this Act if…."

[1525]

In the case of marriage, they actually have to live "separate and apart for…2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently" and "in the case of a marriage-like relationship, one or both persons terminate the relationship."

I'm not sure how you can live separate and apart and be in a marriage-like relationship. Somebody, it seems to me, has to lose the right here. I'm just trying to figure this out.

[C. Trevena in the chair.]

Hon. M. de Jong: This seems to be built around the legal proposition or

interpretation that in order to live in a marriage-like relationship with A, you need not to have conclusively resolved or intended to terminate a marriage-like relationship with B. As implausible as that may sound, that apparently is the legal principle or legal argument that lies at the root of including the provision.

L. Krog: I guess my difficulty is — and perhaps I'm being too moralistic in this sense — that if your spouse essentially abandons you but doesn't say it's over, and you've been married to them for 30 or 40 years, you then have to face the prospect under this section…. The Attorney General may make reference that it exists now, but this is new law, and we're reforming the law.

This supports the proposition that the person they go off and live with for a couple of years — and that's all it takes, a couple of years — has a claim on the estate that the loyal spouse, if you will, built up with the deceased person over perhaps 30 or 40 years.

The Attorney General can correct me if I'm wrong, but that's my

interpretation. We're essentially saying: "That's okay. As a society, we won't pass judgment on the relationships involved." But we will say to the loyal spouse — if I may call them that — that you helped build it all up, but your spouse, male or female partner, goes off and spends two years, and that's all it takes — two years with somebody else.

Then the person they spent two years with, who may well know of the existence of the loyal spouse, is going to share in the estate. That's what this says, and if I'm wrong, the Attorney General can correct me.

[1530]

[ Page 732 ]

Hon. M. de Jong: I think it's legitimate for us to walk through what some of these provisions are. In the example the member has given, one thinks through some of the other mechanisms at play and the entitlement of the loyal spouse on separation proceedings, divorce proceedings, to share in the matrimonial property, take an equal share in the matrimonial property.

In those circumstances, one presumes that the loyal spouse would be entitled, upon dissolution of the relationship, to half of the matrimonial property — at least half of the matrimonial property, depending on the disposition of that. I'm not quarrelling at all with the member exploring the implications of some of the proceedings. In that circumstance, in that example, there are some other protections that exist for the loyal spouse, to use the member's term.

L. Krog: I appreciate that they do exist, but in the case of the loyal spouse, for instance, and referring to the case of marriage, the definition

section makes specific reference to "an event occurs that causes an interest in family assets, as defined in

Part 5…to arise."

"I don't want a

section 57 declaration. I want this 30-year relationship to continue, so I haven't signed it, and I won't sign a separation agreement." In the meantime, my wife, my husband, my partner is off engaged in this new relationship.

What this act does is specifically recognizes, by definition, that potentially what would have been entirely mine if my spouse died, as the loyal remaining spouse, is now going to be shared with the new partner. That's exactly what this is.

I just throw out to the Attorney General that…. I'm not speaking for myself in terms of my own sense of morality, but I think it's important, as we debate this today, that British Columbians who are watching need to understand that this is what the law of British Columbia is saying — and will be, assuming this act passes.

Hon. M. de Jong: The law as it will be, and the law as it is now and has been for some time — and, of course, again, in the circumstance, the example, that the member has brought to the floor…. In a similar situation, where the spouse who has moved from one relationship to the other chooses to stop by a law office or a notary and complete a testamentary instrument, the situation may be very different indeed.

I appreciate the fact that the member is taking seriously the fact that there will always be circumstances that these provisions apply to, and it's worth exploring what they are.

Section 22 approved.

section 23.

[1535]

L. Krog: This provides a somewhat different provision than exists under the Estate Administration Act today and refers to degrees of kinship. I'm just wondering if the Attorney General can put in simple language what this means.

The way I interpret it, if you die without leaving a spouse…. You've already dealt with the spousal situation. If a spouse dies with no children, in

section 20 — or, pardon me, no surviving descendant, properly speaking — then the spouse gets the whole estate, and that's been the law forever.

This

section provides, obviously, that it goes to the intestate's descendants and, if there's no surviving descendant, to the intestate's parents in equal shares.

A descendant is a somewhat broader scheme and, by definition, means "all lineal descendants through all generations." In other words, it will follow it down. If you've got two children, it will go equally to them. If you've got a child and a deceased child with grandchildren, again it goes down the lineal line all the way.

Unless I'm mistaken, we won't get past the fifth or greater degree, because under

section 23(3): "…persons of the 5th or greater degree of relationship to the intestate are conclusively deemed to have predeceased the intestate, and any part of the intestate estate to which those persons would otherwise be entitled must be distributed to other descendants entitled to the estate."

In other words, if I'm as old as Methuselah and I've got six generations down, we're not going to get to the sixth generation. We'll go down to five, if all my kids and my grandchildren and everybody else are predeceased, but that's as far as we go. Is that correct?

Hon. M. de Jong: A specific correction, and I think an important one. Under subsection (4), in the example the member has given, the lineage through grandchildren, great-grandchildren extends as far as you can trace directly — great-great-great-grandchildren and beyond. Where the limitation exists is when we head off into a different direction.

L. Krog: I appreciate the explanation of the Attorney General.

Just so I'm clear, subsection (4) says:

"Subsection (3) does not affect (

a) the right of an intestate's descendants to inherit the intestate estate even though they are of a greater degree of relationship than the limit imposed by that subsection, or (

b) the right of a person to apply under the Escheat Act on the basis of a legal or moral claim against the former owner of an estate that has escheated to the government as property to which no person is entitled to succeed as the owner."

Can the Attorney General just explain the meaning of those two sections?

[1540]

Hon. M. de Jong: I think we dealt with the member's question as it relates to direct heirs — grandchildren

[ Page 733 ]

and great-grandchildren and so on. If (4)(

b) relates to circumstances in which there are no descendants and no other heirs within that four-degree period, and provides for a situation where property then passes to the Crown via the Escheat Act, there is provision made here for an application by what would, by necessity, be a remote relative to have a claim to that property considered by the Attorney General, and that would take place under the Escheat Act.

What I have asked the officials here to try to ascertain is whether or not a provision of that sort exists in the Escheat Act now or exists elsewhere in testamentary legislation. I'm just not aware, off the top of my head, where it does. But that's what this provision would do.

L. Krog: I know I'm belabouring these points somewhat, but I think it's important that…. The presumption is that if the opposition critic doesn't understand this stuff, then hopefully, there will be at least ten other British Columbians who will need assistance in understanding what this means.

Sub (3) talks about…. "For the purposes of this section" — in the broadest sense — "persons of the 5th or greater degree of relationship to the intestate are conclusively determined to have predeceased the intestate…." The way I understood the Attorney General's explanation, that would mean that notwithstanding what subsection (2)(

a) says, it would be distributed "to the intestate's descendants," which takes us down lineally….

Did I understand the Attorney General to say that, in fact, we ignore subsection (3), or that subsection (3) applies and that's as far as we go? Just so I understand it, it's so that in fact if you've got someone to the sixth degree, they're out of luck, but if you've got someone in the class of the fifth degree, they're in luck. That's as far as the residue is going to drift down, so to speak.

In other words, if you've got the great-great-great-grandchild, but you've got a great-great-great-great-grandchild that died and left a child, that child is out of luck, but the great-great-great-grandchild is in luck. Is that the way I interpret this section?

Hon. M. de Jong: I apologize. I'm certain I was unclear.

Under subsection (4), it has the effect of exempting an intestate's descendants, and if we use that term "descendants" to mean children, grandchildren, great-grandchildren — lineal descendants…. In the example the member's given about the 120-year-old deceased, in this case, that can stretch without limit. Those heirs, those descendants, lineal descendants, are exempted from the cutoff referred to in subsection (3).

That exemption does not extend when we move out to the side — to cousins, second cousins. There is the fifth-degree cutoff referred to in the section.

I'm still worried that I'm not answering in a way that assists the member.

L. Krog: I think I've got the Attorney General's point, but I'm going to try and repeat it back to him in a way that perhaps both of us, and the officials who are so ably assisting us here today, can be satisfied that we're all talking the same language.

[1545]

Subsection (4) says: "Subsection (3) does not affect (

a) the right of an intestate's descendant to inherit the intestate estate even though they are of a greater degree…than the limit imposed by…" subsection (3). So in other words, we'll go down seven generations, and there's a class of folks — there are, say, three of them, and they're lineal descendants. If there's nobody else, they get it. It doesn't stop at the fifth.

But if there were two lines of descendants, we get down to the fifth degree, and they're alive, but on the other side, the fifth degree has predeceased and has a sixth degree living below them. What, in fact, happens to the estate is that it goes to the surviving fifth, but the sixth is out of luck.

Is that the way you interpret this section?

Hon. M. de Jong: I think I understand the example. If both lines that the hon. member has described…. If neither of them are lineal descendants, then I think his example holds and the result holds.

L. Krog: Notwithstanding what subsection (3) says, and that's where my problem is…. Subsection (3) says: "For the purposes of this section, persons of the 5th or greater degree of relationship…." Maybe I'm missing the point around the degree of relationship.

If we're talking degrees of relationship, does that mean that language only applies at law? I don't know this, so this is a question. Does that only apply to persons when you're going backwards, so to speak, to parents and out to nieces and nephews and aunts and uncles? Does that language only apply in those circumstances?

If that's not what it means, then the plain

interpretation of subsection (3) is that you go down to five, and you're done.

What I'm saying is if you've got two lines of lineal descendants, you know…. I had a son and a daughter, and I finally passed on at 144. We've got them down to five on one side. The five on the other side is gone, but they've left a sixth layer, so to speak. The way I read this section, the surviving fifth layer gets it. The surviving sixth doesn't.

Hon. M. de Jong: Two things that I need to alert the hon. member to, to perhaps further murky the waters.

We do have to read the section, I'm reminded, in conjunction with

section 24, which relates to distribution. The other point that perhaps the…. The member began his

[ Page 734 ]

question by referring to legal

definitions and legal meanings of terms. "Descendant," as it is used in subsection (4), is a defined term and speaks specifically to lineal descendants through all generations. In fact, that is the definition. So to the extent that there is that exemption, that should be fairly clear. On the distribution side, I'm reminded that we have to take into account the provisions of

section 24 as well.

[1550]

L. Krog: To come back to my point. In the example I've used, you're dealing with a deceased person who had two kids. His children have died. Both children had children. The grandchildren have died. Both sets of grandchildren had children. They've died.

We're down to the fifth. On the daughter's side, the fifth generation, if you can call it that, has passed away. On the son's side, the fifth generation is alive.

Does subsection (3) mean that the surviving fifth on the son's side get it, and the daughter's fifth — who are predeceased but have left children; in other words, we're down six generations now — don't?

If I may just have the attention a moment further…. That's because you're saying

section 24 saves us from that possibility.

Hon. M. de Jong: I think the answer is yes.

L. Krog: I'm delighted. I think the Attorney General has agreed with my

interpretation of this section. I'm thrilled. I say that only in a half-joking way, because there are a whole pile of lawyers in British Columbia who may be confronted with this as medical science improves. We may face this remote — very remote, admittedly — but indeed legal possibility that you will get to that situation.

Having said that, I think we have fairly beaten

section 23 to death.

Sections 23 and 24 approved.

section 25.

L. Krog: Just to be clear, this is just the capturing

section that says that if I've somehow drawn a will in such a way or there's some asset available that isn't disposed of by will or isn't the subject of a gift, then what we're saying is the intestate provisions apply to that.

Again, we'd count down the generations, all of that. In other words, the whole…. The intestate provisions apply to something not disposed of by will. It's fairly straightforward, existing law, and nothing's really changed. Is that essentially it?

Hon. M. de Jong: That is correct. The intestacy provisions would apply with respect to that property not covered by the testamentary instrument.

Section 25 approved.

section 26.

L. Krog: I appreciate that some of the members wish to get through this

section somewhat more completely, but we have a long lifetime ahead of us, I'm sure, and we'll be able to handle it.

This, again, is a significant change from the existing law. It applies to an intestate estate that includes a spousal home. A spousal home, as was discussed yesterday with the Attorney General, includes, as he advised me today, potentially even a fifth wheel and covers a whole series of things that would constitute a residence.

[1555]

Again, it only applies in the situation of an intestacy or in a situation where it hasn't been disposed of by will. What it says is "…the surviving spouse may acquire the spousal home from the personal representative to satisfy, in whole or in part…."

The way I read it is that she or he has the right, and they may choose to exercise it, but it's not that they have to take the spousal home. Is that essentially the

interpretation?

Hon. M. de Jong: That's correct.

Section 26 approved.

section 27.

L. Krog: Again, as this

section deals only with intestacies, as I understand it, what

section 27 means is that the personal representative, the person who applies for grant of letters of administration — whatever…. That person has to give notice to the surviving spouse of this specific statutory right. In other words, they do have the option to demand that in order to satisfy their share of the estate or further claims under this section, they're entitled…. They have to receive that notice.

I would presume the same kind of provisions apply now as exist in practice. If you can't file an affidavit saying that you've sent a notice to everyone entitled under the Wills Variation Act, under the Estate Administration Act, you can't get a grant of letters of administration.

This

section is essentially saying the same thing, except in addition, you have to have the further provision that you give them literally a copy, potentially, of this

section of the statute saying that you have the right to claim the home.

Hon. M. de Jong: The member is correct that this specifically and statutorily requires the personal representative to inform the spouse of his or her right to receive the spousal home. As it relates to the spousal home…. I'm not sure there's a similar provision existing now as it relates to the spousal home.

[ Page 735 ]

L. Krog: No, the Attorney General is quite correct. It relates to the entitlement of a surviving spouse — period. But this is a more specific…. And I would imagine it's going to come in addition to the notice the way most lawyers understand it now. It will be a very specific addition that you will…. I shouldn't say "lawyers," but lawyers or personal representatives will have to send a specific notice advising the spouse of the deceased intestate that she or he will have a specific right to exercise the option to take part of the home as part of their share of the estate.

Hon. M. de Jong: Yes, that will be a formal part of the process. I'm advised that some thought has been given to actually particularizing the form of notice that may be required under the Supreme Court rules.

Section 27 approved.

section 28.

L. Krog: I see that there's a saving provision here as well, unless I'm mistaken, that the personal representative, much as a representative — an executor now, for instance — is prohibited from disposing of the family home within six months of grant of letters probate, because of the provisions of the Wills Variation Act.

This now applies with respect to an intestacy so that you don't get to dispose of the spousal home within 180 days — in other words, within six months — of the grant unless you've either received the consent of the surviving spouse or "… the spousal home are not sufficient to pay the debts and liabilities…."

[1600]

I'm just curious, but I'm going to assume…. The assumption is that if the spouse can't be located, then is there some provision — and perhaps I'm missing this — for notice to be given to them?

It was a loose and funny marriage, and the husband or wife is off travelling in Southeast Asia. It's impossible for me as the personal representative to give them formal notice. Is the assumption that the same provisions around the registrar of the court or the court itself being able to order some other form of giving notice…? Is that contemplated?

Hon. M. de Jong: I think I understood the member's question this way. Where a personal representative is seeking to discharge the responsibilities they have with respect to the spousal home under the provisions we're dealing with but is unable to do so, what options does the personal representative have? Is that the question? The member is indicating that is so.

L. Krog: What I'm thinking of is a situation…. Perhaps it's a falling real estate market. These things happen in British Columbia on occasion. I know as a personal representative that my responsibility is to get the best value out of the estate. I can't locate the spouse to whom I must give notice in this intestacy of her right or his right to make a claim. Unless there's some specific provision or the rules allow for it — and I think that because it's procedural, maybe it can be done by way of a change to the Supreme Court rules — I'll be in a situation where if I can't do that, I'm hanging on to this house in perpetuity.

Even though there are other assets to pay the debts of the estate…. That's already contemplated here, because this

section talks about, in

section 28: "…unless assets other than the spousal home are not sufficient to pay the debts and liabilities of the estate…." Nevertheless, I have this duty as a personal representative to get the best for the estate.

I'll give a concrete example. I've got $200,000 in a bank account, I've got a home worth $300,000, and the market is going in the toilet. Does this mean that if I can't find that spouse to give him or her notice, I have to sit idly by, if you will, and watch the property value decline by 50 percent like it did in the early '80s in British Columbia within a matter of a few months?

Or is the Attorney General satisfied that this is a procedural matter, and you can deal with this issue in the rules? For instance, a judge, a registrar of the court, now has the ability to say, "You know, you've done your best. You can give notice to the spouse or a child of a deceased person by publication," or whatever.

[1605]

Hon. M. de Jong: The key here, of course, is the application for representational status and, in order to achieve that from the court, from the registrar, to have fulfilled the obligations under the act. One's expectation in the majority of cases is that the representative would provide notice to the surviving spouse. Now, in the scenario that the member has described, the person seeking the grant of representative status is experiencing difficulty in doing that. Does that extend in perpetuity while the value of the asset declines?

My advice is that the inherent jurisdiction of the court to provide procedurally for an order for substitutional service would operate to allow the person seeking the grant of representative status to seek an order that would allow them to fulfil their obligations under the act and then deal with the asset.

L. Krog: That's essentially what I'm looking for from the Attorney General — some assurance that we agree it is a procedural matter that could be handled by the rules of court. I think the Attorney General appreciates the kind of scenario I've raised, but that he is satisfied in speaking to this House that it will be a procedural matter and that the rules of court — which will obviously be

[ Page 736 ]

changed, assuming this act is passed — will in fact be able to deal with the very scenario that I have raised.

If we're satisfied, that's great. We can move on.

Hon. M. de Jong: I think the relevant question, the one that the member is also posing, is: are there any impediments in this section, or are there any impediments in the act, that would preclude a solicitor or someone seeking a grant of representative status to go before the court and say — via the rules, via those procedures: "I understand what my obligation is under the sections of this legislation. I have endeavoured in the following ways to fulfil those obligations. I have been unable to.

I am seeking an order providing for substitutional service or some other confirmation of how I can discharge that duty to the satisfaction of the court and get on with dealing with the assets"? We believe there are no such impediments.

L. Krog: One of the reasons I was raising this — and I hate to skip ahead — is that under division 3, "Application for grant of probate or administration," on page 51 of the bill, the provisions are fairly similar to what exists now. It says:

"An applicant for a grant of probate or administration must give notice of the proposed application to the persons referred to in the Rules of Court."

Then it says, at subsection (2) — a saving section:

"An applicant or personal representative who, in accordance with the Rules of Court, makes reasonable efforts to discover the existence, identity or whereabouts of persons to whom the notice under subsection (1) is required to be given, but is unsuccessful, is not liable for any loss or damage arising from not giving the required notice except for claims (

a) to recover property or enforce an order, or (

b) under Division 6…" of the Wills Act.

[1610]

I guess my point is this. Similar provisions exist now. You can't get a grant of letters of administration unless you've attempted to give notice to persons entitled on an intestacy. That's basically repeated here in

section 121. But we now have a new obligation on the personal representative, and that is the obligation that they "must" — not may; must — "at the time an application for a representation grant is made, give notice to the surviving spouse of the right of the surviving spouse to acquire the spousal home."

What I'm getting at is: why don't we have — and if I've missed it, forgive me, and I've wasted the House's time — a similar provision or saving provision in the statute to protect me, arguably, from the scenario I've described, where it's a fall in real estate?

I think the Attorney General's assumption is that the rules of court will take care of it. I want to be satisfied that the rules of court will in fact take care of it, because I think the scenario I've outlined, the declining real estate market….

You can't find the spouse to give him or her this notice that they've got a right to the house. You can get the permission of the court to give them notice of the general application for letters of administration, if you will, to manage the deceased's estate. But in addition, you've now got this new obligation to give them notice of their right to claim the house. And I'm watching the house decline.

I guess I'm just wondering why we haven't treated these notices the same.

Hon. M. de Jong: Two things I might say in reply. We do believe that, to the extent that someone seeking to be a personal representative needs to satisfy these statutory obligations and was having difficulty doing do, the inherent jurisdiction of the court would allow that body to provide some relief.

The other thing, though, at a practical level, that I think the member is referring to is the concern that the beneficiary — the spouse — will come along at some point and say: "Well, it took three, four or five months to move this asset, and I have been prejudiced as a result. What took you so long?"

Well, I suppose in part the answer is: "I couldn't find you." From a practical point of view, I'm not sure how guilty I would feel saying to someone: "I'm sorry, I have to tell you that the sale of this has been delayed, but the reason it was delayed is because, in discharging my statutory obligation to notify you, I couldn't find you."

[1615]

L. Krog: I appreciate the Attorney General's comments, but accidents happen. I wasn't expecting my husband or wife to drive the car off the cliff on the way home from work as I was off attending to the needs of chimpanzees in the heart of the Congo and couldn't be located. You know, Livingstone did get lost for a while. So it just strikes me that….

Interjection.

L. Krog: Oh, that the member from Kamloops could follow this.

I think the Attorney General gets my point. You're treating things, frankly, differently. It seems to me where you're imposing a statutory obligation on someone on one side to give this notice and yet at the same time not relieving them of their duties as a trustee to accomplish the best they can on behalf of the estate, there's a bit of a dichotomy here. There's a bit of an issue.

I'll leave it to far greater legal minds than my own, but I'd like to think that the Attorney General's ministry and the senior staff and those able legal minds who inhabit it will be satisfied that the point I've raised is not going to present a problem for personal representatives that could be accomplished by a potentially simple and — how shall I say? — unopposed change just to protect the situation where I'm trying to do my job, and the market

[ Page 737 ]

is going down, and I just want to get this place sold rather than….

At least leave me in a position where I know that I've got the same saving provision as I do in

section 121(2) if I did all I could to look for you and find you and determine…. It just seems to me that the same provision should apply in this situation just as it does now under the Wills Variation Act, potential claims under the Wills Variation Act. I mean, I've got to prove to the court that I couldn't find you to give notice and that I tried my best, so we published it in the paper or whatever.

I don't wish to belabour the point, but from what the Attorney General has told me…. I understand his argument about the parents' patriarchal jurisdiction and all of those sorts of things. But the court has got to look at this and say on the one hand that the government contemplated this, and you can look at the legislative record. This was pointed out, and it wasn't dealt with.

Surely if the Legislature in its wisdom had intended to give the court the power to remedy this problem, it would have done so. I come back to my point, and this is for consideration of staff. Is this so much a procedural matter that a simple amendment to the Supreme Court rules will save all of the issues I have raised?

Hon. M. de Jong: I in no way want to convey to the hon. member obstinance or a reluctance to take seriously the points that he raises during this discussion. One of the advantages of the process we intend to follow, of course, as we've discussed earlier, is that there will be an 18-month period.

I can assure the member insofar as he has drawn an accurate distinction between the provisions of this act and the mandatory requirements of it versus the mandatory requirements that occur elsewhere in the act but include alternate provisions for satisfying those requirements — that that is something I will pursue and pose questions about. If my expectation and belief that this can be dealt with procedurally via the rules of court is incorrect, happily we will have time to deal with it in this chamber.

Section 28 approved.

section 29.

L. Krog: Just to confirm, this is simply the provision that sets out exactly how a surviving spouse gets to exercise that right — the right to make a claim on the spousal home, if you will.

[1620]

Just for purposes of this, the spousal home would only refer to a home which the spouses had occupied. It wouldn't be the family summer cottage, for instance, because of the definition section, which talks about shared or owned jointly by the deceased person in a corporation and provides that exclusively…. I take it that it talks about where they were ordinarily resident. Or does it, in fact, include the family cottage?

If you go back to "spousal home," it talks about a parcel of land that is shown on the tax roll, etc., has improvements situated on it and "a building assessed and taxed in the current year as an improvement, in which the deceased person and his or her spouse were ordinarily resident, owned or jointly owned by the deceased person and not leased to another person." I read that to mean that you had to be ordinarily resident there, so it won't include the summer cottage.

Hon. M. de Jong: That description is applicable and accurate. I think the other point is that the act only contemplates one spousal home.

L. Krog: Just to confirm, is it contemplated that in fact there will be a prescribed form for giving notice under

section 29? Or is it worded in such a way…? It talks about how a notice must contain a statement of the value, and so on. Is there some intention for the government to assist the general public here, or will this be simply a matter of discretion for the persons wishing to make a claim?

Hon. M. de Jong: I haven't decided yet.

The Chair: Shall

section 29 pass?

L. Krog: Sorry. I was up on 29. I appreciate the desire of the Chair to speed the proceedings along.

I just want to encourage the Attorney General to consider prescribed forms. If the whole intent of this legislation is to try, if you will, to bring into one statute and to simplify the process and make it more user-friendly, then surely it would behoove the government to consider a prescribed form for a notice of this nature.

In the changing world — with people often having serial relationships, the spousal home, not bothering to get a will, moving in and out — this will in fact probably become more common. Given that interest in real estate seemed to be one of the few things that, apart from the early '80s, doesn't descend in value, I suggest it may be a wise thing to consider.

With that, I am satisfied with

section

Section 29 approved.

section 30.

L. Krog: Just to be clear, this

section involves a situation where there's a dispute between the personal representative and the surviving spouse. It talks about the personal representative having to deliver "within a reasonable time,

[ Page 738 ]

a written response to the notice stating the value the personal representative places on the deceased person's interest" — in other words, in a situation where we've got a dispute, where there isn't agreement.

It then goes on to contemplate that in addition, a descendant entitled to share in the estate may apply to the court as well. The surviving spouse who exercises this right must apply to the court to determine the value of the deceased person's interest, etc., and unless the descendants entitled to share in the estate or that part of the estate agree in writing….

[1625]

Are we contemplating, then, that there should be notice given to the larger body of persons? In other words, because we are dealing with an intestacy, not only should the spouse and the personal representative be involved in the determination of the value, but also, I take it, the children — the descendants it's talked about.

I take it that under

section 29, the spouse gives notice to the personal representative and to the descendants, so it's going to the children as well. Then under

section 30 if the personal representative disputes that value, they have to deliver to the surviving spouse a written response stating the value they place, and if they can't agree, then the personal representative gets to apply to court for an order determining the value. Then it goes on to say that if the surviving spouse who exercises the right is the sole representative, "the surviving spouse must apply to the court for an order determining the value," etc.

So in other words, if you're both the personal representative and the spouse, you have to apply to the court to get the value. But unless I'm missing it, apart from that initial notice, the descendants who will arguably have an interest in this…. If I value it low when it's in fact worth more, I get a benefit. It doesn't appear that there's a notice required to go to the descendants apart from that initial notice, and I'm just not sure how it's contemplated how they can or will protect their interests.

The best example, I suppose, in the court situation…. "If a surviving spouse who exercises the right to acquire the spousal home is the sole representative," the surviving spouse has to apply for the court to determine the value of the deceased person's interest. That's unless the descendants entitled to share in the intestate agree in writing to its value — or part of it, etc., that is to be treated as….

It contemplates that, but I don't see something that contemplates the situation where the personal representative is separate from the deceased spouse and has received the notice from the deceased spouse about the value. It doesn't appear that they play a role in that situation after having received the notice from the deceased's spouse.

Hon. M. de Jong: I think the first point is this. The member is correct in pointing out the interest that descendants will have in the question of valuation. The way this is drafted and the way that it operates, the role of the personal representative is obviously very important because it is the personal representative who assumes the responsibility for advancing the interests of the estate and ensuring that valuation takes place in a responsible and accurate way.

[1630]

L. Krog: So what I interpret the Attorney General to say is that I'm right. Essentially, you can have the personal representative and the spouse agree on the value without any further notice to them other than the notice the spouse of the deceased intestate gave when she wrote back to the personal representative and said: "I don't agree with the value you've placed on it."

But once that's done, then the descendants, the lineal descendants — in other words, those persons other than the surviving spouse — are out of the picture. So the value will be established by the personal representative and the deceased spouse, which will in fact have an impact on the residuary value of the estate, which will obviously impact on what may be available under the intestacy laws now to be distributed to the deceased's children.

Hon. M. de Jong: I think that's the case. I'm not certain how different that is, except for the obvious importance of an asset like a spousal home, from the obligations the personal representative assumes with respect to the balance of the estate.

L. Krog: When you go to

section 30(4), it says: "A descendant entitled to share in the estate or that part of the estate that is to be treated as an intestate…may apply to the court for an order determining the value…if the surviving spouse, being the sole personal representative, does not apply to the court for an order under subsection (3) within 180 days...."

It just gives a very narrow opportunity, if you will, to the descendants. I'll use the term "children" because I think that people listening might understand that better. It just gives a very narrow right. In other words, it's only where the spouse, who's got the priority share, is in fact also applying for letters of administration, if you will. That's the way I interpret this section.

Hon. M. de Jong: The member is correct about the narrow opportunity for descendants to intervene in the way prescribed in subsection (4) in circumstances where the representative and the spouse are one and the same and their interests may collide.

Section 30 approved.

section 31.

[ Page 739 ]

L. Krog: This

section makes reference to a situation where: "

(1) If the fair market value of the deceased person's interest in the spousal home exceeds the value of the surviving spouse's interest…under

section 21…." That's the

section that deals with the $150,000 if you're a spouse and the deceased had descendants or, alternatively, if the deceased had no descendants, the $300,000 priority claim.

What that says is that as long as you exceed that value — whether it's the $150,000 or the $300,000 — she or he "may purchase the remainder of the deceased person's interests from the personal representative, or from those in whom that interest beneficially vests, in accordance with the valuation of the deceased person's interest…as determined under this Division."

In other words, we are giving a priority right to the spouse to ensure that, as part of her $150,000 or her $300,000, as the case may be, she gets to have the family home, if you will, or what may have been the family home, as part of her share.

When it talks about family home…. Going back to spousal home, the definition is where "the deceased person and his or her spouse were ordinarily resident." So in other words, you can be a spouse for the purposes of this

section but not have been ordinarily resident in the family home and still be entitled to apply. Is that correct?

[1635]

Hon. M. de Jong: I apologize to the member, because I know he didn't do this on purpose. I didn't understand the question.

L. Krog: When this

section talks about the spouse, the surviving spouse's interest, whether it's the $150,000 or the $300,000, the way I read this

section is that she has a priority right to purchase the interest of the deceased spouse in what is described as the spousal home, I think. This definition of spousal home says that "in which the deceased person and his or her spouse were ordinarily resident."

What I'm saying — just to understand it completely — is that this may well have been the home in which the deceased was ordinarily resident, but the spouse who's making the claim against it, the priority claim to purchase the interest, wasn't ordinarily resident. That's the way I read this section.

Hon. M. de Jong: I'm not sure, in the example the member has given, given the definition of spousal home, that that would qualify as a spousal home insofar as I think the definition requires the deceased and his or her spouse to have been ordinarily resident there.

L. Krog: Just to go back to the definition of spousal home on page 9, it says spousal home means, and I'm shortening this a bit, "in which the deceased person and his or her spouse were ordinarily resident." So I take it we have to interpret that to mean they both have to be ordinarily resident as opposed to simply one of them living in it. Is that what the Attorney General is saying?

Hon. M. de Jong: That's how I'm reading that definition.

L. Krog: The

section goes on to provide that before a surviving spouse can make application under

section 33 to retain it, she has to provide financial information in prescribed form to the personal representative and the descendants entitled to share, etc.

What I interpret that to mean is that if the value of the surviving spouse's preferential share is insufficient to cover the fair market value, she would still have the right to purchase the remaining value, if you will. In other words, if my entitlement isn't equal to the value of the family home, I'm given a priority right to purchase the family home, because it's important to me, and I've got other cash to do it. Correct?

Hon. M. de Jong: That's correct.

Section 31 approved.

section 32.

L. Krog: I'm just a tiny bit curious. Under this section, a surviving spouse who occupies the spousal home pending his or her purchase has to pay insurance, applicable taxes, reasonable and necessary expenses, rates and charges for electricity, fuel oil, periodic payment that falls under any mortgage in the spousal home and any bonus payment or penalty resulting from the prepayment by the surviving spouse.

[1640]

I'm just wondering what the rationale for this

section is. In the ordinary course of events, the way I understand estates now, off the top the debts are paid.

In British Columbia today, in a situation where there's no will…. The wife has been killed. There's a mortgage on the family home. The husband will obviously continue to occupy it, presumably, but doesn't have to pay anything right now at law, arguably,

whereas this

section is saying quite specifically that you have to pay the mortgage. In addition to ordinary maintenance, you have to pay the mortgage, which is, in fact, a debt of the estate and is the estate's responsibility.

This is, as I understand it, a shift, and I want to understand the rationale for the shift.

Hon. M. de Jong: I think the rationale or the logic giving rise to the inclusion of this

section related to the fact that whilst in the majority of circumstances, as the member has

[ Page 740 ]

suggested, there's a logical progression to these things, the drafters were cognizant of the fact that if the surviving spouse were able to reside in the house expense-free for up to six months after the grant was obtained, there would be an incentive to delay the decision to exercise their right to stay for the full six months.

Section 32 approved.

section 33.

L. Krog: This again is a significant change to the law.

Section 33 says that a surviving spouse, on application, can ask the court to make an order that includes the following: "(

a) vesting the same interest in the spousal home in the surviving spouse that the deceased person had."

I take that to mean potentially more than the $300,000, which would be the maximum entitlement. I'm looking for advice on this: "(

b) specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate; (

c) converting the remaining unpaid interest to the descendants in the intestate estate into a registrable charge… (

d) determining an interest rate, as that term is defined…" etc.

To try and simplify the point I'm making, this gives a power to a court in a situation where perhaps the home is worth $350,000, and there is no other asset. This gives the power to the court to vest the whole of the estate, in essence — the $350,000 home — in the name of the spouse without any further benefit to the children.

Now bear with me. I acknowledge that the sections almost contemplate that the court has the authority to give you the house but put a charge on it, so eventually when you die or sell or whatever, those kids will see something out of the estate.

But I don't read this

section to limit the authority of the court, in a case it considers appropriate, to in fact give the spouse of the deceased intestate more than her $300,000, when it's her family home, and let her keep it without any responsibility to see some benefit flow to the natural children of the deceased intestate.

[1645]

Hon. M. de Jong: I wanted to review the provisions, and I think I understand the point that the hon. member is making insofar as the distinction between 33(1) and 33(2). I think, broadly speaking, the member is correct to point out that the nature of the order is described in subsection (2) and uses the language "may."

If I understand the member correctly, the concern that he's raising is the possibility that a court would make the order vesting title in the surviving spouse without regard for the interests of the descendants — the children, if you will. I think sub (

d) in 33(1) obligates the court to turn its mind to the interests of the descendants, and then sub (2) provides the mechanism or the means by which the court can address that interest.

L. Krog: I appreciate the significant responsibilities that are placed on the court in order to determine it. But I'm trying to simplify some of these sections to the point where, firstly, I can understand it, and then hopefully, British Columbians can understand it and make it clear.

What this

section potentially does allow is exactly what I've said, which the Attorney General has agreed is the case. In that situation where the family home, the home of the deceased, is of such a value that there isn't really anything else, then in fact the children, in theory, could be cut out if the court is satisfied that all the requirements of

section 33(1) are met — that the assets aren't "sufficient to satisfy the interests of all the descendants…" and that the court is satisfied the spousal home would impose hardship on her or him and that the court is satisfied that it would be "a greater prejudice," etc. But essentially, my scenario is, in fact, correct.

I mean, it's an unusual change. Again, I simply want to emphasize that this is a change from the existing law — quite significantly so. You're getting the right to have vested in you an interest in property beyond what in a normal intestacy you would be entitled to receive.

Now, I understand that the trade-off is, obviously, that we've moved beyond the existing…. Well, we will move beyond the existing legislation where you get a life interest in the home — which, quite frankly, if it means you've got to live to 75 to get your share of your father's estate, so to speak, is an imposition as well.

But this is the compromise, as I see it, and that is that in fact, this matter…. It can be dealt with, and you're cut out, and you know exactly where you stand.

[1650]

That's the flip side of this — that what I'm saying is correct. You can lose the only interest you may have in your father's or mother's estate if the court is satisfied that the requirements of

section 33 have in fact been met.

Hon. M. de Jong: Well, the member's observation has provoked in me a desire to return to the law institute report and verify the extent to which there is specific commentary. It's a balancing act — right? — between preserving the discretion of the court…. One can think of circumstances, I suppose, where the kind of order that we've just been talking about would make sense. Then, conversely, the desire….

It would be an extraordinary circumstance, by definition, where a court says, as the member has described: "I am making this order, vesting this asset that is of greater value than you would otherwise be entitled to as a surviving spouse, and I do so for the following reasons." Generally speaking, one's expectation would be

[ Page 741 ]

that the court, in doing so, would say: "But I am going to protect the interests of the children by attaching one of the caveats or conditions, orders, referred to in 33(2)."

The presence of the word "may" interests me. The best I can offer the member today is to assure him that it interests me enough to cross-check what specifically the law institute may have said about this.

L. Krog: I appreciate the Attorney General's explanation. I'm prepared to let 33 go, and then we're dealing with 34. There will be some questions in reference back to 33, however, that relate to this determination.

It talks about vesting, "specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest…." In other words, it's a situation where the court has looked at it and said: "You know what? You're going to get it, but you're going to have to pay the children of the deceased X amount of dollars."

When we go on to

section 34, it talks about:

"A registrable cha