Manitoba Committee Hansard — Legislative Affairs Committee, Sitting 1 (30th Legislature, 1st Session)

30-1-la1

Manitoba — Debates (Hansard)

LAH AH ENDMENTS COHHITTEE 8.00 p.m. Wednesdav, Hay 22, 1974 CHAIRJ>lAN: MR. D. JAHES WALDING MR. CLERK: Gentlemen, if I may have your a moment. Hr. Jenkins, your former Chairman, is no It is therefore necessary to elect a new chairman. attention and your indulgence for longer a member of the Committee. Are there any nominations? MR. ADAH: Mr. Haldjn g. HR. CLERK: Mr. Halding? Any further nominations? I'll ask Mr. Halding to take the Chair then. HR. CHAIRJ>lAN: Order please. The Committee will come to order. The Bills before La�; Amendments Committee are as follows: No. 5 -

an Act to amend The Garnishment Act No. 6 -

an Act to amend The Surrogate Courts Act No. 7 -

an Act to amend The Civil Service Act No. ll -

an Act to amend The Insu rance Act No. 13 -

an Act to amend The Boxing and Hrestling Commission Act No. 14 -

an Act to amend The Amusements Act No. 15 -

an Act to amend The Queen's Bench Act No. 16 -

an Act to amend The County Courts Act No. 17 -

an Act to amend The Attorney-General's Act No. 18 -

an Act to amend The Highways Department Act No. 20 -

an Act to amend The Hifh\�ay Traffic Act No. 23 -

an Act to amend The Li�uor Control Act No. 27 - The Lotteries Act No. 36 -

an Act to amend The Public Schools Act No. 48 -

an Act to amend The Liquor Control Act

(2) No. 49 - The Child Welfare Act No. 62 -

an Act to amend The Financial Administration Act (2) -- (Int erjection) -- No. 5 and No. 6. Do you want me to read the numbers again? Are there members of the public wishing to make representation to the committee? If so would you come up to the microphone please and give vour name and the bill you wish to speak on and whether you are from the citv or from out of to�. MR. 1-lALSH: Hr. Chairman, I am Paul Halsh and I am here as counsel to the Children's Aid Society of Hinnipeg and I'd like to address certain remarks to The Child \,relfare Act, if I might. Thank you. Bill No. 49. NR. CHAIRMAN: 49. Thank you. MR.

LIBITKA: Hr. Chairman, my name is Victor Libitka. I represent the Children's Aid Society of Eastern Manitoba. I also wish to address certain remarks to Bill 49. 11R. CHAIRMAN: MR. LIBITKA: HR. CHAIRHAN: What was the last name again please? I'll spell it. L-I-B -I-T-K-A Thank you. }1R. RITC!UE: Walter Ritchie, counsel for the Hani toba Government Employees' Association. I wish to make a submission with respect to Bill ;·lo. 7. HR. CHAIRJ>UU<: Thank you. MR. FRASER: Mr. Chairman, my name is Bruce Fraser. I'm represen ting the Children's Aid Society of Central Hanitoba.

I tmuld like to address a fCh' remarks to Bill 49. HR. CU,\IRI'W': Are you from out of tmm l!r. Fraser? HR. FRASER: Portage la Prairie. :·!R. Vf:ITCH: Hr. Chain:tan, mv name is Veitch. i-lanager of the Hanitooa Truckinp: Association. I would like to possibly comment on Bill 20. 11R. CHAIRMAN: That was Mr. Bates \�as it? MR. VEITCII: Veitch. MR. CHAIRMAN: Thank you. MR. CHAI&.'IAN: Is that all wishing to make representation to the Committee

2 May 22, 19� (HR. CIIAIRHAN cont 1 d) . . . . . this evening? MR. JORCENSON: •.• that the proceedings of this Commit tee be recorded and transcribed. HR. CHAIRMAN: Note that the proceedings be recorded and tr anscribed. Is there any discussi on? Agreed? (Agreed) M!". Fraser, Bill 49. Would you like to address the Committee first? HR. FRASER: Mr. Chairman and members of the Committ ee, some of the other representatives of Children's Aid Society are going to be addressin g remarks to various sectio ns. Hy remarks are confined to amendments to 99 (2) and (3), partic ulaJ 99 (3).

First of all I want to say that in representing a rural area I am in complet agreement with the intent of the proposed amendment, that I am all in favour of workir towards a more equi table balance of reso urces and of babies availa ble for adoption anc the time having to be awaited by adopting applicants. My concern is particularly centered around 99 (3) which I feel is of concern because it puts into legislat ion what I think could be more adequately dealt with on a regulatory bas is would be my principal concern. I think it will add to the red tape that all of us are trying to avoid.

One of the main objec tives in the proposed new legis lation I believe was to reduce red tape and to increase effec tiveness. I think that by putting it into specific legislat ion it becomes much more inflexible than it would be as a regulation and cannot be readily changed to meet changing needs. The problem that we're tryin g to solv e with this legislat ion is in relat ion to the waiting periods of adopting applicants yet the proposed solut ion in effect would use chil dren. The solution to my way of thinking should be in the realm of the applicants' list rather than the children awai tin g placement.

The proposed solution would invite - may - would demand crisis plannin g. The Director could not approve a placement un til adoption cons ents had been si gned and the selection process could not begin before that time so there would cons tantly be a crisis to plan around. If the control was over the list of applicants where the problem is centered rather than in the availability of childre n coming up for adoption the applicants could be given the Director's approval on a much longer range basis and could be adjus ted according to the prevailing needs.

For example the applicants who had waited on the list for twelve months or more could be cleared first of all and the number who had waited that long as it was reduced new names could be added to the approved list and gradually as we begin to achieve equity in terms of waitin g periods that people have to wait the waiting period could be moved down.

Whereas if it's fixed in legisla tion like this that no child under the age of two can be approved, his placement can be approved, we're always st uck with that two-years thing and every child is going to have to have a centralized decision before normally a st raightforwaJ decision could be made. -- (Interjection) -- 99 (3). It's perhaps an amendment that's being proposed to what you have. I'll just read it. The motion is that subsection 99 (2) and (3) of Bill 49 be str uck out and the following subsection substituted therefor: Suitability of Applicants 99 (2).

Upon receiving an application under subsect ion (1) the child caring agency shall undertake to ascertain the suita bility of the applicants as adopt ive parents and upon being so sat isfied it shall forward to the Director the relevant particulars respectir the applicants and the Director shall enter the names and particulars of the applicant in a central registry to be maintained and kept in his off ice. Placement subject tc prior approval of Director. 99 (3).

All children of the age of two years or under that are placed with a child caring agency for adoption shall not be placed in a home for adoption except with the prior approval of the Directo r and in accordance with the provisions of the regulations. MR. CHAIRMAN: Mr. Spivak. MR. SPIVAK: All I'm asking is that if the gentleman has a proposal for an amendment which he obviously has just read I wonder if it can be given to the Clerk and at leas t be photos tated so that we at least can have it to be able to make refer ence to it. MR. CHAIRMAN: Mr. Miller. MR. MILLER: Mr.

Chairman, it's the amendment that I mentio ned I would be int roducing at Law Amendments and I think that si nce it's being discussed that perhaps it should be dis tributed. I wasn't aware that the gentleman was going to make a

May 22, 1974 (MR. MILLER Co•t'd) • submissio• on the amendm ent that hadn 't yet been introduced._ 3 MR. SPIVAK: Well just on the point of order .Is this an am endment the govern men t will be introducing? MR. MILLER: Yes . I mentioned in the House I would be . -- (Interjection) Yes, might as well. He's talki ng on it . MR. CHAIRMAN: The copies of the proposed amendmen t are being dist ributed to membe rs . Mr . Paulley . MR.

PAULLEY: Are we going to hear presentat ions only tonight and if they are presenting amendm ents that we will have an opportunity of considering and st udying the amendmen ts prior to the passage of legislation. Now I think it would be proper as the Member for Morris has suggested that the proceedings be transcri bed an d recorded or recorded and then tra nscrib ed .

I think it would be proper following that suggestion that we hear present ati ons tonight and that we do not meet again on specific bills where amendments are suggested until such a time as the membe rs have had an opportunity of st udying proposed amendm ents before st udying the transcripts and consider the suggestio�� . MR. CHAIRMAN: Mr . McKenzie. Or der please . Mr . McKenzie . MR. McKENZIE: Just for clarif ication . Are we to accept this as Mr. Fraser's amendment or the Minis ter's amendm ent? MR. JORGENSON: It doesn't matter . Let's go on with the presentation . May I suggest , Mr .

Chairman , that we go on with the presentation, ask quest ions of Mr; Fraser until he's concluded, then we'll hear the next witness and we'll continue hearing witnesses until we have heard them all . MR. CHAIRMAN: Thank you. Mr . Fras er. MR. FRASER: Well , Mr . Chairm an , I rather gather I've jumped the gun. I only came into knowledge of this this morning and due to an unavoidable prior commitment I haven't had any opportunity to draft any alt ernative proposal . But the matter was of considerable concern to me and I wished to draw to your atte ntion that concern . So I have not hing further to present.

I would be quite happy to answer any quest ions. MR. CHAIRMAN: Thank you. Have you seen this amendmen t by Mr . Bilton? MR. FRASER: I have a copy here . I think that's what I read. MR. CHAIRMAN: Any further questi ons? Mr . Jorgenson . MR. JORGENSON: Mr . Chairman , Mr .

Fraser , you have specifically addressed yourself to 99(3) and if I caught the tenor of your remarks you were concerned that the wording of Sect ion 99(3 ) as in the Act at the moment is not fl exible enough and I don't know how you can improve upon the flexibility of a clause that says "upon being satisfied of the suitability of the applicant the child cari ng agency may place a child in the home of the applicants for adoption." It seems to me it provides a considerable amount of latitu de and I wonder just why you feel that that is not fl exible enough . MR.

FRASER: I think what I'm addressi ng my remarks to is an amendment , a proposed amendment to that and the amendmen t has not as yet been ma de. MR. CHAIRMAN: Are there any further questions to Mr . Fraser? Mr . Johnston. MR. FRANK JOHNSTON: Mr . Chairman, through you to Mr . Fraser . The bill that we are discussing is Bill 49 , that we are discus sing . You obviously are not in agree ment to some sections of that bill, especially number 99(2) and 99(3) . Now, Mr . Chairm an , I would like to ask Mr. Fraser through you to explain his opposition to those sections .

He has obviously - he's submit ted some changes to it and I would like to ask him to do this: to ask Mr . Fraser if he would explain his reasons for opposing 99(2) and 99(3 ) as it is in the bill . MR. FRASER: Mr . Chairman , my remarks have not been addressed to the wording of 99(2) and 99(3) as they read in this document altho ugh I would concur with the intent of a motion or an amendment to those clauses which is to put some control over the dis tribution and the wait ing periods of time that applicants for adoption have to go through .

There is apparently an inequity primarily between the applicants in the City of Winnipeg and those in other areas where those in the City of Winnipeg have been fortunate enough to have babies placed in their homes three, four , six, seven months from the time of applicati on

whereas in the rural areas , in particular in some other areas the waiting lists are eighteen month s, twenty-four months and I believe that the proposed amendment is designed to bring some equity into that situ ation. My concern is that the solution is creat ing as many problems as it 's resolving, of a differ ent natu re . That it would bring equity as far as the waiti ng

4 May 22, 1974 (MR. FRASER Cont 'd ) ••••• periods are concerned but it would be so cumb er some in terms of admi nistration and would in fact have the effect of delaying the placements of individual babies . Every single one would have to be centrally decided upon. And it 's that which is the area of my concern . MR. CHAIRMAN: Are you finished Mr . Johnston? MR. FRANK JOHNSTON: No. Mr . Chai rman , I would like to - I think we 'r e in an area of clarification here . If through you, Sir , I could just mention that in the City of Winnipeg , Mr . Fraser , through the Chai rman , let 's take my constituency.

At Sturgeon Road MR. JORGENSON : It 's under water . MR. FRANK JOHNSTON: ..• we have a cut-off which comes under the Winnipeg Child Welfare Act and people in Winnipeg could adopt children faster than let 's say those on the other side of Sturgeon Road in the area of Westwood which could come under another area. Now quite frankly the Minister 's motion here would seem to make it equal to or help making it equal to those people outside of the Winnipeg area to be able to adopt children faster than we now have . MR. FRASER : That is correct , Mr . Chairman , Mr .

Johnston, and I have stated that I am in agreement with the intent of this proposed amendmen t. I ju st believe that there are sounder ways of achieving it , that through controlling the list of awaiting applicants which is much more directly related to the problem area, would be better than controlling the placement of every individual child under the age of two years . MR. FRANK JOHNSTON: Well , Mr. Chai rman , I ask Mr . Fraser again for clarifi cation, he is in agreement that there are some inequi ties at the present time . MR. FRASER: Yes . MR.

FRANK JOHNSTON : And that the amendment of the Minister will - in the bill and then he has a motion here - will help many of those inequi ties for people who have had to wait a long period of time versus those who haven 't had to wait a long period of time because they are in certain boundaries . MR. FRASER: Yes it will achieve that result . I still think that it 's at considerable cost which could be avoided . A MEMBER: How can it be avoided? MR. CHAIRMAN: Order please . I'l l put you on the list , Mr . Patrick . Mr . Miller .

Before we proceed can I ask any mem ber speaking to speak into the microphone and then we can all hear what you have to say. Mr . Miller . MR. MILLER: Mr. Fraser apparently you do agree that the present system is not the fairest system in that not only outside of the City of Winnipeg but in the City of Winnipeg as well , depending on where the child is born, that particu lar CAS takes over.

In other words parents , potential or adoptive parents who live in the far west end or other parts of Greater Winnipeg or outside in rural Manitoba or in Northern Manitoba therefore have to wait sometimes ten, twelve, fourteen months and not have a child because there aren't enough children born within their CAS district ,

whereas those who are fortunate to live in an area, to live in a CAS area where the Childbirth is high are able to get children with a shorter waiting period . So don' t you agree that it 's fair really to try to give adoptive parents the same opportunitie and this is really all we 'r e trying to do here , by making it necessary to have the information centrally. The Director will make known to the various CAS agencies those parents who have been waiting , on a rotati�g basis will have an opportunity to adopt .

Natura lly they have to be able to adopt , they have to pass the various criteria for adoption and so on . The question about the two-year-old is really - it 's very simple - there 's no problem getting children two years or under to be adopted . It 's in dealing with older children that it is diffi cult very often to find adoptive parents as you know. Everybody wants a blue-eyed, blond haired two-mon th-old baby and they 'r e snapped up like anything,and it 's very easy to place them .

As a result many parents have found that they wait li terally two years but there ju st aren't enough children born within their Childr en 's Aid Society district . MR. CHAIRMAN: Mr . Fraser. MR. FRASER: Mr . Chai rman , Mr . Miller , yes I' m in agreement with your summ ation of the situation. My suggestion would be that the Director could approve or place on an approved list those that are okay to proceed with or place with the adopting applicants, that the control could be within that sector rather than legis late any specific dictums around the infants.

It is the supply of adoption applicant that you want to bring into equity so why achieve that by in eff ect manipulating the conditions under which a child under two years of age can be placed. The practical concerns are that the mother cannot sign her consent until the child is clearly ten

May 22, 1974 5 (MR. FRASER Cont'd) ••••• days old which could mean that the child has been on this earth for some portion of twelve days. At the present time we're able to place infants when they're fourteen days of age. If we couldn't initiate any action until after the consent was acquired then it would be several days and perhaps a week before the Director's approval could be obtained for proceeding with the placement.

With that child being listed through a central process at that point in time rapid deci sions would have to be made, all of which could be avoided I think if the adopting parents or the adopting appl icants for example started on a priority basis and those that had been waiting for over twelve months for example were cleared for placement and then all infants would have to go through one of those families, one of those couples. And when that backlog had been caught up with then the ages could be lowered and kept in harmonJ with the actual need situation.

But if you legislate that every child under two years of age has got to have a centralized cle aring deci sion made it's going to encumber the procedures and I'm quite certain will slow down the placement or the potential placement of every child. MR. CHAIRMAN: Mr. Miller. MR. MILLER: Mr. Fraser, firstly it's known that the child is going to be born· weeks and months ahead so that a great deal of this concern that you have about the administrative procedure I don't think will come about.

I can also tell you that in the Province of Alberta they have this system just as is and it has been working out satisfactorily without undue delay. MR. CHAIRMAN: Mr. Fraser. MR. FRASER: It would be helpful to know where the voice came from. Oh Mr. Miller.

It's known that an infant is going to be born but it isn't clearly known that the infant is going to be available for adoption until the mother has actually signed the adoption consents and it is more clearly known that couples are indeed wanting to adopt a child and what kind of child, whether they want a boy or girl, all of these factors are known months and months in advance. MR. CHAIRMAN: Do you have another question, Mr. Miller? Mr. Graham. MR. GRAHAM: Thank you, Mr. Chairman. Through you to Mr. Fraser.

I have to express a rather bit of surprise when you suggest that we take stuff out of legisla tion and put it into regulation because we have had many representations made at various times where the citizenry at large feels that it would be better if it was in the Act rather than in the regulations. You have given us some concerns that you express over this but really is your concern more with the regulations or with the intent of the Act? MR. FRASER: Mr. Chairman, I agree that the Act should specifically give the Director of Child Welfare a mandate to set controls.

My reason for preferring regulation is that something - the way it's worded here "at the age of two years" that's set down in print and that's it until considerable effort has been extended to change it and the Act itself or the proposed amendment does end up by saying "and in accordance with the provisions and regulations". But it's before that it specifies two years.

And it's the legislating of a procedure which will mean more red tape on the placement of every child in a crisis time, at a time when the adoption consent is being finally decided by the unmarried parent and it isn't until she's signed it that we would be free to do anything and then and only then could we approach the Minister to get clearance to place the child. I'm quite certain that if the list of approved homes was controlled that that would be a more adequate way. MR. GRAHAM: How would you propose to control the list of homes? MR.

FRASER: Well as it says in 99(2 ) there would be a centralized list and I believe that the Director could filter down the names of those couples or applicants who were cleared and approved in terms of their waiting period.quite easily. MR. GRAHAM: You would like to see that clearance or that decision made at the Director's level or would you like to see it made in the field level. MR. FRASER: Well the problem is that there is not a state of equity in terms of these waiting lists now so it would appear that it's necessary to have a centralized control.

It could be controlled by monitoring a waiting list, there are various ways of doing it. I don't want to oppose the intent of the proposed amend ment though in terms of establishing the control. I just feel that the actual deci sion around the placement of an individual child should clearly be at the field level rather than at a central level for the whole province. It would be a very difficult and very unnecessary and cumbersome procedure. MR. GRAHAM: Well then, Mr. Chairman, through you to Mr. Fraser. Really

6 May 22, 1974 (MR . GRAHAM Cont.' d) •.•.. what you are saying then is that you feel that the final decis ion should be made at the field level rather than at the Director's level. Is that correct? MR. FRASER: Within the Dir ector's control of what applicants can be considered for placement. That's true. MR. GRAHAM: No more questions. MR. CHAIRMAN: Mr. Patrick. MR. PATRICK: Mr. Chairman, I did have a question for Mr. Fraser. Mr. Fraser, a minute ago you mentioned the difficulty in adopting can be overcome and the difficulty that we have in the City of Winnipeg at the present time.

If we have two prospective parents in - I'll use my constituency of Assiniboia - where the people will make application, prospective parents will make application for adoption today and parents from another part of the City of Winnipeg will make application the same day, while in Assiniboia they may have to wait two years or anywhere from a year and a half to two years while other parts of the city will get their order, let's say, in a matter of three months or six months. And the reason we have to wait in Assiniboia so long because we're told you're in the Interlake area.

The problem here is why isn't the whole province in one area and the people should go by a rotation of the waiting list or you know there must be a better method. You mentioned that that . difficulty can be ove.rcome. I wonder if you can give us some explanation how can this difficulty be overcome? MR. CHAIRMAN: Mr. Fraser. MR. FRASER: The problem, Mr. Chairman, is that there is no control, no centralized control of the waiting periods that applicants can or must wait and I'm quite in agreement with the principle of getting equity as far as the waiting periods are concerned.

However I do believe that our primary concern is the adoption place ment of the child and I believe the proposed 99(3 ) impinges upon that and that the more sound solution or alternative in my opinion would be to control, to place a control on the applicants that are pending placement such as to say that nobody who has waited for less than twelve months can have a child placed with them until those that have waited longer have cleared through and had a child.

And I believe that this control could be handled either directly through the Director of Child Welfare's Office in a very centralized decision-making way or it could be on a policy basis and monitored by him. MR. PATRICK: But you agree that it's not fair for one set of parents to be waiting say two years while somebody else, a matter of one mile away in the city • MR. FRASER: Certainly I agree with that and as I stated there are many adopting in my own area, Central Manitoba, that are in exactly the same position as .. your constituents and I in no way want to deter that principle from being effected. MR.

CHAIRMAN: Are you through, Mr. Patrick? Mr. Spivak. MR. SPIVAK: I think the problem that we have here is that the amendment that is proposed which would take care of part of what has been discussed and what you've said only provides the fact that there be registration of the applicants, that is they would be placed in a central registry. There is nothing to indicate that priority would be given to registration, in effect that one couple having registered before another from another area would necessarily be given priority because they've registered earlier .

Now it's also obvious that the procedure that has to be followed in one application may not be the same as the other before judgment could be made. So we're getting down to a point where no matter what happens a discretion is going to have to be exercised by somebody at some point.

And the difficulty that I see is that what you're really saying is that the reason 99(2 ) is not satisfactory is that there is no limit on that discretion and what you're saying is the limit on the dis cretion will be that if an applicanti O&is·made and has been approved and has waited twelve months as an example it would get priority no matter what happens over every body else. In other words whether it be twelve months or six months it really doesn't make any difference.

What you are basically saying I think at one point wherever the application may have come from that will have priority having applied for and being investigated and the procedures having been followed no matter what happens a priority comes at that stage. And if that's the case then the problem here With this amendment now is that it doesn't set that out, it's still a discretionary procedure to be followed through I would assume by regulations or by general practice that will be determined by the Director I guess or -- yes, by the Director.

So I think the problem would be if you were to change this you're not saying that it's just on the basis of priority of application because obviously the applications take

Hay 22, 1974 7 (HR. SPIVAK Cont'd) •..•. different procedures to - or different times to process. But you are saying that there has to be a certain basis and is a year the limit or are you saying six months or eight months or are you prepared to give an indication and I'm not sure that the government would be prepared to live with it either. MR. CHAIRMAN: Mr. Fraser. MR. FRASER: Well, Mr. Chairman, I believe that the time limits or criteria should be flexible and should be relevant to the existing need and that the Director of Child Welfare should have the power to change that according to the current situation.

I agree that 99(2) as it is written here does not go specifically far enough to give any actual meat but I believe that would be the intention of the proposed 99(3). My concern is that the proposed 99(3) is not the best means of putting teeth into 99{2). MR. CHAIRMAN: Mr. Spivak. MR. SPIVAK: But surely, Mr.

Fraser, the problem is once you say that the Director should have some discretion which means that you're not prepared by legis lation to sort of set the rules under which procedures are to be followed then what you're basically saying is that a discretion has to be exercised and in effect the proposed amendment really allows that. I don't know what the regulations will say but the fact is that in effect what you are asking for is really being given by legisla tion at this point. MR. FRASER: Well at this point which is now there is no control over the waiting lists.

Now are you saying at this point in reference to the existing proposed Act, Bill 49. MR. SPIVAK: No, I'm talking about the new Act. I'm assuming that the new Act will become legislation. MR. FRASER: Well Bill 49 - are you referring to Bill 49, 99(2) and 99(3)? MR. SPIVAK: No, no. I'm assuming that the government has already indicated that they're prepared now to bring in these amendments and these amendments now having been adopted by the Committee, and assuming that they were, is this satisfactory at this point? And if it's not how would you change the amendment? MR.

FRASER: Well 99(3) is the only thing I'm objecting to. MR. SPIVAK: How would you change it? You've already indicated that there should be a discretion exercised. MR. FRASER: I would put the onus on the waiting list and the control of the waiting list of adoption applicants rather than any arbitrary fixing of the age of the child at which a special centralized procedure would have to be implemented. MR. SPIVAK: Well again I put it to you: are you saying if parents who have been processed and who have been approved and have waited six months will be a priority over everyone else?

I mean at one point someone is going to have to you know specify and either you give an indication of what you think is reasonable at this point or you're going to have to allow the Director the discretion which is really what this

section does. MR. FRASER: Are you saying 99(3) gives them that discretion? MR. SPIVAK: Yes. MR. FRASER: Well I see 99(3) as saying that every child under two years is going to have to have special clearance in order to be placed. MR. SPIVAK: Well it simply indicates that the Director has the discretion. MR. MILLER: Power of approval, the power of approval. MR. SPIVAK: But the power of approval is the discretion that we're talking about. Power of approval is the discretion we're talking about. MR. FRASER: I didn't hear that clarifying remark. MR.

SPIVAK: Well my understanding is that the power of approval that the Director has is the discretion that you were talking about. The only thing that I think has any disagreement - not any disagreement but anything that is not clear in this legislation, which is left to regulation, is specifica lly the criteria or the guidelines which the Director should follow.

And unless you're in a position to indi cate what that should be - and I don't think you are because you're indicating essentially that it would depend on the circumstances and the waiting lists and probably availability as well- but unless you're prepared to do that I don't know how you can spell that out in specific legislation at this time. Unless you were prepared to say that it went on the basis of priority of registration in the central registry and you're not prepared to do that because ••• MR.

FRASER: Well the only way I'm not prepared to say that is I don't think you can absolutely say that No. 1 shall get the next child regardless of whether it's a boy, girl or what have you. But there certainly can be priorities in general

8 May 22, 1974 (MR. FRASER Cont'd) ••••• groupings, like all those that have been waiting fourteet months, anything over fourteen months be given priority. I haven't answered your question. MR. SPIVAK: Yes you have. The only problem is that I don't know what the basic minimum limitation should be, six months ••• ? MR. FRASER: Well I think it would have to vary according to the - right now we're in a situation where you could easily say fourteen months.

But there are so many more children in Winnipeg that within a relatively short time that backlog could be caught up with and then you'd be saying those that have been waiting for twelve months or more and then those who have been waiting for eleven months or more. So that's why I'm saying that it needs to be flexible. MR. SPIVAK: It is flexible, it is. MR. CHAIRMAN: Do you have another question, Mr. Spivak? MR. SPIVAK: No thanks. MR. CHAIRMAN: Mr. Bilton. MR. BILTON: Mr. Chairman, through you to Mr. Fras·er. This is just a general observation and I noticed in Mr.

Fraser's remarks at one point that he said that the child could be adopted fourteen days after birth. I wonder if he could explain briefly, in the interests of the child is that sufficient time to determine as to whether or not its health and its other facilities are in proper order and what have you. Is it in good health and insofar as the foster parents are concerned I'm sure that their qualifications are well thought out over the months but I wonder is this fourteen-day period from the date of birth to the adoption of the child in the interests of the child as a whole? MR. CHAIRMAN: Mr. Fraser. MR. FRASER: Mr.

Chairman, in answer to the honourable member I would say that to delay placement of the child arbitrarily for further investigation would not be in the interests of the child. We discuss adoption and the risks of adoption the same as the risks of any parenthood with our adopting applicants and I would say that 95-99 percent of them are quite prepared to have a child placed with them and take the ordinary risks of parenting. If there's an obvious medical or mental problem they would know it at that point in time and they could made a decision yes or no.

Many parents have adopted children that have medical defects and because they've considered this in advance as a possibility they feel just the same as any other parent would and I certainly wouldn't want to lengthen the time at which the child could be placed for adoption for those reasons. MR. CHAIRMAN: Mr. Bilton. MR. BILTON: One more question. Mr. Fraser are you a member of the Civil Service? Do you work for the Department? MR. FRASER: No, Mr. Chairman, I'm Executive Director of the Children's Aid Society of Central Manitoba. We are not civil servants. MR.

BILTON: Well I hesitate to ask you this question but possibly it will come from another direction. Does the Department take any responsibility when a child is adopted at fourteen days old, fourteen days of age d.oes it take any responsibility for the health of that child? For a given period? MR. FRASER: The Director and through us the Director has a responsibility for the child until the child is - adoption is finalized.

A family can terminate or withdraw from the adoption any time during the first six months in the proposed legis lation, at the present time it's twelve months, so that they can go back on their decision. They're not saddled with something that they have to assume full responsibi lity for. MR. BILTON: Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, through you to Mr. Fraser ••• MR. CHAIRMAN: Into the microphone please. MR. SHERMAN: Mr.

Fraser as I understand it with respect to the decision to place a child for adoption you have no objection to the discretionary power lying with the Directo�, vested with the Director, is that correct? MR. FRASER: I have concern about the decision for each and every child having to be made centrally by the Director of Child Welfare. At the present time that is delegated to the executive directors of Children's Aid Societies, the regional direceors within the province where they are providing the child welfare services. They're subject to provincial standards and processing. MR.

SHERMAN: Well do you think that this proposed legislation, with or

May 22, 1974 9 (MR. SHERMAN Cont'd) ••••• without the amendments as proposed and particularly with the amendments as proposed places too much power - places too much discretionary power in the hands of the Director? MR. FRASER: I think, Mr. Chairman, that the proposed 99 (3) places the wrong kind of discretionary power in the hands of the Director. I would prefer to live in a system in which authority and power could be centralized as much as at all possible. If the government feels that that is not possible then I would be quite prepared to operate within the Director having that kind of centralized power.

But I really do believe that it should be in relation to the list of applications rather than make special regulations required by law for all infants, all children under two years of age so that each placement coming up would have to go through a hurry-up kind of decision-making process in the selection of a home at that time. MR. SHERMAN: Mr. Chairman, through you, Sir, to Mr. Fraser. Mr. Fraser you have said that you would prefer to see the onus in this case put on the waiting list, the control to be on the applicants to adopt and not on the children.

But if that were so, if there were an amendment that you or your colleagues proposed that shifted that onus would you then be satisfied that the discretionary power vested in the hands of the Director was not too great and not too arbitrary? MR. FRASER: Yes. You'd have to see the regulations I suppose to answer that completely. MR. SHERMAN: So essentially you're not concerned with the amount of power vested in the hands of the Director? MR. FRASER: No. MR. SHERMAN: It's just the MR. FRASER: The nature of it. MR. SHERMAN: And you don't feel that 99 (3) implies the kind of onus that you're seeking.

You don't feel that that's implicit in the wording in 99 (3) right now, that the Director would obviously by implication have the right to process waiting lists of applicants. You don't feel that that's implicit in that. MR. FRASIR: No, I feel that what's implicit in 99(3) is that he would have to clear and approve the placement of every child under two years of age. MR. SHERMAN: Yes but what is the clearing and approving of that? Does that not consist of the reviewing of the waiting list? MR. FRASER: I assume it would, Mr.

Chairman, but why not put it in those terms rather than specify a regulation by law for all children under two. It's the whole nub of my concern. MR. SHERMAN: Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Miller. MR. HILLER: Mr. Chairman, to Mr. Fraser. In 99 (2) the agency is still required to ascertain the suitability of the applicants as adoptive parents. So to that extent the agency is certainly as involved as ever with regard to the adoptive parents and their suitability, the screening of them, the interviewing them and every thing else.

That information in accordance with the amendments would flow to a central registry where that information is then available. As children become avail able then very quickly at age fourteen days the Director having all this information available can then make placements.

Working in the other way the central office would have to try to make avail able on a current basis to every child- caring agency and every child-placing agency throughout Manitoba, they'd have to be feeding out constant information about children that are coming up for adoption and parents who are seeking adoption and would constant ly have to be trying to keep score on it and to try to keep it up-to- date.

Whereas this particular flow, the way it's working now still gives you the same rights as you have now to ascertain the suitability of the applicants and that of course is what you're all about. That's your concern and that's your responsibility. No one is taking that away. It's really a question of making sure that there is rotation and the only way you can make sure is if it's going through one office. If it's spreaa over 25 different places in Manitoba there's no way you could control it. MR. CHAIRMAN: Mr. Fraser. MR. FRASER: Mr.

Chairman, I would submit that the outflow of information from the Department that the Minister speaks of would be equalized on the opposite flow if every child under two being considered or available for adoption would have to flow to the Director, there'd be just as much information going to him. He would have to deal with it immediately rather than under consideration with much less severe time pressure. If he controlled the list of cleared adoption applicants and all of the agencies had that and knew that they had to place a child with one of those

10 May 22, 1974 (MR. FRASER Cont'd) ••••• families they could in anticipation of the birth they could have selected two or three of those homes any one of which would be approved and suitable and the decisions could be made on the basis of that. Those would be field decisions; they would be faster decisions; there would be less red tape involved in them and yet the Director would still have the control over the waiting periods that parents had to wait. MR. CHAIRMAN: Thank you. Before we proceed can I just remind members that this portion of the proceedings is for asking questions. The time for debate comes later.

Do you have another que stion Mr. Miller? MR. MILLER: No. MR. CHAIRMAN: If there are no further questions -- Mr. Brown. MR. BROWN: I have a question to ask of Mr. Fraser which is possibly in a little different area. But the Act seems to be rather indefinite as to definition of an unmarried mother. For instance you have at 18 years of age a mother decides whether her child is going to be placed for adoption or whether she will keep the child. Now let's say we have a mother of 14 years of age, her parents make all the decisions and the mother apparently has no decision whatsoever.

I understand that some of the provinces in Canada at the present declare any unmarried mother no matter what age she is an adult. Now has this posed any problems within Manitoba? MR. FRASER: Under the existing legislation, your honour, all unmarried parents are considered adults in making the deeision to relinquish the child for adoption. My colleagues from the Children's Aid Society of Eastern Manitoba have specific concern around the clause that the member draws attention to and I would prefer to let them respond to that because they have given considerable thought to it.

They also have a proposed amendment consistent with the concern I've been expressing around 99 (3) . MR. CHAIRMAN: Mr. Brown are you finished? Mr. Osland. MR. OSLAND: I just want one, Mr. Chairman, to the gentleman. I feel that there's something still missing here and I would like to possibly suggest that Mr. Fraser could reword the 99 (3) to his satisfaction and submit it for our consideration later on. I don't think you're quite happy with what is in there; I'd like to know what he would like to put in instead. MR. CHAIRMAN: Mr. Fraser. MR. FRASER: I would be pleased to comply with that opportunity. MR.

OSLAND: I think it's agreeable with everybody. MR. CHAIRMAN: If there are no further questions, thank you Mr. Fraser. MR. FRASER: Thank you very much, Mr. Chairman and members, for your indulgence. MR. CHAIRMAN: Mr. Walsh. MR. WALSH: Mr.

Chairman, as I indicated when I approached the microphone previously I am the solicitor and general counsel for the Children's Aid Society of Winnipeg and prior to coming this evening we had an opportunity to meet with the Minister and his assistants in his office this afternoon and some of the deep concerns which we expressed about the Act at that time were responded to very affirmatively by him and I understand that certain amendments are going to be forthcoming responsive to those representations. I would like to address myself to the remarks that were made by the speaker previous about

Section 99. There seems to be two misconceptions that are taking place regarding the present wording of the

section and the proposed amendment. And those misconceptions are that right now within the Children's Aid Society of Winnipeg that those applicants who qualify are allotted children on a first come first served basis and that's not the case. It may be that even within the Children's Aid Society of Winnipeg parents who apply are not given children on a first come first served basis.

There is no obligation on the part of the Society to provide children on location and consequently if five people apply the fifth parent or the fifth applicant may be awarded the first available child because that parent may be the best parent. The Children's Aid Society of Winnipeg attempts because of the shortage of children and the overabundance of parents to find the best family for the child rather than the first family that applied. The Director of the Society, even as big a society as ours, knows his workers reasonably intimately.

He understands their appraisals of prospective families and when families apply he can look over the recommendations of the social workers and see that even though all five applicants may qualify, meet a certain level of accept ability, that the applicant who applied fifth in line may be the best applicant on

May 22, 1974 (MR. WALSH Cont'd) ••••• the list. Secondly our statistics show that the Children's Aid Society of Winnipeg places more children outside of its jurisdiction than it places inside of its juris diction which may attest to the effort it is making to place children in the most suitable home for the children. 11 What I'm saying is that the proposed amendment of

Section 99 is a central izing amendment. The Director of Welfare will get names and ratings I suppose although it doesn't specifJ that ratings will be channelled upwards as well and the decision as to which parent is allowed to adopt will be made centrally rather than locally. Because just because a thousand people may qualify according to certain basic norms doesn't mean that the thousandst applicant .. y not be the best applicant. If you're looking for the welfare and the best interests of the child it shouldn't be first come first served if you pass the basic tests. It should be best come first served.

And that's the concern of the Society in Winnipeg, that the discretion not be passed upwards and more remote, that it be kept decentralized and at the local level. I appreciate the argument that's made that if you live on one side of Sturgeon Road and not the other side of Sturgeon Road you may wait for a longer time. But the same argument could be made if you live next door even in the same house as another appli cant, you may wait and never receive a child while everyone else in the house who has applied may receive children because they're better suited even though they applied later.

So maybe there should be a compromise between those two fundamental approaches. And it's of deep concern to the Children's Aid Society of Winnipeg that the balance not shift remarkably either way. So those are my comments relative to

Section 99 , if they can be heard. I would like to secondly address myself to the

Section 15 (1) and I'll go in some order to express certain deep concerns which the Children's Aid Society of Winnipeg have regarding this bill.

Section 15 (1 ) of the proposed bill provides that an unmarried mother who has not attained the age of majority cannot consent to have her child adopted and that proceedings therefore have to be taken under

Section 16 and her child under

Section 16 subparagraph (

f) therefore has to be declared by a court and a judge to be in need of protective guardianship and only then can the child be placed. The Children's Aid Society of Winnipeg welcomes the change from the concept of neglected child to the concept of a child in need of protective guardianship. But what

Section 15 (1) does to the child of an underaged mother is makes a waiting period of some two months minimum before that child can be placed. Now the speaker before me, Mr. Fraser, indicated that he was concerned about a waiting period of a week over the ten days. But if a young lady not 14 but 17, for the purposes of bring ing it into a little more realistic framework, has a child that she wants to place for adoption, presently that child can be placed immediately after the ten-day period. But if you follow

Section 15 (1) you'd have to make an application to have the child placed in protective guardianship that would be heard by the court after the mother was advised of her rights and one would assume that she wouldn't come to court before she was physically able to do so and that would take some weeks after the delivery of the child and then the child couldn't be placed until the appeal period had lapsed from that order of finding a protective guardianship.

Because the Act specifically provides that you can't place a child until the appeal period has lapsed because she could appeal if she decided that she didn't like that proceeding. I only ask the question and point out the difficulty, what is wrong with the method presently used of the Society responding to the legitimate desire on the part of an underage mother to place her child for adoption and consulting with her parents usually and making sure that her desire is genuine.

All I can say is that all that 15 (1) does is provide the maximum protection for the mother, underage, to make sure that she does nothing that isn't ratified by the court and in so doing, very properly so - I don't say that that's an improper motive - but on the other hand the waiting period before the infant is placed is lengthened from ten to fifteen days to two months and maybe more. All I can say about those things is it's not that we're so much anxious to have a change but those are deep concerns felt by the Society and will create consider able difficulty in its administration of this Act.

I would next like the members if you would to refer to

Section 17 of the Act on Page 13 of the bill. I understand by Mr. Miller and through the Director of Welfare that there will be an amendment to

Section 17 so that there will be

12 May 22 , 1974 (MR. WALSH Cont'd) ••••• subparagraphs (1 ) and (2) of it and that in the old Act under

Section 81 I believe it was - I don't have the old Act with me but I' m very familiar with the

section - a worker for an agency could apprehend any child whom that worker believed to be neglected , as the term was used in the old Act . That concept should be retained and I understand is going to be retained by a prospective amend ment in the new Act so that a worker who believes a child is in need of protective guardianship can be apprehended without a warrant . I won't belabour that point but I understand that an am endment is coming in to that end and it' s one of the deep con cerns we expressed because when we received the bill we saw

Section 17 being a naked

section wi thout any qualific ation and would have deprived us of an avenue of access to children which we need very much . But I understand that that is going to be changed and therefore my commen ts further on that point need not be made, However

Section 25 (7) is a

section of momen tous impo rtance to the Pr ovince of Manitoba. And what it says is that in the course of hearing on the issue of whether a child is in need of protective guardianship that child may be provided with a lawyer . I find that concept to be astounding. What does the parent do? The adversary system between the Society and the parent as it develops into such at the time of the hearing is changed into a three cornered adversary system. And the parent can turn to its child and say, child what can I do to make things right and the child says , well talk to my lawyer.

I suggest to you that that concept is absurd . Either you place the faith in the Children' s Aid Society and the Director of Welfare and the agencies to represent the interests of the child and recognize that within the adversary system of parents on one hand being represented and the Society on the other hand being repres ented,that all of the range of possible dispositio ns will be placed before the court and the court may approach the child directly to inquire of the child what its wishes may be .

But to go the one step farther and say that the child may have legal counsel appointed for it is a fantastic departure from the norm and I wonder how the profession would respond to that. How could I take instructions from a thir teen-year-old? It would be a much more interesting Act , Mr . Pawley , if that total departure had been made and the adversary system stayed away from altogether in this Act but you haven't seen fit to go that far and arguments could be made that you should .

But restri cting my comments to what you 've done here , I strongly believe that it is im possible for a person who has not attained the age of maj ority to instruct a lawyer. And how is the lawyer supposed to respond to the wishes of a twelve-year-old? Is he to say, yes I'm your lawyer and I'll do whatever you want or I' m your lawyer and I' ll weigh your best interests as I see them. How can a lawyer be responsive to instruction: of a twelve-year-old or a thirteen-year-old or even a fifte en-year-old? The whole idea of having a children's aid society is to obviate that necessity. So think about that.

It' s a deep concern that the Society has about that

section and it' s a very dangerous departure to ask mem bers of the legal profession to represent people who by law do not have the authority to do very much without a guardian ad litem or some legal representative to have a lawyer appointed when the whole thrust of the Act is that the agency, the Director and so forth represent the best interests of the chii d . I've made my point I believe on that and I would like to go on then to

Section 30 .

Section 30 subsection (1) creates another departure from the previous Act , a departure that causes the Society deep concern . And that departure is that as the Act is presently structured a ju dge has the authority after hearing a case to make one of three orders . Firstly, to ju st return the child to the parents and find that there hasn' t been a case proven by the Society and say that there isn't enough evidence or there isn't the kind of case that would warrant the making of an order . Two, the ju dge can award the child to the Society permane ntly so that it can be placed for adoption.

Thirdly, there can be a temporary order of a fixed period . Not of an in determinate period but of a fixed period , three months , six months , twelve months . Under the old Act if the Societv felt that the length of order didn't prove in the final analysis to be needed they could move to have the order set aside before its natural termin ation. However as

Section 30 subsection (1) is now worded parents at any time can come to the court for a review of a temporary order . And this was not the case under the old Act. What that means is if the parents are adjudicated and found that they shouldn't have custody of their children for a tempo rary period of let us say for examp le nine mont hs , they don't have to wait the nine mon ths , they don't have

May 22 , 1974 13 (MR. WALSH Cont' d) •• ••• to follow any pattern and show themselves to be worthy to recover their children after nine months, they can apply in three months and say, I've rehabilitated myself, I've met the criteria imposed by the court in a shorter time. Now while that may have some beneficial effects, the net result will be to make no order of the court abided by, that it will multiply litigation and that the efforts of the Society to work out a plan over a period of time will be destroyed because that period of time will never be certain.

An analogy would be if the court were to sentence an offender to one year in jail to rehabilitate him and to deter others but the offender could apply to the court at any time for a shortening of his sentence saying, I've served three months and it's even worse than I thought it would be so I' m rehabili tated now, I don't need the other nine months, take it away. I think that that's an appropriate analogy. If the court when it hears the evidence originally decides that there should be a temporary order of a fixed period the court we can assume had good justifi cation for doing that.

If the Society agrees with the parent that the child should be returned at an earlier date nothing prevents the Society from either just doing that while maintaining the order so they can take the child back or applying to the Court to terminate the order.

But now when the parent can apply at any time, parents well advised by their lawyers will never wait out the natural term of an order, they will take the high point in their preparedness to take the child back and if they are parents who have found their children to be in need of protective guardianship will find themselves at certain high points in excellent circumstances to take the children back and will make application at those times. And the wait and see provisions of a temporary order won't be fulfilled.

This causes the Society deep concern because a judge who adjudicates at the time of the hearing and makes an assessment will always have his assessment appealable by a judge at the same level who two months later can say that my brother judge was full of beans and he shouldn 't have ordered a one year, he should have ordered a two month and I'm giving you your child back. There are appeal provisions in the Act and if a parent feels that the length of temporary order is too long then the parent should appeal. But you shouldn't allow the parent to come back and shorten that temporary order.

The temporary order has been deemed adequate by the judge who heard all the evidence and if the Society and the parent can agree that it should be shortened then it should be shortened. Now carrying on to

Section 32, an enormous departure has been made from previous conduct and, Mr. Chairman, an enormous departure has been made from the con duct of cases in Manitoba in both civil and criminal nature. What Sections 32 says, of the bill, is that to appeal a decision of a family court judge you go directly to the Court of Appeal of the Province of Manitoba. In all

summary conviction offences - if you're convicted of a speeding offence,. if you're convicted of a liquor offence, if you are convicted of assault on

summary conviction, if you are convicted of any

summary conviction offence you have a right to appeal to a county court judge by a trial de novo because you have been dealt with summarily and the concept of

summary proceedings without pre-trial discovery has been enacted so as to provide an appeal by way of a new trial because of the nature of the initial

summary proceedings. The only instance that I have ever seen of this type of direct appeal to the Court of Appeal is in cases of theft under $200 .00 and what are known as absolute jurisdiction offences. And it seems to me that the rights of parents, not the rights of the Society are being short-cut by an appeal directly to the Court of Appeal. Because before the parent comes to court in a pro ceeding under this part the parent does not know the case that is going to be presented against him or her by the Society or agency. If you take away the right to trial de novo you have a

summary proceeding whereby the parent may not be able to present the defence the first time round because it doesn't know the nature of the evidence that will be presented and has no second time round. So if you enact

Section 32 please think very carefully be.cause you' re making a tremendous departure from what has been the standard of legal proceeding s in civil and criminal cases in the Province of Manitoba to this date. And what was wrong with the trial de novo? The only people who were against it were the judges in the family court who felt that any judgments they made could be appealed by way of a new trial and therefore it derogated from the importance they wished they had. Now if they're the only persons who are against it think very care fully before you change it. MR.

BILTON: Did you tell the Minister this this afternoon? MR. WALSH: I told the Minister everything I'm telling you, sir. MR. CHAIRMAN: Order please.

14 sorry. May 22 , 1974 MR. WALSH: I told the Director, Mr. Minister, but not you directly. I'm MR. MILLER : I'd like that clarified thank you. MR. CHAIRMAN: Will you continue, Mr. Walsh , please. MR. WALSH: Thank you. I would ask that you consider very carefully the

Section 32. There are certain sections as I say before that Mr. Green made note of and discussed with the Minister and as I said before we received a - or the Direc tor of Child Welfare. • • MR. SIDNEY GREEN : Everybody thinks you're talking about me. They think that there is only one. MR. WALSH: I'm sorry. They are probably very clo se to the truth. MR. CHAIRMAN: Order please. MR. WALSH: The final

section about which I would like to comment is

Section 115 subsection (1) on Page 42 and I understand that amendments are going to be brought in to adjust that particular

section and subsection. As it presently reads which is the same as it's reading in the previous legislation - and there is no appeal from this

Section 115 . I understand that will be changed as well. A family court judge could appoint a guardian for your child upon the application of anyone else in the community and as presently enacted you would have no appeal. This is a carry-over from the old Act and I understand from Mr. Green - the other one - that there are going to be changes in that area.

I would ask and plead with you that on the areas particularly of the appeal provisions and on the child's right to counsel and on the right of a parent to termi nate a temporary order by application at any ti meJ that you give very careful consider ation to those provisions. Because to redirect the entire thrust of child protection legislation ) to abridge and to encroach upon those things that the Society believes to be the best interests of the child > _ replaces them instead with an undue concern on the approaches parents might make to the courts. I'm ready to answer your questions if you have any. MR.

CHAIRMAN: Are there any questions of Mr. Walsh? Mr. Jo hnston. MR. F. JOHNSTON : Mr. Walsh I'd like to compliment you on your presentation. You've gone through several sections of the bill but I'd like to talk to you about one basic

section which was discussed before, the 99(3) , and listening to your presenta tion I would draw a conclusion that you are saying - and I don't want to put words in your mouth - the child welfare worker in any other area - we mentioned Sturgeon Road and I might say I'm concerned about that area, it takes in my constituency - the welfare worker on say the west side of Sturgeon Road , their opinions or their con clusions may not be as valid as somebody on the east side.

What I'm suggesting. that the central registry system should listen to all workers of child welfare and I would say that the capacity of those people would be checked out before they made recommen ations so what's the difference as to whether somebody on one side or the other or in rural Manitoba or Winnipeg , if the welfare worker says this family is a good family and should receive a child. It seems to me - I'm saying why would you have the differential as to a recommendation from a worker rurally or a recommendation from a worker in the Winnipeg area. MR.

WALSH: I don't dispute the fact that you're going to have to come to terms with two values. The first value is saying that a person who lives in Grand Rapids or on the other side of the road that yo� mention should have the same rights as the person on the other side of the road insofar as priority in granting children for adoption. I think that's one value.

On the other hand you have not an incompatible and not a mutually exclusive value of children not being placed in order of priority of application but in order of suitability of applicant and the farther away the decision is made from the worker on the spot , the more remote the decision is , the more centralized the decision is the more it operates to cure the deficiency that you're concerned about but the more it operates to take away the local control , the local knowledge of the local conditions. You see the worker is a human being.

The Direc tor knows who that worker is and knows that worker' s preferences and knows that worker's attributes and knows that worker's inclinations. But by the time the decision is made by the central Director in Winnipeg or if it's decentralized in Brandon or wherever they place that central Director he doesn't know the worker who made the decision on the spot. He's not as able to evaluate the decisions that that worker on the spot made. And the proposed amendment just says that the central Director has a discretio n. It doesn't even answer your

May 22 . 1974 15 (MR. WALSH Cont'd ) ••• •• objection about rotation because nowhere does it say that that discretion is going to be exercised to solve the problem of rotation. But let 's assume that it does. That 's only one problem. It may be that the applicant who applied last is the best. Would you then place more emphasis on the order in which people apply as opposed to the child getti ng the best parent? And that 's the dilemma that you'r e in. I think goodness it isn't me, it 's your dilemma.

If you want to serve your constituents you' ll be able to tell them that I passed this amendment so that you' re not any worse off than the people on the other side of the road and I'v e created equity for Manitoba for the parents. But how about the children? Should they be provided with parents who qualify on a first come first served basis or should the decision be made at the local level as to who is the best parent no matter when they applied - taking into account also who has been waiting. MR. F. JOHNSTON: Mr. Chairman, I'm just a little bit amazed.

I don't think that I or anybody here or this Act is discussing if it 's - so we have an order of rotation, first come first served. But the worker in the field is the person who has been given the job to evaluate. That person has had that position by qu alification of some kind. But it seems to me that I don't even know what we'r e talking about when somebody says that we'r e going to take first come first served.

I would assume that if somebody makes an application to adopt a child and they are not capable or they do not have the proper home for that child whether the y'r e first . tenth or fiftieth they will be rejected. And I'm saying that the qualification of the worker - and then you say the Director will make the final decision and I would suggest that the Director may have to exert a situati on to make a final decision but are you saying that we are going to place children by 1. 2. 3 or are we going to place children by 1. 6, 7, 8 according to the ability to create a good home for that child?

Nobody I don't think is - or this bill doesn't say that we will accept them in order if the family is not capable of taking care of that child. MR. WALSH: Yes but your point seems to be that once you meet the qualifica tions - I agree with you that if you don't meet the qu alifications you won't even be considered - but once you do meet the qualifications then are you accept ed in order that you applied or are you then willing to acknowledge that, we'l l say that there are twenty teams in the National Hockey League. That means that you need so many players.

That means that so many people are qualified to play in the National Hockey League. You' ll ag ree with me that they all aren't equally capable and that if you had to select a team to meet the Moscow Selects that you would pick out people on the basis of the coach at the scene knowing who's best, not on the basis of who applied first. I'm saying to you that while the analogy is not perfectly applicable, that while certain parents qualify and certain parents don't , that even amongst those who qualify there could be great differences in ability to parent.

And if a child has a special need and if a child would be better placed with the applicant who applied last albeit that all qualified, should the child go to the parent best able or should the chi ld go to the parent who first applied assuming that they all meet the basic minimums. I' m assuming, sir, that all the people who will be considered will have met those basic minimums.

Once you accept that then do you say to meet your problem that they be accepted in order of rotation because they have met the basic minimums as decided by some social worker or do you say that the people who are closest to the scene are going to be able to make the best decisions. You have the classic conflict between the centralizing fairness as opposed to the decentraliz ing ability of a person ab the local level to cope with the special needs. I say that is a classic conflict and one which you have to deal with not only in the implementation of a child welfare act but on a variety of issues.

I' m saying that once again I don't propose to come out dramatically on one side or the other. Parents who live in Grand Rapids should have an equal chance to adopt with parents who live in Winnipeg or somewhere else. On the other hand are we worried about the rights of parents or are we worried about the rights of children? That's your decision. All I'm saying to you is that

Section 99(1) , (2) and (3) as presently in the bill unamended is perfectly accept able to my Executive Director of the Children 's Aid Society of Winnipeg who tells me that he places more ch ildren for adoption outside of his jurisdict ion than within and he is concerned . he is the man on the scene, he is concerned that if the decision is raised one level away from him and one level higher it will be one level more remote and one level less able to deter mine - although it will be directed to determine - what is in the best interest s of the child and that 's what he tel ls me.

He's the man on the spot, I assume he knows. MR. CHAIRMAN: You have no further questions Mr. Johnston? Any other mem- ber? MR. F. JOHNSTON: Mr. Chairman, I have one other question. I am wondering

16 May 22 , 19� (MR. F. JOHNSTON Cont 'd ) ••••• if I should even ask it. But I think that I want to know the answer, that what you are basically saying, that the qualifications of parents could be good but those qualifications of a parent might not be right for a child. parents. MR. WALSH: That in

part is right or they might be not as good as other MR. F. JOHNSTON: And you know you made quite an explanation why this appliE but how do you really rationalize this in a baby which nobody knows the personality of to that great extent and you do know that the family is a good family . MR. WALSH: Even if one accepts your premise and it will be applicable in many instances that the baby is a neutral factor and doesn't know whether it ' s a rural baby or an urban baby or au krainian baby or a Polish baby. It doesn't know and would be just as happy in any one of those homes.

It may be that the person who applied last has just better qualifications, meets the basic qualifications but is just better suited, is better placed by all the criteria that the social workers use, not that lawyers use, but social workers use in judging suitability and the most suitable doesn't mean the first in line. I am just saying that that applies to everything in life. There is no reason why it shouldn 't apply to parents. MR. F. JOHNSTON: Mr. Chairman, I don't think that the bill says it 's the first in line, if they qualify is it. MR.

WALSH: That 's right, but I ' m just saying that that 's the problem that you raise and I don't think that this

section either goes far enough to answer your problem or should be implemented necessarily. I' m not trying to make a decision for you sir, and I ' m not taking one side of the motion or the other except in response to your questions. I' m just trying to dramatize if I can, some of the problems inherent in the opposition to your position. MR. F. JOHNSTON: Well the other area we've mentioned - now I'm not, I would mention several sections of the bill. I wanted to ask him that one and I'm sure maybe somebody has some questions on the other

section he raised in the area of thirty. If a person, well there is a Judgment brought down by a Court, I think that everybody would agree that it should be lived by but if there is a circumstance where there is an application made to have the child back, I think we'r e in an area here of parent and that they should have possibly that right, MR. WALSH: Yes but once you give them that right, you open the door to the other ninety nine whose right will not be as valid and who will thereby destroy the kind of system you are trying to build.

I'm not saying that in the individual case you may not be rig ht, but what I'm saying is that do you have faith in your agencies or do you not? And if you do, in the case where the parent will be right in applying fo.r a termination at an earlier date, maybe he should be able to convince the society, or the agency or the director that he ' s right and if he can do that then there ' s no problem, if both sides agree the child will be returned. In every situation under

Section 30 subsection (1) where the parent applies, one assumes that the society or agency will continue to be opposed and will spend half of its litigating time not in the getting of orders which it may vitally need, but will spend its time in just holding the orders it already has and that seems to me to be a waste of energy and money.

If a Judge says a nine month order, if the parent thinks it should be shorter, the Society doesn't , then let them both live with the original order or appeal, but shouldn 't come back after four and a half months with two litigation cases rather than one; but if the Society is convinced along with the parent� then they can wipe it out just by consent, there 's no problem. MR. F. JOHNSTON: Thank you. MR. WALSH: Thank you sir. MR. CHAIRMAN: Thank you. Mr. Green. Pass the microphone down please. MR. GREEN: Mr.

Walsh I ' m just interested in one feature of the presentation which rather intrigued me and that was relat ive to the Appeal provision to the County Court from a Family Court Judge, as in

Summary Conviction Offences which you ' ve des cribed. Now I take it that under the old Act and under the new Act, an application could be made to the Surrogate Court or a Queen 's Bench Judge or a Family Court Judge, any one of the three. MR. WALSH: No, the Child Neglect provisions as they were then and the Protective Guardianship provisions, as in the new bill, provide for an application to a Judge , meaning a Judge as defined in the Act and a Judge as defined in the Act is in the definition

section and that definit ion

section (

m) means a Provincial Judge within the meaning of the Provincial Judges ' Act, so that all proceedings in cases of Protective Guardianship in the new bill and in Child Neglect in the old bill,

May 22, 1974 (MR. WALSH Cont '

d) MR. GR EEN : one you 'r e refe rring MR. WALSH : MR. GREEN : Court of Appeal? always came at first instance to the Family Court . I see , I was looking at

Section 118 which I guess is not the to. No. Which

Section then are you refer ring to that deals with the 17 MR. WALSH:

Section 32. MR. GREEN : Oh I see , away down there . MR. WALSH :

Section 32 is the appeal provision for

part 3, which is the Child Protection part and it says "under this part ,

Section 32, an appeal lies in the order of ju dge or his refusal to the Court of Appeal" so you have a summ ary proceed ing at its initial phase which thereby skips over the trial de novo phase and goes directly to the Court of Appeal and coupled with that Mr . Green , you have the right of the Fami ly Cour t Judge to comp letely disregard the rules of evidence, allow Affidavit evidence to in any way abridge the proceedings that he or she may see fit under

Section 25 (8) and consequently an appeal to the Court of Appeal is hardly going to be meaning ful , because if the Court of Appeal is going to say the ju dge at firs t ins tance had the parties before him , could ju dge credibility and unless the judge erred on a quest ion of law, you 'r e effectively taking away the right of appeal. MR. GREEN : Wouldn't the Family Court Judge on appeal have the same ju risdic tion as the Family Court Judge under 25 {8) when he was hearing the trial de novo? MR. WALSH : Yes , but it would be by transcript, there would be no problem with the hearing .

The appeal to the Court of Appeal would ju st be on the record as you know. MR. GREEN: No, no. I'm sorry , I'd like to see whether we both understand the trial de novo provisions. As I understand it, a trial de novo becomes another trial and the transcript is available , but it is not evidence. It is a transcript that is transmi tted from the magi strate to the County Court ju dge but at the County Court Judge level, it is a trial de novo in the true sense , which means that it is a full trial . MR. WALSH : Yes , as if the firs t trial had never taken place . MR.

GREEN : Right , so that the transcript is a document which I suppose can be looked at , which you 'r e not supposed to know exists , but can be looked at and you can cross-examine on it, but in other respects, the Country Court Judge would have all of the same powers as the magistrate has under 25 (8) . MR. WALSH : Yes but the litigants would have had the fir st trial in the Famil y Court and would be able to use the evidence as discovery. MR. GREEN : Oh I understand all of that , I' m ju st trying to see whether under 25 (8) a Judge of the County Court would have the same , MR. WALSH : Oh undoubtedly , MR.

GREEN : Would have the same , he would be able to admi t the aff idavits that you' re talking about and do the other things that you indicate that a magi strate can do . Now as I understand it , what is at tempted here , and I'm not sure that I agree or disagree , I was intrigued with your suggesting that it 's a very enormous I think , departure from the normal standards .

I would suggest that there are other cases where mag istrates are given ju risdiction to try certain things such as wages recovery or other small civil actions where an appeal lies directly to the Court of Appeal, rather than through a second trial at the County Court level , but I don't want to make a big point of that . I am trying to figure out whether it is better to have two full trials or to have one trial which makes a little bit more sense , because under

Section 118 and 119 and this refers to Guardianship , it doesn't refer to the Neglected Child's provisions , the same thing has been done. Under the old act it said that "w here there is an appeal from the Queen 's Bench or Surrogate Court that it goes to the Court of Appeal , where it is from a Fami ly Court , it goes to the County Court ." Now that has been eliminated and it says in the case of an order made under those sections , it goes straight to the Court of Appeal. MR.

WALSH: Yes , but in those cases, an applicant can always hoist you from the lower court into the Queen 's Bench and get the rights of discovery. MR. GREEN : Well is it then , you see I am not intrigu ed , and I' m ju st asking you the ques tion, and I do n' t wish to argue with you, with the two trials . To me they never made sense. You go to a magistrate and he conducts a trial and then you go to the Country Court Judge and he conducts the same trial . It 's not a trial on evidence. It 's not a ques tion of law, it's another trial.

Would it satisfy you if the Family Court proceedings provided for some form of discovery . MR. WALSH : Yes .

18 May 22 , 1974 MR. GREEN: In which case you wouldn't have to go through the two trials and without , you know without being sensitive to the feelings of the ju dges one way or the other, and I assure you that I have not been in my practice , that it really doesn't seem to make a great deal of sense for a ju dge to sit and hear a whole trial and then have another ju dge do the same thing. The first ju dge often feels that - what is the purpose of him going through this procedure and the litigants have to go through two trials and pay lawyers 'twice som etimes , I mean if they have lawyers .

Would it be a better suggestion from your point of view if the Family Court Judge proceedings per mitted discovery? MR. WALSH : I think that in answer to your ques tion directly and then generally , yes . Generally speaking I think that the Law Reform Commi ssion in the Province has a pilot project going with a Family Cour,t at the County Court level which hears family matters and matters that could have been brought at the County Court level at first inception. It seems to me that Mr. Green 's point is very well taken about two trials . In order to facilitate the ends of discovery and pre-trial procedure • MR.

GREEN : It could be four trials. It could be the first trial , the second trial de novo, Court of Appeal , Supreme Court of Canada. MR. WALSH : Yes , but two would be trials and two would be appeals on ju st hea�illgs on evidence . MR. GREEN : redundant type of proceedings , that 's what is attemp ted MR.

WALSH : To avoid the redundancy , it seems to me that a person should be able to apply directly to the County Court or directly to the Fami ly Court but there should be some provision and I haven 't sought it out , either for an Examination for Discovery or for provision of particulars as to names of witnesses and the evidence that they will give, so that ••• MR. GREEN : Wel l, what if Discovery , was the •• MR.

WALSH : Then that would clearly place the Fami ly Court on the same footing as a Queen 's Bench Trial , where the litigants have - since the object of the exercise is to discover the truth , not to take the other party by surprise , over the years we 'v e built up a svstem of allowing the other side to get at the truth from the opposite party . If you 'r e not going to allow a trial de novo, you should at least provide for that basic protection and that is the point I wanted to make . MR. CHAIRMAN: You have no further questions MR.

WALSH : Well that , unfor tunately you see when you have a trial de novo you take the time of the child and that child waits to determine , it becomes alm ost ludicrous in a three month order that the appeal might not even be heard for three months . So what should be done is that there should be a pre-trial , some sort of discovery whereby you could oblige both parties to come and be examined under oath .

You may not wish to have that , if you think that thoroughly , because then the parents would have to come and be examined under oath and the Society would be able to prove its case through the mouth of the parents.

You see there 's something quasi criminal about these proceedings that even though the best wishes of the drafters of the Act have wished to take away from it, still exist ; I believe that parents will still not respond to the new term''Pro tective Guardianship" as warmly as the drafters of the Act hope and there will still be a reluctance on the part of parents to have their children put in protective guardianship , although the term "neglect" is a very abusive and pejor ative term but this is a point that really has to be sought out Mr .

Green, because if you have Discovery then you allow the Society to sit back and cross examine and examine parents for Discovery and maybe they shouldn 't be obliged to give evidence against themsel ves , if there 's any quasi criminal aspect of these proceedings at all. If there isn't then they should be allowed to do that, but that's a point that has to be thought out in its full rami fications.

But taking away the trial de novo and ju st putting in an appeal to the Court of Appeal should be looked at very care fully and not ju st say, well there 's an appeal provision and let 's pass on to the next section, because you 'r e taking away a tremendous right from parents to protect themselves and to present their best case to the Court . MR. CHAIRMAN: Thank you . Mr. Miller , did you have a question? MR. MILLER: Not on that one, I'l l let the la wyers sort that one out .

Section 30 Mr . Walsh , you made reference to the further hearings by Judge and you said that at the present time there exists a provision whereby a fixed period is established We are eliminating that fixed period which could lead to mu ltiplicity of legislation or litigation rather and that parents would keep coming back , or keep appealing to

May 22, 1974 (MR . MILLER Cont 'd ) ••••• other ju dges or ask that the length of time be reduced because they feel that they can now look after the child and you ' re concerned about that . Isn' t the present procedure where the Society can appeal to the Judge to have the time that he established of 9 or 10 mo nths , that the Society has the right to appeal to the Judge to reduce that length of peri od. MR. WALSH: Yes . 19 MR. MILLER : Now you'r e saying Society has that right , but you wish to deny to the parents a right that Society has . MR.

WALSH : Yes , the Society has many rights under the Act that the parents don't have and the parents have many rights that the Society don't have . I don't think it 's a trade-off Mr. Miller . I think that you 'r e looking at the reason for giving the right . The reason that the Society is given the right is because the Society has the obligatio n to attend to the best interests of the child during the term of the temporar y order and when the Society sees that there 's no further point in continuing on with the temporary order, then surely the parent will agree .

But when the parent decides that that 's the ca se , it is not always true that the Society will agree and therefore you 'r e going to have litigation resulting out of that , so when both parties agree the Society will make an application because it will be in agreement or ju st return the child . So the eff ectiveness of giving the Society the right and not giving it to the parents at the present stage means that when the Society exercises that right , it is exercising it on behalf of both sides of the question .

But when the parent would purport to make an application , that application would be contested and all I can do is draw on my experience in the last two and one half years as Counsel for the Society and say to you that in every case the Society is asked for an early termination of a temporary order, the parents have not opposed and it 's been granted because ••• lost . MR. BILTON: How many cases have you had in two years? MR. WALSH : I think that there 's been 178 cases. Don't ask how many we 've MR. CHAIRMAN: Any other questions , Mr . Miller? MR. MILLER: No I ju st wanted to get that clarified . Thank you . MR.

CHAIRMAN: If there are no further quest ions, thank you Mr . Walsh . MR. WALSH : Thank you very much . MR. CHAIRMAN: Mr. Libitka please. MR. LIBITKA: Mr . Chairman , honourable mem bers - I wish to place the Childre n 's Aid Society of Eastern Manitoba on record as supporting the representations made by my learned colleague, Mr . Walsh. However, during the representations made by Mr. Fraser and Mr . Walsh , with specific respect to

Section 99 I understand that during conversation between Mr . Fraser and the Executive Director of the Children 's Aid Society of Eastern Manitoba , Mr . Lugtig , certain proposals have been arrived at which Mr. Lugtig with the permission of the Chairm an wishes to prese nt to this honourable body. Do I have the Chai rman 's perm ission to introduce Mr . Lugtig? MR. CHAIRMAN: Please go ahead . MR. LIBITKA: Thank you Mr. Chairman . Mr. Lugtig . MR. LUGTIG : Mr. Chairman , gentlemen : Mr . Fraser and I did work on a possible ame ndment which we think would answer the problem that everyone has been concerned about .

The main concern as I see it and I really feel qui te strongly about this , is that other things being equal , a per son in Flin Flon or Gypsumvi lle or St . Jam es , or St . Boniface , or Winnipeg , should have an equal opportunity to adopt a child . I really believe that , taking into account the interest of the child and the various children that come into care and I don't think by dealing with that situation that we are in any way abridging the rights of children . I do think the proposed am endment giving a centralized approval to the Director on each individual child is not the answer to this problem.

We have had experience, I have per sonally had experience with centralized adoption practices , both in Manitoba , the aftermath of that because it was done here many years ago, and in other ju risdictions, name ly Minnesota and if carried to extreme , centralized approval does create a backlog and it creates a lot of compli cations that don't work in the interest of chi ldren . I think an amendm ent that could deal with this particular problem which really is everyone being treated fairly - I think that 's what it really boils down to. MR. GREEN : I wonder if I could interrupt the delegate for a moment .

I just want to inform Commi ttee with regard to proceedings ; that there are only two more representations after this one, so I presume that there is no great pressure that we not continue. There 'll be this gentleman and two further ones . MR. CHAIRMAN: Proceed Mr . Lugtig.

20 May 22, 1974 MR. LUGTIG: Thank you . Now if I may , I' ll ju st read this . I have a little trouble , I don't have all my teeth and I might have a little trouble reading . "99

(3) The Director may from time to time establish general regulations governing a minimum waiting period , which shall elapse from the time of approval of applicants to the placement of a child with the approved applicants ." The reason we suggest "may " is that it may not be necessary to do this all the time you know - this should be a flexible thing and it shouldn't be necessarily ma ndatot The reason we say "time to time" is that the supply of a given group of children and a given group of applicants fluctuates and can fluctuate quite marked ly .

For instance, the problem right now is the group of infants - most of the applicants want infants and it 's been said that applicants in say, the City of Winnipeg , may get an infant placed with them after they 'v e been approved for say six months and somebody in Flin Flon or Thom pson has to wait two or three years . Well , other things being equal , I don't think that should happen but I think if the Director could in consultation with the agencies establish a minimum waiting period for a group of children which would be decided among st the agencies and the director, from time to time .

For instance in the case of infants , maybe no one should be able to adopt an infant unless he has waited a year and this might level out the supply of infants and level out the appli cants and at least we could say that everybody 's been treated fairly .

Now the children who are not infants or who are handicapped or you know, some other situation occurs , well they wouldn 't pertain to this waiting period ' for wanting parents we 'l l take people as soon as we can for those particular place ments but for these situations where there 's a problem of over supply of applicants and under supply of children , this proposal would allow the director in consultation with the agencies to make regulations on that point, and I do n't know if regulation is quite the right word , perhaps guidelines or some other acceptable word ,but something that could be raised or lowered.

For instance , supposing all the applicants that had been waiting twelve months were placed with across the province , it might be that you 'd cut the waiting period down to 11 months , but it also might be that tb the meant ime the supply and demand situation had changed , and the waiting period would be 13 or 14 months .

You know, we 'r e in a situation where there is a dearth , a small num ber of certain children and we 've done such a good jo b in interesting applicants in adoption that we 've got a lot of people that are interested and I think that really if the director had the power in consultation with agencies to set a minimum waiting period which would apply across the province then this inequity situation would at least be dealt with .

In other words , if one of your constituents came to you and said , well I' ve been waiting for 8 months or a year , you can say , yes that 's right , the people in Flin Flon have to do that too, other things being equal, for this particular group of children and I think this might , at least if it were tried , it could be seen whether it would work or not. I do think though , in all honest y, that the supply of infants is going to diminish statistically and the numb er of applicants may increase so maybe the waiting period will be two years , you know, but we have to live with that .

I mean that 's a reality , not something we can do anything about, I don' t think . So that would be , we have it worded here and if you like we could type it up and submit it to the Chai r for consideration. MR. CHAIRMAN: Thank you Mr. Lugtig. Are there any quest ions , Mr . Osland. MR. OSLAND : Mr. Chairman , could we have the gentleman ju st re-read his wording there , ju st for the moment I would like to get the notes down. MR.

LUGTIG : "The director may from time to time ,"and we were going to say in consultation with the Child Care Agencies , the child caring agencies you know which are referred to, "establish general regulations governing a minim um waiting period which shall elapse fr om the time of approval of the applicants to the place ment of a child with the applicants." For instance , well that 's it. MR. CHAIRMAN: Do you have another question Mr . Osland? MR. OSLAND : No thanks, thank you very much . MR. CHAIRMAN: Any further questions? If tr1ere are none , thank you Mr . Lugtig . Mr . Ritchie . MR.

RITCHIE : Gentlemen , as I indicated my name is Waiter Ritchie and I'm representing the Manitoba Government Emp loyees 'A ssociation with respect to Bill 7. Mr . Metcalfe, the Executive Director of the Association has some copies of our Brief which he 's going to distribu te. It is fairly lengthy but if I could, I suppose if the Association could have its wish it would like to see only two matters dealt with in this bill , namely the matter of political activity and the mat ter of the change in the size of the Comm ission, and we have some comments with respect to those

May 22 , 1974 21 (MR. RITCHIE Cont 'd ) ••••• but the other amendmen ts are the ones that cause us greater concern. Since the proceedings are being taped, I would just like to put on the record a letter that I wrote to the Honourable A. R. Paulley concerning certain matters of draf tsmanship in the proposed bill . I'l l ju st paraphrase some of it . In reviewing the bill we wish to draw to your attention certain matters of draft ing which you may wish to consider before the bill goes to Law Amend ments Comm ittee . They are as follows:

Section 1 of the bill would amend the Civil Service Act by striking out clause (1) C (

c) which is the definition of Term Em ployee. Thus if the amendment were passed there would be no definition of Term Emp loyee . However, under the Civil Service Superannuation Act ,

Section 2 (e) (ii) refers to and I quote "any person who is emp loyed with the government in seasonal emp loyment or as a term em ployee" , The words "'l:erm em ployee" are not defined in the Civil Service Superannuation Actj and 2 (i

i) of that Act indicates in effect that you look to the Civil Service Act for the definition and the proposed amendment is that the term "te rm employee" be deleted . It would therefore appear that if the words "term em ployee" are to be deleted from the Civil Service Act, amendment s to the Civil Service Superannuation Act may be required . Then the second point was , as they 'r e no doubt aware , the words "term employee" are used in the current collective agreement between the government and the MGEA and the deletion of this term from that act raises the very serious question as to the status of such employees if the amendment is passed and

section 3 of the bill would add a subsection (5) to

section 5 of the Act and since this proposed new subsection involves definit ions , I suggest wouldn 't it be better to have that in the definition

section . More im portantly though is the use of the words "tempora ry emp loym ent" in

Section 5( 5) (b )· we are concerned how this definition might be interpreted in the light of

Section 2( 1) (iii) of the Civil Service Act which excludes from the meaning of the words Civil Service "persons employed to make or conduct a temporary and special inqu iry , investigation or exami nation on behalf of the Assemb ly or the government ." And the fourth one we ju st question which I'l l deal with in my brief . In any case we wrote that letter to the Minister . He replied , we met with the min ister and went over the items we had raised and I understood that he was refer ring the letter to the Legislative Counsel. Now dealing then with our bri ef, I'l l ju st proceed to read it .

As the recognized bargaining agent for the emp loyees in the Civil Service, the Manitoba Governm ent Emp loyees' Association (refer red to as the Association) is vitally concerned with some of the am endmen ts being proposed in Bill 7 presently before the legislature . The Association is of the view that some of the proposed amendm ents in Bill 7 adversely affect the position of Civil Servants generally and seriously undermine the basic philosophy of equality in the public service of Manitoba.

It appears that many of the proposed amendmen ts to the Act are intended either by intent or by lack of consideration, to give Management Comm ittee and individual Ministers a wide discretion concerning such mat ters as the changing of pay classifi cations , the appointment of te mporary emp loyees , the pay to be received by em ployees who are dem oted for other than disciplinary reasons , and selection appeals.

The Act of course supercedes our collective agreements and many of these amendmen ts appear to remove from the collective bargaining process items that are covered by agreements currently in force between the Association and the Governmen t. Dealing with Sections 1 and 3 of the Bill ,

Section 1 of the Bill removes all reference to "term" and"casual" em ployees in the Act , even though "term" employ ees are covered in the Civil Service Emplo yees ' Agreement . As the classification "term" em ployee is being removed from the Act , or it is proposed to be, it would appear that all these emp loyees by the stroke of the pen are to be unilaterally removed from the current binding collective agreeme nt . It would appear that the present classifi cations of "casual" and "term" employees are to be included in the new category of "temporary" emp loyee as defined in

Section 3 of the Bill . This we presume was the intent that they were, but the bill doesn't deal with that and without it dealing with that , then "term" em ployees would be taken out of the agreement . That

section proposes to define the category of "temporary" emp loym ent as an "employee who is employed for an assignment of a temporary nature as defined in the regulations ." Once again , at least for the first time I'l l be drawing your attention throughout the brief to this concern that we have as defined in the regulations, this does concern the association .

22 May 22 , 1974 (MR. RITCHIE Cont'd) . , ••• By virtue of

Section 13 of the Bill the Commission is given the power to make regulations respecting categories of employment under the new proposed

Section 5. In other words , the Comm ission will have the power to determ ine by regulation , what assignments are of a "temporary" nature . If the regulation passed pursuant to the

Section excludes em ployees who are presently within the definition "term em ployee!l" then it would appear that, in the absence of specific amendments to the Civil Service Emp loyees� Agreeme nt , the Association will be stripped of its bargaining rights regarding said em ployees . Further more , under the Civil Service Superannuation Act specific reference, aad:�I.!:ve dealt with that , concerning the term; then furthermore there would be confusion if the classification of "term employee" is removed from the Civil Service Act and the regulations passed pursuant to the proposed ame ndments to

Section 57 (1) of the Act do not define "tem porary emp loyment" in a like man ner .

Section 1 of the Bill proposes to amend

Section 2 (1) (e) (

v) of the Act by excluding from the definition of Civil Service J an9 ]. _want to emphas ize this as strongly as I can, "any person paid by fees" which is in the existing Act or "hired on a contractual basis" . The potential effect of these few additional words could result , I subm it1 in the total destruction of the Civil Service as we now know it . The Government of the day could use this

section to compl etely bypass the Civil Service Commissio n and the Association by hi ring all future employees on a contractual basis. It has been noted that there is to be no limitation on the terms and conditions of the contract, e.g. it 's unlimi ted in amount and it 's unlimi ted in term. The way I read the

section it would mean that an em ployee could be hired for who knows , 25 years , 50 years , at whatever salary might be decided upon , which wouldn 't be a negotiated salary or one that the Association would have power to insist that it bargain for and we consider this a very , very serious mat ter . The Association's right to bargain for an em ployee would be substantially if not totally removed . It could be used as an instrument to discriminate between emp loyees and erode their hard won terms and conditions of employme nt . And so I can't emph asize that too strongly .

The present definition excludes any person paid by fees . We don't even like that , but at least that would appear to have some restriction 1 perhaps restricted to professional people that do charge fees but you would open it up com pletely with the unlimi ted definitio n of ju st so mebody who 's hired on contract.

Section 2 of Bill 7 proposes to amend

Section 4( 1) of the Act to state the Civil Service Commi ssion is to consist of not less than three mem bers . The Association feels that if the numb er of per sons on the Comm ission is increased , then the Act should prescribe a quorum which would be able to sit at any one time and hear a specific mat ter brought before it , as well as a maximum number of mem bers. We would have no obje ction to the Comm ission sitting in panels provided there was a quorum. The Association commends the Governm ent for its intent in enlarging the size of the Comm ission to include female representation.

In ad dition , the Association strongly suggests that consideration be given to making the Civil Service Commission more independent and free of any suggestion of bias (no mat ter how unj ustified such suggestion might be). The Association's recommendation in this regard is that the Civil Service Comm ission should be appointed by and be responsible to the Legislature . Item 3 - This

section proposes to amend

Section 9 of the Act by the addition of clause 9 (1:1) which in essence states that where an emp loyee 's classifi cation has changed, whether it be upward or downward , he shall not be paid higher than the maximum salary for his new classification unless the Cabinet prescribes a rate of pay whic h is in excess of the maximum pay for the newly assigned classificat ion. The Association is concerned about the power given to the Cabinet to approve salary rates for certain selected individuals in excess of the maximum pay for the new assigned classification.

The Association is of the view that where classific ations of employment are changed , the pay to which the employee is entitled when his classifi cation is changed should be determined by objec tive criter ia, equally applicable to all emp loyees so affec ted or potentially so affected and be the subj ect of the collective bargaining process . It is respectfully submi tted that the potentiality for favouritism by the Cabinet is a dangerous amendment to introduce into the Civil Service . Further mo re, this proposed amendment may be in conflict with provisions of the Equal Pay Act and of the Human Rights Act .

Dealing with item 4 in

Section 5 of the Bill . This

section proposes to repeal the present

Section 11 (6) of the Act and substitute a new

Section in its place . The proposed wording of the new

Section appears at first glance to be sub stantially the same as the present

Section 11 (6) . However , the new

Section provides that whe re an employee is demoted through no fault of his own, and those are the words)

May 22 , 19 74 23 (MR. RITCHIE Cont 'd) ••••• he could receive a rate of pay that is considerably less than he earned in his previous position . This could not happen under the existing

Section 11 (6) which ensures the maint enance of the employee 's sala ry when he is the victim of a forced demotion under these circumstanc es . That is a dem otion th rough no fault of his own. Discretion is again given to the Cabinet to approve a rate of pay for individual employees that is in excess of the maximum rate of pay applicable to a parti cular cla ssi fication to which an employee is demoted . This again would grant the Cabinet the right to reward a fav ourite employee and to punish others of the Civil Service.

Individual employee appeals to the Commission can be envisaged by an employee who has been demoted and feels that he should have received a rate of pay in excess of the maximum for the new cla ssific ation . As a basis for his appeal he would probably be able to cite precedent set by Cabinet in grant ing some other employee such a reward under similar circums ta nces . Once again this proposed amendment could be in conflict with the provisions of the Equal Pay and Human Rights Act . The Association 's position is that the present

Section 11 (6) should not be am ended. Dealing with

Section 6, point No. 5 - this

Section would repeal

Section 13 (7) of the Act and substit ute in its place subsections (7 ), (8) and (9). The proposed

Section 13 (8) provides that where an unsuccessful candidate for a positi on is of the opinion that the appointment of another person to the position was based on matters other than mer it , then the employee may in writing appeal to the Minister , whereupon the Minis ter must appoint a person to enquire into and investigate the matter and submit a report back to the Minister ; and I might pause there for a moment , because if I read the Civil Service Act , Mini st er is defined and it simply says "Minister means a Mini ste r of the Crown" so the way we 're reading this sect ion is that it would be any Minis ter of the Crown; whereupon the Minis ter must appoint a person to enquire into and investigate the matter and submit a report back to the Minis ter.

Thereafter , the Minis ter is given the power to decide the appeal and his decision is final . This proposed amendment mus t be read in light of

Section 8 of the Bill , which would repeal

Section 31 (1) of the Act and su bstitute a new

Section in its place . Under the Act as it is presentl y worded any employee who is dissatisfied with a decision of the Selection Board or of a Mini st er with respect to vacant positions , may appeal said decision to the Commission. However, the proposed re wording of

Section 31 (1) reads as follows : "Subject to any other provisions of this Act and accordingly we suggest that the amen dment to

Section 13 would be another pro vision of the Act , relati ng to appeals and1 subj ect to the regulations , an employee may appeal to the Commission, a decision made by an employing authority that is subject to appeal and the decision of the Commission thereon is final ." The proposed

Section 13 (8) would clearly come within the exception "subject to any provisions of this Act ", in that an appeal would not now be made to the Commission with respect to select ions for appointment to vacant positi ons , but rather to the Minister whose decision is final. The "Minister" is clearly an "employing authority" within the meaning of

Section 2 (1) (

k) of the Act ,

Section 1 (a) (

i) of the Civil Service Employees' Agreemen t, and

Section 1 (

g) of the Departmental Employees' Agreement , and the decision of such "employing autho rity" will not now be subject , would not now if the amendment went through , be subject to appeal because this decision under the proposed amendmen t is expressly stated to be final .

Section 31 (1) will clearly grant the right of appeal from a decision of an employing authority that is subject to appeal. Accordingly , the combined effect of the proposed Sec tions 13 (

a) and 31 (1) is to only allow an employee the right �o appeal to the Minister and not to the Commission as was formerly the case . This procedure is tot ally unaccept able to the Association beca use it al lows an elected offici al to be the sole judge of which employee within the Civil Service will ulti matel y be promoted or appointed to a vacant positi on . Existing agreements clea rly provide that decisions of employ ing authorities are subject to appeal to the Commission as the final step in the grievance procedure .

Existing collectiv e agreements expressly provide that an employee appealing any decision to the Commission has the right to be ac companied and represented by a member of the Association or any other person of his choosing . The proposed amendmen ts to the Act with respect to selection appeals would appear to deny such right to an em ployee. It certainly doesn 't give him that right .

24 May 22 , 197 4 (MR. RITCHIE Cont '

d) Further it would appear that the person who will enquire into and investigate the matter and report to the Minister will have comp lete discretion in the ma nner in which he conducts his investigation. The proposed

Section 13 (9) gives the investi gator appointed by the Minister under the proposed

Section 13 (8) all of the powers of the Civil Service Comm ission as outlined in

Section 6 of the Act with respect to hold ing investigations. It is interes ting to note that an inv estigator will be reporting his findings to a Minister , who may well be the Minister that made the initial decision which led to the appeal being launched . In essence the Minister could be hearing an appeal from his own decision and an affected emp loyee is not likely to accept that a Minister in such a position would be inclined to revoke his original decision. Further· more , there is no pr ovision for the em ployee or his bargaining agent to have access to the report of the investigator.

As it is often said, ju stice mus t not only be done , but must seem to be done, and under these sections we 'l l submit that it certainly doesn't seem to be done. The proposed amendm ents to

Section 13 of the Act amount in reality really to there being no appeal . In other words , if you have a Minister making a decision and then your only right of appeal is to that Minister , we say that amounts to no appeal . This is totally unacceptable to the Association. In the interests of amicable relations be tween the Government of Manitoba and its own emp loyees , the right to appeal a decision of this nature to the Commission and the right to be represented thereon should continue to be em bodied in the collective agreement which has resulted from the collective bargaining process. Therefore , this right should not be removed through

an Act of the Legislature . To do otherwise could result in a denial of the principles of natural just ice and of fair and im partial selection for pr om otion, based "on ability and qualificatiO ns . Item 6 dealing with

Section 44 of Bill 7. The Association is on record as favouring the granting of the right of Civil Servants to participate actively in politics at the Provincial and Federal levels, by being a dandidate or serving as an elected representative if successful in an election. However the Association is deeply disappointed that there is no provision in the Bill that spells out clearly that a person who seeks political offic e will not in any way be discrimina ted against or intimidated by reason of his exercising his rights under the Section. The Association is also greatly concerned about the rami fications of the proposed

Section 44 (2) which is still another examp le of the apparent effort to legislate executive control over the Civil Service . The Association's position is that the words "and such other classes or groups of emp loyees as may be designated or set out in the regulations" should be remov ed. This would also take care of the Associatio� concern about the word "or" as used in the phrase that the Association reco111111ends should be deleted . I have to believe it was meant "or" should have been "as" about the word , wait a minute - this should have read ,"�as may be designated as set out in the regulations".

Surely there wouldn't be two alternatives , one as designated or as set out in the regulations . In any case , we submit that this is too broad a power .

It would permit the government of the day to, if they were so disposed,to pick and choose who should be eligible and who should not, Pardon (Interj ection) ••• well , classes or groups , maybe we 've got an amendme nt to take out groups now, but we can understand where it says Deputy Ministers and we can understand there may be certain other persons , people who are in confidential positions , of that nature that should be excluded but we say they should be spelled out in the Act and not the broad brush of anybody that 's put down in the regulations.

And in that regard , another point that may be ju st in drafting in dealing with that

section , I take it from the Bill that under 44 (1) it was intended that this refer to all political activity , be it Federal , Provincial or Municipal and if that 's so, I'm concerned about 44 (2) which says subsection (1) does not apply to Deputy Ministers and such other classes of employees ••• 44 (5) a person who is permi tted by this

Section to become a candidate in any Provincial or Federal Election and succeeds in being elected for thwith to resign his position as an emp loyee of the Government or of the Government Agency as the case may be . -( Interj ection) - And this is what we wanted to have clear . Yes I think I' ve got it now. Was it intended that under 44 (2) you could1o r the government of the day could prevent people from running) Civil Servants from running in Municipal elections . That was my concern and that could ju st be clarified , I don't think that is the intention.

May 22, 1974 (MR. RITCHIE Cont '

d) Now point 7, page 8, dealing with

Section 12 - The proposed addition of

Section 47 (5) appears to be totally unnecessary . Everything referred to in this proposed new

Section is we believe ,already in the hands of the Executive Council 25 or a Commi ttee thereof by virtue of

Section 61 (1) of the present Act . The Association is of the opinion that the addition of this

Section will only serve to create greater confusion. Mind you , we 'd like to see a lot of the powers under 61 (1) reduced but ••• Now point 8, dealing with

Section 13 - the proposed ame ndmen t to

Section 57 (5} of the Act will exemp t regulations made pursuant to the Act from the require men ts of The Regulations Act. And this is a very serious one here . When considering this amendmen t you must read it in the light of the proposed amend ments refe rred to in Sections 3, 8 and 44 of the Bill as well as the many sections of the Act , the present Act , under which regulations can be ma de . With certain exceptions, the Regulations Act requires that all regulations are to be filed with the Registrar of Regulations in that a regulation comes into force on the day it is so filed .

In addition , the Regulations Act prescribes that a regulation that is not published is not valid as against a person who has not had actual notice thereof unless a Minister or the Cabinet on a particu lar matter specific ally dispenses with the necessity of publi cation. Under

Section 57 (1) of the Act , the Comm ission is given the power to pass regulations concerning many matters affecti ng the emp loyment of Civi l Servants . And quite frankly , gentlemen , w e think this is a shocking situation. We do n't know the reason why these particular Actions would be, and the regulations would be, excepted from the application of The Regulat ions Act. If it is proposed to dispense with the necessity of publishing regulations pursuant to The Regulations Act, then the Association respectfully submi ts that

Section 57 (2) of the Act be amended to require the Comm ission to hold a public hearing respecting the proposed regulation and not to leave it to the discretion of the Comm ission to hold or not to hold such a public hearin g. Em ployees in the Civil Service and particularly the Association as their bargaining agent should at least have the right to be present and make subm issions with respect to the ma king of regulations which may affect the terms and conditions of emp loymen t of em ployees in the Civil Service .

In fact , the Association takes the view that all terms and condi tions of employment should be the subj ect of collective bargaining. Furthermo re, when considering this amendmen t you must read it in the light of the proposed amendm ents referred to, now we 've done that. Thus the Bill would not only grant tremen dous executive control but would also pr event or at least drastically inhibit the opportunity of any interested party to know the man ner in which such control was being exercised . Item 9,

Section 14 -

Section 14 amends

Section 61 (1) (

a) of the Act in that the Executive Council or a Commi ttee thereof (i .e. Management Comm ittee) is given the power to adm inister all those Sections which it presently admini sters under the Act in addition to the proposed Sections dealing with categories of employmen t, the pay of an emp loyee where the classification has changed pursuant to the proposed

Section 9 (1 :1 ), thus further limi ting the powers of the Comm ission . With respect to ref erence to subsections 5( 4) and 5( 5) that should be respect , the refere nce to subsections 5( 4) and 5(5) is obscure and needs to be clarified. There is no reference in these proposed subsections to the Comm ission. Perhaps it might be worthwhile to read the existing

section 61 so that it follows "Notwithstanding this or any other Act of the Legislature, the Executive Council or a Commi ttee thereof shall admini ster the presently agreed

Section 7, 8, 10 , 11 , 12 , 20 and 22 " and it was proposed that 5 (4) and 5 (5) as in the Bill be put in that

section and all 5 (4) and 5 (5) deal with are these new classifications and the definit ions of the classifications and as I indicate the Com mission goes on to say "And where in those Sections or subsections reference is made to the Comm ission the refere nce shall be deemed to be to the Executive Council etc." and I really don't know the background or the purpose of that . I see 5 (4) says"a person may be em ployed in the Civil Service in any one of the following categories of employmen t: (

a) Regular (

b) Temporary (

c) Departmental ." Now I would hope that when it says the Executive Council admin ister that , that 's the whole of the Civil Service and the same 5 (5) "The categories of emp loym ent men tioned in subsection (4) are defined as follows" and I don't know whether it 's an oversight or what the purpose is , but I sure hope that it doesn't ju st say everybody in those categories now are administered by the Executive Council, because we don't ••• the Act, and 9 (1.1) that of course deals , specif ically mentions the Lieutenant Governor in-Counc

Document details

Collection	Manitoba — Debates (Hansard)
Citation	30-1-la1
Type	hansard
Volume / chapter	30th 1st hansardpdf la1.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	e155e873a2e4a09d74ac261ce48fa3e6822ddc06

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