Manitoba Committee Hansard — 26 July 1980 (Legislative Affairs Committee, Sitting 12, 31st Legislature, 4th Session)

31-4-la12

Manitoba — Debates (Hansard)

ISSN 0542-5492 Fourth Session - Thirty-First Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE ON LAW AMENDMENTS 29 Elizabeth 11 Published under the authority of The Honourable Harry E. Graham Speaker SATURDAY, 26th JULY, 1980, 10:00 a.m. Printed by The Office of The Queen ·s Printer. Province of Manitoba

MANITOBA LEGISLATIVE ASSEMBL V Thirty - First Legislature Members, Constituencies and Political Affiliation Name ADAM, A. R. (Pete) ANDERSON, Bob BANMAN, Hon. Robert (Bob) BARROW, Tom BLAKE, David BOSTROM, Harvey BOYCE, J. R. (Bud) BROWN, Arnold CHERNIACK, Q.C., Saul CORRIN, Brian COSENS, Hon. Keith A. COWAN, Jay CRAIK, Hon. Donald W. DESJARDINS, Laurent L. DOERN, Russell DOMINO, Len DOWNEV, Hon. Jim DRIEDGER, Albert EINARSON, Henry J. ENNS, Hon. Harry J. EVANS, Leonard S. FERGUSON, James R. FILMON, Gary FOX, Peter GALBRAITH, Jim GOURLAV,Hon. Doug GRAHAM, Hon. Harry E.

GREEN, Q.C., Sidney HANUSCHAK, Ben HYDE, Lloyd G. JENKINS, William JOHNSTON, Hon. J. Frank JORGENSON, Hon. Warner H. KOVNATS, Abe L VON, Hon. Sterling R. MacMASTER,Hon.Ken MALINOWSKI, Donald McBRYDE, Ronald McGILL, Hon. Edward McGREGOR, Morris McKENZIE, J. Wally MERCIER, Q.C., Hon. Gerald W. J. MILLER, Saul A. MINAKER, Hon. George ORCHARD, Hon. Donald PARASIUK, Wilson PAWLEY, Q.C., Howard PRICE, Hon. Norma RANSOM, Hon. Brian SCHROEDER, Vie SHERMAN, Hon. L. R. (Bud) STEEN, Warren URUSKI, Billie USKIW, Samuel WALDING, D. James WESTBURY, June WILSON, Robert G. Constituency Ste.

Rose Springfield La Verendrye Flin Flon Minnedosa Rupertsland Winnipeg Centre Rhineland St. Johns Wellington Gimli Churchill Aiel St. Boniface Elmwood St. Matthews Arthur Emerson Rock Lake Lakeside Brandon East Glad stone River Heights Kildonan Dauphin Swan River Birtle-Russell lnkster Burrows Portage la Prairie Logan Sturgeon Creek Morris Radisson Charleswood Thompson Point Douglas The Pas Brandon West Virden Roblin Os borne Seven Oaks St. James Pembina Transcona Selkirk Assiniboia Souris-Killarney Rossmere Fort Garry Crescentwood St. George Lac du Bonnet St.

Vital Fort Rouge Wolseley Party NDP PC PC NDP PC NDP NDP PC NDP NDP PC NDP PC NDP NDP PC PC PC PC PC NDP PC PC NDP PC PC PC lnd NDP PC NDP PC PC PC PC PC NDP NDP PC PC PC PC NDP PC PC NDP NDP PC PC NDP PC PC NDP NDP NDP Lib PC

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON LAW AMENDMENTS Saturday, 26 July, 1980. Time - 10:00 a.m. CHAIRMAN - MR. GARY FILMON (River Heights). BILL NO. 56

AN ACT TO AMEND THE CHILD WELFARE ACT MR. CHAIRMAN: There being a quorum present, I'll call to order the meeting of the Law Amendments commit tee. We begin this morning by hearing delegations on Bills 56, 10 3, 10 7 and 11 4. I have a list of speakers and we'll begin on Bill No. 56. I have a list of speakers here, but if anyone's name is not on the list, there will still be an opportunity for them to speak. We'll begin by hearing delegations on Bill No. 56,

An Act to amend The Child Welfare Act and begin by asking for the representative of the Family Law Su bsection, Manitoba Bar Associa tion, Robin Diamond, to come forward, please. Robin Diamond? If not, the second speaker I have indicated as Mrs. Krause of Legal Aid. MRS. KRAUSE: Good morning, Mr. Chairman. My name is Krause and I'm appearing today in the dual capacity of a lawyer with Legal Aid Manitoba and as a member of the Legal Aid Lawyers Association, the representative of attorneys and articling students emp loyed throughout the province of Manitoba by the Legal Aid Services Society of Manitoba. MR.

CHAIRMAN: Mr. Krause, I'm not sure if the rest of the committee are having the same difficulty hearing you that I am. Could you just go a little closer to the microphone, please? MRS. KRAUSE: Yes. MR. CHAIRMAN: Thank you. MRS. KRAUSE: The following brief is the result of discussions by a number of members of the Legal Aid Lawyers Association expressing their concerns about some of the amendments before you. Our brie f will be with respect to the amend ments concerning the sections dealing with child protection.

A substantial number of clients serviced by Legal Aid Manitoba will be affected by these amendments and we'r e often called upon to represent them before the courts with respect to applications made by Childr en's Aid Society for the permanent or temporary wardship of the children. Because of this, we feel that we are in a position to make a useful contribution to any discussions pertaining to the amendment of the leg islation which governs the welfare of children. Can everybody hear me? Is that all right now? MR. CHAIRMAN: Yes, thank you. MRS.

KRAUSE: We therefore submit the following comments regarding Bill 56 in the Act to amend The Child Welfare Act, the new subsection 25(3)(b). The proposed new

section 25(3)(

b) allows for a complete waiver of notice at any time up to and including the da te and time of the actu al heari ng of the application, notwithstanding that the hearing may be in prog ress This new

section would mean that a hearing to make a child a temporary or permanent ward of Children's Aid Society could be commenced without the parents or the persons entitled to receive notice having any knowledge of it. 1t also means that it will be sufficient for Children's Aid Society to obtain a waiver of notice and file it in court after the case has already been presented. We feel that it would be highly prejudicial against a parent to allow proceedings of this nature to be commenced without them having notice of it.

In most of these cases we are dealing with people who are easily intimida ted and ready to sign anything given to them by persons seemingly in authority. 1t is easily conceivable that a parent presented with a waiver of notice un der the se circums tances will get the im pression tha t it is too la te to op pose the application or to consult with somebody about what steps to take. At that point, people might feel that it is too late to do anything about it and sign whatever they are asked to sign.

But we not only feel that this amendment would prejudice the people concerned, but that it may very well turn out to be quite costly. If people waive the notice because they don't know exactly what they are signing, they will probably later on go to a lawyer and have the situation explained to them. If there is some doubt as to whether or not effective notice was given, the lawyer will have to advise the client of the possibility of an appeal to the Court of Appeal. This, of cou rse, will result in additional cost to the taxpayer, since almost all Children's Aid cases are legal aid cases.

We th erefore rec ommend that

section 25(3)(

b) should not be included in the Act and that it should be retained in its present form. Amendments to

Section 25(9): This amendment would permit that the discretion to decide whether or not to hold an examination for discovery would be placed into the hands of judges rather than into the hands of counsellors presenting the case before the court. In exercising this discretion, a judge must take into consi deration the 19 79 Ma nitob a Cour t of Appeal decision in the Childrens Aid and Molyneaux The decision was delivered by Mr. Justice Monnin, who states: cases of this nature should be disposed of rapidly in the interests of parents and in the interests of children.

Once started, the case should continue to conclusion as rapidly as possible and not be pushed from week to week and month to month. This has been interpreted by Provincial Court judges tha t in cases of this natur e they canno t allo w adjournm ents and will certai nly bear on their decision whether or not to adjourn a hearing and make an order for the examination of discovery. 223

Saturday, 26 July, 1980 Ju dges will have to take into account the directions given to them by the Court of Appeal. This would mean that they will have to sacrifice justice to admin istrative efficiency.

We ask that you consider that the right to an examination for discovery is given to people in the case involving a 200.00 debt, but that when childrens lives are concerned, no such right will exist anymore. lt is our position that no more serious disposition is known in law than taking away a child permanently and that a parent should ha ve at least no less a right under th ese circums tances as she has in a case involving a 200 debt. There is also a practical disadvantage to that particular amendment. Very often, Childr ens' Aid cases take two or thr ee days in court.

If counsel is allowed to conduct an examination for discovery, it is very likely that there be an agreement on issues or even a settlement. This will significantly shorten the time required in court, or make it even unnecessary to go to cour t at all. On ce the right to an exam ina tion for dis covery is abolished, initially contested cases are more likely to go to court and will take more time to resolve. The purpose of discovery is for each party to an action to know the exact position of the opponent and the precise nature of every document likely to strengthen or weaken tha t position.

As the amendments read now, the applicant or any other person affected by the application has a right to obtain particulars with respect to the application. However, it is to be noted that particulars serve a different purpose than discovery. Particulars before trial are required for greater clarity in defining the issues to be tried,

whereas discovery is to enable the opposite party to know what case he is called upon to meet, and in addition to simpli fy the trial by procuring admissions. We therefore strongly recommend that

Section 25 remain unamended in The Child Welfare Act. This is our submission, thank you very much. MR. CHAIRMAN: Thank you, Mrs. Krause. Are there any questions from the committee members? Mr. Corrin. MR . BRIAN CORRIN (Wellington): Yes, my question to the delega te is with respect to whether or not there was any consultation as between your association and the government in this regard. MRS. KRAUSE: No, Mr. Corrin, we only received notice that the commit tee would be sitting this morning, the re wasn' t sufficient time really to consult. MR.

CORRIN: Are you telling us then that Legal Aid lawyers were not consulted with respect to these provisions during the drafting stage of this particular bill? MRS. KRAUSE: I'm not aware of any consultation. MR. CORRIN: Do you have any idea wha t percentage of the cases involving child apprehension, Legal Aid has responsibility for. MRS. KRAUSE: I think it's almost 10 0 percent. lt doesn't mean that Legal Aid lawyers are counselling every case, but Legal Aid is appointing somebody to act in those cases. MR. CORRIN: Thank you. MR. CHAIRMAN: Thank you, Mrs. Krause.

Our next representation is from the Manitoba Association for Rights and Liberties. I have Norman Rosen baum, also Mr . Arnold. MR. A. ARNOLD: I'm just going to say a few words, Mr. Chairman, by way of introduction. This brief has been prepared, as usual, by our Legislative Review Commit tee in consultation with members of our Childrens' Concern Group, which has had an active concern with child rens' rights for some time and continues to maintain a watching brief on all matters to deal with childr ens' rig hts.

The brief will be presented by my colleague, Norman Rosenbaum, who was serving us in a research capacity and who is speaking on behalf of these two comm ittees and our association, and I request your careful attention to his submission. Thank you. MR. NORMAN ROSENB AUM: The Manitoba Association for Rights and Liberties applauds the acknowledgement given in Bill 56 to the principle that the rights of a father and mother, whether or not they are or have been married to each other, to the custody and control of their children are joint and equal.

The Associa tion further commends the statutory support of the "best interests of the child" test in parental applications for gu ardianship, custody and access. The Association wishes to express its concern however, with the continued statutory provision of the unmarried mother as guardian of the child. The Association is concerned that the courts, in custody disputes between mothers and fathers of illegi timate children, will not apply the "best interests of the child" test as the paramount and prima ry consideration, but will continue to favor prima facie rights of mothers to custody of children.

True, the proposed amendment to

Section 10 5 provides that the rights of even unmarried parents to custody and control of their children are joint, but

Section 10 5 grants discretion to the courts to order sole custody. In fact, the courts are currently greatly averse to awards of join t custody, even wher e issues of custody involve legitimate children. While the test of the "best interests of the child" is suppor ted by the courts in custody battles involving legitimate children, the courts in Manitoba, citing the Child Welfare Act provision of unmarried mothers as guardians of illegiti mate children, favor, as a rule of law, the prima facie right of the mother over the father to custody. The Associ ation objects tha t the provision of guardianship is retained in Bill 56. lt mi gh t be countered that in Bill 56,

section 14, condition (b), amending subsection 10 5 of the Child Welfare Act, provides for joint custody to the parents of legitimate or illegi timate children. lt might be further argued that the proposed subsection 10 7(3) provides that 224

Saturday, 26 July, 1980 "either parent may make an application under this part (

a) for the guardianship or custody of the child ... and in granting or refusing the application the judge shall in all cases consider and be guided by the best interests of the child." lt is pointed out, however, that this provision indicates only that the best interests of the child are a consideration and guide. We suggest that with the guardianship provisions retained, the courts are not going to take the best inte rests test as the paramount consideration in custody cases involving illegitimate children. On this note, may we point out the case of Wong v.

Graham, involving custody of an illegitimate child. lt was suggested by counsel to the court, that the Family Maintenance Act provision of the parents of illegitima te children to be treated as if married, for the purposes of the Family Maintenance Act, equali zed their rights to custody. Thus, it was argued, the mother should not have a prima facie right of custody, but that the "best interests of the child" were paramou nt.

This argument was not accepted by the court, which indicated that as long as the Child Welfare Act provided that the unm arried mother was constituted guardian, her prima facie right to custody was the rule. In conclusion, the Associa tion argues for mo di ficat ion of certain provisions in the Child Welfare Act constituting the mother of an illegitimate child the guardian of that child until another person is appointed guardian by a court. We argue this modi ficat ion to enshrine the test of the "b est interests of the child" as the paramount consideration in issues of the custody of illegitimate children. MR.

CHAIRMAN: Thank you, Mr . Rosenbaum. Any questions from the comm ittee? Mr . Corrin. MR. CORRIN: Mr . Rosenbaum, I'm just wondering if, having heard your presentation, and I respect it and I must admit I share your concerns, because I initially proposed a private members' resolution that would have brought into effect this particular legisla tion and then it was followed by this bill, several months later. I have a bit of a problem with respect, I suppose, to the technical detail respect ing the defining of guardianship rights.

How do you think we could proceed in this very difficult area, the common-law area, if th ere wasn't a leg islativ e attem pt to designate one parent or the other as a prima facie guard ian? I have some di fficulty because we'r e dealing with common-law relationships and I have no set point of view. I'd just like you to talk a bit about that. How do you see it as working in the absence of a prima facie presu mption? MR. ROSENBAUM: I think part of the problem may be th at the cur rent legislation constit utes the unmarried mother imme diately the guardian of the child.

I was thinking that perhaps that statute law could be amended to provide for a court hearing to constitute whoever is to be guardian, but not to provide for the mother as immediate guardian of the child. I think that might be an approach. Possibly as an ad hoc approach to the amendment of this Act, the

section 10 7(3) could be amended should provide the words "paramount consideration" at the end of

section (

a) so that

section (

a) would provide "that in granting or refusing the application of the judge, the judge shall in all cases consider and be guided by the best interests of the child as the paramount consideration". Now perhaps there will be stronger statutory language would convince judges in case law. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: Yes, I guess I'm wondering about the cases that may fall in the cracks. As I under stand it, The Family Maintenance Act makes provision for custody ord ers in comm on-law situations if the spouses have cohabited for a period of 12 months, is that correct? MR. ROSENBAUM: it's 12 months. MR.

CORRIN: What about situations where that particular time threshhold hasn't been attained? MR. ROSENB AUM: believe The Family Maintenance Act provisions provide for maintenance to begin with. They don't deal strictly with custody. MR. CORRIN: In all cases? MR. ROSENBAUM: I believe that if the relationship lasts le ss than 12 months, th ere is simply no provision for maintenance as if the parties were married. Now tha t is a problem of The Family Maintenance Act itself that I just referred to. The Family Maintenance Act is by way of indication in that particular case of Wong and Graham, of the

interpretation and statutory language of how strictly the courts interpret the guardianship provisions of The Child Welfare Act. MR. CORRIN: But in terms of the interim custody of the child, in the case of the parents who haven't cohabited for 12 months, you feel that there's no need to make a prima facie presumption in favour of one of the parents. You feel that there's a way that we can assure that there can be a fairly immediate review of custody and guardianship in the absence of that? MR.

ROSENBAUM: I believe there should be in terms of custody of childr en and I really do think that giving the mother the prima facie right as a rule of law is an inequitable principle to begin with. I believe there could be provision for a hearing, for example, to cons titute whatever party is necessar y as guar dian. But to simply constitute the unm arried mother as imme diately the guardian of the child seems to be fairly inequitable and it seems to be quite regressive. MR. CHAIRMAN: Thank you. Mrs. Westbury. MRS. JUNE WESTBURV: Thank you, Mr. Chairperson. Will you ple ase corr ect me if I'm wrong?

Is it not true that in law, the parents of the child are presumed to be the married couple, the husband of the mother is presumed to be the father whether in fact he is the father or not? Does this 225

Saturday, 26 July, 1980 apply in the present legislation? What I'm trying to say is, it's easier to prove the identity of the mother than it is to prove the identity of the father, which I understand is not proveable? MR. ROSENBAUM: Sur ely ther e are affiliation proceedings under The Child Welfare Act, currently. MRS. WESTBURV: lt is not possible, however, to prove that somebody is the father, is it? You can prove they're not the father, but you can't prove that somebody is the father, can you? MR. ROSENBAUM: Yes. MRS. WESTBURV: You can? MR. ROSENB AUM: You cannot prove tha t the person is the father.

You can't prove. MRS. WESTBURV: You cannot prove. MR. ROSENBAUM: Yes. So you can't prove that a person is not the father. MRS. WESTBURV: You're right. Right. But with a married couple, the married couple is presumed to be the parents of the child, whether in fact the father is the parent or not, so that where a married couple where custody is concerned, the husband has equal rights to the wife, whether in fact he is the father or not, and I'm just wondering how that carries on into the illegiti mate child's position.

I say this in another connection, but it's a wise man who knows his own father, they say, and I'm just concerned about the fact that sometimes, especially with very youn g women and, in fact children, they're inclined to be defenceless and may easily be taken advantage of, their emotions easily played upon and especially in a situation where there is an illegiti mate child and perh aps the mother has no resources and I'm concerned about the fact that the mother's rights might be di ssipated altogether in our anxiety to provide equal rights for the father. MR. ROSENB AUM: I feel tha t those are valid concerns.

However, I believe that the principle of the quality is of itself somewhat of a necessary principle to enshrine, I think tha t there are problems of practice in terms of rela tive positions of the unma rried mother and the putative father. However, I feel that in cases of that sort, that court hearings are a necessary device and surely if such is the case, then court hearings would also be a valid vehicle for determination of custody.

And given the fact that in current court hearings custody is really a prima facie right of the unmarried mother, I believe that there is a problem of entering the court hearing with the judicial determination of custody and yet how can the positions of the parties be at an equal in the sense of custody? MRS. WESTBURV: Mr.

Chairperson, I think if I may ask this question in the form of expressing my own concern , which is what worries me is tha t the prosp erity of the father might become the prime consideration of the court, the father having perhaps being in a better position to pursue a career than the mother because of the pregnancy, the birth and the care of the child, and that after a period of a couple of years, perhaps, the father, because he is more prosperous, may be considered to have a firmer claim on the child, it being considered that in the best int erests of the child, it's better to live in a more prosperous home or something like that.

I suppos e you would say that that would depend on the judge and we'd have to have faith in our judges to take more than that into considerati on. That's really what I'm worried about here. MR. ROSENBAUM: And again, we are arguing for the disenshrinement of the prima facie rights of the mother as a rule of law. In practice, it's still a question of fact whether the interest of the child will be better taken care of in the custody of the mother or the father. MRS. WESTBURV: I accept that ... MR. CHAIRMAN: Excuse me, Mrs. Westbury, with apologies.

We're getting into debating of an issue that really is well defined in the bill and I think we're asking Mr. Rosenbaum to deba te something that should more properly be debated by committee, I believe. MRS. WESTBURV: Well, Mr. Chairperson, I did preface my remark by sayi ng, I'm as king the que stion ... MR. CHAIRMAN: To express your own concern, yes. MRS. WESTBURV: His response is what I was looking for. That's all. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: Still, I want to under stand your point, because I think you do make a good point and I think we should all appreciate it.

Are you saying then, do we agree that common-law parents, if they have cohabited for 12 months, essentially have a quality in law today? MR. ROSENB AUM: In terms of qua li ty of responsibility, not maintenance. MR. CORRIN: Custody rights. Then you say not with respect to custody rights? I just want to clarify that. MR. ROSENBAUM: I was using the example of the Family Maintenance Act and the particular case that dealt with it as an example of the court's

interpretation of a particular

section of the Child Welfare Act, of the strength of judicial thinking on the guardianship provisions of The Child Welfare Act. Currently there is an equality of responsibil ity for mai ntenance of illegit ima te child ren vis-a-vis un married parents, but that doe sn't ind icate an equality of custody rights, for example, of unmarried parents who have been cohabiting for 12 months. That is not the case currently. MR. CORRIN: Okay. I und erstand that point. That's clarified. With respect then to your concern, do you think that an amendment that would provide for interim review - as far as I can see there is no 226

Saturday, 26 July, 1980 provision in this legislation that provides for interim review of guardianship, there's a prima facie presumption of guardianship in favour of the mother. MR. ROSENBAUM: Yes. MR. CORRIN: So do you think in lieu of that, if there were a provision for interim review, that that would be satisfactory? MR. ROSENBAUM: I still don't think it would really go to the root of the issue of guardianship and custody and how the issue of custody flows over the guardianship provisions of the Act.

Perhaps, if there was a stipu lation of co nsideration of the best interests of the child, as a paramount consideration, explicitly in the legislation, that may be a remedy, but I don't believe that interim review would be. I think that the courts would still be stuck with the interpreation of the cus tody and guar di anship provisions of this Act. MR. CORRIN: What would be your opinion if it was sugge sted that 10 7(1) simply be deleted from the Act? What would the effect of that be? If there was a provision for interim review and

section 10 7( 1) was taken out, what would the effect of that be? MR. ROSENBAUM: I believe that there would have to be a court hearing to award guardianship in that case, an immed iate heari ng, or rat her before guardianship would be awarded to any of the parties, there would be a court hearing. Currently in 10 7( 1) the mother is constituted immed iately the guardian, until a court appoints another guardian. With the 10 7 deleted, it would simply - I believe there would have to be a requirement where the parties would probably have to go to court to establish who would be the guardian of the child. MR.

CORRIN: Through you , Mr. Ch airman, my problem right now is - we were up very late last night, so I've got a lot of problems. We're operating on five or six hours sleep. I'm concerned about situations where children would be left without a gu ardian . You kn ow, I'm wondering if th at can happen.

If you can assure us that that can't happen in law, if you're tell ing us that there's sufficient protection in this regard, in other words, if a child, using an example, if a child needs medical attention, a child of a com mo n-law union need medic al attention and there's no definitive guardianship order in place, can you assure us that that child's interests could be protected? Could a common-law parent give an instruction, for instance, to a physician to perform an operation? MR.

ROSENBAUM: From my reading of the case law, and given that other provinces don't have this explicit provision of guardianship, I believe that the problem of decisions regarding the child are not difficult, in the sense that where the child is in the custody of a particular party, that party does have the right to make the particular decisions as to the child. The child will still be in the care and custody of a particular person. In practice it may well be the unmarried mother.

In that case I believe - I'm speculating now, but I believe that the unm arried mother would still have the right to ordering or to direction of certain treatments, etc., for the child. I don't believe that it will be a great problem if this particular guardianship provision was deleted. I still think that the person who has the fact of custody of the child would have the right to direction of major decisions regarding the child. MR. CHAIRMAN: Mrs. Westbury. MRS. WESTBURY: Yes, Mr .

Chairp erson, I'm getting more confused as we go on. 107 (1) says certain persons as guardians of child, an unm arried woman, or a widow or a divorced woman, who is the mother of a child. Is it being sugg ested that somebody's whose husband dies before a child is born has fewer rights than somebody whos e husband is still alive when the child is born? MR . ROSENBAUM: think you may be misinterpreting the section. I believe where the child is born after nine months, after, for example, the widow's husband had died. MRS. WESTBURY: Where does it say that, please. MR. ROSENBAUM: I believe that's referred to in

Section 105 of the original Act. MRS. WESTBURY: 105. But 10 7(1) doesn't say that, or any part of 107 doesn't say that. MR. ROSENBAUM: I believe that they are referring to an existing

section of the existing Child Welfare Act when they indicate that. MRS. WESTBURY: Mr. Chairperson, it doesn't say that and if 10 7 is suggesting that ... MR. CHAIRMAN: We're into debate again and with respect, we do have Legal Counsel here to answer those questions and you're asking Mr . Rosenbaum, who may not be as familiar as Legal Counsel might be, having drafted this, for opinions on it and I think that perhaps we've elicited as much information as we could from him and it would be proper to ask those questions later of Legal Counsel who are here with us to answer those questions. MRS. WESTBURY: Well, Mr.

Chairperson, of course I accept your ruling. Its just that certain questions were allowed which made me believe that to happen and I'm trying to elicit the information of what has been said. MR. CHAIRMAN: The delegate did indicate that he wasn't quite sure of the legislation from his readings. So perhaps we should ask somebody who might be more sure of it when we get to that on the clause-by clause consideration. Mr. Corrin. MR. CORRIN: Maybe you could comment on this que stion, Mr. Rosen baum.

Unde r this leg islation then, if a child were with its father and the father and the mother were not together, and as I read it the mother would be constituted as the guardian of the child, can you tell us what would happen if the child needed medical attention? Given the fact that there 227

Saturday, 26 July, 1980 seems to be a presumption in favour of the mother and that prima facie guardianship is conferred on the mother, what effect would that have on the best interests of the child should it be necessary that the father exercise guardianship rights? MR. ROSENBAUM: I don't believe that the father could immed iately exercise gu ardianship rights. He would have to go through a court, I suppose, to be able to make the decision as to medical attention, even if the mother was to be absent and could not be located. MR. CORRIN: So what's your opinion of that? MR.

ROSENBAUM: I believe that there are certain problems with that, for instance, getting in touch with the mother in that circumstance and the father not being able to immedia tely make an im po rtant decision regarding the child and medical attention. MR. CHAIRMAN: Thank you very much. Thank you, Mr. Rosenbaum. We have a representative from Walsh, Prober and Company. Do we have either Mr. Yard or Mr. Walsh here? Your name is, sir? MR. DOUGLAS YARD: Mr . Chairman, there's only a few comments that I wanted to make with respect to Bill 56. My name is Douglas Yard.

In part my comments deal with what the bill doesn't contain and in part they deal with what it does contain. The bill amends The Child Welfare Act, a major piece of legislation in this jurisdic tion, and it's a piece of legislation which has been the subject of both hilarity and consternation at the same time, even in the Manitoba Court of Appeal as recently as last month and over the last three years that I have been having to deal with it, and it's in need of major revision in many areas, if not only in terms of housekee ping, also in terms of policy.

This particular piece of legislation that purports to amend it does only a small part of what's necessary to deal with a major problem. lt's unfortunate that the bill itself has come to the attention of many people who deal with it at such a late stage that it's almost impossible to make a reasonable presentation as to the bill itself.

I happen to be appearing today on instructions from our firm's client, The Childrens Aid Society of Winnipeg, who deal with this bill on a daily basis and process hundr eds of cases through the courts every week on the basis of the legislation and we've only been aware of the fact that the bill was proceeding for a matter of a couple of weeks and that's the extent to which representations have been able to be thought through in a careful way. With respect to some of the things that are in the re none theless, I point out tha t th ere's an amendment to

Section 25(9 ) the Examination for Discovery procedure which, based on the experience of our firm, which I say to you does between 75 and 80 percent of all applications under

Part Ill of The Child Welfare Act in this province, that we processed 75 to 80 percent of those through the court by virtue of The Childrens Aid Society of Winnipeg, and it has never been our experience that the privilege that litigants have to use Examination for Discovery has ever been abused by parents, nor has it ever been our experience that the int erests or rights of children have been significantly delayed or denied as a result of a parent having a right to dis cover us and find out what our case is.

I agree with the subm ission made by Miss Krause with respect to that particular provision and that is that parents, in my mind, ought to have a right to examine for discovery when it's contempla ted that their child is going to be taken away forever.

Even when we ha ve a case where we' re seeking a temporary order, it's a pretty serious matter to talk about taking a child out of the home of a parent for a period of months or years, a parent ought to know what case is going to be presented against him and while in practice, particular share that information in great detail, a parent who chooses to discover ought to have that right.

I had a chance to talk to some people in the Attorney-General's department about that particular amendment and their experience appears in some locations in the province to have been different from ours insofar as perhaps counsel have taken more advantage of the discovery than they appear to in Winnip eg. But it's our position that the discovery ought to be available for parents in that kind of a serious matter.

I don't think that in the hundr eds of cases tht are processed through our office under that part of the Act every year, we have more than a half-a-dozen examinations for discovery each year, so it's not used that much, but in the cases where it is used, it's a right that is an impo rtant one. That's the only particular

section I intend to deal with in terms of what appear to be housekeeping amendments that basically deal with

Part Ill of The Child Welfare Act. The others are housekeeping in nature and appear to make things a little bit easier from a procedure point of view, and they're welcome.

But there are two other parts of the Act that are also being de alt with here tha t I think affect the communi ty generally and th ere are some major policy provisions being proposed in this bill which, as I say, notification to people involved has not been long and there are policy amendments that have serious ramifications for the fabric of society in a large way, an d I refer firstly, to the one that deals with the purpor ted attempt to make the best interest a test in all cases dealing with children, even where the child is illegitima te.

The law has been since Vanden berg and Guimond in the Manitoba Court of Appeal here in 19 60s and since two similar cases in the Supreme Court in the same decade, that natural parents or, in the absence of married natural parents, a single mother have prima facie rights and those are rights that have been recognized in the common law for centuries now and they've been recognized for very good reason; and to advance a proposal that is going to elevate persons wh o have not seen fit to create a legal rela tionship between themsel ves and the mother onto the same footing as the mother, without a serious discussion as to the policy ramifications of that, in my submi ssion is a hasty decision and it ought to be something that is only done after a very long and serious discussion about whether it's a good idea or not.

There are certainly some serious problems, as was seen from the questions posed by Mr. Corrin to the last speaker, as to what would result in various 228

Saturday, 26 July, 1980 circumstances if that arose. An example, if you look at

Part Ill of The Child Welfare Act dealing with children in need of protection, we can genera lly ascertain when a chil d is apprehended who his mother is. We often spend months and years trying to ascertain who his father is and end up serving six or eight different men hoping that they will come forward and state whether they allege they are a father or not so that we can, with some degree of certainty, try to pin down who the potential people are.

One can see circumstances where again it is a matter of proof, where we are going to have a num ber of people involved making claims with respect to the child, all of them alleg ing that they are fathers, and that can happen now, but without the prima facie right of the mother to be considered the guardian, it is going to be a very different situation. So it is my submission to the comm ittee that that kind of an amendment that deals with a major policy issue shouldn't be processed without serious and long debate on the policy ramifications.

I don't know if the Committee has information about the tests that are being applied across the country in the various provinces. Some provinces are dealing with cases on the basis of best interest and many others are dealing with cases still on the basis of prima facie right s of natu ral parents, and in particular, mothers of illegitimate children, and that's been the subject of recent comment in the Manitoba Cour t of Ap peal by Mr . Ju stice O'Sullivan, as recently as last year, in a case by the name of Delvenne and Nabe.

So my submis sion is that that's a ma jor policy consi deration th at shouldn't be processed too hastily. The second area, with respect to policy which I wish to add ress briefly, is the qu est ion of the adoption register and the issue of confidentiality. Because of the shortness of time, I've only had a chance to consult briefly with the people that I deal with in the adoption areas, but one of the major concerns that they have with respect to any piece of legislation is that the confidentiality of the adoption process be maintained.

Adoptive parents are a major resource to children who are wards of the state, and thats a resource that we want to foster and protect. And many of those resources consider that their confidentialty to be a major part of the decision to proceed with adoption.

And any legislation that is going to have any effect on the confidentiality of the adopted child's origin, working both ways, both for the child and for the adoptive parents, should be very carefully considered, and each word of it should be carefully considered, because once you embark on a new direction in a statute, you're going to have lawyers sitting down and dissecting it and finding ways to evade perhaps what you consider to be the spirit of that and it's very like ly there's going to be cases come up for the spirit that you intend here today may be avoided.

So I'm suggesting that again, when you're embarking on a major policy direction such as tha t, tha t it should be done only in consultation with the professionals involved and that their concerns regarding confidentiality ought to be expressed and protected. Those are all the comments I wanted to make on the legislati on. MR. CHAIRMAN: Thank you very much, Mr. Yard. Mr . Mercier. HON. GERALD W. J. MERCIER (Osborne): Mr. Yard, on

Section 25(4X 1) that's proposed in the Act, in you r view and your experience, would you consider this to be an appropriate authority for a judge to have to expedite one of these children's cases. For example, in the case of a situation which will allow the court to dispense with service on a parent who has never been involved with a child. MR. YARD: The court now has a power to dispense with notice upon persons affected by the applica tion. That's contained in the exist ing child welfare legisl ati on.

The onl y dif ference between what's proposed now as 25(4. 1) and what exists now as 25(4.1) appears to be the deletion of the words "and the agency is un able to effect service upon the person required to be served with a notice." There are some words that are deleted from the current 25(4.1) . The net effect appears to be that it's no longer going to be the test that you can't serve and it's going to be some other test that the judge is going to be called upon to apply. I don't know what test the judges will apply for that appears to be the only distinction between those two sections. MR.

MERCIER: Do you agree or dis agree with having that

Section in? MR. YARD: My own opinion is that it is a useful Section. lt frequently happens that because of the definition of parent, which includes persons in loco parentis, that we end with a series of gentlemen who have been in the house over a number of years and we have a six-year old child who has had perhaps a succession of four gentlemen in the house for a numb er of months.

Each of those men has to be served and some of them have never shown or expressed interest since their departure three and four years hence, and as a result that power is a useful one to save firstly, the investigative resources of going around the country and attempting to find the se men and gi ve them a notice, which they generally don't respond to at any rate, because they are not interested, or alternativ ely advertising in newspapers, which is a pretty expensive proposition, so tha t th ere came be some sem blance of an attempt to find them . MR. MERCIER: Mr. Chairman, through you to Mr. Yard, on

Section 25(9), the one about particulars and exam ination for dis covery. I ap precia te your comment that in your experience, at least in the city of Winnipeg, you haven't had any difficulty with this that you are aware of. I believe you also indicated you are aware that in another area of the province the right to examination for discovery is being asked for apparently on a consistent basis. Would you not agree that these kinds of cases are cases th at should be de alt with as qu ic kly as possible and in fact I believe there has been some criticism of the delay in some of these case in the Court of Appeal?

Would you not agree that the amendment as it stands, which provides for a right to obtain particulars, and a right to apply to a judge for an examination for discovery if the party is not 229

Saturday, 26 July, 1980 satisfied with the particulars that ha ve been provided, is it sufficient protect ion for litigants, considering all the special ramifications of these kinds of cases? MR. YARD: If expedition is the value that we want to achieve as a result of this amendment, I think that it can happen, particularly in rural areas, that you are going to get delay as opposed to expedition as a result of the amendment, because counsel will ask counsel for the agency, may I have my particulars?

You gi ve him wha t he wants or what you are prepared to give him and you think it is full, and he will ask for more and you will give more. He'll say, I don't think it is enough, I want to examine, and the counsel for the agency will say, well, you have to go and ask a judge about that, when is the next circuit into Thompson, Manitoba or Flin Flon, Manitoba?

And so your counsel has to go up to argue a motion as to whether there should be an examination for discovery or not, and as a result of that there will be a determination either yes or no, and in either case there is going to be a further period of time before you are going to get the hearing on.

Whereas, by adopting the Queen's Bench practice and having it as a matter of right, the matter is on a court docket and as soon as particulars are provided you are required to set a date for the hearing. If you are going to examine for discovery you have to state your intentions at that point and get your appointment served and discovery should take place within ten days to two weeks, so that you have a procedure in place that doesn't involve going to court and arguing about things. If you want to do it, get it done, and let's go to court.

So that it doesn't delay all that much, but the actually going to court and arguing about whether you should have one or not will result in hig her legal expen ses for the agencies and it will also results in some more delay. MR. MERCIER: So in your view the

section should be deleted? MR. YARD: In my vie w it is unnecessary and dis covery hasn't been abus ed and this could be abused moreso than the current procedure. MR. MERCIER: Okay. MR. CHAIRMAN: Mr. Minaker. HON. GEORGE MINAKER (St. James): Mr. Chairman, I was just going to ask Mr . Yard his concern about equal rights to potential guardianship of unmarried couples, would not

Section 10 7( 1) that we have put into the Act in this Bill protect that situation where automati cally the mother has the rights to the guardianship until it is contested by the natural parents? Would that not cover that concern that you have with regards to . . . MR . YARD: Tha t covers the conc ern at th at particul ar po int. You don't ha ve a void in guardianship. MR. MINAKER: Or you woul dn't get continuous court cases coming forward by the father trying to claim the guardianship at that point. MR.

YARD: The only effect that these particular amendments appear to have on the law as it exists now, is that the test that the court will be applying when there is a hearing will be a different test.

The test currently is that the mother has to be shown to have abandon ed the chi ld or so mi scon duc ted herself as to not be entitled to custody any longer, and now they are going to say, it is the best interests test. lt is a different test that you are going to have to meet, but that is a test, the test that now exists, that has grown up over a long period of time, and it has good reason for being in effect in the way that it is. lt is a policy decision, it is certainly not a decision to be made by lawyers and people of that kind who deal with the practicalities of things. lt is a major policy decision and it is going to have some serious impact, in my view, on society generally.

Child caring agencies, just as an example, have a real comm itment to mothers and to helping mothers keep their children, particularly unmarried mothers, and that focus, I think, has come about in part at least because of the knowledge that the law is the way it is. lt is a major policy departure. MR. MINAKER: Will it not be then the onus on the father to prove that the mother is not providing in the best interests of the child, so that even though it is a change, as you indicate, it will still have to be the father to prove it wrong that the mother is not providing in the best interests the care of the child.

MR. YARD: Once you adopt a test like the best interest, there is a multitude of factors that the courts have considered in all custody cases over periods of time, and if the mother has the status quo, that is, the child has been living with her and knows her, I would think that just from an evidentiary point of view there is going to be an onus upon any applicant, be it a grandparent or a comm on-law father to bring forth a fairly strong case, both in terms of her deficiency and in terms of his adequ acy. But the difference in the test is, in my mind, a significant thing. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: Mr.

Yard, I am hearing you sort of say two things. I am a bit confused, because in your original presentation you seemed to have a slightly different approach to 10 7 than you now do. Could you just tell us, first of all, I quess, do you approve of the concept embodi ed in 10 7(3) relative to equal rights based on the best interest test? Is tha t acceptable? MR. YARD: No, that is the test that . . . MR. CORRIN: You think that parents should have equal access to custody of their children if they are not married to each other? MR.

V ARD: No, I indicated and I repeat that it is my view that the test that exists now in law, that is that an unmarried mother or a mother of an illegitimate child has the right to custody of her child. Absent abandoment and absent conduct, so as to disentitle her, is the proper test as opposed to simply best interest. The court decisions over a period of time 230

Saturday, 26 July, 1980 have shown us, and there is a recent one in this ju risdic tion, Funk and Funk, by Provincial Ju dge Carr, that best interest is basically a balancing act. lt is like balance or probabilities, if it goes a little bit one way or a little bit the other way, that person wins. The distinction is that as against the natural mother, you have got to do more than just balance a little bit in your favour, you have got to weigh the scale right now.

I happen to think that as a matter of policy, that there is a good reason for that having been so in the past and it shouldn't be disruptd without serious policy discussion. MR. CORRIN: You are saying that you feel that with respect to "illegitima te children" that there should be a different test applied than there would be in the case of a legitimate child born in wedlock. MR. V ARD: That is true. MR. CORRIN: Could you explain why you feel that we should di scrimina te as agains t the class of children who were born out of wedlock? MR.

YARD: I don't see that that is discrimination against either the father or discrimina tion against the class of child born out of wedloc k. I think the law is that a child has a right to his natural parent, but in a case where we have a situation where there is only a mother who has legal obligations at birth for that child; we have a gentleman who is the father of the child who hasn't given his name to the child.

We have a mother who carried that child in her for a period of nine months and went through the process of birth and brought that child into the world, and yet that other individual has not seen fit to set forth himself and bring himself into legal relationship with the child. The Family Maintenance Act, after all, has provisions that at least orginally, at the birth of the child, don't operate in his favour against that father, that the law ought to come down on the side of the natural mother. MR.

CO RRIN: Wh at I don't un derstand and it seems a bit harsh, what you have done is have used sort of a very narrow case to make your point. Let's talk about the case that Mr. Rosenbaum raised , the Wong and Graham case, and the facts in Wong and Graham, where the parents have been together for some time, it is a established union very much like any other marital relationship. lt is a perfectly normal thing except that the parents chose not to actually HON. BRIAN RANSOM (Souris-Killarney): On a point of order, Mr. Chairman, I believe that we are get ting back into deba te ag ain. Mr.

Corrin is attempting to debate the point with the witness and I think that is out of order. MR. CORRIN: On the point of order, I am not attempting to de bate and I don't even think the witness thinks I am attempting to debate. What we are trying to do is find out how the law would apply, as it is drafted. HON. HARRY ENNS (Lakeside): No, that is not what we are trying to do. Mr. Chairman, on a point of order. That is precisely not what we are trying to do.

Our well-established rule around this Com mittee is that we ask and we receive delega tions, witnesses, to give us their points of view on particular pieces of legislations and we ask, for further clarification, any more questions to make that presentation more clear to us, not to argue points of di fferences that mem bers of the Committee may have. MR. CORRIN: Wh at were we arguin g about? Perhaps I will just continue, I don't think there is an argument, Mr. Chairman, and it is quite clear to everyone tha t th ere isn't, except th ese two gentlemen. MR.

CHAIRMAN: I think that the whole Committee could function more evenly and avoid any clashes if people would use the witnesses as resources to answer and clarify information based on their briefs on this particular bill, and not to draw them into a discussion about other members of the committee's opinions, so if we could just attempt to clarify what he has brought us in the brief, then what would be fine. Mr. Corrin. MR. CORRIN: Yes, thank you, Mr. Chairman. Mr.

Yard, in the case of dealing with your perception of the best interests test in 107 (3), in the case that the relationship is longstanding, do you feel that there should not be equal status conferred on the parents? MR. YARD: I think tha t the test has to be independent of the facts. The test is a test in law and it is based on the status of the parties. The facts that surround the rela tionship between each of the individua ls and the child is something for the court to consider in applying the test.

You have to distinguish in my mind between the facts of the case and the legal relationship between the parties, and in that particular case the legal relationship now between the parties is that of a natural mother who has obligations, inheritance rights flow, and many things happen with respect to her. On the other side of the coin, when you deal with the father of the illegitimate child, the inheritance rights aren't there, none of the things that constitute the normal parent-child relationship are there, and as a result I feel that that is a distingu ishable legal test that ought to be continued in the law.

MR. CORRIN: If we accept your argument, do you feel then that it would make the job of Children's Aid easier? Gi ven the fact tha t you would have identification on a prima facie basis of the mother as the guar dian, do you think that in cases of apprehensi on pr oceed ings with respect to the childr en of comm on-law unions that it would make the position of your child care agency easier insofar as you could effect easy service and proceed with more expedition in this respect? MR.

YARD: I don't think it affects, in terms of service, it doesn't affect anyone who basically you believe may have been in loco parentis at some time, you have got to make an effort to serve him or to 231

Saturday, 26 July, 1980 have service dispensed with in terms of presenting the merits of the case. lt is certainly important, in my view, that you have a legal guardian who is the respondent to the application and that any other parties, for example, fathers of illegitimate children, who want to make thems elves heard regarding the interests of the child, who want to propose a plan for the future of the child, oug ht to come forward and so state. The Children's Aid now only has to present a case as against the existing legal guardian.

If there were other legal guardians who may not be part of the same family unit, there could be two and three di fferent indi viduals, because there would be a questions of paternity, - lt often arises, who is the father of this child? - would be presenting a case against the mother, Father No. 1, Father No. 2, or potential Father 1 and potential Father 2, and it would certa inl y make the hearing a lot more cum bersome. You would have to bring in evidence against many people.

Whereas now, if the man is interested , he comes forward and he presents himself and he presents his case, and the agency only has to present a case as against the existing guardian. So from that point of view this amendment has some ramifications to the kind of the case we would have to present in the future. MR. CHAIRMAN: Thank you very much, Mr. Yard. Mrs. Westbury, did you - no, I am sorry. The next delegations we have are Parent Finders of Manitoba. I believe we have Laurie Mason, Ruth Nickel, and Joan Vanstone. Would you please identi fy yourself and speak directly into the microphone? MRS.

LAURIE JOAN MASON: Good morning Att orne y-Genera l Gerr y Me rcier, Mem bers of Parliament, Mr. Chairman, ladies and gentlemen. My name is Laurie Jo an Mason, Di rec tor of Manitoba Ch apter of a very well-kno wn gr oup national through Canada called Parent Finders. My presentation will be concerning Bill 56,

Section 94(2) of the amended Child Welfare Act of Manitoba. After an urgent phone call from Vancouver Friday morning from our President, Mrs. Joan Vanstone, who by the way cannot be here today, I have tried to put together her feelings and th e feelings of all adoptees here in Manitoba, plus my own, as to the effects

Section 94(2) will ha ve on the many thousands of adults now and in the future if allowed to be passed into legisla tion.

Section 94(2) now states, the county court clerk may, on written request, issue a certified copy of an order of adoption to an adopted parent or to the adult adoptee or to both, as the case may be. We feel that

Section 94(2) should be changed to read, the country court clerk must, on a written request, issue a certified copy of an order of adoption to an adopted parent or to the adult adoptee as to both or as the case may be. In addition to this, as of 19 70 and on,

Section 94(2) has deleted the adoptee's original surname from the decree of adoption. We propose that this

section to allow an appended affidavit be attached to all orders of adoption for that period to show the true name of the adoptee. Ladies and gentlemen, if we continue to delete the surnames from original adoption orders, we are denying Canadian citizens their hum an rights by not giving them the same right of birth knowledge that other Canadian citizens enjoy who are not adopted. I would also like to remind you of the serious medical and sociological situations that could be caused by this lack of knowledge. Is there cancer in the family? High blood pressure?

What disease must the adoptee check period ically to ensure health? And what about preventing marriage by adoptees who are sisters and brothers and cousins? We, the Parent Finders of the Manitoba

Chapter Incorporated, feel that The Child Welfare Act must be paramount over all other parents' needs and must ensure the rights of the adoptee. What about the adult adoptee's right of peace of mind? We would also like to bring to your attention the fact that Manitoba is the only province in Canada that has removed the surname of the adoptee from the original adoption order. In closing I would like to challenge you to search your hearts and honestly ask you rself th is ques tion: If I were an ado ptee, would n't I want to know my birth parents? Thank you. MR. CHAIRMAN: Thank you very much, Mrs. Mason.

Any question of the Commi ttee? Mr . Corrin. MR. CORRIN: I am interested in what you have said, particu larly because it has some su bstantial ramifications. You mentioned medical histories and I presume that this can be quite difficult, it can cause difficulties as a result of an adult adoptee's inability to inform him or herself of her adoptive parents' names and backgrounds.

You are simpl y saying, and I just want to make sure we all understand it, you are simply saying that you want the law to be changed in order that the sur name s of the adop ted pers on, the original surname, the parent's name, be included on the record and become a part of the adoption order that you are allowed to see. You want access to that and you want to have the name instead of the number.

You are saying that if you had the name, I take it, notwithstanding that the parent was dead, that both parents were dead, or notwithstanding the fact that the parents hadn't volunteered to have their identify divulged, that you would still like the opportunity to do some tracing in order that you could ascertain your familial background. You say one of the things th at would facilitate is the obtaining of medical histories and information. MRS. MASON: I do agree that it is most important to have the birth name.

If a person did want to do some background work on their own case, to find out if there are medical problems, and also to make sure you are not marrying a cousin or a brother or a sister, which has happened. I just feel it is discrimination against the adoptees. I mean, we are labelled different because we don't have a name, we have a numb er from birth, and it is just very unfair. MR. CORRIN: You appreciate the Act will allow the divulging of information respecting birth parents if the parents volunt eer to ha ve th at information divulged. You do appreciate that? 232

Saturday, 26 July, 1980 MRS. MASON: Yes, I do, but in most cases a lot of the birth parents are dead by the time that this ma tter can ha ppen. I think there should be somewhere where an adoptee and birth parent can bring their concerns together, which we don't really have. MR. CHAIRMAN: Mrs. Westbury. MRS. WESTBURY: Yes, Mr. Chairperson, this is really a very emotional issue I am sure for everybody concerned, but could I ask Mr s.

Mason wha t protection she thinks then there should be for the mother of an illegitima te child who does not want anyone ever to be able to find out that she did, in fact, have an illegitima te child. Does Mrs. Mason feel that the mother, by giving birth to that child, has surrender ed all of tho se rights to tha t kind of privacy, or how would Mrs. Mason suggest that we could provide some protect ion to tha t mother, because I think if we accepted Mr s. Mason's suggesti on, I don't see any other place in here that that mother would be protected. MR. CHAIRMAN: Mrs. Mason. MRS.

MASON: I feel if we had a proper office set up, maybe in regards to the Childrens Aid Society or the Department of Child Welfare, if we had an office set up where an adoptee can come forward and the birth mother can be approached through a social worker or whatever, and asked certain questions. The birth mother does not have to come forward, and you would find that a lot of adoptees would be more settled if they can just - all they want is information, especially about medical problems. MR. CHAIRMAN: Mrs.

Westbury, because you are addressing me you are not being picked up by the mike, so would you put the microphone closer to you, please. Thank you. MRS. WESTBURY: Yes, Mr. Chairperson. I think the voluntary aspect is covered in the bill, wouldn't you say? Have you had an opportunity to read the whole bill? MRS. MASON: No, this just came to me very quickly last . . . MRS. WESTBURY: I think you will find that the information volu nteered is going to be, if this is passed, freely available, that where the mother is adamantly opposed to the name being given out, would you think, Mrs.

Mason, that perhaps - I can unde rstand anyone not wanting to be called by a number - but would you think that it was sufficient to have a register of possible medical problems . . MRS. MASON: That arise within years later, yes. MRS. WESTBURY: That would have to cover, of course, subsequent years for young mothers, rather than the name which can be identifying. Couldn't you foresee th at some adop tees mi ght us e the information, if they had the name, to embarrass or hurt the mother? MRS. MASON: We are not asking for the name of the parents, like the mother, Mary Ann Smith.

We are only asking that the adult adoptee can obtain his own surname. If it is John Elizabeth Smith, so it be, we are not asking for the . . . I do think that the birth parents' name should be on record if need be, only to be opened or disclosed by the social worker or whoever is handling the case, but not to be given to the adoptee that approaches for the information. I am only saying, we want a name. We don't want to just have a numb er. You have a name. MRS. WESTBURY: Yes, I do, and I und erstand the pro blem. Mr . Chairperson, is that name not on record now?

Forgive my ignorance, but is that name not somewhere in somebody's files, the Children's Aid files, so it is there but it is not available. MRS. MASON: lt is not being given out, and only a number from 19 70 on, and that is what we want changed. MRS. WESTBURY: So you want the availability of the name? MRS. MASON: Thank you. MR. CHAIRMAN: Thank you very much, Mr s. Mason. Sorry Mr . Corrin, did you have another ... MR.

CORRIN: I just wanted to know then, in terms of an amendment to 94(2), you just simply, just to put all mem bers to knowing, so that the Minister is clear and he can consult with Legisla tive Counsel, you want the word "may" struck in the first line so th at it becomes imp erative on request tha t the County Clerk provide the adoption order. Is that correct? MRS. MASON: We would like "may" taken out and "must" put in. MR. CORRIN: So there would be no discretion on the part of the Clerk, that he would have to do it, and you want provision for the name to be left on, you don't want a number, you want a name. MRS.

MASON: A name. MR. CORRIN: How about the cases between 1970 and the present now. I take it that those cases right now, that they are only registered by num bers? MRS. MASON: Yes, we would like to have, as I stated, an appended affidavit to be attached to all these orders of adoption with the birth name on it, not a num ber. MR. CORRIN: Thank you very much. MR. CHAIRMAN: Thank you, Mrs. Mason. The next delega te th at we have is Mr. Roger Pyper. MR. ROGER PYPER: Mr.

Chairman and ladies and gentlemen of the Comm ittee, I appear as a citizen, an adopti ve parent, because having comm itted myself with some considerable emotion to the business of raising two adopted children, I now find 233

Saturday, 26 July, 1980 that having had an emotional, legal, and intellectual commitment, that I should then believe and have society's belief that these children are mine as if born to. Since Mr s. Mason and I cannot, or at least I cannot walk in her shoes, I do not have any feeling for what it must be to be an adoptee and not know, I accept that. I have spoken with my daughter and while she is rather junior I have und erstood that she in fact feels, at the moment at least, that she does not need this information.

So since I believe intellectually and emotionally in the relationship as if born to and it causes me then to be committed to the raising of these children, I see some conside rable danger in altering th at rela tionship by creating, upon the attai nment of adulthood by my children, a new relationship. lt has been argued that since this is

an Act to affect adults, it the refore do es not have any effect upon my relationship or my children's relationship with me as we grow together. That, of course, would be very much like suggesting that The Liquor Control Act, only permitting the use of alcohol by adults, does not ever result in any damage to children. lt does have a warming effect prior to the arrival of the event. lt has been my experience as a result of having lived in other parts of the country that sometimes the rationale for creating a registry is based upon law that existed some considerable period of time ago.

There have been references to the illeg itimacy of ch ildren. I would much prefer tha t chi ld ren be referred to perhaps as being unlicenced, in the sense that I do not grant that any child is illegitimate. lt is legitimate in its own right and exists not because of its parentage, but because it has a continuing existence and is now.

As a consequence, the particular information in the bill that I would like to have changed would be that one in 94(3) in which it only requires the consent of two parties to the release of identifying information, in the sense that I, as an adoptive parent, have got this considerable emotional involvement. I have some objection to their being a right for somebody who departed, perhaps after as little as a one-night tryst from my children's life, have a greater right than I to reaffirmation of contact.

I accept the fact that in me saying that that there is some requirement for me to appear selfi sh, the answer is and I prefaced my remarks by saying, I cannot walk in somebody else's shoes and I ask for you r judg ment and understan ding. I have done some considerable study with this. I have read the Berger Commis sion Report. I have been collecting letters from interested people, any one of who may be part of the triangle, and in the Manitoba Law Commi ssion Report there have been numerous references to the triangle.

When the recommendations actually come down, however, the triangle, it appear to me, has been ignored, and it is on that basis that I call to your attention in the Law Reform Comm ission Report, there were two sections, one

Section 5 on Page 30, which provides that an essential registry should have the power to compell release of information when it receives the written consent of the adult adoptee or biological parent. However, by the time you get to

Section 10 of recommendations on application to the court, etc., etc., the court must apply to the members of the adoption triangle to solicit their views. lt seems somehow or other that when we then get to the legisla tion, as it will be amended, is that the princip le of the court has been dropped, the registry exists and there are only two parties. My experience in British Columbia was th at eventually the Berger Com mission recomme nded that since the adoption had been

an act of a court that any continuing discussion of that should perhaps be from the court as well, and if that were the case, I would certainly then have no objection to there being only one party that needed to make application, in the sense that I rely upon the wisdom of the court to make sincere judgments. Thank you. MR. CHAIRMAN: Thank you, Mr. Pyper. Mr . Minaker. MR. MINAKER: Sorry, will he accept questions? MR. PYPER: Certainly. MR. MINAKER: Mr .

Pyper, first, I would like to thank you for your presentation and I was just going to inform you tha t I do not ha ve any ad opted children, but some of my colleagues in the Legislature do. MR. PYPER: I was aware of that, sir. MR. MINAKER: I have talked to these particular individuals, because I would think that they would have concerns like you have, and I have indicated to the colleag ues that I am not bound th at this particular part of the Act remains as is.

The only concern that I have would be possibly, and I ask you what your though ts are on the subject, if we retain the triangle where all three parties have to indicate that they want the confidentiality released, would it not create possi bly a pro blem between your daug hter and yourself, or say any adult adoptee towards their adoptive parents, that they would not have that right to go and get the information and find out that one of the three people had not agreed to it? Then they would obviously come back to their adop tive parent and say, ha ve you sig ned the release?

Would tha t not create some bitterness between the adult adoptee and the adoptive parent? MR. PVPER: I certainly agree th at th ere is a potential for it becoming a problem.

I suggest, sir, that you would req uir e the wisdom of Solom on, however, to weigh that problem against the problem tha t I will be faced with or similar prospective adoptive parents will be faced with if they do not have this as if born to concept, because under those circums tances the benefits of what I see to be a very worthwhile Adoption Act and it applies virtua lly across the country in my experience, it places a moral, social obligation upon a couple to look after this child as if it were theirs.

If you abridge that in any way, I suggest that you may find yourself with a problem that you did not intend to create. However, I reco gniz e that it would req uir e the wisdom of Solomon to undo this knot, because I haven't been able to come up with it, I only represent an opinion and hence the reason why I say I cannot walk in 234

Saturday, 26 July, 1980 anybody else's shoes, I do not know what the answer is. I cannot even know whether or not my children will in tact curse me tor what I do today, but I do ask tha t they will recognize I have don e it in some honesty. MR. CHAIRMAN: Thank you, Mr. Pyper. Mr s. Westbury. MRS. WESTBURV: Thank you, Mr. Chairperson. To Mr. Pyper, I wonder if you wouldn't feel, Mr. Pyper, that the years of caring tor the children, having in tact made you the true parent of those children, would remove from you any tear that somehow you might lose the children it they found their natural parents? MR.

PVPER: You see, there are two sides to this, Ma'am. I, of course, argue as a private citizen and suffer the possibility of being interpretated as not being secure in my relationship with my children. The very tact that I have brought one of my children here with me today might indicate that I am sufficiently secure that she in fact can listen to everything I say.

However, I have a feeling that if you do not provide tor this continuing confidentia lity, if you do not provide tor this as if born to, you may sometime in the future create an impasse in which the age of majority is lowered by the Act affecting the age of majority, that we know from experience that there are some considerable difficulties occurring with the adoption of children who are older, in the sense that they are five or six years of age, so if you start to move the age at which a child is adopted towards the age at which it reaches majority, you decrease that period of time tor it to become as if born to.

If that is the case, you may undermine what appears to be a good act. I recogn ize th at th e people who in tact ar e attempting to have a registry are extremely well motivated. They have a very solid case and I cannot argue with the tact that they have a solid case.

However, I have a feeling that their motivation arises out of an era in which the business of being adopted was not a comfortable thing, and as a consequence they are reacting to a condition which may well have already been corrected, and that we now, when we adopted our children, were advised that we should not conceal from them the tact that they were adopted. They are as much our children as my wife is mine, even though we did not come from the same womb. lt is

an act that causes her to be my wife, we are committed to one another as long as we believe tha t we love each other, and un der th ose circu mstances tha t relati onship, of course, was intended to be created so that these children would have a place that they were secure. Since they must be secure in order to grow up well, I think it is worth preserving. MRS. WESTBURV: Mr . Chairperson, I don't think anyone would argue, and everyone is glad that there are people like you to look after the children who need people like you.

But if your child should at some future time become curious about her/his ancestry, roots, and if the finding out of th at information was withheld, do you think that could not cause some resentment in a young adult, and that could in fact, without any action on your part, deteriorate the relationship to some extent? MR. PVPER: There is no doubt that if I were to withhold that information it would deteriorate our relationship.

By the same token, one can imagine the withholding of such information would then of course beg the question, should that information be withhe ld in order to protect the confidentiality of a biological parent on the premise that if the child as such, as the adoptee, once reaching adulthood has a right, then in fact can that right be abridged by anybody's other right, you see. lt is a conundrum. I don't envy you your deliberation. MRS. WESTBURV: home. do n't either, I think I' ll go MR.

PVPER: I merely point out, if I may be so bold, that it is a very thorny question and if you do not consider it carefully you may in tact create a problem that doesn't yet exist. You may in tact be solving a problem that did exist some long period of time ago and it is causing the requirement to change. MRS. WESTBURV: In referring to the wisdom of Solomon, of course, you are referring tor the need tor Solomon to decide which was the true mother of a child, that was one of the problems that Solomon was called upon to solve. Thro ugh you, Mr .

Ch airperson, would you comment then on the medical knowledge that was referred to formerly. There is one disease that is very much a hereditary disease, I don't remember the name of it, it doesn't matter, which doesn't become identifiable until the people are in their forties, but it is very much passed on from one parent to another, and by 40, of course, most people have had their childr en and, you know, there are other diseases as well. Would you comment on that? MR .

PVPER: lt ha d been during my pr evi ous involvement with this same legislation in British Colu mb ia, we ha d had some mem bers of our organi zation th ere who were pediatricians and medical doctors of one sort or another, and they gave me to believe that the statistical probabilities of you knowing anything about your parentage that would, in tact, influence your altered chances of living a normal life even if you in tact knew your natural parents, were fairly remote.

In the sense that if you kn ew th at your natu ral parents had a predisposition to diab etes you should not put on excessive weight, you should exercise regularly, and you should perhaps avoid sugary foods. Of course, mind you, that could be said that everybody should that regardless of their parentage. I accept the tact that there are some very few dis eases, which in fact do occur and are transm ittable and hereditary conditions, and that that may well represent a viable requirement. I believe Mr s.

Mason point ed out tha t if non-identifyi ng information were made available at the time of adoption and perhaps were upda ted from time to tim e to show such med ical conditions as th ey occurred, that that may well serve that purpose, you see. But I don't think that the essence of having identifying information is absolutely necessasry. 235

Saturday, 26 July, 1980 lt has occurred to me that it might be reasonable to ask the Parent Finders Group whether or not, upon the existence of a registry, they would no longer feel a need to exist, in the sense that if that registry existed it is conceivable that all of their desires would be satisfied. I don't know that. If it were, then I would say, fair enough, but I have a suspicion that they may well feel that they still have this, apparently it is called a biological bewilderment I think is the term, that this would probably continue even though the registry existed.

However, as I say, I now get emotionally invo lved in this and I am attempting not, but I can't avoid it, and so at the time I then leave you with the problem. MRS. WESTBURV: So, Mr. Chairperson, the last question. Mr . Pyper, you would be contented then if 94(3)(e) ... MR. PVPER: Actually I think (d). MRS. WESTBURV: (

d) and (e), yes, included the adoptive parents. Well, (

e) does, so (

d) included the adoptive parents, if still alive, as having to agree. MR. PVPER: That would be the intent, to continue to recognize the triangle nature of this in order that . . . See, I might find myself, and this is a very hypothetical condition, as being the guardian of an adult adoptee who was not independent in the sense that they required continued custody, but under this Act in fact that person would have no longer any requirement to refer to me as a parent.

I think I am intending to be a parent to my childr en until the day I die and then hopefully with their continued memory for some period of time thereafter, so I don't intend to stop being a parent upon the attainment of their adulthood. But the effect of this Act might well be that it would abridge my com mitm ent. lt has a warming effect as you approach it, exactly the same way as if you put your hand on a hot stove, you burn when you touch it, but you can sure feel some discomfort as you start to get close. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: Mr.

Pyper, I might say before I com mence that I have very much enj oyed your presentation and I think tha t it is ind eed a very di ff icult su bject and one that req uir es all the resources of this Commit tee to deal with. I am concerned, though, because I have spoken to the representatives from Parent Finders about the rights of natural parents.

I was told by the representatives that there are some 3,000 birth parents in Canada who have registered through Parent Finders who are in the process of looking for their children, and that seems to me to be a fairly substantial number of people, and it must represent a considerable amount of anguish for a lot of those people, and I think you have been quite cogn izant of the psycholo gi cal ram ifi cat ions of th at sort of situa ti on and circums tance.

I am just wondering, though, whether you wouldn't agree that those people should be given a chance to make their reparations, to make their peace as it were, with the childr en that they were severed from early in life. I can't help but think of the Peter Sellers' case. Just before he died he was interviewed and it was just a few weeks, and he said that the one thing he wanted to do more than anything else was find a child that he had fathered when he was very young and he wanted to confer an estate upon the child.

He became a very wealthy man and he wanted to make it up to the child and he wanted to know who she was, and he had spent a fortune trying to seek out the child's identity. I am wondering whether people shouldn't have that sort of opportunity and I think that is the intent of the legislation, essentially. What do you say from that point of view? MR. PVPER: I have some personal knowledge of a person who had placed a child for adoption and discovered later that in fact that child represented the only possibility that person could have a child.

As a consequence of the dissolvement of the marriage, the person in an attempt to try and find some identity, in fact went looking for the child. A person close to me in fact talked that person out of it, because in fact she was going to invade that child's life regardless of the effect upon the child. So for everyone that you can come with, I can come with one, and we finish up back at the same position. There are no solutions. In the sense that people have rights to know.

If you were in your wisdom able to come up with a solution that provided that all childr en should be the childr en of all of mankind and that the existence of national gr oups, fam ily names, socia l positions, financial status and all the rest of it, were to be completely elimina ted, you might then find that in fact nobody derived any satisfaction at all from any id entifica tion, other than their own , and as a conseque nce you could then solv e all the se problems.

But since the purpose of most legislatures is an attempt to make the world a better place to live in, I suspect you are going to be sometime away from tha t at the moment, at the risk of being offensive. MR. CORRIN: Thank you very much, Mr. Pyper. MR. CHAIRMAN: That is the list of speakers that have on Bill 56. Are there any other speakers on Bill 56? If not, we move now to Bill 10 3, The Wildlife Act, and the first speakers th at I have are Mr. A.J. Church and Mr. Norman Edie of the Manitoba Cattle Producers Association. BILL N0. 103 THE WILDLIFE ACT MR. A. J. CHURCH: Mr.

Chairman, members of the Comm ittee, with apologies our President is not able to be with you. My name is AI Chur ch, I am empl oyed by the Mani toba Cattle Pr oducers Association as their Manager. As many of you will recall, the Manitoba Cattle Producers Association was established by statute in 1978 and presently endeavours to represent the views of some 15 ,000 cattle producers in Manitoba through 14 democratically elected members from across Manitoba. The officers of the Association are listed on the brief that is being distributed.

The cattle ind ustry in Ma nitoba represents an investment by producers of well in excess of 500 236

Saturday, 26 July, 1980 million in cattle alone. In 19 79 cash sales exceeded 280 million, which generates additional income in the provincial economy at an estimated 2 to 1 multiplier effect. In fact recent studies in B.C. suggest that figure might well be 5 to 1, which then I suggest represents well in excess of 1 billion of economic activity in Manitoba.

The Association feels that for some time cattle produ cers' concerns have not been adequ ately represented or recognized, and I certainly would like to make the exception that that does not include such matters as the recent drought and the action of government to mitigate that effect. However, we are particularly pleased to see in Bill 103,

Section 33 recognition of our representation to the Minister of Natural Resources respecting access by hunters to private lands, or crown lands on which livestock are kept, and that it shall be by permission of the owner or occupier. In the long term, we are comm itted to creating a better environment for cattle production in Manitoba. As one sign ificant part of this overall endeavour we see

Section 33 of bill 103 as being rightful recognition of a long-standing problem to producers. We are concerned that the proliferation of four wheel drive and camper vehicles and gooseneck livestock trailers is of increasing concern to cattle pr odu cers throughout Western Canada, and is equally of concern, I suggest, to wildl ife conservation officials. Our Association is actively dev eloping proposals for brand inspection at markets, the use of producer manifests whenever cattle are transported, and a system of voluntary range patrols as measures to deter the thefts of cattle. Under

Section 33, in our view

Section 33 of Bill 103 brings Manitoba into line with legislation in other western provinces. We do not have docomentation of losses attributable to hunters since cattle losses can take so many varied and different form, such as losses or inconvenience caused by gates left open, the myste rious di sapp earance of cattle, or the remains of animals found on pastures at any time of the year, with the cause of death unknown. One su bstantial su rvey conduc ted du ring December of 1979 went out to some 1,137 prod ucers who were renewing th eir brand registrati ons.

A surprising 848 replies were received, which is some indication, at least, of their concern. These 848 produc ers who replied rep orted unrecovered losses of 7 49 cattle or calves over the three years, 1977 to 19 79. We do not, in any way, suggest that this impl icates hunters as a group, since predators, di sease and man y other causes are equally probably. lt is indicative however that serious losses do occur and that surely it is in the public interest to minimize the causes. What we see in

Section 33 of Bill 103 is a clear statement to both hunters and cattle producers that if it is observed by both parties can greatly mitigate suspicion and fric tion. We would commend the government for this approa ch and the changes inherent in this Section. it should be remem bered that due to the nature of cattle raising and the land that is best suited to this purpose, cattle producers are extremely vulnerable to various forms of losses. We hold the view that

Section 33 will be beneficial to the cattle indu stry of Manitoba, and will result in improved hu nter-farmer- rancher relations without significantly detracting from the privileges of the true sportsman-hunter. With respect to

Section 88, under

Section 88( 1) of Bill 103 respecting compensation for livestock killed by accident, we request you give consideration to deleting the phrase "by accident", and broadening this

section to include animals killed by shotgun or small bore rifle during upland game or waterfowl seasons. We have been advised that animals killed by this method, that is, by shot gun or small bore rifle, are considered to be the result of vandalism and subject to action under the Criminal Code.

From our point of view and from the producers' standpoint, the vandal is unknown to him or cannot be found and yet his loss is just as real as that sustained by a person who is eligible to make a claim and receive compensation because his animal was shot "by accident" during and at a place where big game hunting was in effect.

In summa ry the number of valid claims made and paid in respect to the Hu nter Kill ed Liv estock Compensation Program during the last three years is quoted, in 1977 there were 8 of 11 claims submi tted, were paid; in 19 78 there were 6 of 7 that were submitted; and in 1979 only one of 5 submi tted was subsequently paid. lt is our position that this does not reflect the probable losses sustained by producers and that cha nges to

Section 88, as recommended, would more realistically compensate producers in keeping with the intent of this Section. lt is also our conjecture that this

section and the admi nistration of it tends to be overly protective of public funds rather than a more open recourse by produc ers for losses generally occurring during hunting season. I wish to thank you very much for the opportunity to appear at your committee. MR. CHAIRMAN: Thank you, Mr. Church. Are there any questions by the committee? Mr. Ransom. MR. RANSOM: Jus t one quick qu estion, Mr . Chairman . Do you think, Mr. Church, th at the provisions of Sect ion 33 are li kely to res ult in reducing the problem that is addressed by

Section 88? MR. CHURCH: Yes, I would agree that it is likely to be part of the solution that we seek under

Section 88, that's quite true, yes. MR. RANSOM: Thank you and thank you for taking the time to make the presentation. MR. CHURCH: Thank you. MR. CHAIRMAN: Thank you very much . The next speaker that we have is Mr. Keleher on behalf of the Manitoba Environmental Council. MR. JIM NICK ELS: Mr. Chairperson, comm ittee members. My name is Jim Nickels. I'm chairperson of the Wildli fe Commit tee of the Mani toba Environmental Council with the assistance of Mr. Keleher, who is the execu tive secretary of the council. I would like to make a presentation which 237

Saturday, 26 July, 1980 represents the views of the Wildli fe Commi ttee, if I may. First of all, I'd like to mention that the Manitoba Environmental Council is the citizens' advisory group to the Hon ourable Mr. Jor genson and, at this particular point , I would like to give a notice of appreciation that the Honour able Mr. Ransom sent us a copy of The Wildli fe Act so we could comment on it. Our view is th at it represents innu merable impr ovements over two previous documents, The Predator Control Act and the previous Wildli fe Act.

Particularly I would say in terms of increasing the restrictions on importing and exporting of wildli fe and in such aspects as allowing for the state ment of an endangered species, we find this to be extremely helpful. Also in terms of

Section 83( 1) and (2) the regular reports by the Mini ster seem to be very favourably evaluated by the members of the Wildlife Comm ittee. However, there are two reports that are indicated in the Act as prop osed . One is the ann ual adminis trative report and the other is a five-year report.

Our comm ittee would like to make a recommendation that since the annual report on the activities of the Ministry regard ing wildli fe for the year has only to do with the implementation of the Act, such things as perhaps the numb er of licences issued and things of this sort; and only every five years there would be any attempt to give a review and forecast of wildl ife activ itie s. lt is the recommendatin of the Wildli fe Comm ittee that either the annual report be more inclusive or that the five year period be reduced.

This does not imply that each year a compl ete and extensive report would have to be given but at least that other issues besides the implementation of the Act could be mentioned. Such things as the status of wildlife, the review of ongoing programs and the forecast of future activities. For every year there to be a comprehens ive report, we admit would be too much but we think that there would be an advantage to providing for a greater number of topics to be dealt with more periodically than every five years. This is one of the recommendations that the Wildlife Comm ittee has. Mr .

Chairperson, would you prefer that I indicate all of the recommendations we'd like to give, first? MR. CHAIRMAN: Sur ely. MR. NICKELS: All right. We also very much favour the combination of The Predator Control Act and The Wild life Act. This is a great advantage. The one issue that this raises, however, is that although there may be an advantage in discrimi nating for certain species, for example, endang ered species, protected species, th ere is the pos si bil ity of a continuing dis crimi nation against certain species. I refer particularly to various sections, such as

Section 18 regard ing remuneration for taking various wildlife forms;

Section 32 and

Section 46( 1) . All of these, particularly in terms of big game, mention both the black bear and the wolf. lt would be the recommendation of the Wildlife Commit tee that since there is adequate protection in other sections of the Act, particularly

Section 64-1, that there is no need to continue the stipulation of the wolf as being taken for remun erative purposes. The wolf is being persecuted in so many areas, is becoming endangered and at the same time to add to that the possible remuner ative apsect, the Wild life Commit tee would like to recommend that in those th ree sections the word "wolf" be omitted. Finally, there is in

Section 14 (1) and 37(1) the very fav ourably evalu ated react ion regard ing the cancellation of a licence or permit if an individual is convic ted of an offence un der the Act. These, however, these sections again perhaps may show some form of discrimina tion in that the fur bearing animals listed in Division 2 have no such recourse, as far as the elimi nation of permits and licences if someone is found practising trapping or hunting of them illegally.

The Wildli fe Committee has asked that I also recommend that whenever a licence or permit be revoked because of conviction of an offence that this be across-the-board to all wild life forms, not just to certain forms and not to others. One other comment I might make is that as far as specifying particular species is concerned the entire amphibian and reptile group appear to be sort of fair game, if you will; and the small game group, the small game animals, Division 4, as listed in the Act, as indicated there are no instances under the title, Small Game Animals.

The Wildli fe Commi ttee, since it just received the report, was unable to find out whether this meant that there were some that would be protected, some that would not be protected. But if the small game group, if the imp lication was there were so many that they wouldn't all be listed, then we would assume that they would all have protection of either licenced hunting or not.

If, on the other hand, there was some other reason for not indicating what species were under the licenced hunting for small game anima ls, then the Wildli fe Com mittee would recommend that this be completed and that the licencing of hunters be appropria te for small game anima ls too. MR. CHAIRMAN: Thank you very much Mr. Nickels. Any questions of the com mittee? Mr . Adam. MR. ADAM: Mr. Nickels I have the one question to ask of you in regard to suspension of licence. I believe you indicated that in event of an infraction in MR. CHAIRMAN: Sorry Mr. Adam we can't hear you, the mike isn't picking up your voice.

Could you move it a little closer to you, please. MR. ADAM: I'll try again, Mr . Chairman, in the event that a licence suspension occurred in, say, waterfowl, are you suggesting that a trapper would also lose his trapping privileges? Is that what you're indicating? MR. NICKELS: Yes, the recommendation is there be no dis crimina tion as to which specie s the infraction occurred with. MR. ADAM: Thank you. MR. CHAIRMAN: Mr. Jenkins. 238

Saturday, 26 July, 1980 MR. JENKINS: Thank you, Mr. Chairman, through you to Mr. Nickels, dealing with your recommendations on 83( 1) and 83(2), I just want a bit of clarifica tion, in other words, what you 're recommending to the committee is that the Minister in his annual report make a more comprehensi ve report dealing with species of wildli fe than he would only do un der 83(2) which would be a five-year report, is that the basis of your recommenda tion? MR.

NICKELS: Yes, in other words that it be more comprehensive, not that it necessarily be any longer but at least that it be more comprehensive and cover more than just the immed iate imp lementation of the Act. Now there were two ways that we recommended it could go. it could either be inclu ded as an expansion of topics dealt with each year, in the annual report, or it could mean that there be a reduction in this five-year period to deal with the entire issue. But the feeling was that five years is too long to deal with the comprehensive view of wildlife, wildl ife management and Manitoba's resources. MR.

JENKINS: Yes, then through you to Mr. Ni ckels, Mr . Chairman, wha t would your recommendation be on 83(2) then, would it be every three years or something like that? MR. NICKELS: Yes, no more than three years. The consensus among the Wild life Commi ttee was two to three years. MR. JENKINS : Fine, thank you. MR. CHAIRMAN: Thank you very much, and thank you for your presentation Mr. Nickels. Those are the only persons I have wishing to speak on Bill 10 3, is there anyone else who wishes to speak. If not then we'll proceed di rectly to Bill No. 10 7,

An Act to Amend The Public Utilities Board Act and The Manitoba Telephone Act. BILL NO. 107 THE PUBLIC UTILITIES BOARD ACT AND THE MANITOBA TELEPHONE ACT MR. CHAIRMAN: The first speak I have is Mr. John Buhler, Pr esident, Val ley Cab levisi on, Mor den, Manitoba. Mr. Buhler. MR. JOHN BUHLER: I'm just going to withhold my comments, if that's all right? MR. CHAIRMAN: Cert ain ly, that's always acceptable, Mr. Buhler, thank you. Johnson Controls Ltd., Mr. J. P. Patterson. MR. J. P. PATTERSON: Mr. Cha ir pers on, honourable members, ladies and gentlemen, is that mike all right, sir? MR.

CHAIRMAN: I think we're picking up just fine, thank you, Mr. Patterson. MR. PATTERSON: Thank you very mu ch. I'm a member of the private sector, sir, and I'm appearing on behalf of our concerns regarding this bill. I appreciate the opportunity to make our concerns about th is bill kn own to your comm itee. My comments are generated by two sources:

(1) Our interest as a member of the private sector using Manitoba Telephone System's wiring network as an essential part of our monitoring business; and

(2) On the advice of cou nsel regard ing the particular wording of Bill 10 7. I bel ieve this bill is uni que in tha t there is agreement, on both sides of the Hous e, on what it is intended to accomplish. We are sensitive to the pressures on government to satisfy demands from the priv ate sector and Manitoba Telephone System. lt is the government's di fficult task to ch art a cou rse between thes e sometimes conflicting poles that will be in the best int erest of the taxpa yers and the province of Manitoba. Gentlemen, I do sympathize with you in your attempts to do this.

Our sympathy is mani fest in preparati on of proposed wording changes to this bill as printed, in the hope that you will take them into consideration, and, if you are in agreement, act on them by inserting the wording in the amendment form when the bill is finally brought forward for third reading. Engineering Standards - Design Innovation and Competition: On advise of counsel we have interpreted the main proble m with the bill as printed, as far as our industry is concerned, to be Clause 21 .(d)( 1).

The bill, as printed, vests the engineering in the hands of the Manitoba Telephone System technical expertise in this particular area. However, to maintain control, we have suggested in our amend ment tha t all network design be approved by the Public Utilities Board before it is implemented. This is the key safeguard to ensure the complete compatability between any network MTS may design and maximum access of terminal units provided by the private sector. The essence is one of timing.

In the bill, as printed, MTS can design a unique system, install it, and lease matching subscriber terminal units, commonly known as STUs. If, and when, the private sector appeals, after the fact, to the Public Utilities Board, on the basis tha t the pr ivate sector terminals are incom patible with the MTS syste m, the Public Utilities Board, it seems to us, has two choices: one is to disallow the intervener's claim; the other is to di rect MTS to design a system tha t will be compatible with private sector terminal units. We su bmit, Mr.

Chairman, that Ma nitob a Telephone System may plead in its own defense that it will be a financial hardship to scrap and redesign and a burden on MTS customers to have to replace their STUs. In other words, we perceive that with the bill, as printed, MTS may design unique systems and, when private sector is allowed to make representation to the Public Utilities Board, the issue will be purely academic.

Therefore, we strongly suggest that the amendment we have outlined be put into effect in the bill so that the Public Utilities Board can be an effective monitor on MTS activities before the fact, rather than after the fact. We perceive the bill, as printed, gi ves MTS considerable financial and technical freedom that, if emplo yed to design a unique system, can allow MTS 239

Saturday, 26 July, 1980 to com pete un fairly in the pr ivate sector by supplying, leasing, complete services to customers. Our proposed Clause 21 (2) ensu res that Pu blic Utiliti es Board has prior sanction over engineering for both MTS and any private applicant. In the bill, as print ed , MTS dic tates what is acceptable engineering and can effectively and arbitrarily block comp etition form inn ovative and com petitiv e approaches. Terminal Standards and Access: In our proposal, 43(2), MTS and everyone else has to be approved for a terminal connection by the Public Utilities Board.

In the bill, as printed, MTS has sole deter mi nation of connection of their own devices. In our proposal all terminals are auth orized by Public Utilities Board. At the present MTS can arbitrarily make any connection charge it wishes. These charges are not tariffed through Public Utilities Board approval. Our proposal allows the public to challenge connection rates and, in our 43(4), one does not have to qual ify as a commission, owner, manuf acturer, or supplier to apply to the Publ ic Utilities Board for a tariff amendment.

We believe the bill's wording in the letter of the law is too restrictive and that the public should have access to the Public Utilities Board. Public Utilities Board Guidelines: In our proposal 43(4)(

b) we set down the guidelines for Public Uti li ties Board rulings to enha nce com petitive interest in supp lying services to the public. Public good is also protected by preventing damage to the system. In the bill, as printed, no gui delines are given. In private conversations, it has been our im pression that the Public Utilities Board is pleading for further legisla tive di rect ion and we believe that our amendment will serve well in this regard and fill the gap in the legislation to make the Public Utili tie s Boar d a more effective tool of government policy.

In this way, standards will be maintained and the possibility of innovative and imaginative approaches can be made by both private sector and MTS. Public Utilities Board will be the sole arbitor of acceptable approaches. Our proposed amendments will ensure that full expression will be gi ven to go vernme nt policy, without im posing undue hardship on Mani toba Telephone Systems.

Our conclusions: If our amendments are adopted then the Minister's expressed desires to have: the electronic highway under the exclusive jurisidiction of the Public Utilities Board; and, the jurisdiction over whom and what goes over the highway and at what price will be with the Public Utilities Board, will be achieved. In the bill , as printed, th ere are imp licit opportunities for the misapplication of the talent and financial resources of MTS if the letter of the bill is followed.

As we are all aware, statutes may be entered on the books where enforcement may be to the letter, or on the other extreme comp letely ignored. We are soliciting your support in changing the wording of this bill to provide effective legislation that can be enforced and yet be equitable to both Manitoba Telephone System and the private sector. lt seems to us that this is th e criterion of any legislation and that this comm ittee and the House finally pass to proclamation. As the Minister cited at his introduction of this bill, we are on the threshold of an explosion in communications technology.

We completely concur that legislation should keep pace with advancing technology. In our view, the bill is commendable. The slight changes in wording will make it a notable and effective piece of legislation. Thank you very much, gentlemen , for you r consideration of our remarks. MR. CHAIRMAN: Thank you , very much, Mr. Patter son. Any questions of the delegate? If not, then our next delega tion is Mr. Skor a of the Canadian Radio and Television Commi ssion. Mr. Skora is not present. Mr. Gordon Richardson, not present. Mr . Ga ry Brazzell and Mr. Lorne Campbell, representing Cablevision. MR.

GARY BRAZZELL: Thank you, Mr. Chairman, and mem bers of the comm ittee. Mr. Campbell and I have been dis cussing all morning ju st how we should, from a procedural point of view, addre ss ourselves to the comm ittee. We, as you mentioned, respectively represent Greater Winnipeg Cablevision and Winnip eg Videon and we ha ve been very carefu lly considering the provisions of the bill. We have had some discussions, we understand there may be some amendments.

We are aware that once the comm ittee gets to the stage of considering amendme nts, th at we would ha ve to ask the tolerance of the comm ittee to make any comments. In other words, we don't know if we will have any comments, Mr . Chairman, and we're in something of a dilemma. In any case we are present when the time arrives for the consideration of the bill and any amendments, and would be pl eased to ha ve whatever opportunity the committee may give us to participate in the discussions. MR. CH AIRMAN: Including none? Including no opportunity?

I can't speak for the comm ittee; under normal circums tances you would not have another opportunity. MR. BRAZZELL: I understand that. MR. CHAIRMAN: I'm just forewarning you. Thank you. Mr. Enns. MR. ENNS: Mr. Chairman, I do want to take this opportunity of indicating through you to Mr . Brazzell that there are amendments forthcoming on Bill 10 7. it's been my good fortu ne to ha ve had the opportunity of working through some of th ese proposed changes and amendments to the bill with representatives of the people that Mr. Brazzell is speaking on behalf.

I think the honourable members of the comm ittee acknowledge though, that the kind of rules that we operate under, that members of the comm ittee have to be privy to the amendments first in much the same way as a bill is being presented. But I did want to indicate to the representatives who have an interest in Bill 10 7, both those interests of the cable operators and others as in the case of Mr. 240

Saturday, 26 July, 1980 Patterson, who spoke just prior to you, that there will be some particular amendments being introduced, as we consider the bill clause by clause. Some general indicators have already been made at the closing of the debate on second reading of the bill. For instance, there's been a concern about the inclusion of the word "p rogramm ing" and I' ve already indicated that publicly in the closing of the bill, that that would be dropped from the bill. So, Mr.

Chairman, under our rules, we'll just have to ask the honourable delegations to bear with us, for some of us who have been here sinc e 4:00 o'clock last morning. We will try to conclude our busi ness, I pr esume this aft ernoon, if some agreement is reached to come back into committee to consider the clause by clause consideration of this bill. MR. BRAZZELL: Thank you very much. MR. CHAIRMAN: Thank you very much. Oh, I'm sorry, there are other questions, Mr . Brazzell. Would you permit a question from Mr . Jenkins, please? MR. BRAZZELL: Of course. By the way, excuse me, Mr . Chairman, Mr. Moffat and Mr.

Baker of Winnipeg Videon are here as is Mr. Comack from Greater Winnipeg Cablevision. MR. CHAIRMAN: Fine, thank you. MR. JENKINS: The request that Mr. Richa rdson had made that he wants to make comments when the comm ittee deals with bills, I would say that that is highly irregular, and during my nearly 12 years here, it is not one that I think the comm ittee would favour. MR. BRAZZELL: Mr. Chairman, I didn' t say that I wanted to or expected to. I did say that I was aware of the rule.

Our position is that we're in somewhat of a dilemma and we may not have any comments at all, so all I can repeat is, that we are here and available. MR. CHAIRMAN: You're here as a resource, and if comm ittee members individually wanted to consult with you, that was possible. MR. BRAZZELL: That is correct. MR. CHAIRMAN: Okay. Mrs. Westbury. MRS. WESTBURY: Mr. Chairperson, I was going to suggest to Mr.

Brazzell that perhaps he and the people he is with should tell us what changes they would like to see made to the bill as it's written, and we can weigh those against the amendments that are brought forward by the Min ister. (I nterjection) Well ... MR. BRAZZELL: I repeat, that we are here. BILL NO. 11 4 THE MANITOBA ENERGY AUTHORITY ACT MR. CHAIRMAN: Okay. Thank you, Mr . Brazzell. I have no other speakers for Bill 10 7, unless there is anyone else who wishes to appear.

If not, then I have Bill No. 11 4, The Manitoba Energy Autho rity Act, and I have representatives of the Manitoba Association of Right s and Liberties, again, Mr . Arnold and Mr. Rosenbaum. MR. GRANT MITCHELL: Mr. Arnold and Mr. Grant Mitchell today. MR. CHAIRMAN: Oh, fine, thank you. MR. ABE ARNOLD: Mr. Chairman and members of the Law Amendments Comm ittee, I rise with some concern to introduce our presentation on Bill 11 4, The Mani toba Ener gy Autho rit y Act, which we learned about for the first time just one week ago today when its intr oduction was reported in the press.

Since the Manitoba Associat ion for Rig hts and Liberties is the only group making a presentation on this bill, I must tell you that we began to receive phone calls from concerned members as soon as the bill became known, ur ging that we make a presentation. I would further point out that our organization only received its subscription copy of the bill on July 23rd, and here we are just three days later having to submit our views on this bill, which has serious impl ications for the infringement of civil rights.

The haste with which this bill has been pushed through is the most serious example in our view, of the inability of the public to participate adequa tely in the traditional due process for which our legislative practice in Manitoba has become particularly well known. Our association, in spite of the undue pressure, has nevertheless been able to prepare a brief, and we are happy that Mr. Grant Mitchell, a member of our legislative review comm ittee and a distinguished younger member of the Bar of Manitoba, was able to arrange to be here today to present our brief. I urge your careful attention to Mr .

Mitchell's presentation. Thank you. MR. MITCHELL: Good afternoon. At the outset I'd like to repeat Mr. Arnold's concern about the speed with whi ch this matter is being brough t to the Legislature of Manitoba. We feel it's a matter of utmost concern to Manitobans everywhere, and we feel that eight days from the time of the presentation of the bill in the House to this appearance today has been insufficient for Manitobans generally and for us in particular, to prepare a brief.

I say this partially by way of apology, because I won't have as thorough a presentation as I might have had with a little more time to prepare. In particular, we haven't had an oppor tuni ty to meet as a group and prepare a subm ission with the concurr enc e of all of our members, which we would have preferred to do.

We feel tha t the legislation that's pr opo sed provides for infringements of civil liberties along the lines of The Federal War Measures Act, and as such is one that has to be viewed with the utmost concern and should be given the most careful scrutiny before it is passed to be the law of this province. Therefore, the basis of our submission is that this matter should at least be put over to a further session for more review, and our bottom line is that in particular,

Part 241

Saturday, 26 July, 1980 11 of the legislation should never be passed as law in Manitoba. We feel that at this time there is no demonstrated need for emergency energy powers in this province. We feel that with proper resource management, or even a proper resource observation, such an urgent situation would not arise. We feel that there would be sufficient time in order to do the things which the Act wants to do without resorting to such emergency procedures, and in general, we feel that the Act is premature and certainly a severe violation of civil lib erties, the need for which has not been demonstrated.

What the bill proposes to do, is to interfere with such civil liberties as the right to a hearing, the right to notice of a hearing; the right to enjoy the privacy of home safe from search and seizure where the person involved has comm itted no law breaking; the right to defend yourself from arbitrary or unlawful authority or the exercise of it; the right to justice without delay; the right of appeal and the right to contract lawfully. These rights or any of them should be abrogated unless it's absolutely necessary in the public interest to do so.

Our suggestion is, that emergency controls could be implemented without such a sweeping removal of the individual rights which make this a so-called free society. We feel that the real danger is not in the shortage of energy but in this legislation itself. it is, in fact, shattering to us to think that this Legislature has the competence to suspend civil rights in so quick and simple a fashion. I submit it could not happen in other jurisdictions if it's, in fact, legal in Canada. Dealing specifically with the provisions of the Act, our main concern is with

Part 11 of course, the Emergency Powers provisions. I'm going to start on that part of the legislation, which is on Page 13 of the bill. Sec tion 49 of the bill says that the declaration of the emergency shall be done by the Lieutena nt-Governor-in-Council, that is the provincial Cabinet, and there's no provision for a review by the Legislature as a whole or any other kind of review. If there is a real or apprehended state of emergency, it is declared and this

part comes into play. I note that this is not the way in which the emergency is brought into force under the comparative federal legislation passed last year, in which case th ere is an emergency call of the Parliament of Canada to review the decision by the Cabinet that such an emergency exists. it's our submis sion that there should be such a review by the Legislature as a whole. Further, we feel that there should be a periodic review once a state of emergency has been stated to exist, which is not provided for under

Section 49(2). Presumably it goes on open-ended until the Cabinet again make s the decision tha t there should be termination of the state of emergency. Dealing with

Section 53, the suggestion is that the board can make its order without a hearing. Obviously there will be emergency situations where a hearing is unnecessary, or is imp ossible under the urgent situa tion , presu mabl y that's what's being contemplat ed, but if that is so there should be sufficient relief under other sections to provide the person who is affected by the order with sufficient opportun ity to address the board or whichever entity is making the order, for a review of the order. There is some provision.

Section 55 provides that any person feeling aggrieved may apply to the board for relief, and the board will make an order granting the whole or any part of the application. lt doesn't provide for a time in which the hearing may be heard , but I will refer you to

Section 69, on page 18 of the bill, which says - and I ha ve di fficult y understanding the wording of this section; I think there may be a drafting error here - "The board may refuse to hear any application or to conduct any investigation made within one year of the occurrence of the event giving rise to the application or investigation." I suppose that what's intended to be said there, is that the board has one year in which to hold a hearing. I don't think that it clearly states that, but if that is the intention I don't think that's sufficient relief to a person who'e affected by an order without a hearing under

Section 53. I think there's a drafting problem there and a person should be entitled to an immediate hearing, or at least as soon as practicable under the legislation. Under

Section 60 on page 16 , there's a suggestion that: "Where the board is of the opinion that the special circums tances of any case so require, it may make an order under this Part ex parte," meaning without the presence of the parties affected, "and any order so made shall be an interim order only and shall be effective for a period of time specified by the board and no longer," without specifying a maximum period of time. Again we feel this could be an infringement of rights which could go on obviously in perpetuity if the board so ordered.

We feel that the legislation has to, if it's going to provide for the suspension of civil rights, it also has to provide sufficiently for recovery of the rights and for a time period in which a person can receive his relief from the very stringent legislation. Un der

Section 63, again the orders are made without notice. lt says that, "lt may, upon the ground of urgency or for other reasons appearing to the board to be sufficient, notwithstanding any want of or insufficiency of notice, make the like order or decision in the matter as if due notice had been given to all parties, and the order or decision is as valid and effective in all respects as if made after due notice had been given." Agai n, the right to natural justice, to be notified of a hearing where you're affected, suspended there, and we feel that

Section 63(2) is not sufficient relief to the person aggrie ved to have his fair notice and hearing. We feel that these matters should be reviewed as well.

Section 68 provides for the requirement that a person bringing in a complaint or an investigation before the board, has to deposit money in order to have their case heard, which I feel runs contrary to our usual idea of justice, but in this case the board can decide how much money has to be deposited, which can ultima tely be forfeited. For any person to have his hearing before the boar

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-4-la12
Type	hansard
Volume / chapter	31st 4th hansardpdf la12.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	f8aca0641c71a8116a41f565c91e6485cc1af524

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