2011 Legislative Session: Fourth Session, 39th Parliament
The following electronic version is for informational purposes only.
The printed version remains the official version.
official report of
Debates of the Legislative Assembly
Wednesday, November 23, 2011
Volume 28, Number 8
Introductions by Members
Introduction and First Reading of Bills
Bill M209 — Poverty Reduction Act, 2011
Bill M210 — Workers’ Dues Transparency and Rights Act
Bill M211 — Access to Prostate Cancer Screening Act, 2011
Statements (Standing Order 25B)
Remembrance for road crash victims and road safety legislation
Columbia River Treaty negotiations
Thompson Rivers University Williams Lake campus
Movember fundraising campaign for prostate cancer awareness
Trade mission to China by Premier
Government action on poverty reduction
Hon. C. Clark
Hon. M. McNeil
Hon. R. Coleman
Government action on poverty reduction and access to child care
Hon. G. Abbott
Student financial assistance
Hon. N. Yamamoto
Prevention of homophobic and transphobic bullying
S. Chandra Herbert
Hon. C. Clark
Reports from Committees
Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills
Rebuilding efforts in Japan and Canada-Tohoku reconstruction project
Hon. S. Thomson
Orders of the Day
Government Motions on Notice
Motion 24 — Amendments To Nisga'a Final Agreement
Hon. M. Polak
Committee of the Whole House
Bill 16 — Family Law Act (continued)
Hon. S. Bond
Report and Third Reading of Bills
Bill 16 — Family Law Act
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WEDNESDAY, NOVEMBER 23, 2011
The House met at 1:34 p.m.
[Mr. Speaker in the chair.]
Introductions by Members
Hon. M. Polak: I'm pleased to introduce to the House today some very special guests who are joining us this afternoon from the Nisga'a Nation government. We have President Mitchell Stevens; Chairperson Kevin McKay; Secretary-Treasurer Edmond Wright; CEO Fred Tolmie; and general counsel, Margaret Rosling. Would the House please make them very welcome.
R. Austin: From this side of the House, I'd also like to add my welcome to the Nisga'a Nation leaders here. It's wonderful to see them here for this important piece of business that we're going to take care of this afternoon.
It's amazing, hon. Speaker, the excuses that some of us will make to avoid that first heavy snowfall and having to shovel, but I'm sure our wives will be happy to see us all back at the weekend.
Hon. C. Clark: Gee, Mr. Speaker, at my house I shovel the snow.
I want to make two introductions. First, I'd like introduce Kara Ross. She works in my scheduling department. She's joined by her mom, Lorene Houston, and her grandparents, Pat and Irene Cooper. A few weeks ago I met Kara's beautiful two daughters, Ainsley and Peyton, who came to work for a visit. So first, a very special welcome to Kara.
Second, a very special welcome to someone who has had a big impact on me in my life, and that's Laurel Middelaer. Laurel Middelaer has devoted her life out of a terrible tragedy, a tragedy that most of us couldn't even imagine. Out of that tragedy, she has found strength and incredible purpose to make the province a better place.
She lost her daughter to a drunk driver in the worst, most tragic circumstances you can imagine. Out of that, she decided that she wanted to make sure that fewer families had the experience that she did when she found out that her daughter had been killed. As a result of her work, we are able to say today that 45 fewer families have lost a loved one. I'd like to give Laurel a very special thank-you and a very special welcome. She has made this province a better place.
J. Horgan: As I gaze upward into the gallery, I almost didn't recognize my first-born son, Nathan, who's here with us today. He's had a haircut, so I can see him. And of course, it will be a surprise to the Leader of the Opposition, because 23 years ago I handed him Nathan, and he said: "Now what do I do?" And he's come a good distance. So would the House please welcome my good son Nathan Horgan.
D. Hayer: I have two special guests here today. One is David Johl. He's the past treasurer of the Surrey Board of Trade and a community leader and a businessman, and here with him is Linda Lu from SUCCESS. Would the House please make them very welcome.
M. Karagianis: We have in the chambers with us today a special guest, a former member of this House and also a former Whip who has been a great mentor to me in the job I do as caucus Whip. Also, if members get a chance to talk with him, they should ask him about the grand adventure that he's been on for the last three months, because it's really fascinating what he's been up to. Would the House please welcome Gerard Janssen.
J. McIntyre: I'm delighted to have a group of six guests with me today. We had a delightful lunch in the dining room, and now I have guests here in the gallery for question period: Judith and John Berg are constituents of mine — Judith, whom I met through politics, has now become a great friend and supporter — and their guests John and Maxine Hudon and Jenji and Joanne Konishi. Would the House please make them all feel very welcome today.
R. Fleming: I'd ask the House to join me in welcoming a large contingent of young people from the University of Victoria NDP Club who are with us in the gallery today. Many of them are seasoned campaigners, and I think, in part, they're here to see question period today, and in part they're here to see what becomes of us that they have helped to elect and what we do on a daily basis.
Their trip today was organized by Raizy Marmorstein. I also see Darcy Lindberg, the president of my constituency association along. He's still a young guy. I'm looking forward to giving the club a tour after question period, with some of my colleagues. I know that if there are any tough questions, I want to warn the members on the government side that we will be in the hallways and might be randomly knocking on minister's doors for those occasions.
R. Hawes: In the gallery is Mel Zajac and his daughter Carmen; along with Linda Annis; Donna Bilous, who's the medical director at the Zajac Ranch; and Simon Mok.
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Mel Zajac has been a philanthropist in this province for decades, since the tragic death of his two sons. The current project is Zajac Ranch, which is a place for children with debilitating and life-threatening diseases. It's where kids can go and have a normal camp experience because everyone else in the camp has the same disease or condition as they do. Mel deserves a huge thanks from all of us for the wonderful work he's done for all those decades.
Could the House please give Mel a heartfelt thanks.
S. Hammell: I'm delighted to introduce a number of people in the House today. We have seven members of the Prostate Cancer Canada Network Surrey. They meet on Saturdays at Surrey Memorial Hospital, the last Saturday of the month. George and Lyn Main, Leno and Doreen Zecchel, Ron Moore, Jim Perrin and Larry Shaw are here. Also, from the Prostate Cancer Canada Network Comox Valley we have Harry Whitfield and Brian Lunn here. From the Prostate Cancer Canada Network Victoria we have Dan Hubbard, David Smith, Bernard Turgeon, Al Pearce, William Spriggs, Leanne Kopp, Jocelyn Tait, Craig Smith, Chris and Pam Brambell, Luc Beauvais and Pat Marsh.
Would the House please make all these people, who are here to attend this session, welcome.
Hon. S. Bond: I want to begin by thanking my colleagues, and certainly there were members of the opposition, that joined us today on the front steps to honour and remember those who have died or been affected by road crashes. Today does mark National Day of Remembrance for Road Crash Victims. I think that it was a very poignant experience for many of us to hear Laurel Middelaer, whom we've already heard introduced by the Premier.
There are a number of other guests joining us in the gallery today, people who are also impacted very profoundly by what happens on our roads in British Columbia. We have Dr. Roy Purssell, who is the associate professor, head of the division of emergency medicine at Vancouver General Hospital; Wayne Kauffeldt, past chair, board of directors for MADD Canada and his wife, Laura. We know that Wayne and Laura also lost a daughter.
Also, Allan Lamb from BCAA; Mike Diack, superintendent, officer in charge of E division traffic services; Ted Emanuels, inspector of the RCMP operations office, Lower Mainland district traffic services IRSU; Chief Constable Jamie Graham of the Victoria police department, who is the chair of the B.C. Association of Chiefs of Police traffic safety committee; Tracy Crawford, the chapter services manager of MADD, B.C.-Yukon; Mr. Grant Brilz, superintendent of the Victoria B.C. Ambulance Service; and Dave Ferguson, the deputy fire commissioner.
We want to thank all of these very important individuals for the work they do, day in and day out. I don't know if they've managed to stay, but we are very pleased to be able to recognize, also, Arnie Hamilton, who is a former member of this Legislature and his wife, Carol, who is the newly elected mayor of Colwood. They also, tragically, lost a son.
Today is a poignant reminder of the importance of the new legislation that British Columbia has put in place. I want all of us to thank and welcome our guests to the gallery today.
S. Fraser: I'd like to join my colleague from Victoria–Swan Lake in welcoming the stellar contingent from the University of Victoria, but I have another motive too. I would like to single out one just for the embarrassment and blush factor.
Emma Fraser is joining us in the gallery. She's my favourite daughter. Would this House please make her feel very welcome and very embarrassed too.
N. Simons: I'd like to welcome some constituents visiting from Sechelt: the recently re-elected Alice Lutes, councillor for the district of Sechelt and former president of the Sunshine Coast Labour Council, her husband, Don, and son Greg Inglis. Could the House please join me in making them welcome.
J. van Dongen: Visiting us today is former ministerial assistant Bill Hepburn and his wife, April Gilliland. I ask the House to please make them very welcome.
Mr. Speaker: Going around a second time, Member for Surrey–Green Timbers.
S. Hammell: I seldom get up, sir.
I'd like also to welcome to the House today my sister Val Hammell and my brother-in-law Bob Albrecht. They're up from Denman Island, here to see us today.
N. Simons: Also, today…. They were unable to join us in the House because they aren't allowed cows or goats in here, but there are folks representing the raw milk supporters. I think that it's important for us to recognize that their issue is important. Would the House please welcome them at least to the precinct.
First Reading of Bills
Bill M209 — Poverty
Reduction Act, 2011
S. Simpson presented a bill intituled Poverty Reduction Act, 2011.
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S. Simpson: I move that this bill be read for a first time now.
S. Simpson: I'm reintroducing the Poverty Reduction Act, 2011 today because, sadly, there's been a lack of action on this issue by government. Today in the First Call report card we have again heard about the desperate situation with child poverty in our province — 16.8 percent of our children living in poverty — and we know that poor kids means poor families.
Over half a million British Columbians live in poverty. A quarter of them are children. Half of these families have a full-time income in their household. This is a situation that no British Columbian, and certainly no member of this House, should find acceptable.
We know that addressing this issue is complex and requires a multi-pronged approach if we truly want to break the cycle of poverty for some of our most vulnerable citizens. This bill reflects the opposition view of how we need to respond and where we need to begin.
We need a legislated response, a response that is consultative and engages stakeholders, advocates and those living in poverty, a response that results in targets and timelines that are measurable and achievable. We need a response that is transparent and that ensures that the people of our province understand how we are addressing poverty, and we need a minister who is accountable for delivering that program.
As we have said before, we would be pleased to have the government take this bill and introduce it as your own, if that's what it takes to get some meaningful action on poverty in B.C., action that British Columbians are calling for.
I move that the bill be placed on the orders of the day for second reading at the next sitting of the House after today.
Bill M209, Poverty Reduction Act, 2011, introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.
Bill M210 — Workers’ Dues
Transparency and Rights Act
J. Rustad presented a bill intituled Workers' Dues Transparency and Rights Act.
J. Rustad: I move that this bill be read for a first time now.
J. Rustad: This bill makes amendments to the Labour Relations Code by adding transparency to how workers' dues are managed and by protecting workers' rights. In 1946 Justice Rand introduced the concept that employees receiving benefits from a union should also contribute to that organization. This led to mandatory membership and fees for workers' in a unionized environment. Justice Rand also wrote that these contributions should go "towards the expense of maintaining the administration of employee interests and of administering the law of their employment."
There are many past examples that have shown practices by some unions have gone far beyond the original intent. More recently the B.C. Federation of Labour's offer of financial assistance to Occupy Vancouver is a good example of how mandatory dues may be spent on activities totally unrelated to the intent of Justice Rand.
Furthermore, there are inconsistencies in the provincial tax law concerning workers' dues. Dues are exempt as part of normal income taxes, but if those dues are spent on other activities, it could be argued that these activities may not meet the intent of the tax benefit. For example, charitable or political donations are handled very differently from workers' dues by our tax laws.
Money spent on non-charitable and non-political activities would receive no tax benefit whatsoever, but by having this money flow through a union as part of their dues, a tax benefit would incur to a union member that wouldn't be available to other citizens. This bill corrects this contradiction in B.C. tax law while also protecting workers from any potential misuse of their dues.
I move that the bill be placed on the orders of the day for second reading at the next sitting of the House after today.
Bill M210, Workers' Dues Transparency and Rights Act, introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.
Bill M211 — Access to Prostate
Cancer Screening Act, 2011
S. Hammell presented a bill intituled Access to Prostate Cancer Screening Act, 2011.
S. Hammell: I move that a bill intituled Access to Prostate Cancer Screening Act, 2011, of which notice has been given in my name on the order paper be introduced and now read a first time.
S. Hammell: The effects of prostate cancer have a significant negative impact on British Columbians. Prostate cancer is the most common cancer among men. This year alone over 3,000 men will be diagnosed with prostate can
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cer in British Columbia, and around 600 will die from it. In recognition that early detection is a primary element in the fight against prostate cancer, this act aims to promote prostate cancer screening in British Columbia. With early detection and treatment, many lives can be saved.
It is the consensus of medical experts that prescreening should be available for asymptomatic men of a particular age group, accompanied by active surveillance. This act will ensure that prescreening exams for asymptomatic men in this age group will be covered by Medical Services Plan of British Columbia. The primary goal of this act is to implement preventative health care in an area that has been severely lacking.
Hon. Speaker, I move that this bill be placed on the orders of the day for second reading at the next sitting of the House after today.
Bill M211, Access to Prostate Cancer Screening Act, 2011, introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.
(Standing Order 25B)
REMEMBRANCE FOR ROAD CRASH VICTIMS
AND ROAD SAFETY LEGISLATION
E. Foster: On an average day six people lose their lives on Canada's roads. That's 2,200 deaths every year. Another 173,000 are injured. That's 473 every day. This is unacceptable. That's why today, November 23, has been set aside as a National Day of Remembrance for Road Crash Victims. Those victims include not just those who are killed or seriously injured but also their loved ones who have to deal with the loss and the suffering.
Six deaths and 473 injuries every day are sobering numbers, and this government has taken decisive action. British Columbia now has the toughest impaired-driving laws in the country, which has made an immediate difference. Since the law was enacted some 10 months ago, the number of impaired-driving-related fatalities has dropped by 40 percent. In other words, this new legislation has saved lives.
We have not stopped with stricter impaired-driving laws. Eight years ago this government introduced tough anti-street-racing laws which have resulted in 970 vehicles impounded. We enhanced child vehicle safety by making booster seats mandatory until kids are 4 foot 9 inches tall or nine years of age. In 2009 this government passed legislation to ban the use of hand-held cell phones, portable electronic devices and text messaging while driving.
More recently, members from communities across the province who watch the news will notice that we have been enhancing our intersection safety camera program, and 140 state-of-the-art, red-light cameras have been installed in B.C.'s most crash- and casualty-prone intersections. These measures have all made a difference, but we are committed to keeping British Columbia's roads and drivers safe. We can and will do more.
COLUMBIA RIVER TREATY NEGOTIATIONS
N. Macdonald: The Columbia River treaty was negotiated in the 1960s between Canada and the U.S. to improve power generation and flood control on the Columbia River. The treaty resulted in the building of three storage dams, and in return for water storage, the province of British Columbia receives between $150 million and $300 million annually, referred to as the downstream benefits.
These benefits are shared provincewide, but the negative impacts of the flooding are purely local. For example, Kinbasket reservoir, north of Golden, is a massive storage area jointly controlled by B.C. and the U.S.
The reservoir sits on formerly forested valleys behind the Mica dam. It is not a lake. To meet the terms of the treaty, the water level fluctuates drastically, making the area less amenable to recreation and difficult to manage for industry. Fifty years after the building of the dam, the reservoir is still littered with debris. Prime tree-growing areas have been lost, and almost all harvesting in the surrounding area is now uneconomical.
Now, 2014 will be the first opportunity we have to review the Columbia River treaty. As that date approaches, those that have been most affected by the treaty are beginning to prepare for those renegotiations. When our valleys were first flooded, residents were not consulted. Landowners had no choice but to move. The people in my area understand that the only way we can be sure that the Kootenays are not left out again is to get organized and to get educated.
This is the time not only to discuss flood control and power generation in the Columbia Basin but also to address the social, economic and environmental impacts of the treaty. It is a once-in-a-generation opportunity. The people of the Kootenays are engaged and ready. We now need to be sure, at the provincial level, that we understand our obligations to work with Columbia Basin residents to achieve their goals.
THOMPSON RIVERS UNIVERSITY
WILLIAMS LAKE CAMPUS
D. Barnett: In 1984 I was appointed to the board of Cariboo College in Kamloops, which in those days did not have a presence in my riding and in Williams Lake. In 1986, when the government of the day was under huge financial restraints, the board bought a building in Williams Lake which thus became the campus for Cariboo College.
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It has since been relocated to a new facility. Of course now we know — many colleges were redesignated by this government — that it is known as TRU, Thompson Rivers University. TRU plays an important role in the Cariboo-Chilcotin, as it does throughout the Kamloops region, as its programs are a reflection of the prospects of the region.
Students can learn about natural resource science, horticulture and forestry — just to name a few areas of study. The Williams Lake campus features a wide range of unique learning opportunities, including the Elder College, which offers lifelong learning to seniors. The Open Learning Centre facilitates open learning courses and programs delivered on line or by distance education to First Nations communities in the surrounding area.
TRU boasts smaller class sizes, friendlier faculty and staff, state-of-the-art facilities and the low cost of living in Williams Lake. Attuned to the opportunities of our diverse region, TRU is an important part of the Cariboo-Chilcotin.
In June Minister Yamamoto and I toured the facility, met with students and community leaders and saw firsthand the First Nations House of Learning. Opportunities for growth at TRU Williams Lake are many. The dean, faculty, community, First Nations and students are very excited about the future.
Mr. Speaker: I remind members not to use personal names.
MOVEMBER FUNDRAISING CAMPAIGN
FOR PROSTATE CANCER AWARENESS
S. Hammell: I'd like to acknowledge the many newly grown moustaches that have appeared in the House this month of Movember, because these members and others joining us in the gallery are advocates and often prostate cancer survivors. They are supporting prostate cancer research and prostate cancer awareness. Last year Canadians raised $21 million in support of prostate cancer research — a fabulous amount of money.
New Democrats, along with fellow Canadians from coast to coast, were hit hard this year following the devastating loss of Jack Layton after his battle with cancer. Throughout Movember, Mo Bros and Mo Sistas from across the country have been growing or wearing moustaches in Jack's honour.
Since November 1, to my astonishment, Mo Daughter, Sage, has joined the efforts by wearing a moustache for four hours every day. Every day she puts on a moustache — either the hero, the sheriff, the bruiser, the grandpa, the Hollywood, the square or the weasel. Anyone who pledges $75 is able to dictate where and which moustache she will wear, and that has proven very interesting. To date Movember for Jack has raised $97,000, and they still have a week to go.
But Sage is not only raising money in honour of Jack but also for her brother, James, who has a very aggressive form of this disease. We, in our family, know how important money for research is and how important it is to be vigilant about PSA testing and doctor examinations.
Let's get screening available to men over 40 and have it covered by B.C. Medical. As Movember comes to a close, I do want to say to all of those brothers — I should say Mo Bros — and Mo Sistas, thanks for your incredible fundraising efforts.
TRADE MISSION TO CHINA BY PREMIER
R. Lee: Business everywhere is about relationships, but especially in Asia. That's why the Premier's recent jobs and trade mission to China and India is so important for capitalizing on our Asia-Pacific opportunities. The fact that the Premier led the mission and that three cabinet ministers were also there opened doors for the hundreds of representatives of business, education and cultural organizations who went with her.
A Burnaby company, Ballard Power, benefited from this. Their MOU with Delta Power Solutions of India builds on an existing fuel cell collaboration agreement between the two companies and strengthens Ballard's position in the Indian market.
BCIT, with a campus in my riding, signed an MOU with two Chinese post-secondary institutions, Tianjin Sino-German Vocational Institute of Technology and Dongguan University of Technology in the province of Guangdong, our sister province. Both deals will see more students from China come to B.C. and will enhance BCIT's prestige.
The jobs and trade mission also brought an important achievement on the cultural front. Barkerville's agreement with Guangdong Museum of Overseas Chinese will see a travelling exhibit called Who Am I? make a stop here in 2013. The exhibit highlights the history of Chinese people who came to Barkerville about 150 years ago. It will be about those who returned to China and about those who stayed.
It's also about the strong ties between B.C. and China, which go back so much further in time than many people are aware. These strong ties that we share with so many Asian countries are what will help us to make the most of our Asia-Pacific opportunities.
R. Fleming: The University of Victoria is ranked among the top 50 universities in the world, and we all know that great universities are built on great faculty. One of the largest departments at UVic is the department of English, which is particularly blessed with award-winning academics and writers.
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I want to take an opportunity today to congratulate an outstanding community member, Prof. Jamie Dopp, for being the winner of the fiction category in this year's gritLIT Literary Competition for his story called "Little Fish." The gritLIT competition is held each year in association with Hamilton's Literary Festival. An anthology of the prize-winning entries in both poetry and fiction was launched recently, on November 6.
Jamie Dopp came to Victoria in 1990 to become a professor of Canadian literature at the University of Victoria, and I personally know that he has been a tremendous asset to the English department. Jamie Dopp has published many articles, reviews, stories and poems in journals over the years, as well as his own books of poetry and a novel.
Most recently he co-edited a collection of essays about hockey called Now is the Winter: Thinking About Hockey, which grew out of an interdisciplinary conference he hosted just next door to us here, at the Hotel Grand Pacific, in 2007, entitled Canada and the League of Hockey Nations. The inspiration for some of his hockey writing has come from his years of playing oldtimers' hockey in Victoria.
Jamie Dopp is the past president of the University of Victoria Faculty Association. He's been a regular volunteer teacher in University 101, which is an excellent free outreach course offered by the University of Victoria for individuals with barriers to getting into university. He has performed as an actor, musician, lecturer and reader in the Victoria area, and he has been actively involved in all kinds of volunteer work.
I hope the House will join me in applauding and congratulating Professor Jamie Dopp on this accomplishment and his many others in working day in, day out in his community.
ON POVERTY REDUCTION
A. Dix: My question is to the Premier. First Call today released its annual report on child poverty in British Columbia. The report showed that the number of children living in poverty in B.C. is 137,000. The report showed that for the eighth consecutive year B.C. had the highest child poverty levels in Canada. B.C. also ranks last, according to the report, in the impact of government — the ability of government, the effectiveness of government — to reduce the level of child poverty.
Can the Premier explain her government's failure to implement a comprehensive plan to fight child poverty?
Hon. C. Clark: I believe, and my government believes, that every child — every child — in this country has the right to live free of poverty. The rates of child poverty across Canada are growing, and it's something that we need to be deeply concerned about. The reality is that it's not just children who are poor; it's their parents who are poor. We have to be concerned about that as a big family issue in our province.
My government is deeply concerned about families and making sure that we support families in the hard work that they do, in making sure that they have the chance to be the best possible parents they can, to instil character in their children and raise them to be good citizens. They need the tools to do that. They need, in some cases, government support to do that, and we're continuing to work on it, because it's not good enough.
That's why we've raised the minimum wage for the first time in ten years. That's why 27,000 new affordable housing units have already been created or are under construction. That's why the rental assistance program was created, to support more than 9,300 low-income families. There is more, Mr. Speaker, but we need to continue to do more.
Mr. Speaker: The Leader of the Opposition has a supplemental.
A. Dix: I agree with the Premier that we need to do more, and I was the first to applaud the government when they increased the minimum wage.
The question, though, is very simple. The Conservative government of Newfoundland, the Liberal government of Quebec, the Liberal government of Ontario, the NDP government of Nova Scotia — in fact, every government now, except B.C. and Saskatchewan — is working on a comprehensive plan to reduce child poverty or has implemented one. B.C. is out of step with the rest of the country.
So the question isn't whether the issue is important. We hopefully all recognize that it's important. The question is whether British Columbia will join those other provinces, will follow the advice of other jurisdictions, won't be an outrider on this issue but will really put together a plan and work on a comprehensive plan to reduce poverty in general and child poverty in particular.
I ask the Premier, very specifically, whether she will join with seven other provinces in Canada and implement a comprehensive poverty reduction plan in British Columbia.
Hon. C. Clark: Since 2003 the B.C. rate of child poverty has declined by almost 38 percent, so we've been continuing to see a decline in child poverty. Not enough has happened, though.
We need to continue to make sure we're doing new things, and we need to continue to make sure that we've got our eye on the ball to provide support to families who are living in poverty, families who are jobless,
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families who are struggling to raise their children. We need to be there for them, and that's the purpose of the rental assistance program.
That was exactly why my government raised the minimum wage as one of the very first acts after I was sworn in as Premier. That's exactly why we've continued to do many of the things we've done, like eliminating or reducing MSP premiums, which helps about 215,000 low-income families every year. It's why we have the lowest tax burdens, particularly for people who are at the lowest level of the income scale, anywhere in this country.
Now, we have challenging economic times around the world, and it's going to continue to be challenging. That's one of the reasons we've seen the poverty rate go up all across Canada. Those are challenges that we are determined to meet head-on.
The best way to address poverty is to make sure that people can find a job. That's why we've focused on the jobs plan. That's why we have been working across government and harnessing every ministry's energy behind the jobs plan. If we can enable the creation of jobs in regions all across the province, that's going to do more than any government program to reduce the child poverty rate.
Mr. Speaker: The Leader of the Opposition has a further supplemental.
A. Dix: The seven provinces that implemented comprehensive plans to reduce poverty — those seven provinces weren't No. 10 in the country, like British Columbia. It's been eight consecutive years. That's eight consecutive years of answers which say it's important but where action hasn't, frankly, followed.
It's not just those seven provinces. If the Premier doesn't want to listen to those seven provinces, then listen to the UBCM, listen to the Representative for Children and Youth, and listen to the Canadian pediatric association. All of those groups are calling for exactly this.
I think that at a time when the growing inequality is, in fact, hurting our economy, most importantly, it's hurting children. We expect better from the province. So I ask the Premier very simply. Premier Redford is developing a plan in Alberta now — one of the three provinces that haven't done so. Will British Columbia follow other jurisdictions and put their efforts with their rhetoric and implement a comprehensive plan to reduce poverty?
Hon. C. Clark: It is no mystery why the Leader of the Opposition wants to refer to plans and never talks about results. It's no mystery, because we have seen the child poverty rate reduced for almost the last ten years, and that has happened. Why has that happened?
It has been because for the last decade this government has been focused on making sure that the economy is working, making sure that jobs are being created all across the province. That's why the child poverty rate has continued to decline. That is why the child poverty rate is lower than it was under any year that the Leader of the Opposition occupied the Premier's office.
The reason it has gone down…. I grant it, it certainly hasn't gone down quick enough or fast enough, but the reason it has been reduced is because the government has been focused on enabling and encouraging economic activity. We need to do more to support families in challenging economic times. There is absolutely no question about that, and that's why my first act after being sworn in as Premier was raising the minimum wage.
But we also have to make sure that we are enabling the creation of jobs all across the province. If the member is interested in plans to reduce poverty, I suggest that he go look at Canada Starts Here: The B.C. Jobs Plan.
C. Trevena: For eight years we've been tenth out of ten. It is shameful.
The Premier can say that things are getting better. But if things are getting better, why are younger children, more young children, falling into poverty? One in five children younger than six is now living below the poverty line. That's 20 percent of B.C.'s preschool-aged children starting their lives in poverty. That damages their development, and it undermines their future.
Mr. Speaker, you just have to look at the research. The University of British Columbia, their early learning partnership, says that almost one-third — one-third — of B.C.'s children show vulnerability when they enter the school system.
I would like to ask the Premier: when will she actually try to stop this desperate situation, and when will she implement a comprehensive poverty reduction plan?
Hon. M. McNeil: Child poverty is a difficult issue, and it's one that affects us all. It should affect us all, and all of us should play a role in eradicating it. But I believe that simply doing a one-size-fits-all for an entire province is not the answer.
In September I participated at UBCM in a panel on poverty with the Representative for Children and Youth. The member opposite was also present. At that time I spoke about our intention to develop regional poverty reduction strategies for regions around the province.
We have committed to working with UBCM's healthy communities committee. We have had two meetings so far — our third is tomorrow — to discuss with them how we can work with municipalities, work with the non-profits within the region and work with the businesses within the region so that all of us together can develop what that region needs to help to bring their families out of poverty. That's what's going to be effective.
[ Page 9016 ]
Mr. Speaker: The member has a supplemental.
C. Trevena: The minister talks about leaving it up to regions, but it sounds very much to me like downloading on regions. We've had UBCM say very clearly in resolutions that they want a comprehensive poverty reduction plan. We have had the Representative for Children and Youth, in her latest service plan, which was presented to the Finance committee this morning, again asking for a comprehensive poverty reduction plan.
Saying we want to leave it to communities amounts to saying: "Come up with ideas so we can take credit for it." What British Columbians want is leadership. They don't want downloading. They don't want slogans. They want a poverty reduction plan that will deal with this embarrassing, painful situation. As it stands, B.C. is just one of three, soon to be two, provinces that has not taken this step.
So I would like to ask the minister once again: will she commit to looking at introducing a real poverty reduction plan? Not slogans, not downloading, but a poverty reduction plan that has an impact for our children in B.C.
Hon. M. McNeil: What regions have been asking as I've been touring this province is that they don't want government to tell them what they need. They want to be part of that discussion. That's exactly what we're going to do. We're going to be meeting with the regions, talking about what works for them. What works in the Kootenays is not necessarily what's going to work in the Peace, and that's what we have to recognize as a government.
So we've committed to working closely with the regions, the municipalities, the non-profits in the area, the service providers in the area. All of us together will do what works for them and their families.
In fact, the representative, on October 6, said the following to the Select Standing Committee on Children and Youth: "Maybe a one-size-fits-all poverty plan that's prepared by one ministry is not going to work. Maybe it's a different and more flexible approach." I think we all need to support that, and I support that.
S. Simpson: The real measure on this issue is less about the state of the economy than it is about how government responds to poverty within its jurisdiction. The Premier has talked about wanting to look at real results. Well, let's look at results.
Statistics Canada tells us that the federal government reduced the real poverty rate in Canada, through its actions, by 45 percent. In Alberta — that province reduced poverty by 44 percent. In Ontario the reduction was 45 percent. In B.C. the Liberal government action reduced our rate of poverty by only 33 percent. It was the worst performance of any government in this country — the worst performance.
Whether it is incompetence or a lack of meaningful concern, the B.C. Liberal response to poverty reduction has failed dismally. Will the government take real action and legislate a poverty reduction plan now?
Hon. M. McNeil: Since 2003 B.C.'s child poverty rate has dropped by almost 38 percent, and the proportion of children under the low-income cutoff is one of the lowest since 1980 — in fact, lower than every year under the NDP.
What families need are actions — actions such as increasing the minimum wage; the creation of 17,000 new affordable units, with another 3,000 on the way; actions such as the rental assistance program, which is helping 9,300 low-income families each and every month.
The government will continue to strengthen the economy and create jobs through our Canada Starts Here jobs plan, at the same time providing targeted supports to the families that need them.
Mr. Speaker: The member has a supplemental.
S. Simpson: This minister talks about the government performance, talks about a rental assistance program that supports 9,000 people. There are 220,000 households in this province with core housing need, and this feeble rental assistance program supports less than 5 percent. That's this government's answer to the issue. This is a government without a housing plan, without a poverty plan, a government that has turned its back on vulnerable British Columbians, without doubt.
First Call has said we need a plan. The child and youth representative has said we need a plan. The Union of B.C. Municipalities has said we need a plan. Whether it's the working poor, people on pensions, the disabled or income assistance recipients, the B.C. Liberals are failing every one of those groups — every one of them. We've had a decade of turning our backs on the most vulnerable people in this province.
Will the Premier commit today that she'll legislate a poverty reduction plan, or is that not part of the families-first strategy?
Mr. Speaker: Members. Members.
Go ahead, Minister.
Hon. R. Coleman: There are 6,000 people that were homeless five years ago in British Columbia that are no longer homeless in British Columbia. Now, I recognize that the members opposite don't care about the 9,300 families that get help every month with the rent, that make under $35,000 a year, but that is helping real people and helping them now.
Mr. Speaker, $120 million invested in housing in 2001; on an annualized basis, now it's over $560 million.
[ Page 9017 ]
The most comprehensive and the most successful housing strategy in Canadian history is right here in British Columbia.
ON POVERTY REDUCTION
AND ACCESS TO CHILD CARE
M. Elmore: The third and final Early Years Study report was released this week as well. All the provinces were ranked on early childhood education and child care policies, and British Columbia scored 4.5 out of 15. Only Alberta and Newfoundland and Labrador scored worse.
Paul Kershaw from UBC's human early learning partnership has argued that B.C. must do more to help families, with child care, parental leave and a better work-life balance. But the Liberals continue to ignore the very real need of families. To the Premier: what is she doing to make sure that parents in B.C. have access to improved child care?
Hon. G. Abbott: I am truly gratified to receive a question, even though it is rather late in the session.
I am very proud to be a part of a government that has invested over half a billion dollars in all-day kindergarten in order to meet the needs of young British Columbians. I am really proud to be a part of a government that has invested tens of millions in StrongStart opportunities across this province for young British Columbians.
I am further proud to be part of a government that has invested in neighbourhoods of learning, that will be investing in neighbourhoods of learning, to ensure that child care becomes a part of the educational environment as well.
Mr. Speaker: The member has a supplemental.
M. Elmore: Well, the reality today is that B.C. scored 4.5 out of 15 — a shameful and embarrassing third from the bottom across Canada. It's not families first when families can't access child care. When B.C. moved to full-day kindergarten, the Liberals did it without considering the effect on daycares that provide after-school care, and they did it without considering the younger kids, the infants to four-year-olds that feed into the school system. Today we see that 20 percent of those same kids are living in poverty.
British Columbians need leadership from their government. When is the Premier going to put action to her "families first" slogan by committing to a poverty reduction plan?
Hon. G. Abbott: Well, I'm really surprised that this member would raise the kinds of aspersions that she has about early childhood education in British Columbia. It is really quite astonishing to hear these kinds of suggestions after, so very successfully, we have seen the introduction of full-day kindergarten in British Columbia. We've seen the introduction of StrongStart centres that are making a difference on a daily basis to thousands and thousands of vulnerable young British Columbians and their families.
I'm very proud of the record of this government. British Columbia has a good education system, and on this side of the House we are dedicated to making it a great education system for British Columbia.
STUDENT FINANCIAL ASSISTANCE
M. Mungall: I've now asked the Minister of Advanced Education twice about the review on student aid that she promised students and families. I've reminded her that she made that promise back in June and that she committed to having some changes in place by this fall.
Well, the snow is on the ground in the Kootenays, which is home to two public colleges and several private career colleges, and we haven't seen hide or hair of this review. So imagine my shock when I recently read in her local paper that she said she had no plans to change student loan programs.
So now British Columbians want to know: where is this supposed review, and why won't she table the results in this House?
Hon. N. Yamamoto: I appreciate the question from the member opposite. I've actually spent the last few months talking to students in our great campuses around this province. I can tell you that the review that the member opposite is referring to doesn't actually include all the student voices, and I was committed to talking to all the students in the province.
But let me tell you, after years of chronic underfunding of the post-secondary system by the NDP in the '90s, we are playing catch-up. We've done that, and we've done much more.
We've invested $1.9 billion this year in annual funding. In the last ten years we have made the largest investment in capital in the history of B.C. — $2 billion in capital funding. This is what we've also done for students. We've actually added 32,000 full-time spaces for students in British Columbia.
Mr. Speaker: Member has a supplemental.
M. Mungall: I'm so glad that the minister has finally mentioned this review in this House. It's been twice before that I've had to ask this question, and she wouldn't even talk about the review. Finally she brings it up.
But I also see that she's got on the train of the 1990s with some of her colleagues. I just want to remind her
[ Page 9018 ]
that it was so long ago that some of us in this House were 12 in the 1990s. Get with 2011, and welcome to today.
Back to 2011. After 11 years of this government's record on post-secondary education, this is the reality of what's going on. B.C. has the highest student loan interest rate in Canada and the lowest amount of money going to needs-based grants, at zero dollars. The average student loan in this province is an incredible $27,000. That's the average student debt that students are shouldering right now.
We know there is nothing for students in the Liberals' jobs announcement, yet the minister sits on her hands. She's sitting on her hands when it comes to making these changes, and she's not living up to her promise for changes this fall.
Can the minister explain how her review managed to ignore the voices of students, faculty and administrators who have been calling for changes to student aid in B.C.? They're calling for those changes now.
Hon. N. Yamamoto: The member opposite might have been 12, but I can tell you that back then, the Leader of the Opposition was the chief of staff of the NDP.
Mr. Speaker: Members.
Take your seat for a second. Continue, Member.
Hon. N. Yamamoto: Let me just list seven things that we've done for students in the past ten years. It starts with Thompson Rivers University, Capilano University, University of the Fraser Valley, Vancouver Island University, Kwantlen Polytechnic University, Emily Carr University and the new University of B.C.'s Okanagan campus. This side of the House is proud of the investments that we've made in post-secondary education.
HOMOPHOBIC AND TRANSPHOBIC BULLYING
S. Chandra Herbert: Our children are being bullied in our schools. We all know this. Lesbian, gay, bi and transgendered students are particularly vulnerable to this. We know they've been driven to suicide because of hate. We know they've dropped out of school because the pain is too much.
When trying to sell Liberal Party memberships to the gay community, the Premier promised to make tackling homophobic bullying a top priority, yet since then her government has done nothing about it. She actually claimed that the Liberals already have policy to protect all of those students.
Well, she was wrong; 75 percent of our school districts have zero policies in place to protect our lesbian, gay, bi and trans students — no policy in place to protect those students.
The Representative for Children and Youth has written the Premier demanding this. The opposition has written the Premier demanding this. The gay community has written the Premier demanding this. The wider British Columbia community has written the Premier demanding this. They know that to stand up for our kids is our job as adults. It's our job to look after the most vulnerable.
Will the Premier stop with the photo ops, and will she actually commit today to implementing a policy across B.C. to ensure that our students, our vulnerable students, have explicit protections?
Hon. C. Clark: I've spent a lot of years in public life in various different roles. One of the things that I have accomplished, of which I am most proud, was bringing the Pink Shirt Day anti-bullying campaign to British Columbia.
I brought it here because I was inspired by two young men in Nova Scotia who stood up for another student who was accused of being gay because he wore a pink shirt to school. That kind of behaviour cannot be tolerated in our province. It can't be tolerated in schools. It can't be tolerated in workplaces, and it shouldn't be tolerated in people's homes. That is bullying.
People get bullied for all kinds of reasons, and some people get bullied because they are gay, lesbian, bisexual. It is all absolutely unacceptable, and every single parent in this province who sends their child to school has a right to know that when their child goes to school, they will be safe. We know that children cannot learn if they don't feel like they are safe.
My government remains committed to making sure that we bring in anti-bullying policies and anti-bullying actions at schools all across British Columbia that will continue to make a difference.
So I appreciate the member's interest in this, because it's a legitimate and urgent issue. I'd say this to him, specifically in answer to his question. There is more to come on this. We are going to act on this. My government is going to make sure we do more to make sure that every child, as much as possible, is protected from bullying in their school. No matter what the cause or reason of that bullying, it is unacceptable.
I'd say to the member: I welcome the opportunity to work with him and anyone else who's interested in this issue. The only way we will defeat bullying is if we stand together united and say: "No matter who you are, no matter what side of the aisle you might sit on, bullying is not acceptable."
[End of question period.]
[ Page 9019 ]
Reports from Committees
B. Penner: I rise to present a very interesting report of the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills.
I move that the report be read and received.
Your Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills begs leave to report that the preamble of Bill Pr401, intituled Gospel Riders Motorcycle Ministries (Corporate Restoration) Act, 2011, has been proved, and the committee recommends to the House that the bill proceed to second reading.
All of which is respectfully submitted,
B. Penner, QC, Chair.
B. Penner: By leave, I move that the report be adopted now.
Bill Pr401, Gospel Riders Motorcycle Ministries (Corporate Restoration) Act, 2011, ordered to be placed on orders of the day for second reading at the next sitting of the House after today.
REBUILDING EFFORTS IN JAPAN AND
CANADA-TOHOKU RECONSTRUCTION PROJECT
Hon. S. Thomson: I rise to make a statement. I appreciate the opportunity. On a day of very personal reflections that we've experienced already today, I want to talk about a recent experience and pay tribute to the people of Japan.
As you know, I recently returned from leading a trade mission of 20 forest delegates to Japan, and while there we were able to visit the stricken area of the Miyagi prefecture following the earthquake and the tsunami of March 2011. While we were there, we were able to witness the unloading of the first shipment of B.C. lumber to Sendai port since the 2011 tsunami.
We also had the opportunity to visit two towns that had quite literally been flattened, Onagawa and Minamisanriku. I know we have all seen the video coverage and the pictures of this devastating event, but you can't comprehend the impact until you've seen it directly and you've had the opportunity to talk to the people directly there. On this trip I had the experience and the honour to be able to do that.
Just a very quick story. In talking to the mayor of Minamisanriku, he told me the story of the fact that they had very short warning for the tsunami — about 30 minutes. He was staying behind to make sure that his town reacted properly and everything with that. The wave came. It was much bigger than expected. He was on the fourth floor of his municipal building when the wave went completely over the building, and he was completely engulfed.
The fellow who was giving us a tour was on the roof of the building, on the antenna. The wave hit him halfway up. The wave receded out, and things went dark. The power was out. They couldn't get out of their building, and he spent the night in that building not knowing exactly what to expect in the morning. He spent the night saying, "I wish this was all a bad dream," and then woke up in the morning to see that 70 percent of his town was gone.
I know many of us or many of you have come from local government, and you just can't imagine the experience, I don't think, of being a mayor of a town and waking up in the morning and seeing that it wasn't a dream, that it was real, and the impact that it had. To be able to react from that and be able to talk to him was just a tremendously emotional experience.
It was heartbreaking to hear all of that, but what was really overwhelming and awe-inspiring to see was the reaction — how quickly the cleanup has occurred; how quickly safe, sanitary, temporary housing was provided, much of it from British Columbia; how quickly local government officials and residents are moving towards a new future.
This is really a testament to the resiliency and courage of the Japanese people. That's why I was very honoured while I was there to be able, along with the Minister of Natural Resources Canada, Hon. Joe Oliver, and along with the leaders from the forest sector that were there on that trade mission, to announce $4.5 million in funding towards the Canada-Tohoku reconstruction project.
This funding will go towards the construction of a legacy project or projects, depending how it's partnered up in the region. The Canada Wood Group will work very closely with the local communities in determining what the project will be. It will be something like a kindergarten or a school or an elder care facility or community centre — something that will be a lasting symbol of the great friendship that British Columbia and Canada have with the people of Japan.
I was very, very honoured to be able to do that. I think this is a small contribution in terms of the overall im-
[ Page 9020 ]
pact. It's estimated to be $300 billion U.S. that's going to be required for the complete reconstruction. But having that experience to be able to do that, having the experience to be able to talk directly to the people there, was something that is one of those highlights you have as an elected official — to be able to participate in something like that.
B.C. and Japan have enjoyed a long trading relationship — well over 100 years — and given the resiliency of the Japanese people, I expect this relationship to continue for 100 more. As you know, it's a relationship that's built on trust, mutual respect and friendship, and recognition of the long history and important contribution the Japanese community has made to the province of British Columbia.
On behalf of all of us here, I just wanted to pay tribute to the resiliency and the courage of the Japanese people and to thank you for the opportunity to make this statement today to reflect on the deeply personal opportunity that I had to be able to see that. As I said earlier, you can't comprehend it. You can see the pictures and the devastation, but until you get to talk to the people and see it on the ground, you can't really comprehend the impact.
It's just so gratifying to see how they're responding and the work they're doing to rebuild and reconstruct their country — a tremendous amount of work to do. It'll be years. But they're focused, and it is a great tribute to their resiliency and courage.
N. Macdonald: By tradition, with a ministerial statement there is an opportunity for the opposition to respond. That's a very personal story that you've told, and certainly, you speak for all British Columbians when you tell a story like that.
I think the thing that has changed in the world, the thing that's made it a much smaller world, is the fact that we see, at least on television, some of the horror that the people have to endure with things like the tsunami. To see it in person and hear from individuals who actually went through something like that, for the minister and for others that were with you, must have been a very moving experience.
Certainly on behalf of the opposition and, I think, on behalf of all Canadians, who really opened their hearts to Japan not only because of our historical connections but also just because we share a deep humanity…. When we see people suffering, I think it moved us.
I thank you for sharing the experience. I am very proud that as British Columbians and as Canadians, we are participating in helping Japan recover. The Japanese have tremendous resilience, and I think there's no question that Japan will be back on its feet as quickly or more quickly than any other country could do it. This is a country that has shown itself tremendously resilient.
Thank you very much on behalf of the opposition. We share the sentiments that you've expressed, and thank you for sharing them with us.
J. Horgan: I rise to table a petition signed by 546 residents of the Juan de Fuca constituency calling on the Legislature to support the implementation of basic dental coverage for all British Columbians, to provide for emergency dental visits, dental hygiene and regular checkups. This type of plan would reduce provincial and federal hospital expenditures due to dental abscesses and dental facial infections and would generally improve the health and condition of British Columbians.
J. Kwan: I, too, rise to table a petition. I have a petition here that has 1,161 names in the format of letters, e-mails and petition. They're calling for the legalization of raw milk. They are people who very much believe that they have the right to choose what food they consume. To that end, they are asking for the right to have what's called herd-share or cow-share operations in B.C. so that people who want to drink raw milk would be able to access it without doing something that is illegal.
Orders of the Day
Hon. R. Coleman: In the House this afternoon we will start out debating a motion with regards to the Nisga'a final agreement amendment. Subsequent to that, we will then move to committee stage of the Family Law Act.
Government Motions on Notice
MOTION 24 — AMENDMENTS
TO NISGA'A FINAL AGREEMENT
Hon. M. Polak: I move Motion 24, standing in my name on the order paper:
[Be it resolved that, pursuant to section 38 of Chapter 2 of the Nisga'a Final Agreement, the Legislative Assembly of British Columbia consents to the amendments to the Nisga'a Final Agreement set out in the attached Nisga'a Final Agreement Amending Agreement.
NISGA'A FINAL AGREEMENT
THIS AMENDING AGREEMENT dated for reference and made
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Indian Affairs and Northern Development
HER MAJESTY THE QUEEN IN RIGHT OF BRITISH COLUMBIA, as represented by the Minister of Aboriginal Relations and Reconciliation
[ Page 9021 ]
THE NISGA'A NATION, as represented by the Nisga'a Lisims Government Executive
A. On May 11, 2000 the Nisga'a Final Agreement came into effect;
B. The Parties wish the Nisga'a Final Agreement to be amended so as to alter the boundaries of Anhluut'ukwsim Laxmihl Angwinga'asanskwhl Nisga'a, also known as the Nisga'a Memorial Lava Bed Park (the "Park"), by removing certain lands from the Park and to specify the requirements for making alterations to the boundaries of the Park;
C. The Nisga'a Final Agreement provides for its amendment and specifies requirements for amendment of its provisions; and
D. The Parties have determined that the processes set out paragraphs 37, 38 and 40 of Chapter 2 — General Provisions apply to the Park Boundary Amendments.
NOW THEREFORE the Parties agree as follows:
PART I — DEFINITIONS
1. In this Amending Agreement:
a) "Nisga'a Final Agreement" means the Nisga'a Final Agreement among the Nisga'a Nation, Her Majesty the Queen in right of Canada and Her Majesty the Queen in right of British Columbia, as it took effect on May 11, 2000;
b) "Appendix G-l" means the Appendix of that letter and number forming part of the Nisga'a Final Agreement;
c) "Appendix G-l Amendment" means the amendment to Appendix G-l set out in the Schedule to this Amending Agreement;
d) "Paragraph 104 Amendment" means the amendment to paragraph 104 of Chapter 3 — Lands set out in the Schedule to this Amending Agreement;
e) "Park Boundary Amendments" means the Appendix G-l Amendment and the Paragraph 104 Amendment; and
f) a reference to a Chapter by number or name is a reference to the Chapter of that number or name in the part of the Nisga'a Final Agreement containing the Preamble and Chapters 1 to 22.
2. Words and expressions appearing in this Amending Agreement that are not defined in this Amending Agreement but are defined in the Nisga'a Final Agreement have the meanings ascribed to them in the Nisga'a Final Agreement.
PART II — AMENDMENT
3. On March 29, 2011, the elected members of Nisga'a Lisims Government adopted a resolution in accordance with paragraph 40 of Chapter 2 — General Provisions giving consent to an amendment to Appendix G-1 which is reflected in part of the Appendix G-1 Amendment.
4. The Nisga'a Nation will recommend to the elected members of Nisga'a Lisims Government that they adopt a resolution in accordance with paragraph 40 of Chapter 2 — General Provisions giving consent to the entirety of the Appendix G-1 Amendment and the Paragraph 104 Amendment.
5. British Columbia will recommend to the Legislature of British Columbia that it adopt a resolution giving consent to the Park Boundary Amendments in accordance with paragraph 38 of Chapter 2 — General Provisions.
6. Canada will recommend to the Governor in Council that it pass an order giving consent to the Park Boundary Amendments in accordance with paragraph 37 of Chapter 2 — General Provisions.
7. The Park Boundary Amendments will take effect in accordance with paragraph 41 of Chapter 2 — General Provisions.
PART III — GENERAL
8. This Amending Agreement may be executed in as many counterparts as may be necessary, and may be signed by facsimile or other means of electronic communication producing a printed copy, each of which so signed will be deemed to be an original, and such counterparts together will constitute one and the same instrument and each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same instrument.
FOR HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Indian Affairs and Northern Development / POUR SA MAJESTÉ LA REINE DU CHEF DU CANADA, représentée par le ministre des Affaires indiennes et du Nord canadien : signed in the province of Ontario, this ___ day of _______, 2011 / signé dans la province de Ontario, ce ___ jour de _____, 2011.
The Honourable _____, Minister of Indian Affairs and Northern Development / l'honorable _____, ministre des Affaires indiennes et du Nord canadien
Witnessed by / Témoin _____
FOR HER MAJESTY THE QUEEN IN RIGHT OF BRITISH COLUMBIA, as represented by the Minister of Aboriginal Relations and Reconciliation / POUR SA MAJESTÉ LA REINE DU CHEF DE LA COLOMBIE-BRITANNIQUE, représentée par le ministre des Aboriginal Relations and Reconciliation : signed in the province of British Columbia, this ___ day of _____, 2011 / signé dans la province de la Colombie Britannique, ce ___ jour de _____, 2011.
The Honourable _____, Minister of Aboriginal Relations and Reconciliation / l'honorable _____, ministre des Aboriginal Relations and Reconciliation
Witnessed by / Témoin _____
FOR THE Nisga'a NATION, as represented by the Nisga'a Lisims Government Executive / LA NATION Nisga'a, représentée par l'exécutif du gouvernement Nisga'a Lisims : signed in the province of British Columbia, this ___day of _____, 2011 / signé dans la province de la Colombie Britannique, ce ___ jour de _____, 2011.
H. Mitchell Stevens, President / H. Mitchell Stevens, Président _____
Witnessed by / Témoin _____
1. Paragraph 104 of Chapter 3 — Lands is deleted and the following substituted:
104. The boundaries of the Park are as set out in Appendix G-l, which may be amended by agreement of the Nisga'a Nation and British Columbia.
2. Appendix G-l is amended by deleting "The whole containing approximately 17,893 hectares." and substituting the following:
except (1) the Nisga'a Highway No. 113 as shown on Plan 6 Tube 1870 deposited in the Crown Land Registry; (2) from the north boundary of Plan 6 Tube 1870 heading in a northerly direction to the middle thread of Jay Creek, a 20 metre wide area of land centred on Nisga'a Highway No. 113; (3) from the middle thread of Jay Creek heading in a northerly, westerly and easterly direction to the east and west boundaries of the park, a 25 metre wide strip of land centred on all branches of Nisga'a Highway No. 113; (4) all land on which a provincial public undertaking, as defined in the Transportation Act, related to Nisga'a Highway No. 113 is located; (5) Anlaw Road as shown on Plan 11 Tube 1711 deposited in the Crown Land Registry; (6) the New Aiyansh Village proposed south access road shown in Figure 4.1 of the October 2006 report titled "New Aiyansh Village Government, Proposed
[ Page 9022 ]
South Access Road, Nisga'a Memorial Lava Bed Park — Boundary Adjustment Request", on file 84220-25-0386 in BC Parks office in Victoria; and (7) all those parcels or tracts of Crown land, together with all that foreshore or land covered by water, contained within the following described boundaries and containing 10.5 hectares more or less:
commencing at the intersection of the northerly boundary of the park having a grid bearing of 63°00'00" and a length of 2.175 kilometres, and a line having a grid bearing of 159°46'28" through Zone 9 NAD 83 UTM coordinate N6106080.8m and E 503099.3m;
thence northeasterly along the said northerly boundary of the park 40.28 metres;
thence on a grid bearing of 159°46'28" a distance of 169.1 metres;
thence on a grid bearing of 69°46'28" a distance of 12.0 metres;
thence on a grid bearing of 159°46'28" a distance of 897 metres more or less to the intersection with a portion of the southerly boundary of the park;
thence southwesterly along the portion of the southerly boundary to a line drawn parallel to and perpendicularly distant 104 metres from the last described line bearing 159°46'28";
thence on a grid bearing of 339°46'28" a distance of 889 metres more or less to a point lying on a grid bearing of 249°46'28" from the southerly limit of the 169.1 metre boundary described above;
thence on a grid bearing of 69°46'28" a distance of 22.0 metres;
thence on a grid bearing of 339°46'28" a distance of 161 metres more or less to the northerly boundary of the park;
thence on a grid bearing of 63°00'00" and along the northerly boundary of the park a distance of 30.2 metres more or less to the point of commencement;
The whole containing approximately 17,781 hectares.]
It is my great honour to rise in the House today and move this historic motion to give British Columbia's consent to the first amendment to the Nisga'a final agreement. The treaty sets out the process each party is to use to give consent to an amendment to the treaty. The treaty requires British Columbia to give its consent by a resolution of the Legislature of British Columbia. For Canada, an order of the Governor-in-Council is required, and for Nisga'a, resolution of the Nisga'a Lisims Government is required.
It was felt, when the treaty was negotiated, that a resolution was the appropriate legislative tool for these circumstances. The purpose of this amendment is to update the description of the Nisga'a Lava Bed Park that is set out in the treaty. The description is being updated as a result of an agreement between the Nisga'a Nation and British Columbia to classify 10.5 hectares of the Nisga'a Lava Bed Park as a protected area to allow for the construction of the northwest transmission line. In order to ensure consistency, government will also be updating the Nisga'a Lava Bed Park description set out in the Protected Areas of British Columbia Act.
I'd like to thank the Nisga'a Nation, British Columbia Hydro, the Ministry of Energy and Mines, the Ministry of Environment and the opposition members for their assistance in making this amendment happen. This motion demonstrates the common vision of British Columbia and the Nisga'a Nation to support economic certainty and increased investment in the northwest.
S. Fraser: I rise today as the critic for the official opposition for Aboriginal Relations and Reconciliation, and I thank the minister for introducing this.
I would like to say, first of all, welcome and thank you to the representatives from Nisga'a for being here today to witness this. I would note that this is in keeping, certainly, with the treaty as laid out. This is the appropriate process for bringing this forward through resolution, although I must say we did not get much notice. I appreciate the minister for calling me earlier this week, and I hope that in the future we might have more time for a fulsome discussion because treaty is so, so important. Nisga'a treaty was a landmark for this province and still remains so to this day. Amendments, I think, need time to flow through this House in a way that does it justice.
I am aware of the need for speed, as we have one day left in the Legislature. I'd just like to make a few comments as we move through this. I do recognize that this follows Bill 13 from the spring. I believe it was ratified in May. The minister explained the rationale for that as far as the transmission line goes and the removal for the Lava Bed Park, the portion there of just beyond ten hectares to facilitate this project. An accommodation, I would like to state on the record, was arrived at with Nisga'a and B.C. Hydro, and benefits hopefully will flow from that.
We certainly, on this side of the House…. We are New Democrats, and we have a history of supporting Nisga'a originally in their landmark successful quest to get out from under the yoke of the Indian Act. I applaud Nisga'a for that, I think, very powerful move for the whole province. It's set a standard that is very high for the rest of the province and for other nations to follow. Certainly, the fact that this comes before this House for a legislative change to amend the treaty is, I think, imperative — that that happen. The changing of boundaries that are recognized within treaty necessitates this change, because the treaty is recognized under the constitution.
Being mindful of time, I would just like to quote…. It is also, I think, an affirmation of the UN declaration on the rights of indigenous peoples, which was recently signed by Canada finally. Article 37 specifically states: "Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with states or their successors and to have states honour and respect such treaties, agreements and other constructive arrangements."
Article 40 also follows: "Indigenous peoples have the right to access to and prompt decision through just and
[ Page 9023 ]
fair procedures for the resolution of conflicts and disputes with states or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights."
We are actually touching on two articles within the UN declaration as we ratify this motion. I think that is a big step in the right direction for this province. So with that in mind, I offer my support as critic for the Aboriginal portfolio from the official opposition.
I know there are a couple of other members, at least, that may want to speak to this, so I will take my seat. Again, congratulations on this, and I hope this leads to a more prosperous future for the Nisga'a and the Nisga'a people.
D. Donaldson: [Gitxsan was spoken.] I bring greetings to the Nisga'a Lisims leadership from the Legislature in the Gitxsan language, which is quite close to the Nisga'a language.
I rise in support of the motion to amend the Nisga'a final agreement, the changes to the Nisga'a Memorial Lava Bed Park that entails to accommodate the routing of the northern transmission line. By way of background, parts of the Nisga'a treaty management areas are within the boundaries of the constituency of Stikine. None of the permanent settlements are and not specifically the treaty lands we're dealing with in this amendment.
This is a historic moment, hon. Speaker. It's the first time amending a modern-day treaty. The Nisga'a final agreement came into effect on May 11, 2000, over 11 years ago and under a different government. It's also historic because it requires support from the Nisga'a Lisims Government, this Legislature and the federal parliament.
I rise in support of the motion, especially noting that the Nisga'a Lisims Government's elected representatives are in favour of this amendment. That's especially important, because in past history of this province treaty amendments were not necessarily done with the full and informed consent of the First Nations involved. Land was removed for communities, railways, highways and for economic benefit without the consent of the First Nations involved. That's why it's important to honour this treaty by ensuring that amendments are done in a manner consistent with due process in the Legislature.
The need for the boundary changes was known by this government back in February when the Nisga'a Lisims Government reached a deal with B.C. Hydro on the northern transmission line and was reinforced when we passed park boundary amendments in the spring under the Park Act.
We received this private member's motion two days ago from the government, when the legislative session ends tomorrow, and that's problematic for us as official opposition when part of our role is to shine light on government decisions and hold them accountable. That role takes some time and consideration. I believe that the Nisga'a Lisims Government well understands the need to be vigilant regarding government decisions and the integrity of processes so that they are just and fair. This is especially the case with treaties.
However, today is historic because the Nisga'a Lisims Government are equal partners at the table with the province of B.C. and the government of Canada when it comes to amending the Nisga'a final agreement. They have given their full informed and prior support to this boundary change on their treaty lands. I congratulate them on this historic first amendment of the treaty on equal terms and lend my support to this motion.
R. Austin: It gives me great pride and privilege to stand and speak to this motion. I play a somewhat unique role in this House, because there are many members of this Legislature who have First Nations communities within their boundaries. Therefore, they are directly representing people for those communities.
But of course, I represent — not really represent…. I am an intermediary, because in the case of the Nisga'a treaty we have the leaders of the Nisga'a who come here and negotiate government to government. That is, of course, the great success story of the Nisga'a treaty.
We managed to find a way after 113 years, many generations of people having to fight for their rights — rights that were taken away. At the end of those 113 years we have a historic treaty that finally gave the Nisga'a the ability to make their own decisions on behalf of themselves and their own people.
I welcome the resolution because it speaks to some of the success that's come about as a result of that. What we have here is a group, who were long denied the ability to take care of themselves and to make their own decisions, making their own agreements with our public hydro, B.C. Hydro, and deciding for themselves whether they were going to make the decision to move this transmission line from an eastern route or to a more westerly route. The Nisga'a — I'm so happy they've made the decision. What that does is it saves the ratepayers of B.C., I suspect, tens of millions of dollars, because it would have been more expensive to go through the other route.
That's a concession that the Nisga'a made on all of our behalf. But more importantly, for the Nisga'a, what it means is that they get to be a part of this process. So a huge contract of several hundreds of millions of dollars that's going to be spent by B.C. Hydro…. A portion of that is now going to benefit the Nisga'a. It's going to provide jobs. It's going to provide training, and it's going to help to make their society economically and socially more viable.
[ Page 9024 ]
This is a great example of what we want to see right throughout British Columbia. We want to be encouraging as many First Nations as possible, the governments of British Columbia and the governments of Canada to do the right thing and to follow in the footsteps of the Nisga'a treaty.
I'm just very happy to say that I, of course, support this resolution. I understand, in having meetings with the minister's staff yesterday, that there are six or seven more amendments that are going to be coming forward in the next session. I hope, as my colleagues have said, that we will have a greater time to look at those, just so we can understand what they are all about. But obviously, as I've said before, if the Nisga'a want these things and pass it through their government body, then I think it's the responsibility of all of us in this House to support that, and I certainly do.
Mr. Speaker: Seeing no further speakers, minister closes debate.
Hon. M. Polak: I do want to thank the members for their support, and I want to assure the members, as well as the Nisga'a government representatives here today, that it is certainly our intent, as government, to comply with not only the requirements of the Nisga'a treaty but also the spirit of it.
Unfortunately, in this case, we were presented with conflicting views with respect to the method whereby we were to bring this forward. This being the first time we have amended the Nisga'a treaty, unfortunately, that resulted in a very late entry to the House.
Again, I thank the members for their cooperation, and I move the motion.
Hon. T. Lake: I now call committee stage of Bill 16.
Committee of the Whole House
Bill 16 — Family Law Act
The House in Committee of the Whole on Bill 16; L. Reid in the chair.
The committee met at 3:06 p.m.
Section 50 approved.
On section 51.
L. Krog: I'm delighted to be back here with the Attorney General and her staff. I am hoping we can try and move through this as reasonably quickly as is possible, given the limited legislative time available.
I just want to confirm with the minister: is there any significant change between section 51 and other previous provisions in the FRA?
Hon. S. Bond: Thank you to the member opposite for indicating that we'll work our way through this. We're certainly looking forward to that. I'll remind the member and others of the staff that are here with me today: Nancy Carter, the executive director of our civil policy and legislation office in the Ministry of Attorney General; Jill Dempster, who is legal counsel; Darryl Hrenyk; and Michelle Kinney. As I've said previously, they know this bill inside and out and are pretty passionate about it.
To the member opposite, I think the most significant change is actually in subsection (2). I know that he would know that personally, because it is one of the areas in which he and the Representative for Children and Youth talked to us about — the need to provide for a way to seek evidence necessary to establish whether a person can appropriately care for a child. That is in subsection (2). In particular, that was related to criminal or child protection history.
I think this is a very significant section. Certainly, this is one of the areas in which both the Representative for Children and Youth and the opposition critic came and provided input, and I think it is significantly represented as the most significant change in this section.
Sections 51 and 52 approved.
On section 53.
L. Krog: This makes reference to the appointment of a guardian upon the death in accordance with the wills act or in the prescribed form, signed by the guardian, etc.
I'm just curious, in terms of the form that's being contemplated by this: would it be filed with any agency, court registry? Is it simply a matter that would be handed around to people for whom it was important? How does it work in a practical way?
Hon. S. Bond: It would not be a filed document. In fact, it would become part of a person's personal documents that are important.
L. Krog: The reason I raise that point is this. Obviously, this kind of appointment is significant. If a situation occurs where that document is lost, destroyed or whatever, then I'm going to assume that the only alternative would be for the parties involved to proceed back to court to ask for an order instead. Is that the minister's understanding?
[ Page 9025 ]
Hon. S. Bond: There is the opportunity to file. Many families would not or don't choose to file documents. But the member opposite is correct that if the document were lost or unable to be accessed in some way, yes, there is the possibility that there would be a court process to make the determination.
L. Krog: I'm certainly not going to suggest amendment to the legislation along these lines. It just strikes me that for future reference, this might be something the ministry may wish to consider in terms of the protection of people and not having to force them to actually go into court to apply for something that might be, quite candidly, readily available otherwise. But apart from that, I'm happy to see section 53 pass.
Sections 53 and 54 approved.
On section 55.
L. Krog: This, I believe, is an entirely new section in terms of a temporary appointment, taking into account terminal illness or permanent mental incapacity. There's no concept of any limits on the time involved in this. I might be concerned that, over time, you would be looking at appointing someone further. Is this provision available in other jurisdictions?
Hon. S. Bond: I'm just going to go back for one second to let the member opposite know we certainly will look at the issue of filing from section 53. It's worth considering, and we may not need to amend the legislation. We might find a way to do that. So that was a good piece of advice.
It was developed in the United States, in fact, so there are a number of states that have legislation surrounding its use. We don't believe there is another jurisdiction in Canada, but it certainly is in use in the U.S.
Sections 55 to 57 inclusive approved.
On section 58.
L. Krog: This is one of the major changes where we abandon the concept of access to a child and talk about contact. Just so I'm clear, we will be using the term "contact" when we're talking about individuals other than the guardian of a child. That's the way I understand the legislation. So we're going to get past the concept of access.
It also makes reference to…. Written agreements filed can be enforceable as well. So just to confirm: for practical purposes, access is gone, replaced by contact, and this is the section that does it.
Hon. S. Bond: That's correct.
Section 58 approved.
On section 59.
L. Krog: With reference to section 59, this is the section that talks about the power of the court to "make an order respecting contact with a child, including describing the terms and form of contact." And it may be granted to a "person who is not a guardian, including, without limiting the meaning of 'person' in any other provision of this Act or a regulation made under it, to a parent or grandparent."
My read of this section is that, essentially, anyone who has some basis to ask the court for contact with a child…. This section establishes that right fairly clearly. It's not just limited to parents or grandparents, although there is some suggestion they be given some — I won't say priority — special interest by the court.
In other words, this would apply in a situation where a family lives next door and they have significant contact with the child next door. That contact may include, perhaps, overnights or whatever. This would in theory empower the court to make an order allowing that family — or parents or whoever — to have continuing contact with the child in the event of any situation.
And by that, I mean this. I would read it to mean — and the minister will correct me if I'm wrong — that if the guardians of the child involved moved away from a family living next door, but there was a significant relationship there, the guardians of the child who moved the child away could in theory find themselves the subject of an application by their neighbours, if they will, for contact.
Hon. S. Bond: In theory, the member opposite is absolutely correct. I'm told that in practice, that's not likely to happen, and certainly, we don't see that happen. But yes, the language is broad enough that the member's interpretation is correct.
Section 59 approved.
On section 60.
L. Krog: I just want to talk a little about the language involved here. It allows the court to suspend, change, terminate "an order respecting contact with a child if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person."
I'm just wondering if the minister could perhaps give an example of what is seen as "a change in the circumstances of another person."
Hon. S. Bond: I think a good practical example is that if one parent's job working hours changed and they were
[ Page 9026 ]
unable to care for a child during a particular period that had been outlined, that would be considered a change in circumstance.
Section 60 approved.
On section 61.
L. Krog: This is a very new section. I won't call it a new section. This is a remarkable reform in the law. As the minister well knows, there are many groups in the province, including in my own constituency the Nanaimo Men's Resource Centre society, who have constantly raised the issue that we have an enforcement process in this province with respect to maintenance and support orders, through family maintenance enforcement program. But we have never had a regime — apart from going back to court and seeking contempt applications, which are often very difficult and not often terribly successful — that protected the rights of what were formerly referred to as non-custodial parents to have their access protected and guaranteed.
I'm just wondering if the minister would comment on this section in a general way and confirm, just out of curiosity, why we're limiting it to an amount not to exceed $5,000 for the benefit of the applicant and a fine of not more than $5,000.
The reason I raise this is this. For many families in British Columbia $5,000 is an insurmountable sum to obtain. But for wealthier parents $5,000 is really nothing more than a licence. I'm just wondering if the minister has contemplated reviewing this in due course.
I mean, I'm pleased to see this step taken. I think it's important. I think that many parents in this province have taken advantage of the custodial arrangements, and it has been abusive to the children, in particular. But I am concerned that the sum involved, given the practice historically of courts' reluctance to deal with this by even enforcing the existing provisions of the FRA…. I'm just concerned again that, as I say, $5,000 is a licence for many people.
Hon. S. Bond: The member opposite is absolutely correct. This issue was one of the major discussion points during consultation. Clearly, most people agreed that the law had to provide for greater enforcement in this area. However, what happened was that opinions were mixed. There wasn't a consensus about how to approach it.
So in terms of the quantum $5,000, while in the Family Relations Act there is not a similar regime, as the member correctly points out, the quantum $5,000 was used in the Family Relations Act. In essence, we carried that over.
But I think what we did, which makes probably more sense in our view, is that we provided a range of tools. In essence, there is an escalating process, but it also means that you can have a compounded set of circumstances. So the fine is one thing, but for example, there are remedies that include preventative measures such as makeup time. If the person withholds time, there can be makeup time granted. There is an opportunity to look at counselling to help resolve some of the underlying measures, issues that may be creating the problem in the first place. Fines are a consequence, and there are very extraordinary remedies.
In fact, we would certainly hope that the less dramatic remedies would suffice, but this permits imprisonment or apprehension of the child. So while perhaps the quantum may not be as high as the member opposite would like to see it, there are certainly some very dramatic potential consequences, which include imprisonment, should there be an ongoing escalation of situations.
Now, I grant you this. That would hopefully be in very, very rare circumstances. But we hope that through the course of looking at measures like this, we would help parents actually develop the kinds of meaningful relationships that allow, with their child, the important time being spent with both parents. It is certainly a step forward, and it was a key element of discussion. After all of the input, this was the most appropriate regime we felt that reflected the views that we heard.
L. Krog: Just to confirm — and I appreciate the minister's comments: once that order is granted, regardless of whether it's in the Supreme Court or the Provincial Court, will it be enforceable, similarly as a judgment of the court is now? In other words, will they be able to issue what we used to call a subpoena to debtor in the Supreme Court process or an examination in aid of execution? Will you be enabled to register that order against an interest in property? Will you be able to send out a bailiff? In other words, will all of the execution processes be available?
If the order, for instance, is granted in Supreme Court…. I obviously suspect that most people won't end up in the Supreme Court doing this, but if it's granted in Provincial…? Can a Supreme Court order then be utilized to the process of the Provincial Court for execution purposes? Or will it have to be exercised through the Supreme Court, and will all the processes I've outlined, in fact, be available?
Hon. S. Bond: Any remedy that would be available to enforce a court order would be applicable in this circumstance as well.
Section 61 approved.
On section 62.
L. Krog: This is the saving section, if you will, that says that essentially it's not wrongful to deny parent-
[ Page 9027 ]
ing time or contact with a child. Obviously, this applies to both guardians and other persons. It's "not wrongful in any of the following circumstances" and outlines a number of circumstances which are — how shall I say? — a nice guidance for persons. But for instance, in (b) it says: "the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time…."
I don't want to get terribly technical here, but what does impaired mean for purposes of this statute? If you have a glass of wine, in comparison to not having had a glass of wine, are you impaired? I think the minister understands what I'm getting at. Are we using the term "impairment" to mean impairment in the legal sense under the Criminal Code — that you blow over .08, or there are significant indicia of impairment?
In other words, is this going to be an excuse for somebody to say: "Well, you know, he came to my door, and he had the smell of beer on his breath." Maybe it's a half a beer or one beer, but — bingo — there's no contact this time, and that's going to be used as an excuse to deny access.
Hon. S. Bond: Again, I think it's probably reflective of the fact that the member opposite has a long career in family law and a real interest in how we manage through this. The member opposite is correct, though. There will need to be interpretation. Obviously, as judges interpret this, we will have more clarity.
It is not linked directly to, for example, .08, and it certainly is not linked to criminal standards. So I think it is…. The words that we think are appropriate would be in section 62(1)(a), where a guardian "reasonably" believes. But there's definitely room for interpretation, and it is not tied to criminal standards.
Section 62 approved.
On section 63.
L. Krog: This section talks about "(1) If a person fails repeatedly to exercise the parenting time…" and carries on from section 62. So basically, the situation is that where you have been irresponsible as a parent or guardian, not exercising your contact or parenting time, then you're leaving the door open for the parent having more control over the child than the other, to deny the contact.
But it talks about, in section 63, "(1) If a person fails repeatedly to exercise the parenting time or contact…" etc., whether or not notice was given, the court may do one of the following. I'm just wondering: is there any precedent in other jurisdictions for…? I'm looking particularly at that language — "fails repeatedly to exercise the parenting time or contact…." In other words, is this from Nova Scotia? Is this from Manitoba or other jurisdictions, and if so, how has it been interpreted?
Hon. S. Bond: We're stretching our brains here, as we speak, to remember which jurisdiction. It does exist elsewhere. We will get that very shortly for the member.
One of the things that may be different…. We think our language may be different in that we use the word "repeatedly," and we're not sure how that is referenced in other jurisdictions.
Well, this just in. In fact, in the consultations, as you can imagine, this was a very important discussion. I think it is important to differentiate that failure to access has been reported as a more common problem than denial of access. This is a really significant change, and the issue of "repeatedly" failure to exercise parenting time or contact was certainly an issue. So we will get the jurisdictional reference for the member opposite. It does exist. But again, there may be some differences in language.
L. Krog: In section 63(2) it says: "In making an order under subsection (1) (a), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer."
I'm going to take that to mean that it's not…. Will you be ordered to pay full legal fees, for instance? Or are we talking about fees related to perhaps the hiring of a parenting coordinator or something of that nature? As the minister knows, there is not a system of costs in Provincial Court now. There is a system of costs in Supreme Court. We talk about court here, which can mean Provincial or Supreme Court. So what exactly does this mean when it comes to legal fees specifically?
Hon. S. Bond: Subsection (2) does indeed give judges the discretion to allocate costs. The intent here, at least initially, is to look at things exactly as the member opposite has described them — things like parenting coordinators, counselling. The judge would then have the ability to assess and allocate costs to facilitate parenting time or contact. That's really the thinking behind subsection (2). But we've also made a commitment to actually have some consultation. This does not necessarily rule out the contemplation of legal fees. We are going to have some further discussion on that.
L. Krog: When the minister says "further discussion," is the contemplation that regulation may be passed which would be quite specific about this? I can assure the minister that one of the first things some clever lawyer in the province is going to do when they read that section and bring on this application is say: "By the way, Judge, my fee for being here today is $5,000, including prep time, and I want that paid for my client."
[D. Horne in the chair.]
[ Page 9028 ]
Hon. S. Bond: In fact, we will be talking to the court rules committees of both the Provincial and Supreme courts. That's really where we need to have some discussion about that, but that's where the consultation and discussion would take place.
Sections 63 and 64 approved.
On section 65.
L. Krog: The relocation provisions. There's a fair number of sections here as well. I note that we talk about "a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (a) a guardian…."
That language, "expected to have a significant impact" — what's the precedent for that, if there is one? And are there any decisions that give us some idea?
For instance, if you are living on the other side of — what is it? — the Salmo-Creston summit, I suppose, just 20 miles in the wintertime may mean a significant difference in terms of travel time. Obviously, I would think a move off Vancouver Island, for instance, to the Lower Mainland would be contemplated. But is there any sort of legal language that indicated what that may mean?
Hon. S. Bond: Maybe we should just also note how great it is to see some young people in the gallery on a Wednesday afternoon. It's fantastic to see you here, and we appreciate that.
The opposition critic and I are debating a new law that will hopefully be passed at some point in the next little while that will change the face of family law in British Columbia for the first time in 30 years. We're extremely happy to see you here. This is part of the work we do every day, which people don't usually see. So we're glad that you're here.
Relocation. We did make a decision not to look at the issue from a time or geographic perspective because we recognize that any circumstance which…. This is about putting children at the core of the discussion and making sure that it's a child-centred law.
I think the member opposite's question is a really great one. You know, it could be that someone lives on the other side of the Malahat. The example that we talked about was if you lived in Vancouver and you suddenly were moved to Langley and you don't have a car. All of those things can have a very significant impact on the contact and relationship for the child.
So I should say that as we began this debate several days ago, we did talk about that spectrum of: are we catching up or moving ahead? This is one of the areas we're very proud of. This is actually fairly new. I would say it is probably precedent-setting. Is it fair to describe it in that way? So yes, this would be on the progressive end of the spectrum.
Sections 65 and 66 approved.
On section 67.
L. Krog: This section, I note, says that if the "notice is required under section 66" — in other words, you've given the 60-day notice of your intention to relocate or etc. — then "the child's guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation."
I'm just wondering: for purposes of enforcement, would the minister see this as a section where you could literally go to court and ask the court to perhaps potentially fine, if you will, under section 61, where they've perhaps been behaving unreasonably, or is that an entirely different matter?
Hon. S. Bond: What we're hoping is that this section actually encourages guardians to talk to one another to try to sort out those issues before a move is contemplated. But ultimately, subsection (2) does make it clear that the obligation to attempt to resolve this dispute doesn't prevent the starting of an application for an order, if that's necessary.
There certainly is the potential for an order to be sought, but our goal in looking at this is to try to find a more collaborative way to sort this out, focused, once again, on the centre of the debate, which is what's in the best interest of children. But it does not preclude an application for an order.
Sections 67 and 68 approved.
On section 69.
L. Krog: With respect to section 69, does this amount to sort of a codification of what the Supreme Court of Canada said about location cases, or is this language different — more progressive, less progressive?
Hon. S. Bond: It is not codifying. In fact, it is very much based on the consultation process that we undertook.
L. Krog: I note in sub (4) it says, "If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (a) the relocating guardian must satisfy the court that (i) the…relocation is made in good faith" and must propose reasonable and workable arrangements, etc. The court has to be satisfied and
[ Page 9029 ]
so on. I'm just curious to know why we're talking about situations where you don't have substantially equal parenting time, as opposed to just leaving the question open. What's the intent behind that?
Hon. S. Bond: To the member opposite: as he points out, there are two different tests. The tests are different depending upon whether or not the guardians of the child have substantially equal parenting time.
There's a separate test in subsection (4), where they do not have substantially equal parenting time. So in the case of two guardians, where one — the moving guardian, for example — has the majority of the time with and care of the child, they must show a good-faith reason for that move, and they must come up with some reasonable alternate parenting arrangements. If the court is satisfied that those two things have been established, there's a presumption in favour of the move, unless the objecting guardian satisfies the court that it's not in the best interests of the child.
Subsection (5) actually deals with situations in which the guardians have substantially equal parenting time. In such a case, obviously, both of the parents play a significant role in the child's day-to-day life, and it's probably harder to maintain the relationship if there were a move. So in that case the threshold is higher, and the moving guardian has full responsibility for satisfying the court that the move is made in good faith, that it's reasonable and continues to allow workable arrangements.
L. Krog: Just for practical purposes, I interpret section 69 to basically say that if the court is satisfied — it's the Silken Laumann decision — that it's not in the child's best interests, then you're just going to have to stay or move without the child. That's the way I interpret this section.
Hon. S. Bond: Yes, that's correct. A parent would have a very difficult choice to make. They would either have to stay put, or they would have to leave without their child and leave the child in the existing circumstance.
I do want to go back and, on the record, make sure, as we were talking about relocating a parent…. It is precedent-setting in Canada. There is no Canadian jurisdiction that approaches it this way. Actually, some of the language that was developed looked at some American states which have some type of shifting presumption or burden of proof. Alabama, Indiana and Wisconsin, for example, were jurisdictions that we looked at and considered. In fact, some of our language is based on the model that's in place there, but it is not in place in Canada.
L. Krog: I'm happy to see section 69 pass. What I'm particularly interested in is section 70.
Section 69 approved.
On section 70.
L. Krog: This section, in sub (1)(b), talks about if the court makes any of the following orders, it has the power to do that with respect to relocation with "any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including an order to do one or more of the following: (i) give security in any form the court directs; (ii) transfer specific property to a trustee named by the court."
I'm just wondering what is contemplated by that section. When we talk about giving security, I think I can understand that. You know you're going to have to put up $50,000, which is going to be held in trust to make sure the cost of travelling to visit the child, who has now moved to Prince Edward Island from Vancouver, is going to be complied with.
Transferring specific property to a trustee. Now, that's what I'm a bit curious about. Is it contemplated, for instance, that you're going to have to put the money in trust with somebody, as opposed to paying it into court? What exactly is contemplated by that section?
Hon. S. Bond: That would actually be the kind of thing being contemplated. The reason for that is that compliance here is very important. Otherwise, the move could simply undermine the relationship between the child and the non-moving guardian. Again, the primary test will be what's in the best interests of the child. So yes, an example like the member opposite gave is exactly what's being contemplated.
Sections 70 and 71 approved.
On section 72.
L. Krog: I just want to inquire. This was raised somewhat in the definitions and interpretations section earlier as well. Are the extraprovincial orders, again, around the issue of tribunal…? It means "a court or tribunal, outside British Columbia, having authority" to make orders. Those provisions could mean — just to confirm this — that that tribunal might not in fact be a court as we understand it. Is that correct?
Hon. S. Bond: That's true.
Section 72 approved.
On section 73.
L. Krog: This talks about the purposes of this division. Ensure the court applications respecting guardianship, etc., are done in the best interests of the child. Avoid
[ Page 9030 ]
making orders in more than one jurisdiction. Discourage child abduction and provide effective enforcement.
I just want to hear from the minister. My reading of this is that these sections are new in terms of carrying out the purpose of the act and driving home that the best interests of the child is the only test. Am I correct in saying that?
Hon. S. Bond: There are certainly new elements to this section. It does, however, carry forward part 3, which is from the Family Relations Act, which is called "Extraprovincial Custody and Access Orders." But obviously, to reflect the new terminology and also the idea behind the bill, there were changes made to structure, to terminology, including guardianship, parenting arrangements, etc.
Sections 73 and 74 approved.
On section 75.
L. Krog: This says that a court "must recognize an extraprovincial order if all of the following apply." It goes on. The tribunal abroad "had jurisdiction to make the order," etc. It then mentions in sub (3): "If an application is made to recognize more than one extraprovincial order and the orders conflict, the court must recognize the order that is most consistent with the best interests of the child." I'm just wondering, from a legal perspective, how the court is going to make that determination where you have conflicting extraprovincial orders.
Hon. S. Bond: This section carries over section 48 of the Family Relations Act. What a court would be forced to do…. If there were conflicting extraprovincial orders, they would go through the process of using the "what's in the best interest of the child" test. They would go through the consideration of that question in the way that the new act would outline how you do that test. But in essence, if they had conflicting orders, they would go through a process and, again, the "what's in the best interest of the child" test would be the practice that would be used.
Sections 75 to 80 inclusive approved.
On section 81.
L. Krog: Here we're coming to some of the most significant changes in the new act. It says that both parties are "entitled to family property and responsible for family debt, regardless of their respective use or contribution, and (b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt."
Now, interestingly, the Times Colonist had a somewhat critical editorial, which I'm sure the minister was made aware of. Not something I necessarily agreed with, with great respect. One of my constituents who has certainly raised this issue with me personally — without mentioning any names — has lived in cohabitation with a gentleman for approximately 11 years. Their view is that without benefit of agreement, there should be no right, if parties simply want to live together, to seek division of any kinds of assets.
I take it for practical purposes that this section moves us into line with several other provinces with respect to its application to common-law relationships. The minister can confirm that, I'm sure.
Hon. S. Bond: Yes, there are other provinces and other jurisdictions that do have a regime for property division. Saskatchewan, the Northwest Territories and Nunavut have two years, actually; Manitoba, three years. So those are the most similar. Quebec and Nova Scotia have no time frame, but they must register the relationship.
L. Krog: I'm just curious. Obviously, the consideration of whether or not to register a relationship was talked about, and it's not in the legislation. Any particular reason for that?
Hon. S. Bond: It's a good question and thought-provoking. We were sort of redebating the issue over here momentarily. I think there is a general…. This is not at all meant to be flippant or casual, but there is a view that if you're not going to get married, you may not actually proceed to registration either.
One of the things that's very interesting about this is that there are a set of assumptions already made which impact…. People assume they have this right already. So part of this is about clarity and transparency.
I quote from a response that was made actually to the Times Colonist, a letter. "The division of property is now extended to common-law arrangements. In my experience, I would estimate that at least 80 percent of the people I speak to, either in my office or otherwise, believe that after two years they are treated exactly the same as married people." That is not the case, and many people are, in fact, disadvantaged by their lack of knowledge about the law.
I think that one of the other critical things that we learned…. Well, I'm sure that the member learned this in his practice, as well, but certainly during consultation. This issue doesn't usually emerge until a couple breaks up and the issues related to the division of property become very significant. Not a lot of thought going in, but certainly, on the way out there are a lot of intense challenges related to this.
[ Page 9031 ]
Our thinking was that this puts us in line with a number of other jurisdictions — that, in fact, the likelihood or the practicality of registration may not be as effective as we would hope.
Sections 81 and 82 approved.
On section 83.
L. Krog: I take it that the inclusion of this section is to essentially provide, if you will, an encouragement for parties to reconcile, much as the Divorce Act does now?
Hon. S. Bond: Well, not really focused on reconciliation, but I think what this does in section 83 is it clarifies how the triggering event will operate and how moving to a new single triggering event, which would be separation, makes it important to provide some guidance on what does and does not constitute separation. So in fact, it is clarifying the triggering event.
Section 83 approved.
On section 84.
L. Krog: Section 84 is the defining section for family property. Basically, it talks about: "…family property is all real property and personal property…(a) on the date the spouses separate, property (i) that is owned by at least one spouse, or (ii) in which…one spouse has a beneficial interest;" and then "(b) after separation, property (i) acquired by at least one spouse, or (ii) in which at least one spouse acquires a beneficial interest, that is derived from the property referred to…."
So as I understand it, if it is family property, then it's subject to, obviously, the division contemplated by the statute. And if you acquire property independently, without a contribution or being derived from property already held — for instance, if you got a $10,000 bonus from your pay two months after separation, and you plunk it in the bank account — that wouldn't be family property. Is that correct?
Hon. S. Bond: That's correct. Anything after separation or pre becoming a couple would be retained individually, and the divisible property would be that which you acquire or accrue or see increased value during the period that you are together. Now, that is the general rule. So what you bring in and what you acquire after the separation remains your own.
L. Krog: Family property will also include "(g) the amount by which the value of excluded property has increased since the…date (i) the relationship between the spouses began, or (ii) the excluded property was acquired."
I take it that for purposes of this section and, indeed, other sections — and my friend the member for Burnaby–Deer Lake has pointed this out — "relationship" means relationship in the sense that you are living together and are spouses or contemplate being spouses as opposed to simply dating.
Hon. S. Bond: Yes, there is a differentiation. A relationship between spouses begins on the date on which they begin to live together in a marriage-like relationship, or the day that you're married.
L. Krog: Just so I'm clear, if you do have excluded property — and section 85 talks about gifts or inheritances…. If you've got a $100,000 inheritance at the date that you commence living together, and you increase that to $150,000, even though it's excluded property, then in fact, that $50,000 will be divisible.
Hon. S. Bond: Yes, that's correct. The base amount remains excluded, but it is the incremental value that is accrued during that period of your time together that would then be divisible.
Section 84 approved.
On section 85.
L. Krog: I'm going to take it, for the purposes of this section…. For instance, if you've come into a relationship with excluded property, and some of it goes up and some of it goes down, are we looking at the net value, in a sense?
Let's just say, for example, that I got a gift from my sainted mother of $100,000, and I got an inheritance from my father of $100,000, and I stuck them in mutual funds or whatever. One goes up and one goes down and, in fact, at the end of the day I'm no further ahead whatsoever. The total value is still $200,000. Do I have to split the benefit of the increase in one because it went up? And do we share the loss of the one that went down?
Hon. S. Bond: This was actually a significant point of discussion during consultation. The bottom line is that you share the benefits, but you don't share the loss. In essence, that is not divisible. So it's just on the upside that it is divisible and becomes part of that amount that you would look at that you accrue jointly — but not the loss side.
L. Krog: So just to clarify. Instead of looking at the totality of the difference in your asset position, if you will, from the start of a relationship as opposed to
[ Page 9032 ]
the end, you're going to look at the value of the assets individually.
So if there are ten assets that include a mutual fund account and a bank account or a piece of real estate in Florida or whatever, you're going to look at all of them individually and do the calculation, as opposed to looking at the totality of the investment or the ten properties, whatever it may be, that have gone up or down?
Hon. S. Bond: That's correct. I love the way it's described, and I'm just going to read it to the member opposite. In our discussions, when we looked at our prep…. "The relationship is not an indemnity against bad spending choices or poor investments of one's excluded property." I like that description of it. So that's correct. That would be looked at independently and attached to that specific asset — so no indemnity in this bill.
K. Corrigan: I'm just seeking further clarification on that section, and I think I do have it. So if you had a series of mutual funds, where does the breakdown happen? Sometimes you get a mutual fund that's got various parts to it, for example.
I've got one plan that has mutual funds in it. It's got, I think, international money markets and so on, but they're all within one plan. So the question is: where is the line on this? How is it going to be determined what is going to be seen as a separate asset?
Hon. S. Bond: In fact, we probably don't have the specificity and, speaking very personally, the expertise to answer the mutual funds question. But what we do know is that certainly the court would still have some discretion about those assets. The general principle would apply, the exclusionary principle, because this is a major shift, obviously, from family property.
The other aspect might be that, obviously, case law from other places will guide us, because there are, as I said, some other jurisdictions. I think it's a good question. We're not able to provide that kind of specificity. But again, it would be based on what we assume would be already interpreted in other jurisdictions.
Section 85 approved.
On section 86.
L. Krog: Section 86 defines family debt for the purposes of the bill. It says it "includes all financial obligations incurred by a spouse (a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate."
I would take that to mean that if you took out a car loan or a mortgage or ran up an account at Canadian Tire or whatever, then that potentially will be a family debt only if, as it says, "(b) after the date of separation, if incurred for the purpose of maintaining family property." In other words, this section talks about including financial obligations incurred by a spouse.
The way I interpret this section is that other family debt may be easily definable as family debt, but this is extending that and saying that it includes debt "if incurred for the purpose of maintaining family property." Is this a narrower or a broader interpretation of debt? If the minister can explain this one to me, I'd be delighted.
Hon. S. Bond: We were debating whether or not this is broader, and we think not. Well, we actually came down on the side of broader. Having said that, it's brand-new, so there really is nothing to compare it to.
Courts have certainly attempted to take family debts into account in dividing family property for quite some time, and what happened was that the Family Relations Act didn't provide authority for debts to be divided at the end of a relationship. This now creates that ability for family debts to be divisible for the first time.
The Family Law Act treats family debt in a very similar fashion to family property and gives judges the express authority to deal with this issue in division. In terms of how it's described, certainly debt incurred after separation will remain a family debt so long as it was incurred to maintain family property, and that will be for the period between separation and until the division of the asset takes place.
L. Krog: I appreciate the minister's response. Just to confirm, without getting to the sections that we're coming to that allow the court to divide family debt unequally, my interpretation of section 86 is: if I have a gambling problem and I drive to the casino week after week and run up a debt of $50,000 and a line of credit to support my gambling habit, because it's a debt, a financial obligation incurred during the relationship, that is, in fact, a family debt.
I see the nodding going on over there. Before I sit down, we're not talking about whether the court divides it unequally or deals with it afterwards. By just the strict reading of this, my interpretation is that that gambling debt, the line of credit in my name, because I'm a spouse, is, in fact, a family debt.
Hon. S. Bond: Ironically, that very example was discussed in terms of the consultation period. While I know we always try to hold back the members opposite from talking about sections up ahead, in fact, section 95 is inextricably linked with this section.
Technically, the question the member opposite asks is correct, but I'm hoping that when we get to section 95, we will also be able to bring up subsection (2)(d). There is a link to section 95.
[ Page 9033 ]
I apologize, Mr. Chair, for moving ahead, but the two are actually linked to one another.
L. Krog: Whenever I hear anyone use the term "technically," I know what that means. That means that my assertion is, in fact, correct. So any debt incurred by a spouse during a relationship…. I used the example of gambling because it's quite repugnant, but it could also be just because you went out and borrowed money to make an investment in Bre-X shares. It's the same kind of thing. Any indebtedness for any purpose whatsoever — your charge account run up at the local liquor store because they like you, all of those debts — is, in fact, a family debt under the act.
Again, I just want to make it clear. I'm not talking about the saving provisions, but literally any debt incurred while you're in the relationship is a family debt.
Hon. S. Bond: The answer is: correct.
Section 86 approved.
On section 87.
L. Krog: Now, this is the valuation date. We always used to talk about the triggering event. It says that "(a) the value of family property must be based on its fair market value, and (b) the value of family property and family debt must be determined as of the date (i) an agreement dividing the family property and family debt is made, or (ii) of the hearing before the court respecting the division of property and family debt." In other words, the parties will continue to share the risk of the asset's value going up and down from the time they separate until the time the court actually holds a hearing.
Again, subject to the saving provisions that allow the court to reapportion, I stubbornly want to hang on to the family home, and the market is declining, and the value of the asset goes down, and the equity is reduced from $100,000 to $10,000. Notwithstanding that, that is, in essence, not going to be…. How shall I say? There's no other date possible. The bill is very, very clear. It has to be the date it gets before the court.
Hon. S. Bond: Subsections (a) and (b) are the default. Obviously, there are other options. One would be an agreement, or if the court orders differently.
L. Krog: If a court orders differently, then I take it that the position of the government is that a court can pick another date. So we can go back to, for instance, what we used to think of as the triggering event, which might be what we used to refer to as a section 44 declaration. So in fact, there isn't quite the certainty here. The court still has that jurisdiction of fairness, if you will, by picking a date and ordering a different date other than the agreement date or the actual hearing date.
Hon. S. Bond: That's correct, although we should point out that the Family Relations Act doesn't provide any guidance on setting a date for valuing family property, resulting in a lot of criticism that judicial discretion in determining valuation dates is too broad.
So absolutely correct interpretation. Having said that, this is a major step forward, because the Family Relations Act didn't provide any guidance at all.
L. Krog: I just want to be clear. Again, the way I read this, in sub (b)(i) it says the value of the family debt must be determined as of the date that the family debt is made. I'm just curious.
I'm just thinking of an example where you take out a line of credit six months before the relationship finishes, and the interest runs up at the time the relationship is deemed to end. You separate, and now it's $5,500. Is the debt going to be valued at the $5,000 amount or the $5,500 amount? Or again, it'll all be subject to the court deciding. But is the presumptive amount or date the time that it actually occurs or when the court deals with it?
Hon. S. Bond: It would be the value on the date that an agreement was made or the date of a court hearing. It would be the value on either of those days.
L. Krog: It says that unless an agreement or order provides otherwise and except in relation to a benefit under a pension plan, which is dealt with differently, the "family debt must be determined as of the date (i) an agreement dividing the family property and family debt is made, or (ii) of the hearing before the court respecting the division of property and family debt." So again, it will be whatever the debt is at that date, regardless of when the debt was in fact incurred during the course of the relationship — right?
Hon. S. Bond: That is correct.
Section 87 approved.
On section 88.
L. Krog: Section 88 says that the "spouse may make an application to the Supreme Court under this Division at any time before a final agreement or final order is made in relation to a family law dispute respecting property division." So in other words, what this provides is that you can go to court ahead of time and ask for what we have referred to, and it refers to here, as simply the typical interim orders. In other words, the usual preservation and whatnot. That's all that section means.
[ Page 9034 ]
Hon. S. Bond: That is correct also.
Section 88 approved.
On section 89.
L. Krog: Section 89 says: "If satisfied that it would not be harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme Court may make an order for an interim distribution of family property that is at issue under this Part to provide money to fund (a) family dispute resolution, (b) all or part of a proceeding under this Act, or (c) the obtaining of information or evidence…."
In other words, the only way you can ask the court to divide an asset or deal with the value of assets ahead of time is for the specific purposes of funding litigation. Now, I'm going to guess that must have been a suggestion from the lawyers of the province of British Columbia.
Hon. S. Bond: Certainly, as we proceed, there will be two other sections, 90 and 91, that deal with temporary orders. So there are temporary orders available for things other than just funding, and they're coming up. This is absolutely not just about lawyers or legal fees. It is certainly the ability to have a temporary order to cover things like mediation.
L. Krog: But just so I'm clear: this is a very new and very specific provision authorizing distribution for purposes of litigation and/or mediation.
Hon. S. Bond: Yes, it is. Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia provide for this provision through case law, but no other Canadian jurisdiction actually provides for interim sale of property explicitly in legislation. Again, it's certainly not that we're catching up in this case.
Section 89 approved.
On section 90.
L. Krog: I haven't had a chance to review absolutely this section versus the existing section under the FRA, but I do note that in sub (2) it talks about "granting a spouse, for a specified period of time, (a) exclusive occupation of a family residence, or (b) possession…" etc.
There's nothing in the statute that changes the basic test, which has historically been, as I recall, that you have to prove that the parties can't reside together in the house, and on the balance of convenience, you know, the court will decide who should have the residence. Is that basically it? There's nothing legislatively that's changing that historic test in section 90 or any other section that I can see in here.
Hon. S. Bond: The member is correct. It carries over sections 124 and 125 of the Family Relations Act.
Section 90 approved.
On section 91.
L. Krog: Would the same answer apply with respect to section 91 of the FRA?
Hon. S. Bond: Yes, it carries over section 67.
Section 91 approved.
On section 92.
L. Krog: Section 92 talks about: "Despite any provision of this Part but subject to section 93…spouses may make agreements respecting the division of property…" etc. That is entirely different. Is this a substantive change at all? I mean, I don't think it is, but I'd be interested in hearing the minister's comments.
Hon. S. Bond: I think that's an accurate description. What this does is clarify that spouses may make property agreements and basically looks at the division of "family property or family debt, or both." In essence, it clarifies that spouses may make property agreements.
Section 92 approved.
On section 93.
L. Krog: Section 93 specifically allows for "Setting aside agreements respecting property division." Any significant change here, apart from perhaps being a little more specific in terms of setting out what have been historic tests by the court — taking advantage of the other's vulnerability, need or distress, etc.? I'm going to presume that this section is based on legislation in other jurisdictions.
[D. Black in the chair.]
Hon. S. Bond: The purpose of the section is to provide the basis, actually, on which all or part of a property agreement may be set aside. It's using a two-part approach.
First, was the agreement procedurally fair at the time it was made? Basically, it would use the criteria in section 93(3). If not, the court is to set it aside and make an order dividing the property, unless the order that it would make would be substantially the same as the agreement.
[ Page 9035 ]
Secondly — so this is the second approach — even if it was procedurally fair, the court may still set aside the agreement and replace it with an order dividing property if the substance of the agreement is "significantly unfair," having regard to the limited criteria set out in section 93(5).
There are criteria that the court must consider to determine if the agreement is procedurally flawed. In essence, it lays out very clearly what the court needs to contemplate. For example — and there's a fairly exhaustive list, and I'll give a couple of examples, if that's all right, to the member opposite — "(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation…." That's one of the things that the court would have to consider.
Another aspect would be whether or not "(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress." So there are some very specific criteria.
If the court was going to deem the substance "significantly unfair," the factors that would be considered are "(a) the length of time that has passed since the agreement was made; (b) the intention of the spouses…" and "(c) the degree to which the spouses relied on…the agreement." So it does raise the threshold for interfering with an agreement on substantive grounds from "unfair," which was what we saw in the Family Relations Act, to "significantly unfair."
L. Krog: I think that that is the change. This refers to all agreements. In other words, what we have historically talked about — a prenuptial, a cohab or a marriage agreement…. Any agreement respecting family property, whether made before the relationship, at the commencement of the relationship, during the relationship or at the conclusion of the relationship, is covered by section 93?
Hon. S. Bond: Yes, any written agreement.
L. Krog: The specific provision in sub (5) talks about "(a) the length of time that has passed…(b) the intention of the spouses, in making the agreement, to achieve certainty; (c) the degree to which the spouses relied on the terms of the agreement."
I guess the simplest example is: if you enter into an agreement, and you spend 20 years together, and…. Well, there's a separate section for spousal support, and we will come to that. With respect to property, if that agreement says "You get to keep the property you brought in, regardless" — obviously, which is the law — "but in addition, you get to keep any increase in the value of that property," if there's a substantial period of time, then that agreement could be, in fact, set aside or replaced by a division of that increase in value. That's the way I interpret this section.
It's going to give that discretion to the courts. In other words, you've had independent legal advice, you had full disclosure, there was no unfairness at the time — because, after all, you were commencing your relationship — but if you're together for 20 years and you're relying on the agreement, in fact, the court is in a position to say: "You know what? After 20 years, no, you're going to have to share the increased value." That's really what this section is saying.
Hon. S. Bond: Yes, it does give the court discretion to decide whether it's significantly unfair. And again, it's based on the specific criteria.
Section 93 approved.
On section 94.
L. Krog: This section just simply provides that you make an order respecting division on application. "The Supreme Court may not make an order respecting the division of property and family debt that is the subject of an agreement…unless all or part of the agreement is set aside under that section." I take it to mean that — maybe I'm reading it as obviously as it sounds — you can't make an order unless some provision of that agreement is, in fact, set aside.
In other words, the court has no jurisdiction to make the order unless it decides that some part of it is set aside. The court is excluded from having jurisdiction. In other words, the court can't even make a decision unless it decides that it's not unfair — that it is going to be set aside.
Hon. S. Bond: What the purpose of the section is and what it does is it limits the court's ability to set aside properly constructed property division agreements. The section encourages agreements respecting property division by providing greater clarity regarding when and how division agreement may be set aside. It very clearly outlines that.
The Family Relations Act property division provisions certainly have been criticized for setting the threshold too low and providing courts with too much discretion. That certainly created uncertainty for spouses as to whether or not their agreements would be upheld. So there is definitely a shift in the threshold.
L. Krog: Just to be clear. It has to be "significantly unfair." Do any other jurisdictions use that language, and what have been their interpretations?
Hon. S. Bond: No, no other jurisdiction does do that, but I think our rationale has been that "unfair" is what the threshold was, and so by assuming this is "significantly unfair," we are, in fact, raising the bar.
[ Page 9036 ]
Section 94 approved.
On section 95.
L. Krog: This provision is the one that says: "Look, if it's come before the court, we're not talking about setting aside an agreement." The court can reapportion, essentially. The language used here is "order an unequal division," as opposed to "reapportionment," which is the language we use now. If it would, again, be significantly unfair to equally divide or to divide the pension benefits, etc. Then it goes on to enumerate a number of possibilities.
To come back to the issue I raised earlier with the minister about the gambling debt or the.… I just hate to use the old cliché of wine, women and song, but it does spring to mind, I must say. If you've incurred the debt for those purposes, then in fact, the court would have that jurisdiction to reapportion if it would be significantly unfair. So if it is the $50,000 gambling debt or a similar debt, then that provision is covered by (d), for instance.
Hon. S. Bond: That's right. That's why I was so eager to make sure that we attached subsection 95(2)(d), because the gambling example is perfectly, I think, aligned with that protection in (d), which talks about whether or not "family debt was incurred in the normal course…." It obviously gives judges some flexibility to take into account a spouse's unique circumstances and to make that choice to divide property unequally. Having said that, it also does limit discretion to divide family property unequally. It's not a broad application, because of course, there's concern about that as well.
L. Krog: And 95(3) says: "The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses" — and I'm going to assume that that's making reference largely to child-rearing or decisions to wish to have a spouse at home — "if, on making a determination respecting spousal support, the objectives of spousal support under section 161…have not been met."
To give me an example so that I can understand this: it's a situation where the parties have substantial assets, and perhaps we're talking about a small pension, or they have substantial assets, and the payer in a support situation has limited income. Essentially, this provision says: "Look, you can order all the spousal support in the world; it's not going to be enough to provide at a level — the appropriate means of support." In other words: "We can give you property in addition to the spousal support order."
Hon. S. Bond: I'm not usually worried about the member's understanding of this bill. I think that's been clear by the number of times I've said: "It's correct." So again, that is the interpretation.
Section 95 approved.
On section 96.
L. Krog: I'm not aware of any provision like this in the existing FRA. So I take it what we're seeing…. This is a prohibition. The court cannot or "must not order a division of excluded property unless (a) family property or family debt located outside British Columbia cannot practically be divided, or (b) it would be significantly unfair not to divide excluded property on consideration of (i) the duration of the relationship between the spouses, and (ii) a spouse's direct contribution to the preservation…" etc.
If the minister can just explain: what's the intent of this section for practical purposes in terms of direction, if you will, to the court?
Hon. S. Bond: The general purpose is to provide judges with some flexibility to take into account, as we have discussed previously, a spouse's unique circumstances. But it certainly limits the ability to do so to a limited set of factors in order not to open this up to uncertainty. So it does provide flexibility but within a set of parameters.
Section 96 approved.
On section 97.
L. Krog: Section 97 looks fairly similar to what we've had in place before. What are the significant changes, if any, between the existing law with respect to the powers given to the court?
Hon. S. Bond: Not significant changes. What it does is carry over section 66 from the Family Relations Act, with changes to reflect that family debt is specifically dealt with in this part. So that's probably fairly minimal.
Section 97 approved.
On section 98.
L. Krog: I read section 98 to essentially provide for what really exists in practice now for basic purposes. Likewise, 99 and 100.
Hon. S. Bond: That's correct.
Sections 98 to 101 inclusive approved.
[ Page 9037 ]
On section 102.
L. Krog: This section, which provides that "If a property agreement provides that specific gifts made to one spouse or both are not disposable by the spouse…without the consent of the donor, the donor is deemed to be a party to the property agreement for the purposes…."
I take it this is to cover off the situation which often, sadly, arises, where mom and pop give their beloved daughter 50,000 bucks in the belief that it's going to be used for family purposes or whatever. In fact it's not, and then there's a separation shortly after. Is this the open door to allow a gift to be redeemed, you might say?
Hon. S. Bond: The purpose of this section…. It does carry over section 61(9) of the Family Relations Act. Yes, it gives a person who gives a gift to one or both spouses on the condition that it not be disposed of without that person's consent the opportunity to be deemed to be a party to a property agreement between the spouses for the purposes of changing or enforcing the agreement with respect to the gift.
Sections 102 to 104 inclusive approved.
On section 105.
L. Krog: This is the choice stuff. I'm glad the minister has staff here, not for her purposes but for my purposes, because I need their help.
The jurisdiction and choice of law rules, which are always interesting…. I hated conflicts, and that was a very long time ago in law school, so I'm going to rely on the assistance of the minister here.
The definition simply talked about applicable internal law. Extraprovincial property means property outside of British Columbia. It says: "For the purposes of this Division, spouses do not have a common habitual residence in a jurisdiction if they live separate and apart in the jurisdiction."
I wonder if the minister can just explain how that figures in division 6, generally.
Hon. S. Bond: Okay, so one of the things that would be considered is where they live together would determine which law would be used in the case. If I don't get this correct, I'll come back and correct it for the member opposite. For example, a B.C. court could be using Alberta law, depending upon whether or not the couple last lived together in Alberta.
L. Krog: For example, this Alberta couple, to use the minister's example, has property in British Columbia, has property in Alberta, and in theory, the B.C. court can apply the Alberta law with respect to the division of that property in all of the property because they were last habitually resident there. Or would they apply the law of British Columbia because the property is in British Columbia? Or do they apply the laws of British Columbia to the property in British Columbia or the laws of Alberta to the property in Alberta?
That's why I hated this course in law school.
Hon. S. Bond: Generally speaking, the same law should be applied to all of the property. There may be exceptions to that, but generally speaking, the same law to all of the property.
L. Krog: I appreciate the minister's explanation. Just so I understand it, in the case I've just described, where one of them chooses to litigate in British Columbia but their common habitual residence was the province of Alberta, then the court in British Columbia will apply Alberta law to British Columbia assets as well as Albertan assets.
Hon. S. Bond: That would be yes, assuming that the habitual residence is the test.
L. Krog: Habitual residence would not be the test in what circumstances?
Hon. S. Bond:If B.C., for example, takes jurisdiction — this is in section 107 — it must then decide which jurisdiction's law must be used to make the order. That's in section 107. And then you must use the applicable internal law, which has been determined under that section, section 107, unless — and there are two exceptions to that. In sub 108(3) the agreement provides the law to apply, or, in subsection 108(4), the property is held under a regime of community property. So you have to use the applicable internal law as determined under section 107, except in those two circumstances.
Section 105 approved.
On section 106.
L. Krog: Just so I understand this, the court is given authority to make an order only if one of the conditions is met, and that is that the spouse has started another proceeding in the Supreme Court, to which a proceeding under this part is a counterclaim? And I think that might be trying to imagine that circumstance. Both parties "submit, either in an agreement or during the proceeding, to the Supreme Court's jurisdiction…." Or "(c) either spouse is habitually resident..." at the time a proceeding is started.
"I've moved to British Columbia. I've been here six months. It's my full and stated intention to remain here,
[ Page 9038 ]
but my common habitual residence was Alberta." So the courts here would have jurisdiction by virtue of the fact I've moved here and I have intention to remain here, and that would give the court authority to make an order.
Hon. S. Bond: Yes. If we look at section 106(2)(c), that would be the case if either spouse is habitually resident in British Columbia at the time a proceeding under this part is started.
Sections 106 and 107 approved.
On section 108.
L. Krog: If the minister could just explain the effect of section 108? I know she's touched on it in a previous answer, but just to sort of explain the effect of these rules.
Hon. S. Bond: This is a new provision, obviously. We don't have an old provision. What this does is it sets out the rules to ensure that, as we've been discussing, the appropriate law applies to both agreements and orders in the division of family property and debt. So we're trying to get some consistency in that the appropriate law applies.
What it does is it takes the provisions in the Uniform Law Conference of Canada's Uniform Jurisdiction and Choice of Law Rules in Domestic Property Proceedings. It takes that act, respecting the choice of law. Currently, the choice of law in family property cases are governed by common law. But that creates some pretty complex technical, time consuming and — as the member opposite is smiling, he would understand — expensive litigation.
So the two main differences between this provision and the common law choice of rules are that this provision requires the same law be applied to all property that's in dispute. So we take the same law and apply it to all the property that's in dispute rather than different laws for movable and immovable property. You can imagine how complicated that would be — so the same law applied consistently to all of the property in dispute.
Secondly, that the rules will also govern the choice of law under this provision that are not based on the characteristics of the property in dispute. So it's not based on the characteristics of the property.
Section 108 approved.
On section 109.
L. Krog: This section provides that: "If the Supreme Court has authority under this Division to make an order respecting extraprovincial property, the Supreme Court may make an order respecting the ownership and division of the extraprovincial property."
Basically, all it's saying is: "Look, if the court has accepted jurisdiction, and the parties are under the jurisdiction of the court, then the court can make an order dividing property." Well, to go back to our simple example, the British Columbia courts can make an order dividing the property in Alberta.
Hon. S. Bond: Yes, and this section would authorize a judge to make an order respecting property located outside of the province, with the proviso that it is appropriate to do so. So in fact, this does allow that to occur.
L. Krog: Just to understand the practical effect of this regime, the court makes an order here and then that order could be registered — to use the British Columbia example again — in Alberta and enforced as an order of the court in Alberta.
Hon. S. Bond: That is correct.
Section 109 approved.
Hon. S. Bond: Can I have two minutes to change binders? We're out of binder 1 and heading into binder 2, so if we could just reorganize for one minute, and I'll make sure I have mine. That would be great.
The Chair: Yes, the committee will recess for a couple of minutes.
The committee recessed from 5:04 p.m. to 5:06 p.m.
[D. Black in the chair.]
On section 110.
L. Krog: I'm just wondering if the minister can explain: are there any significant changes in the definitions under section 110 as opposed to the FRA?
Hon. S. Bond: This does carry over and expand section 70 of the Family Relations Act, and there are some new definitions. If the member is interested in those and if he could permit us 30 seconds, we'll go through and highlight the ones that are new. So I'll do that and answer just as quickly as I can here.
We have a range of ways to address this, so I'll very quickly go through this. There is a change to the word "administrator," but it replaces a definition by cross-reference with a definition for this part: that "includes an administrator of a supplemental pension plan." "Beneficiary" — there's only a minor change. "Benefit," again, replaces the definition by cross-reference to the Pension Benefits Standards Act.
The "commuted value" is carried over. A new definition is the "defined benefit provision," and that is to
[ Page 9039 ]
clarify the meaning of the new term used in this part. A minor change to "defined contribution plan." New, however, would be the "defined contribution provision," again, and it provides clarity around the new term.
"Extraprovincial plan" — there is a change there, I should point out to the member opposite. It's a "supplemental" plan to a "local" plan. It clarifies what is and what is not to be treated as an extraprovincial plan. "Former Act" is new, obviously. That refers to the Family Relations Act. A change to the "hybrid plan" — simply what constitutes a hybrid plan for the purposes of this part. "Joint pension" is new and clarifies what that means.
"Member" is a change. Again, it's a cross-reference to the Pension Benefits Standards Act. A change to the word "pension." And this is a change. It clarifies that the pension payments may continue for the member's life or a shorter period, so there's a clarification there.
The "phased retirement benefit" is new. "Phased retirement period" is new. I think the other change…. There are some carried-over definitions. The final change that I can see is the "supplemental pension plan," and again, that is a cross-reference to the Pension Benefits Standards Act. So most of the changes are cross-references, and I have identified the new definitions that are included.
L. Krog: For practical purposes, the change in definitions themselves has no significant impact on the rights when it comes to division of the pensions. It's essentially to take into account various pension plans and updating the language.
Hon. S. Bond: First, I'll answer the question, and then I will correct my last answer.
So, yes, there are the extraprovincial plan and the supplemental pension plan. The supplemental pension plan is a change and would be dealt with separately now.
The language I used around cross-reference. I need to correct that. In reading this, what it does actually is replaces a definition that's related to a cross-reference. So I'm now correcting that. Related to every time that I've said that, attached to a definition, it has now been corrected that we're actually removing a cross-reference.
Section 110 approved.
On section 111.
L. Krog: I just want to confirm with the minister the meaning of this section. It says that the "spouse is entitled under Part 5…to an interest in benefits, the spouse's share of the benefits and the manner in which the spouse's entitlement to benefits is to be satisfied…" etc. Okay. I think I get that. But for the "purposes of this Part, all of a member's benefits are deemed to be allocated to the member if an agreement between that member and that member's spouse, or if an order, (a) is silent on entitlement to benefits, and (b) represents a final settlement…."
Basically what that's saying is that if a provision in a written agreement says: "I'm waiving my rights," it includes all of the member's rights — in other words, pre-relationship rights, post-relationship rights and rights that accrued to the member during the course of the relationship. Is that the import of this section? Or why is it in there, and how does it fit in with the division scheme generally?
Hon. S. Bond: Yes, I think we have the correct answer. What this section does is that if a spouse is entitled to an interest in a member's pension, this part governs determining a spouse's share of benefits under a pension unless an agreement or order provides otherwise.
L. Krog: If an agreement or an order provides otherwise, presumably that would be in reference to the written agreement. In other words…. I'm trying to figure this out in a practical way.
So we have an agreement — what we historically would have called a cohab or a marriage agreement, whatever — that says: "Look, you don't get to share in my pension." What this section says is that if there is that agreement, then the court doesn't have jurisdiction to divide that because there's an agreement? Or does the court not have jurisdiction for some other reason?
Hon. S. Bond: No, because if you look at subsection 111(3), it says: "Nothing in subsection (2) affects a court's jurisdiction under Part 5 in relation to an agreement or order."
L. Krog: So the court has the jurisdiction to set aside the agreement, to deal with it, to reapportion — all those provisions apply. But "for the purposes of this Part," it says in sub (2), "all of a member's benefits are deemed to be allocated to the member if an agreement between that member and that member's spouse, or if an order, (a) is silent on entitlement to benefits, and (b) represents a final settlement…."
I take it to mean, just in this fairly straightforward way, that if you talk about benefits and you're not specific or you're silent on the entitlements in terms of whether or not it's to be shared, then subject to that, it means the member gets to keep all of the benefit of the pension?
Hon. S. Bond: That's correct, subject to subsection (3).
Section 111 approved.
[ Page 9040 ]
On section 112.
L. Krog: If the minister can just explain the effect of section 112.
Hon. S. Bond: What section 112 does is it actually modifies the template. So we're looking at the Family Relations Act, subsection 80(2.1) for bringing old orders and agreements for pension division under this part to fill a gap in relation to dividing defined contribution pensions.
The purpose is to provide for bringing old orders and agreements, for dividing pensions under this part and for determining the spouse's share, using the formula set out in the agreement or order, to the extent possible.
Section 112 approved.
On section 113.
L. Krog: Again, if the minister can explain the effect of section 113.
Hon. S. Bond: The purpose of this…. Again, we're carrying over subsection 72(1), (2) and (5) of the Family Relations Act, with some changes to bring better clarity to those provisions. Really, what this does is it sets out situations in which a spouse may be designated as a limited member and the rights of a limited member. A spouse is entitled to become a limited member if the spouse will receive a separate pension from the member's pension plan, where it is a local plan.
Sections 113 to 117 inclusive approved.
On section 118.
L. Krog: If the minister could just explain section 118.
Hon. S. Bond: I think we referenced this section earlier, about division of other assets. This clarifies that an annuity that is privately purchased by a member and an annuity purchased by a pension plan on behalf of a member are both to be treated in the same way as a pension which has commenced.
Sections 118 and 119 approved.
On section 120.
L. Krog: With respect to section 120, I take it if you're a member of the plan and you've caused a loss, then compensation will be ordered. I'm just trying to contemplate: how could you cause a loss under a supplemental pension plan?
Hon. S. Bond: Section 120 establishes the rules for protecting a spouse from loss caused by a spouse's share of benefits in a supplemental pension plan which is caused by the member or an act of omission by the member related to a supplemental plan. In fact, the supplemental plan is obviously separate from the main pension plan and is often considered a top-up pension.
L. Krog: So a supplemental plan would probably have reference to a plan over which the member in fact had some control in terms of its investing. Is that the concept? And if that's the situation, you would therefore have a right to seek compensation because they caused a loss, perhaps through negligence or bad investment or whatever?
Hon. S. Bond: Correct.
Sections 120 to 122 inclusive approved.
On section 123.
L. Krog: If the minister can just explain how section 123 works.
Hon. S. Bond: What this section does is it carries over section 77 of the Family Relations Act. What it does is set out rules for effecting the division of an extraprovincial plan. The member would remember that in our section of definitions there were the new definitions. This was one of them. The purpose is also to provide that in certain circumstances a pension plan member must, if possible, designate the spouse as the beneficiary under the plan to the extent of the spouse's interest in that pension.
Section 123 approved.
On section 124.
L. Krog: I read this section to basically be a protection, if you will — if a member dies before the "pension commences, and (b) the limited member receives the limited member's proportionate share of the benefits," etc. If the minister could give a fairly straightforward example of how it would work in a practical way.
Hon. S. Bond: Certainly, I think the best way to describe this is that under the current Family Relations Act, there are potentially unfair results at times. What happens is that it could lead to the overcompensation of a spouse or to a spouse receiving nothing, because currently what the spouse gets is based on the preretirement survivor benefit. So what this does, we believe, is rectify the current situation, which can produce some pretty unfair results.
[ Page 9041 ]
L. Krog: If the minister could just give me a sort of practical example of how this would benefit.
Hon. S. Bond: Again, the rationale for the change is that deferring receipt of a share of the pension shouldn't overcompensate or disadvantage a spouse. So we're trying to clarify that. Let's look at, for example, what can happen. As I said earlier, you can either overcompensate a spouse or a spouse receives nothing currently, because it's based on preretirement survivor benefits.
Let's assume, for example, that it's 60 percent of the commuted value of the pension, when sometimes it's 100 percent, or in fact, sometimes there isn't one. This provision is designed to correct that circumstance.
Section 124 approved.
On section 125.
L. Krog: If the minister can just give an explanation of how section 125 relates. It talks about survivor benefits.
Hon. S. Bond: In effect, this does carry…. It expands section 72, sub (3) and (4) of the Family Relations Act, and that limits a member's authority to designate beneficiaries. So this allows a member to designate as a beneficiary any person that he or she wishes as permitted by law for any portion of preretirement survivor benefits that exceeds the limited member's share.
It allows the member to designate a beneficiary — any person that he or she wishes to. It also allows the member to designate another beneficiary in relation to that part of the survivor benefit that exceeds the limits at the limited member's proportionate share. So what happens is that this will actually prevent a former spouse, for example, from receiving a windfall. The excess will go to another beneficiary that has been named by the member.
L. Krog: Just to confirm, obviously, that that other person could be friend, relative, child — whatever the member designates.
Hon. S. Bond: That's correct — anyone that is permitted by law.
Sections 125 to 128 inclusive approved.
On section 129.
L. Krog: This provision, I take it, allows the court to reapportion benefits under the plan. In other words, you can reapportion pensions just the way that — and we use the language "reapportion" here — historically a court could reapportion the interest in the family home.
Hon. S. Bond: Yes, that's correct. What this does is set out the circumstances in which the Supreme Court could actually reapportion benefits.
L. Krog: So it talks about if "(a) it is necessary, appropriate or convenient…and (b) the financial and property arrangements between the member and spouse to address the spouse's need to become or remain economically independent and self-sufficient would otherwise require an order (i) respecting spousal support, or (ii) requiring the member…to pay the spouse a share of the benefits…."
In other words, if you're receiving a pension, and your spouse has an entitlement to support, what the court can do is reapportion the pension to enable the court to achieve a certain fairness, if I can put it that way, that would normally be achieved by spousal support. Instead, you're going to give more, in terms of the pension, to that spouse.
Now, is this to take into account, I suppose, what we used to refer to as the double-dipping scenario? And by that, I mean where perhaps you've divided assets, and there's still a spousal support obligation. And you get to retirement and the court says…. There was a certain presumption you don't get to then claim a portion of the pension that has already been divided in order to have to continue to pay spousal support, because you don't get to double-dip, in a sense.
I'm just wondering if that section has any relationship to that problem.
Hon. S. Bond: In fact, there's a section further up where we'll talk and which addresses the spousal support issue. So what this does is actually lay out the general principle of the court being able to reapportion.
Sections 129 to 131 inclusive approved.
The Chair: Shall section 132 pass?
An Hon. Member: Aye.
L. Krog: I was going to say, hon. Chair, I think a pirate has arrived here.
On section 132.
L. Krog: With respect to section 132, that specifically provides for a retroactive division of pension, I take it. Any substantive change from the existing law in section 132?
Hon. S. Bond: Actually, there was not an existing provision. What this does is actually establish the rules for dealing with a situation where the pension commence-
[ Page 9042 ]
ment is delayed, pending the resolution of the pension division issues. So this deals with if the pension is delayed because of that discussion around division. And there was not a previously existing clause.
Sections 132 and 133 approved.
On section 134.
L. Krog: This section states: "An administrator may administer the division of a member's benefits under this Part only if the administrator has first received a copy of an agreement or order respecting the division of benefits between the member and the member's spouse." In other words, there is a prohibition on receiving written direction from the parties. There has to, in fact, be a court order or a true or written agreement.
Hon. S. Bond: Again, this is a case where we did not have an existing provision in the Family Law Act. What it clarifies is that the pension plan administrator is not required to administer the division of the pension benefits until they've received a copy of an agreement or a court order respecting the division of benefits between the member and his or her spouse.
Section 134 approved.
On section 135.
L. Krog: I take it this is basically just an enabling provision for the administrator to delay, if they are not satisfied they have received sufficient information, etc. In other words, it's a bit of a protection for pension administrators.
Hon. S. Bond: Basically, yes, it sets out what information must be provided before an administrator is actually required to administer the division of benefits. So it clearly lays out what information is required before they make that decision.
Sections 135 to 140 inclusive approved.
On section 141.
L. Krog: This section references income tax and states that the parties are responsible for paying their own income tax on their receipt of their portion of the pension. But it says that if "a member or spouse is required to pay income tax on the other person's share…the person who is required to pay the income tax…must be reimbursed…."
So for practical purposes, this is basically just an indemnification section. In other words, it's saying you have to pay the income tax on your pension that you're responsible for if you were receiving it separately. But in addition, if one spouse receives it and has to pay all the income tax, the spouse receiving it is entitled to reimbursement from the spouse who's going to be getting a share of it.
Hon. S. Bond: That's correct.
Sections 141 to 145 inclusive approved.
On section 146.
L. Krog: Just to confirm, there's no change in definition for "child" from the way we certainly understand it under the Divorce Act?
Hon. S. Bond: No substantive change.
Section 146 approved.
On section 147.
L. Krog: This provision says that "(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child (a) is a spouse, or (b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence..." etc. Can the minister just explain how the section is going to work? It does represent, certainly, a change, in the law as I understand it.
Hon. S. Bond: Actually, there are some fairly substantive issues raised in this section, and I think it is noteworthy. Probably we should walk through a couple of things. One of the things that this section actually retains is the obligation to support a child. But it does codify case law, so it's important to note that it does codify when an obligation ends.
Secondly, this is a section we worked on with the child and youth rep related to whether withdrawal was voluntary, and requires consideration of whether the child's circumstances at home are "objectively, intolerable." So for example, if a child leaves a home where there was drug abuse or because they were forced to leave, the parent continues to have a duty to support that child.
On the other hand, the parent is not obligated to pay support for a 17-year-old who has voluntarily left home to live independently with their boyfriend, or for a child who decides to run away because they don't like the rules. But it clearly separates the areas related to: if a child's circumstances at home were intolerable, the parent retains the responsibility — has a duty — to support that child.
The section also provides that the obligation on non-parent guardians "is secondary to that of the child's
[ Page 9043 ]
parents." For example, a grandparent who has guardianship to assist parents who are going through difficulties caring for a child has only a limited duty to pay support for the child, and again, the parents remain primarily responsible for that child.
Finally, this section actually retains the current obligation on a step-parent to support a child, but it adds some clarification around the level of support, the level of obligation for that step-parent. To codify the case law, the step-parent's obligation is expressly made secondary to those of a child's parents and gives discretion to a judge, in fact, in this section, to determine what level of support may be appropriate, considering the child's standard of living.
So some fairly significant sections — two of them codifying the law. But importantly, the language related to whether withdrawal was voluntary was a discussion that we had with the child and youth rep.
L. Krog: I appreciate the minister's explanation. So if you withdraw voluntarily…. You're a 17-year-old who's just difficult, and you don't like your parents, notwithstanding they are fine people. You withdraw, and you apply for social assistance, for instance. Will the ministry be in a position to go to court and ask that the parents, in fact, pay child support?
Hon. S. Bond: That prompted a good discussion on this side of the table.
I guess the reality is that if a 17-year-old withdraws voluntarily, in essence they lose the right of entitlement. So the ministry could, for example, attempt to have employment assistance or something attached to that 17-year-old, but the key there is voluntary withdrawal and with that the loss of, in essence, the right to entitlement.
L. Krog: Just so I'm actually clear. It doesn't mean a 17-year-old who's unhappy with his parents can walk out the door, go to social assistance and apply for social assistance and the ministry, in essence, bring on an application against these parents for support to make up for the money that the ministry is paying the child. Let's gave an example: a set of parents who are capable of paying $800 a month support, which exceeds the single employable allowance, which I think is about $610.
It's not a situation where the child can walk out the door, go to the ministry and say, "I want social assistance," get social assistance, and the ministry in turn have the subrogated right, if you will, to go after the parents for the support that it's paying.
Hon. S. Bond: In essence, we're having difficulty because we can't actually interpret their acts — for example, the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act — because under our act, the 17-year-old who leaves voluntarily has given up their right to entitlements. So it's a very good question, and in essence, we will seek to get an answer related to the other acts that are referenced here.
L. Krog: I note, also, that the provision "if the child withdrew because of family violence" is in fact new. And when it talks about "or because the child's circumstances were, considered objectively, intolerable," that's the reference the minister talked about. The parents are drug addicts. The parents aren't providing any parenting whatsoever.
In a situation like that, the child would retain an independent right to bring their own application in court for support in that circumstance? I recollect something about how a 16-year-old, in theory, can do that under the provisions of the act. Am I correct in that?
Hon. S. Bond: That's correct.
L. Krog: In the minister's very fulsome explanation, which I much appreciate, there has been this ongoing issue in the past where you can have several parties responsible to pay support, which is what the minister talked about, for a child. So we have, for instance, natural father, and then we have stepdad, or stepmom for that matter.
I think basically the courts have looked at what the maximum income would be of the highest potential payer and then apportioned it accordingly. What we're saying here is that if you've got a duty to pay, it will be "secondary to that of the child's parents and guardians, and (b) extends only as appropriate on consideration of (i) the standard of living experienced by the child…and (ii) the length of time…."
What I'm trying to understand here is: is this a situation where, in theory, the step-parent could be paying even more than the total that would be normally payable because we're taking into consideration "the standard of living experienced by the child"? In other words, it's not the child support guideline amount that is the max. In theory, it could be higher than the child support guideline amount.
Hon. S. Bond: In essence, in theory, that would be possible, but the court won't ignore the guidelines that are in place. In theory it could happen, but certainly don't expect that to be a common practice.
L. Krog: So for practical purposes, I guess what I'm getting at is that the situation can arise under this provision that if the step-parent's income was substantial and the payer father's income was not, for instance, then the
[ Page 9044 ]
step-parent would be looking, potentially, at that difference between what the natural father, if you will, can pay versus what the step-parent could pay.
Hon. S. Bond: We've got four yeses on this side from the staff. They say: yes, that is a potential.
L. Krog: Just to get it in a concrete way: if you've enjoyed a really good lifestyle with your step-parent, but your natural parent is poor, you're going to get the benefit of the step-parent's standard of living, even though your natural parent's ability to pay is substantially lower.
And just so I'm clear, there is nothing in this act that would allow — I don't think the law is going to change — a step-parent coming into a situation to contractually avoid those obligations. The law is now, as I understand it, that you can't contract away a child's right to support. There is nothing in the act that is going to allow that step-parent to protect themselves from being stuck with what might be a more substantial payment than the natural parent.
Hon. S. Bond: No. But there are two factors, not just one, and the second factor is the length of the time during which the child lived with the step-parent. So certainly, standard of living is one of the factors, but the other one, which would also be considered in that determination, is the length of time the child has been with that step-parent.
Section 147 approved.
On section 148.
L. Krog: Just a quick question: anything in this section that is a substantive change to the existing law with respect to the right to make an application?
Hon. S. Bond: In fact, this is a new provision. There was no existing provision in the Family Law Act. What it does is reflect the law. It works through the process. For example, it describes how agreements regarding child support are to be enforced — the test of setting aside such agreements. So in essence, it lays out the law, but it is a new provision.
Sections 148 and 149 approved.
On section 150.
L. Krog: Now, this section talks about if a court makes an order respecting child support, the amount "must be determined in accordance with the child support guidelines." And then it says that despite that, "a court may order child support in an amount different from that required by the child support guidelines if (a) the parties consent…" or if "(b) the court is satisfied that reasonable arrangements have been made for the support of the child."
In other words, this would allow, in a practical situation where a parent has perhaps transferred more of the family property, pursuant to an agreement, but has in fact an income that would warrant a higher child support payment, but the agreement provides for a lower child support payment, that if the court is satisfied that's reasonable, because it's enabled the parent who has the substantial parenting time to retain the family home and security for the child, then that would be acceptable under this section.
Hon. S. Bond: Actually, that's a good example of the kinds of things that we would expect to see under this section.
L. Krog: Just to tie it back to my example when we were buried deep in 147(5). Again, this section would enable a step-parent, who perhaps provided assets, to do the same kind of thing — in other words, reduce the amount of support that would otherwise be payable.
Hon. S. Bond: That's correct.
Sections 150 to 152 inclusive approved.
On section 153.
L. Krog: This is the new stuff, as I understand it, in terms of calculating support. So "'child support service' means the child support service established under section 154; 'notification date'…" etc. In other words, this gives power to do recalculations without the necessity of going to court, if you will. Is that the essence of what we're trying to do here?
Hon. S. Bond: Generally, this division actually replaces section 93.3 of the Family Relations Act, and it does continue to provide authority for child support services and recalculation. What is different, obviously, is the ability to look at an administrative process, which would be able to go through a recalculation process without going to court. There is an example of that currently. It does happen in the province, and in fact that's at the Kelowna provincial court.
L. Krog: That's what I'm getting at. In other words, we're going to implement what will, hopefully, be a provincewide service to enable this to happen. That is the intention. Often it would save a great deal of court time and litigation if parties had a service that they saw as "independent" of them and that allowed them to get on with making what are often — and should be, properly speaking — annual changes to support amounts.
[ Page 9045 ]
Hon. S. Bond: Perhaps the member opposite knows that the program was first started with federal dollars. When that was no longer provided, the province provided the funding to keep the service going. We're continuing to try to find new and efficient ways to deliver the service.
I think the member's point is valid. This is one of the programs we're going to continue to look for ways to expand.
Sections 153 to 159 inclusive approved.
On section 160.
L. Krog: On the duty to provide spousal support for an entitled spouse, I don't see any significant change here. It talks about: "…in accordance with section 162." I mean, some of this — how shall I say? — recognizing those disadvantages, etc…. This is the language of the Divorce Act. I'm going into 161. I'm kind of combining them here.
Hon. S. Bond: The member is correct. This does take the provincial spousal support factors and does line it up more closely with the Divorce Act.
Sections 160 and 161 approved.
On section 162.
L. Krog: I note this section talks about the amount and duration, etc. It "must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following…." And the first one is the length of time the spouses lived together, the functions performed and an agreement between the spouses in relation to the support of either spouse.
As I interpret this, the message is the longer you are together, the greater likelihood that there will be a lengthier support order; the less time you spend together, probably a lesser support order. Or are we talking about using the spousal support guidelines which have been referenced and often provide the basis for a decision?
It does also talk about "functions performed," so if you are going to stay out of the active workforce and work at home, then clearly, spousal support is more likely to be paid. But any "agreement…relating to the support…." So that portion I read to mean that if you've got that written agreement, and it's not significantly unfair, then you could have given up your right to spousal support, regardless of all of these other factors, potentially.
It talks about "duration of spousal support" and "agreement between the spouses." Is it possible for the agreement to defeat the claim for spousal support, notwithstanding the provisions of this section?
Hon. S. Bond: The answer to the question is yes.
Sections 162 and 163 approved.
On section 164.
L. Krog: This section now provides that spousal support agreements, if you will, or agreements that contain provisions respecting spousal support, can be set aside. But for this section, it says may be set aside only if satisfied one or more of the circumstances: failure to disclose, took improper advantage, did not understand circumstances, the court may decline to act, etc. There's no significant unfairness test here, though, unless I am mistaken — correct?
Hon. S. Bond: In fact, this is very similar to the discussion we had around property. So in fact, if you look at section 164(5) and despite subsection (3), there is a "significantly unfair" provision there.
Sections 164 to 166 inclusive approved.
On section 167.
L. Krog: Does this represent any significant change in terms of the power to vary?
Hon. S. Bond: There certainly is the…. It does expand the opportunity for retroactivity. In fact, if you look at the section, it expressly provides for retroactive variation of spousal support orders. Currently, payers may experience hardship when their income has gone down, but they cannot get their order changed in a timely manner and, therefore, would appear to be in arrears. So there is an express provision for retroactive variation.
It also expands the circumstances under which a judge can change a spousal support order. In addition to where there have been changed circumstances — and we've had a number of examples in our discussion about a change in circumstance — a spousal support order may also be changed if there is new evidence available or there is evidence of a lack of financial disclosure. So there are some significant provisions there, particularly related to retroactivity.
L. Krog: The Supreme Court of Canada has talked about sort of a three-year limit. I notice there's no limitation on this. So in theory, you could go back a long time, in terms of changing the order. The reason I bring this up…. It's quite common, the circumstances. People come into the constituency office. I'm not talking about clients or anything of that nature. They have fallen on hard times. It's five or six or seven years since the order was made, and it is substantially in arrears.
[ Page 9046 ]
[L. Reid in the chair.]
If you were looking at the facts of the case, there's no way they could ever pay the amount that had been ordered. So I take it this is a clear recognition that we can go back longer than three years, potentially — as an example.
Hon. S. Bond: I think our view is that the court is not going to ignore case law — so in essence, if there have been a number of precedents around three years. But I suppose, potentially, there is that possibility. I think what's important here is that the new factors certainly promote some pretty frank discussion and disclosure of relevant information. But it does allow the judge to revisit, the court to revisit and make an appropriate change where there's evidence that another decision may have been arrived at.
In terms of time limit, we believe that case law will certainly influence the time limits.
Sections 167 and 168 approved.
On section 169.
L. Krog: I wonder if the minister could just outline her views on this section, because it does take into consideration that receipt of pension benefits — which, frankly, is the double-dipping issue that I was trying to bring up earlier.
Hon. S. Bond: What this does is this section sets out the automatic right for a spouse to ask for a review of spousal support upon one of the parties receiving a pension. So it certainly triggers the right to ask for a review of spousal support.
Because a pension is foreseeable, case law has said it is not considered a change in circumstances for the purposes of changing, suspending or terminating a spousal support order. But often agreements don't provide for a review of spousal support upon the receipt of pensions due to an oversight of the parties, so this gives a specific right to have that reviewed.
Section 169 approved.
On section 170.
L. Krog: This section talks about "child support or spousal support, the court may provide for one or more of the following…that payment of a lump sum be made, directly or in trust." That specifically is in reference…. My simple reading of this section…. I just want to confirm this. Notwithstanding the child support guidelines that would normally suggest a monthly payment, in fact, a lump sum payment can be made.
Hon. S. Bond: What the section does is replace and add to an existing section in the Family Relations Act, which provides that an order for support may include terms about how those payments are made, including a lump sum, or be periodic in nature.
L. Krog: To use a simple example, if you've gone through an interim period in which there's a poor record of payment, then the court, when it deals potentially with, say, the divorce, the division of family property, the amount of parenting, etc…. If the court is satisfied that the child support is not likely to be paid because of a grim record, then in theory the court can order a lump sum, taking into account whatever factors it wishes, I presume — you know, the likelihood of how long the child would be in receipt of child support, etc. — and not make an order for periodic or monthly child support.
Hon. S. Bond: That's correct.
Sections 170 to 172 inclusive approved.
On section 173.
L. Krog: I read this as being consistent with the child-centred focus of the legislation, of the bill — period. It talks about: "In making an agreement or order respecting spousal support, the parties to the agreement and the court must give priority to any duty to pay child support." Really, I read this as simply saying: "Look, the children are always first and should be the primary consideration." That's my understanding of this section. Is this substantively different from the practice in the courts now?
Hon. S. Bond: The member is correct. This allows for prioritization of child support over spousal support, particularly in circumstances where resources are insufficient, but it does not force parties to permanently relinquish their rights to their entitlement to spousal support. Absolutely correct — this puts the child first. It does carry over, though, section 93.2 of the Family Relations Act, which only addresses orders. But this will apply the priority rules to agreements as well.
Section 173 approved.
On section 174.
L. Krog: This provision relating to cancelling and reducing arrears talks about…. It would be "may reduce," etc., pursuant to under an agreement or an order "if satisfied that it would be grossly unfair not to reduce or cancel the arrears."
Reading that in conjunction with the retroactivity, what I'm trying to get at…. This is rather difficult to explain.
[ Page 9047 ]
When I asked the minister questions around the potential of the retroactivity going back a long ways — in other words, not three years — did the government consider, if you will, a different test? That's the historical test. I'm wondering if a different test was considered and what the position of the bar was on this.
Again, I come back to that problem of the guy who comes in, and it's often a male, years and years, and can't afford to go back to court to cancel it. It's a Supreme Court order. Arrears have built up. You're never going to collect, and the whole thing just becomes a bit of a silly game, for practical purposes. So I'm just wondering if other tests were considered when it came to cancellation of arrears.
Hon. S. Bond: Actually there was, again, a fair degree of discussion about this. At the end of the consultation, by separating or at least differentiating, cancelling and variation, there was far more broad support for the approach.
You know, the retention of the more stringent standards for cancelling or reducing arrears reflects the fact that the liabilities result from a party's non-compliance with an order, such as refusal to pay the amount. So there is differentiation. When there's a good reason for not being able to pay the amount provided in the order — for example, let's suggest that employment has been reduced — they may seek variation of the order from the court under section 167. It is in that case that the court may, if appropriate, make a reduction of support retroactive to avoid the arrears.
L. Krog: I do note one thing here. It allows the court to reduce the arrears and orders that "interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair," etc. It also empowers the court: "If a court cancels arrears…the court may cancel interest that has accrued under section 11.1…" of the FMEP.
One of the issues that is raised from time to time — and, again, this becomes problematic — is where the fine has been levied by FMEP. You could in theory be entirely successful in cancelling the arrears because you've proved that you've been on assistance, quite legitimately, for seven or eight years and you had no ability to pay, so you're successful. But in theory, there's nothing…. I don't see anything in here that gives the court…. Maybe it's in another statute and the minister and the able staff can advise me. There's no ability to cancel the penalties that FMEP could levy.
Hon. S. Bond: Actually, that issue is not addressed here. We're going to take that away with a couple of the other questions that the member has asked us, and we'll get more clarity related to FMEP.
Section 174 approved.
On section 175.
L. Krog: This is a fairly interesting series of sections, actually. It talks about property, children's property. I'm just wondering: at whose request were these sections included in the act, and what's the point and purpose of them?
Hon. S. Bond: Part 8 is about children's property. The member opposite asks: "Who asked?" Certainly parents asked, for sure. What this does is this allows for guardians, who obviously will usually be the child's parent, to have the ability to manage property under a certain value that belongs to a child, without the need for a court order appointing them as trustees.
The monetary limit will be set by regulation. That's an important consideration. But this part of the act also includes the criteria that will govern the court appointment of trustees when the trust is larger.
It's important to note that we looked at other jurisdictions. In fact, the children's property regime that we're providing here is modelled most significantly on Alberta's Minors' Property Act. So in fact, there is an act in place in Alberta. We looked at that, and this regime is modelled after their work.
L. Krog: I'm just trying to think of a practical circumstance. What sort of property would be contemplated? Are we talking about bequests under a will, for instance? You know, you've been left a $3,000 bequest by grandma, and the trustee or the executor of the estate doesn't wish to carry on.
Do these sections, in fact, authorize the executor and trustee to pass the money through to the guardian of the children, and that will be legitimate? They can manage the property on behalf of the child, and the executor and trustee can close off the estate, so to speak?
Hon. S. Bond: That is an example of how this could be used.
L. Krog: I'm just trying to think: are there some other examples of the kind of property? Are we talking about the smart kid who manages to put $3,000 in a bank account? Are we talking about somebody who gets given a $4,000 motorcycle? I'm just trying to understand how this works in a very practical way.
Hon. S. Bond: Those are the kinds of things that could be considered. Or, for example, if someone owes the child money — that's another consideration.
Sections 175 to 177 inclusive approved.
On section 178.
[ Page 9048 ]
L. Krog: In my very helpful discussions with ministry staff earlier, I gather it has been contemplated that the prescribed amount is a suggested $5,000 figure, under the regulations. That's a possible consideration, I take it?
Hon. S. Bond: In fact, we haven't made the final decision yet. If you look at the range that's applicable in some other jurisdictions, it ranges from $5,000 to about $25,000. I think it's a bit larger in some jurisdictions. We haven't made that final determination. There were a number of suggestions during consultation, but we haven't settled on one of those yet.
Section 178 approved.
On section 179.
L. Krog: Just so I understand this: this section 179 is almost what I would call an independent section. This could have been in another statute, I guess, is what I'm trying to say. It is basically a saving provision that allows the Supreme Court to appoint someone to be trustee over a child's property. But for practical purposes, why is it in this act, as opposed to some other statute or an independent statute?
Hon. S. Bond: Well, in fact, we asked our advisory group. The member is well aware of the group. They suggested it be here. I think one of the primary considerations would be that it would typically be guardians that would apply.
Sections 179 to 182 inclusive approved.
On section 183.
L. Krog: I read this section to be that a family member, by a person on behalf of a family member at risk or on the court's own initiative…. It "need not be made in conjunction with any other proceeding.…" In other words, this is, again, as the previous sections dealing with the property work, a sort of independent section, in a sense.
In other words, because the act is placing so much emphasis on family violence — the best interests of the children, the discouragement of family violence — we're including the provision to allow independent parties, if you will, to bring on applications for what I will call, for other purposes, just a restraining order.
Hon. S. Bond: That's correct. In fact, this does clarify that protection orders are available on a stand-alone basis. They may be made at any time, and they need not be connected to any other family law matters. The member opposite is correct.
L. Krog: In terms of enforcement provisions, we will get to that. But these would likewise be enforceable as independent orders and would allow for the sanctioning provisions which are referred to further on — correct?
Hon. S. Bond: In fact, what this does is very much clarify the difference. We found that, for example, the current restraining order system was not working in terms of our ability to deal with those issues, so this allows for the creation of a Criminal Code offence. It will very much enhance the ability to create a protection order, and that's a very significant addition to the work that's being done here. It separates out….
In the case of a restraining order, for example, other matters may have been included in that. So when law enforcement, for example, is looking at whether or not they should respond or how they deal with that restraining order, often there were issues related to determining why. Protection orders will be based on risk. We expect that it will be a far more effective tool than the one that's currently in existence.
Section 183 approved.
On section 184.
L. Krog: This section says that the court has to consider a number of factors, including history of violence, family violence is repetitive or escalating, whether or not psychological…. I take it this is all part of the scheme, if you will, to allow parties to secure the protection from the court before things get worse. In other words, this is seen as what I will call a preventative measure that would otherwise….
You know, historically you'd almost wait until the damage was done, and then you'd go into court and get an order, whereas this is much more directly asking the court to consider things that are indicia of a potential problem but not necessarily…. It's not like we've had an assault, but we have had a pattern or a history that common sense says is likely to lead to some more desperate situation. Here the court is being given the opportunity, based on these criteria and risk factors, to make a decision earlier on.
Hon. S. Bond: Yes. What this section does is it actually lists risk factors that the court must consider. It is asked to do that and determine whether family violence is likely to occur. The risk factors are actually based on risk assessment and research tools that are in place in British Columbia and in Canada and, in fact, are used by police in the justice system.
Yes, it is very much about looking at when and if it's appropriate to determine whether a protection order should be put in place. Certainly, there is an extensive
[ Page 9049 ]
list of risks that must now be considered by the courts in making that determination.
Sections 184 to 187 inclusive approved.
On section 188.
L. Krog: This section provides: "(1) An order made under this Part may not be enforced (a) by means of any order that may be made under this Act, or (b) under the Offence Act. (2) A police officer having reasonable and probable grounds to believe that the person has contravened…may (a) take action to enforce the order…."
I'm not sure I understand what we're saying when we say: "An order made under this Part may not be enforced (a) by means of any order that may be made under this Act, or (b) under the Offence Act." If the Attorney General can explain that.
Hon. S. Bond: Well, the bill does remain silent on how protection orders are enforced, and that's necessary, as the member opposite would know, because section 127 of the Criminal Code is by default. It's default enforcement, and by its terms, it only applies where there is no other remedy available. We've basically made sure that this now will be considered under the Criminal Code.
L. Krog: So in essence, this is the difficult "You don't get to do it, but you do do it" provision that really forces the police now to take seriously orders which, formerly, they were often quite reluctant to enforce when it came to family violence issues. Indeed, the way I read this section, it likewise then applies, of course, to the independent orders we talk about in section 183 as well. That's the way I would read the section.
Hon. S. Bond: Yes, section 183 is the protection order. Stakeholders, including the police, made it very clear to us that using the Criminal Code is actually going to be the most effective way to look at a breach of a protection order. Again, I think it is really important that we are separating out risk related to harm from issues that may be related to conduct, and I think that will be explained as we move forward. But the stakeholders and the police made it very clear to us that if we enforce protection through the Criminal Code, it will be timely, effective, and that's why you see it represented in this way.
L. Krog: I suppose that leads to the fairly obvious question. If it is going to be enforced — I'm assuming there will be more enforcement — and we're not sure, obviously, when this act is going to be proclaimed, has consideration been given to budgetary changes that would be necessary to allow for what may well be increased court time in the criminal court provincial system?
Hon. S. Bond: Well, obviously we're going to have to work our way through the implementation of this act and look at the impacts on the court system. One of the primary goals is to actually get family activities out of courtrooms in the province. The other thing is that I think if you look at what this means…. I mean, if you look at restraining orders today, potentially a lot of people didn't take them very seriously because of the inability to deal with them.
This is a pretty big, we hope, disincentive. This becomes a Criminal Code issue, which means the police will be involved and there will be a clear definition between the protection order and the conduct order. So I think we're very hopeful that in the context of a number of other changes, this also reflects our desire to say pretty clearly: "You'd better think twice about breaching a protection order."
Sections 188 to 193 inclusive approved.
On section 194.
L. Krog: I hate to interrupt the rhythm of the chamber, hon. Chair, but there are a few more questions to be asked before we conclude today.
With respect to section 194, any substantive change from the existing practice when it comes to that jurisdictional issue where you're starting in Supreme Court or Provincial Court?
Hon. S. Bond: It actually carries over sections 7 and 8 from the Family Relations Act, but it has some minor changes to provide, I think, what could be described as greater clarity when we're dealing with the issue of overlapping jurisdiction between Provincial Court and Supreme Court.
Section 194 approved.
On section 195.
L. Krog: And 195 provides that "An order made by the Supreme Court respecting parenting arrangements or contact with a child may be enforced by the Provincial Court in the manner in which the Provincial Court enforces its own orders under this Act, if a copy of the order is certified…" etc.
So in other words, the sanctioning provisions which exist in this act…. You'll now be able to get it enforced in Provincial Court without having to go back to Supreme Court and seek the kind of old-fashioned
[ Page 9050 ]
contempt orders, etc. In other words, this is an improvement that allows parties to deal in a level of court that isn't expensive to attend or get to, to get those orders enforced.
Hon. S. Bond: Basically, not a significant change. What this does is carry over section 12 of the Family Relations Act, and there are some minor changes. But yes, it allows the Provincial Court to enforce Supreme Court orders respecting parental responsibilities or contact with a child.
Sections 195 to 197 inclusive approved.
On section 198.
L. Krog: With respect to the limitation periods referred to in this section, this, as I read it, is no substantive change except for the provision respecting the grounds, if you've discovered that there are grounds for making the application that ought to have been reasonably discovered no later than two years after that. Is that correct?
Hon. S. Bond: In fact, it carries over a number of subsection (1) from the Family Relations Act, as well as subsection 16(1). But really, I think the more important point is that it suspends the running of limitation periods during dispute resolutions, so that is a change.
What it will do is discourage the need to start a proceeding within a court where it's likely the dispute can actually be resolved outside of the court. But it doesn't prejudice the parties if the settlement is not achieved. That's an important change that's been made — probably the most significant change in section 198.
Sections 198 to 200 inclusive approved.
On section 201.
L. Krog: This is the section that I made reference to earlier. This is the section that gives the authority for a 16-year-old, if you will, to bring on an application for support on their own behalf, notwithstanding that they are a minor.
Hon. S. Bond: That's correct.
Sections 201 and 202 approved.
On section 203.
L. Krog: I will defer to my friend, hon. Chair.
C. Trevena: I thank my friend from Nanaimo for giving me the space here.
Section 203 is a section which allows a court to "appoint a lawyer to represent the interests of a child" under circumstances.
I wanted to ask the Attorney about the payment for that lawyer. At the moment, as it is written, there is no provision in the bill for independent payment of the cost of counsel, which could be problematic in cases of very high conflict, where the parents' views and the child's views don't coincide. It may be a very rare occasion, but I wondered if there was any thinking on how to ensure that we don't get stuck at that time.
Hon. S. Bond: First of all, we want to point out that children's lawyers are not appropriate in the vast majority of cases. They can, however, be useful in very high-conflict circumstances. So the model that we've chosen to look at is actually Alberta's Family Law Act, which allows the courts, in effect, to take the related fees. The court is allowed to allocate those between the parties that are involved in high-conflict cases. So in fact, we've modeled this provision under Alberta's Family Law Act.
C. Trevena: Just for clarification, then: the cost of the lawyer will be covered? Simply say yes?
Hon. S. Bond: Well, in fact what the model allows for is for the fees to be assigned by the court to the parties that are involved in the action. So we need to remember that these are probably extremely rare and that, as I said earlier, we would see the possibility here related to very high-conflict cases. So the expectation is that the court would take the opportunity to assign those costs and allocate them between the parties that are involved in that conflict.
Sections 203 to 210 inclusive approved.
On section 211.
C. Trevena: Section 211, as I understand it from talking to various people, replaces the section 15 reports of the previous Family Relations Act. Again, it's in line with questions I've had previously, and that is the possibility of translation in these cases — to ensure there is adequate translation for those who are accessing the service.
The other concern that has been raised in this section — and if I might just talk about 211 generally — is that of, again, the question of legal aid that we discussed earlier and the issue of privacy and how private these reports are going to be. I bundled them up in that case because I know it's getting a little late for the Attorney.
[ Page 9051 ]
Hon. S. Bond: Yes, we have discussed the issue of translation, and in fact, translation would be available. Services would be provided.
We weren't certain about the second part of the question. If the question is if the reports are public, yes, they would be. They're not private reports, because they're involved in a court process. The parties would be advised of that, and the reports would be created with that in mind.
Sections 211 to 220 inclusive approved.
On section 221.
L. Krog: Just a question to the Attorney General. This section allows the court to make an order prohibiting a party from making further applications. I take it that that along with the provisions and the fining is to discourage the kind of unnecessary litigation that sometimes occurs in family cases, where one party with money essentially abuses the process by bringing on repetitive applications, knowing the other party doesn't have funds sufficient to support their lawyer.
Hon. S. Bond: Well, in fact, this is designed to ensure that court services, justice system resources are used appropriately. This will allow the court to prohibit or limit the number of applications that are made in a case where the court particularly feels that a party is being trivial or making vexatious applications. In essence, yes, it is to prevent frivolous use of justice resources.
Sections 221 to 234 inclusive approved.
On section 235.
L. Krog: Just to confirm: how are these provisions going to work in a practical circumstance?
Hon. S. Bond: In fact, these employees exist. They are government employees, who assist parties in making or enforcing, mostly, support orders. They're currently called enforcement officers. Under the new act they'll be called search officers. They do have very extensive powers to search for information about parties that may be involved. So the power is not new — it was in the Family Relations Act — but the bill does provide, we believe, better clarity.
Sections 235 to 256 inclusive approved.
On section 257.
L. Krog: The consequential sections run all the way through to section 481. I'm not trying to place an unnecessary burden on the Attorney General late in the day but being conscious of the time and the need for other legislation to be considered by the House.
When I read part 14, it says: "Repeals, Related Amendment and Consequential Amendments." Is there anything from section 257 — and I'm sure the minister will indulge me — through to 481 that represents any substantive change in law, other than that which is absolutely necessary for the implementation of this bill?
Hon. S. Bond: All right, so we are…. Yes, there are a couple of other things that I do want…. I appreciate, and I'm sure the member opposite does, that there are a lot of consequentials here, but there are a couple that are significant.
First of all, we are amending the Commercial Arbitration Act to accommodate arbitration in family law processes. That's a significant change.
The Ministry of Children and Families are aligning their enforcement protection orders with the new orders that we have in place. That looks at the Child, Family and Community Service Act. That's an important change.
Another important one, and certainly one that has been fairly high profile recently, is that we are repealing section 90 of the Family Relations Act, which relates to a parent's ability to sue their child. There was a lot of input received about that, and so we are repealing section 90 of the FRA.
I'm going to just check to make sure. I think those are the most significant changes in the consequentials.
L. Krog: Then I just want to address my thanks to the Attorney General and her staff for all of the work that has gone into this legislation over a great period of time. Subject to the proclamation, which I would describe loosely here as the birth announcement, the gestation period of this long bill has finally finished, and we can announce the birth of the new Family Law Act in British Columbia. So I'd be happy if the Chair would take us through to section 482, and we'll call it a day.
Sections 257 to 482 inclusive approved.
Hon. S. Bond: Madam Chair, perhaps before I move, I do want to thank the members of the opposition and my colleagues, who have provided significant reaction and commentary to the Family Law Act. It is a very significant change in approach in the province.
[ Page 9052 ]
I think the exercise that we've undertaken in terms of going through each section confirms for me that this is a non-partisan approach to trying to put children at the centre of the agenda for families in this province. So I want to thank the opposition critic. I know he obviously did a lot of homework in terms of the questions that he prepared, and I appreciate the very respectful approach that we've seen in the Legislature. I thank him for that.
With that, hon. Chair, I move that the committee rise and report the bill complete without amendment.
The committee rose at 6:56 p.m.
The House resumed; Mr. Speaker in the chair.
Third Reading of Bills
Bill 16 — Family Law Act
Bill 16, Family Law Act, reported complete without amendment, read a third time and passed.
Hon. I. Chong moved adjournment of the House.
Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow morning.
The House adjourned at 6:57 p.m.
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