Status of Women Committee on May 9th, 2013

[Karl Jacques]

Madam Chair, I can answer that question.

As mentioned previously, the bill in a way represents a middle ground between all the systems that exist in Canada. Incorporation by reference was rejected by a number of provinces. So as soon as you depart from provincial law in the 13 provinces and territories, you are applying rules that would be in conflict.

Quebec is not the only place where common-law relationships are not recognized. The same is true in Nova Scotia. That can indeed create distinctions. But, in terms of property, of rights to the family home and matrimonial assets, the bill gives more rights to Aboriginal women living on reserves than to those living off reserves.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Mr. Jacques and Mrs. Day.

Mr. Jean, you have the floor.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I'm curious.

Could I ask the official whether the law of equity applies in the Civil Code of Québec?

[Karl Jacques]

No, not as—

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Not strictly as a law of equity.

Thank you. That was my only question.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Mr. Jean.

I see no one else who wishes to speak.

(Clause 29 agreed to)

(Clauses 30 to 32 agreed to)

(On clause 33—Enforcement of agreements)

Madame Ashton, you wanted to talk about clause 33 when we were at clause 33, so you have the floor.

[Niki Ashton, NDP, Churchill, MB]

Perfect.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Madam Chair, I have a point of order, please.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

This has happened quite a few times. Once you call the question, my understanding is that the question is put and the vote is taken. I know there is a lot of latitude allowed in this case because she wants to bring it up. But I just thought I would mention that the rules of procedure, as far as I'm aware, say that when you put the question, the question is answered, the people vote, and then we move on from the decision.

This time, and you've done it several times, you've put the question and they voted, and then they asked to speak on it after they voted. I just wanted to point out that as far as procedure goes. Once you put the question, my understanding is that the question is put.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Let's just make sure we're on the same page here.

We voted on clause 32. Then the vote was done.

We were at clause 33. We didn't start the vote. Madam Ashton asked for the floor.

I can go very slowly and say where we're at—

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

If I may, Madam Chair, I'm just pointing it out.

I know there's a lot of latitude here because everybody has a right to say what they want to say, and I think that's important. But I'm getting confused because I feel sometimes you have put the vote already. I'm voting on it, and then they're speaking on the one I have already decided to vote on.

I just—

[The Chair, NDP, Lysane Blanchette-Lamothe]

Yes. Thank you for bringing up that point of order.

You're right, there's a little confusion. Let's make it clear. I will name the clause we are at. I will look around and then ask, “Shall the clause be adopted?” Then we will take the vote.

If you raise your hand when I'm naming the clause that we're at, you're not raising your hand at the right moment. If everything is clear, the point of order is done.

We are at clause 33. I have a speakers list.

Madame Ashton.

There is a point of order from Madam Day.

I am listening, Mrs. Day.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Could you please ask us if we want to speak in a systematic way, before people put their hands up? Then we could indicate our intention of speaking to a clause.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Yes. As I have just said, I announce the clause that we have reached, then I look to see if anyone's hand is up to indicate that they want to speak to it. If no hands are raised, I ask if the clause shall carry, and then we move to the vote.

Does that answer your question?

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

So, as I understand it, Madam Chair, if four people on the other side raise their hands, you consider that they have done so in order to speak, not to vote.

[The Chair, NDP, Lysane Blanchette-Lamothe]

When I announce the clause, if someone raises their hand, I let them speak.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Ms. Ashton, you have the floor.

[Niki Ashton, NDP, Churchill, MB]

Thank you, Madam Chair.

Clause 33 once again, as we see here, indicates:

If spouses or common-law partners enter into a written agreement, after they cease to cohabit, that sets out the amount to which each is entitled and how to settle the amount payable....

Obviously, as we've put forward here today and as we've heard from witnesses, the question of assessing the value of the home remains. As we know, first nation women are often more marginalized than are men, and certainly indicators of poverty show that. The question is how the value could be assessed and how the female spouse could be part of settling the amount payable.

I want to just speak in terms of logistics. People love talking about the first nations they've been to and they've spent time on, and all of that stuff. I would assume they know that in many first nations people do not have collateral. People do not have banking institutions to go to. In many first nations, certainly the ones that I represent, any financial transactions that happen actually happen at the store where they also buy groceries. It's not a banking scenario. While I appreciate the creation of legislation that seems to think all people are equal in terms of the services they can access, this is simply not the case for so many first nations, in terms of both their socio-economic status and the kinds of services they have, not to mention their lack of access to legal services, legal aid, to legal advice.

It again speaks to the fact that these are words on a paper. There's the assumption that it's a fair playing field. It is disingenuous of the government to indicate that is in fact the case when they know it is not. Certainly indicators in terms of quality of life on reserve show that clearly. We find it extremely problematic that these real questions are being overlooked and that the government wants to speed this bill through without actually delving into these important issues.

I also want to speak, as we've heard from a number of witnesses, including Councillor Joan Jack, to the desire of people who are suffering from marital breakdown to access counselling services or healing services. In fact we even heard from Mr. David Langtry about the importance of alternative dispute resolution mechanisms, which often don't exist on first nations.

We're dealing with a clause that speaks to agreements that common law partners have to engage in, when in fact services around conflict resolution, services to gain advice to make these decisions, are not available. These are critical services and services that are available to people living off reserve who are in the same situation. It's extremely unfair and entirely misleading for the government to indicate that first nations somehow now have the same access that all other people off reserve have, when they know that's simply not the case.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madame Ashton.

(Clause 33 agreed to)

(Clause 34—Entitlement of survivor)

[The Chair, NDP, Lysane Blanchette-Lamothe]

Does anyone want to speak to this clause?

Go ahead, Ms. Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I won't belabour the point, Madam Chair. It's the same issue around asking provinces to take a look at issues where they have not in the past had that kind of exposure. The Assembly of First Nations did a briefing back when the ministerial representative Wendy Grant-John was putting together a report, and in their briefing they said that the legal reality is that provincial and territorial laws governing the division of real property do not apply on reserve. They go on to talk about the provincial court's authorities. They indicated that there's good reason why provincial laws do not apply.

The federal crown has exclusive jurisdiction over Indians and lands reserved for Indians pursuant to section 91(24) of the Constitution Act, 1867. Of course, what we've also seen recently is a court decision under section 91(24) that extended that jurisdiction to Metis and non-status first nations.

Again, the whole issue around provincial courts being asked to interpret complex land codes on reserve seems to be an unreasonable request.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. Crowder.

I see that no one else wants to speak to clause 34.

(Clause 34 agreed to)

(Clause 35—Variation of amount)

Does anyone want to speak to clause 35?

Go ahead, Mrs. Day.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Madam Chair, this is the same problem as the one we had with clauses 15, 4 and 29. There is a lack of legal clarity between Bill S-2 and the Civil Code of Québec. This is how clause 35 reads:

On application by an executor of a will or an administrator of an estate, a court may, by order, vary the amount owed to the survivor under section 34 if the spouses or common-law partners had previously resolved the consequences of the breakdown of the conjugal relationship by agreement or judicial decision, or if that amount would be unconscionable, having regard to, among other things, the fact that any children of the deceased individual would not be adequately provided for.

As several witnesses have indicated, in Quebec specifically, common-law spouses do not have the same rights as married ones. What about those 40% of Quebec women who are in a common-law relationship?

Given the way in which the Civil Code of Québec is applied, there is a striking difference between the status of a married woman and one living in a common-law relationship. Rights and obligations are often different, especially in terms of household expenses, the consolidation of debts, the family home, family assets, the rights of children, and so on. As one of the witnesses mentioned, an Aboriginal woman in a common-law relationship could find herself with her access to the family home blocked.

There must be better harmonization between Bill S-2 and the Civil Code of Québec.

Thank you.