An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts
Maurice Vellacott Conservative
Introduced as a private member’s bill. (These don’t often become law.)
Defeated, as of May 28, 2014
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This is from the published bill. The Library of Parliament often publishes better independent summaries.
This enactment amends the Divorce Act to replace the concept of “custody orders” with that of “parenting orders”. It instructs judges, when making a parenting order, to apply the principle of equal parenting unless it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.
- May 28, 2014 Failed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.
Private Members' Business
May 27th, 2014 / 6:30 p.m.
Kirsty Duncan Etobicoke North, ON
Mr. Speaker, I thank the House for the opportunity to speak to Bill C-560, an act to amend the Divorce Act in relation to equal parenting and to make consequential amendments to other acts.
My heart goes out to all those struggling through the breakup of a marriage, divorce, court cases for custody, and wanting more time with their children.
While I appreciate the terrible anguish of parents who want to spend more time with their children and the mover of the bill's intent—namely, to have two caring, engaged, and loving parents in children's lives—I believe the bill is fundamentally flawed in putting parental rights before the rights of children, the most precious and vulnerable among us.
The former Conservative minister of justice and Attorney General of Canada, in speaking to the Canadian Bar Association's annual conference in 2009 about equal parenting and the predecessor to this legislation, namely Bill C-422, stated that the best interests of the child are always paramount, and should be.
The most significant changes that the bill would bring to the Divorce Act include the following: removing the current definition of custody from the Divorce Act and replacing it with parenting, defined as “the act of assuming the role of a parent to a child, including custody and all of the rights and responsibilities commonly and historically associated with the role of a parent”; creating a presumption that “allocating parenting time equally between the spouses is in the best interests of a child” and that “equal parental responsibility is in the best interests of a child”; adding factors that courts must consider in making custody orders; and altering the law on parental mobility.
The bill would represent a disservice both to children and to families by taking the focus away from children in favour of parental rights, detracting from the individual justice required by the Divorce Act, and promoting further and more fractious litigation.
The Divorce Act currently establishes that the best interests of the child are the paramount consideration in child custody cases. In other words, the rights of the parent are subordinate to the interests of the child. Bill C-560 seeks to weaken this in favour of the rights of the parents.
The best-interests-of-the-child test has been a fundamental part of most legislation relating to children for many years. It is used in federal legislation under the following acts: the Citizenship Act, the Divorce Act, the Immigration and Refugee Protection Act, and the Youth Criminal Justice Act. It is also used in some provincial legislation dealing with matters such as adoption legislation; child protection legislation; and custody, access, and child support for unmarried couples.
Equal parenting as defined in the bill appears to have received support from some observers, particularly certain parents' groups, but so far it has not received much support from the legal community.
The Canadian Bar Association, or CBA, represents some 37,000 lawyers, judges, notaries, law teachers, and law students from across Canada. The CBA's mandate includes improvement in the law and the administration of justice. The CBA family law section includes family lawyers from every part of the country. They are collaborative arbitrators, litigators, mediators, parenting coordinators, and practitioners. Their clients include children, fathers, mothers, grandparents, step-parents, surrogates, and so on.
The CBA family section believes that any discussion of “parental rights” is misguided when resolving arrangements for children and that the sole focus must be what is best for children. The CBA therefore opposes Bill C-560, as it would shift the way custody is determined under the Divorce Act to parents' rights and away from what is in the best interests of children.
Lawyers assist all family members during what are often impossibly difficult times in restructuring their responsibilities and arrangements following separation and divorce. As a result, the CBA family section sees the issue from all sides. The CBA firmly believes that the only perspective to foster outcomes that are best for children is to require that the courts and parents focus solely on the children's interests in making decisions.
While the bill refers to equal parenting, it would not actually advance equality. Rather, it would change the primary focus in custody and access matters from what is best for children to equal parental rights.
“Parenting is not about adults claiming rights”, says Patricia Hebert of Edmonton, vice-chair of CBA's national family law section. “It is about the desire and ability to put children's interests first”.
The bill is based on the faulty assumption that equal parenting time will work for all families, regardless of abilities, circumstances, needs, history, challenges or attitudes of all those involved. In reality, the proposed change is clearly about promoting parents' views of equality at the expense of the interests of children, who are affected by their parents' separation.
The CBA agrees that shared parenting is a good outcome for many families. Where equal time and responsibility can be shown to be in the best interests of children, judges can and do make that order under the current law, but the CBA understands that one size does not fit all.
The CBA objects to the proposed legislation, which says equal parenting time and responsibility must be ordered in every case. This would require judges to justify any other outcome by ruling that the best interests of the child would be “substantially enhanced” by a non-equal regime. This clearly makes children's interests a very low priority, which is contradictory to the stated goals of Canadian family laws as well as Canada's obligations under the Hague convention on the rights of the child.
Finally, I would like to bring forth questions asked by my friend and colleague, the hon. member for Charlottetown, of the current Minister of Justice regarding Bill C-560 at the Standing Committee on Justice and Human Rights. My colleague asked:
A private member's bill is coming before the House, C-560, dealing with the Divorce Act. Back in 2009, your predecessor...indicated that the best interests of the child are always paramount. Given that this question is about to come before the House, what are your views on that, sir?
The Minister of Justice answered:
I can tell you, having practised some family law—as you have in Prince Edward Island—that the long-held legal maxim and the jurisprudence definitely supports that the best interests of the child will remain the primary concern. I see no change in that regard.
In closing, children must always be our primary concern. This legislation seeks to weaken that. This is not acceptable to the Liberal Party of Canada. This is not acceptable to the Canadian Bar Association. This is not acceptable to the present Minister of Justice or to the former Minister of Justice. This is why we will oppose the bill.
Private Members' Business
May 27th, 2014 / 6:40 p.m.
Bob Dechert Parliamentary Secretary to the Minister of Justice
Mr. Speaker, I am pleased to have the opportunity today to speak on Bill C-560, an act to amend the Divorce Act with regard to equal parenting and to make consequential amendments to other acts.
The preamble to the bill states a number of objectives, including that of encouraging divorcing parents to take more responsibility for their disputes with less reliance on the adversarial processes.
I would like to focus my remarks on the stated objective of the bill in order to demonstrate how this concept is consistent with our government's current approach to divorce and matrimonial settlements.
We all know that divorce is often a messy and drawn-out process in which both sides have deeply rooted resentments toward one another.
Unfortunately, at times divorce is unavoidable and happens quite frequently in our society. However, rather than turning to the courts and other adversarial processes to find a neat and tidy solution to an otherwise complex and messy situation, our government has taken the approach of encouraging and supporting both sides to find a mutually agreed upon resolution themselves.
In the context of separation and divorce, when parents are able to work together and put their children's needs and interests first, they provide a supportive environment for their children during an often challenging time. This is an important step in allowing these kids to achieve their full potential.
Working together and minimizing conflict are important and necessary goals for the approximately 70,000 married couples who divorce in Canada each year.
While the government cannot support Bill C-560, as it moves away from a strong focus on the best interests of the child, I thought it would be helpful to outline for my colleagues some of the ways in which this government is already promoting the goal of encouraging parents to take more responsibility for the resolution of their disputes.
First, this government contributes funding to a wide range of family justice services that have been shown to support co-operation and minimize conflict.
Second, this government has developed various publications to help families deal with divorce, including a booklet for children to help them understand and cope with their parents' divorce as well as a parenting guide and tools that encourage parents to co-operate with each other and that help them prepare a parenting plan that would best suit the needs of their children.
The phrase “family justice services” refers to all programs and services that meaningfully contribute to the resolution of family law issues. Those to which this government contributes funding include information and resource centres, alternative dispute resolution services, parent and child education programs, and services directed at high-conflict situations.
Here is a brief description of each type.
Information and resource centres offer free information on family law and court procedures. As a general rule, these centres do not give legal advice. However, they give out necessary information and documents, such as court forms, and provide some guidance on the steps in legal proceedings. They also refer families to legal and community resources to help meet their needs.
An alternative dispute resolution process that is widely funded by governments is mediation. A mediator is a neutral third party who helps the parents discuss issues on which they disagree. The mediator does not take sides, but may make suggestions to help the parents communicate better and reach an agreement. The mediator does not replace a lawyer.
Parent education and information programs are usually run by lawyers and social workers. They often work together to help parents understand and cope with the emotional effects of separation and divorce on themselves and their children, deal with some of the challenges of parenting after separation, and learn techniques for communicating better with each other, resolving disputes, and co-parenting. Some of these programs are also available on government websites and in other formats. This helps to make them more accessible to those living in remote areas.
Some provinces and territories have developed special education and counselling programs for children that help them cope emotionally with the breakdown of their family and understand that their parents' divorce is not their fault.
Finally, there are family justice services designed to help in situations in which there are concerns about the safety of children and the other parent. As a key example, service providers, generally with social work experience, supervise visits between a parent and a child, or they may supervise the transfer of a child from one parent to another when there is a high degree of conflict between the parents.
I would like to emphasize that these programs and services are developed and administered by the provinces and territories. As many members are aware, the federal, provincial, and territorial governments share constitutional responsibility for family law, and the administration of justice is a provincial/territorial responsibility. The federal government is responsible for divorce, including custody and support when dealt with as part of the divorce. In all other situations, the provincial and territorial governments are responsible for custody and support.
Since 1985, the federal government has provided funds to provinces and territories to develop and improve services and programs that assist separating and divorcing families. The current funding program entitled the “supporting families fund” has two objectives: one, to contribute to the continued improvement to access to the family justice system; and two, to encourage greater parental compliance with family obligations, notably support and parenting arrangements.
To fulfill these objectives, the fund was recently renewed for three years, until 2017, to provide $15.5 million per year to the provinces and territories for the delivery of family justice services to help parents resolve their issues and comply with their family obligations for the benefit of their children. The fund also provides $500,000 per year to non-governmental organizations to develop targeted family justice information and training resources. By helping to reduce conflict and increase co-operation between parents, these family justice services promote better outcomes for children.
The second way in which this government supports the goals of co-operation and minimizing conflict is to make available on the government website information and other tools that can help children cope with divorce and help parents develop parenting arrangements that respond to the needs of their children.
The government recognizes that children need information as well as adults and has developed What happens next?, a booklet for children between the ages of nine and twelve whose parents are separating or divorcing. It gives them basic explanations of key legal terms and also discusses the emotions they may be feeling. The children's calendar helps children keep track of their schedule and important dates as they move between houses.
The guide entitled Making plans gives parents information about issues they need to address when developing parenting arrangements, including a schedule for the time children will be under the care of each parent. It also suggests processes parents can use to agree on a plan, such as mediation, negotiation, and collaborative law, and provides tips on how to include their child's perspective. This guide promotes agreement between parents by emphasizing the importance of communicating, reducing conflict, and building a co-parenting relationship that focuses on the best interests of the child.
The parenting plan tool is a companion to Making plans. It is a practical guide with sample clauses to help parents develop a written parenting plan setting out their parenting arrangement.
Finally, the federal government worked with our colleagues in the provinces and territories to develop a parenting plan checklist to help parents identify issues to consider when developing a parenting plan.
The need for public legal education and information materials such as these, as well as for family justice services, is widely recognized. Recently, the Action Committee on Access to Justice in Civil and Family Matters, a group broadly representative of leaders across Canada in the field of civil and family justice, and chaired by Supreme Court of Canada Justice Thomas Cromwell, emphasized the value of front-end services, such as those family justice services funded by this government, especially those that include “live” help. It noted that:
It is widely recognized that the provision of services early in a dispute helps to minimize both the cost and duration of the dispute and thus to mitigate the possibility of protracted conflict and the corresponding harm to family relationships.
The committee was equally adamant that:
The more that families can effectively take responsibility for the resolution of their own disputes, the better.... This push towards family autonomy...[must be] balanced by a corresponding public obligation to ensure that these families are given appropriate help in doing so.
I want to reassure the House that we take that public obligation seriously. That is why I have taken the time to explain today some of the ways in which we are contributing to high-quality front-end services that support the many Canadian families experiencing family breakdown.
I have highlighted the supporting families fund and the development of public legal education and information materials. Further, the government will review the custody and access provisions of the Divorce Act and, in so doing, will consider how it can further encourage parents to rely less on adversarial processes and focus on the needs of their children.
Private Members' Business
May 27th, 2014 / 7 p.m.
Leon Benoit Vegreville—Wainwright, AB
Mr. Speaker, I am pleased to speak this evening on Bill C-560, although I must admit it is not a fun topic to deal with. Certainly, there have been all too many, usually young fathers, come to me in states of depression and desperation because they had been denied access or given very limited access to their child because of a divorce and a bad decision made by the courts and our justice system.
Bill C-560 would amend the Divorce Act to direct the courts to make equal shared parenting the presumptive arrangement for children following the divorce of their parents, except in proven cases of abuse or neglect. The key point of this legislation is that when parents divorce each other, they do not divorce their children. These amendments would keep both parents in the lives of more children in those cases where marriages break down. Bill C-560 would require parents to co-operate in establishing equal shared parenting unless they can make a credible compelling case that this would not be in the best interest of the child.
I have heard tonight many, mostly lawyers but not all, who have said that they favour a system where decisions are made based in the best interest of a child. Well, the simple truth is that a child having both parents is what is in the best interest of a child in most cases.
Far too often, cases are being decided by our courts that do not make decisions that are in the best interest of the child. I believe that the law is an ass, so to speak, in far too many cases.
I have seen the fallout of that, and it is not fun. There is nothing that wrenches at one's gut and strikes at the heart in a negative way more so than a parent, again, usually a young father, who is being denied access to his child for no good reason. It is not because they are any threat to the child, but it is because of a bad court decision. I believe that this legislation would make the outcome positive in far more cases.
Just over half of the number of divorcing couples today make their own arrangements for seeing their children without needing court intervention. For those who do need to use family courts, an equal shared parenting presumption would eliminate a key incentive for acrimonious conflict.
It is this conflict that breaks the heart, and breaks the will in many cases, and also makes lawyers rich. Of course, I would not be surprised if many lawyers did not support this legislation. I am not suggesting that all lawyers would oppose this just because they would be denied legal fees, I am not that crass, but certainly I believe that kind of thinking does come into things far too often.
Bill C-560 would foster settlements and reduce litigation due to the requirement that a parent seeking primary parent status must establish the best interest of the children, which means the focus under Bill C-560 is substantially enhanced by the disproportionate parenting time.
Studies have consistently shown that it is the very existence of custody litigation itself that causes the most harm to children. Bill C-560 focuses on the right of the child to know and to love two primary parents in accordance with the UN Convention on the Rights of the Child.
A marked drop in the use of litigation has been seen in Australia following recent equal parenting reforms in that country. This outcome was expected by advocates of equal parenting and runs counter to the scaremongering from opponents who falsely claim that equal shared parenting would produce great conflict among divorced parents and their children. That is simply not what has happened.
Another myth surrounding this bill is that it would impose a cookie-cutter, once-size-fits-all outcome on all divorcing families.
It would not do that. In fact, the opposite is true. The status quo is the cookie-cutter approach, with more than 75% of family court custody decisions being in favour of sole custody for the mother. That is a cookie-cutter approach. It is not a healthy one and it is not one that should be continued in this country.
We clearly see the de facto presumption in operation in today's family courts. Amending the Divorce Act to include a presumption of equal shared parenting, therefore, would not be a radical change to the current law. More importantly, it would be a change that replaces a parental rights framework for one that prioritizes the best interest of the child or children.
The current adversarial litigation system of settling child-related disputes is focused on parental rights. Parents are the ones represented by counsel and are the parties in the dispute. Each parent asserts that they are the better parent and are better able to meet the child's needs, and each parent defends against unfair or mistaken attacks on their parenting from the other parent. As a result, the courts are clogged with bitter, divisive, and financially devastating custody litigation between parents fighting over children like they are property.
I would also like to clarify that Bill C-560 would not impose the one-size-fits-all requirement of an exact 50-50 residential arrangement for the children of divorced parents at both parents' new homes. It would establish equal shared parenting as a starting point for parents and courts to use as they work toward a solution, typically in the range of 35% to 50% in residential access of the child to each parent, according to the unique circumstances of each family.
The international organization Leading Women for Shared Parenting reports that:
Research also proves that, although children want a relationship with both their parents regardless of marital status, healthy bonding with a...parent is impossible without a substantial amount of time spent in that parent’s physical presence.
That means very close to equal, again, in a 35% to 50% range for each parent.
Bill C-560 aims to implement selected best practices from other jurisdictions to encourage parents to make consensual decisions, to reduce conflict and costly legal battles, and to ensure that both parents have the option of equal time with their children, unless they are proven unfit. Equal time as a starting point in the divorce process means that both parents need not fear the arbitrary loss of their children.
I have got so much more that I want to say, but I see that my time is almost up. I will close by saying that we know, from the best social science research, a body of research that is growing every day, that ordinary children thrive most and produce the best outcomes when raised by both of their biological parents. This is what this bill is about. It could play a very important role indeed in helping to ensure that this is what happens, that the best rights of the child are considered and that it means, in most cases, near equal access to each of their parents. It is a result that is clearly, as I have said before, in the best interest of the child.
Private Members' Business
May 27th, 2014 / 7:05 p.m.
Anne-Marie Day Charlesbourg—Haute-Saint-Charles, QC
Mr. Speaker, I rise today to speak to a subject I feel strongly about, children’s rights. The bill currently being considered by the House poses a serious risk to the rights of Canadian children, which is why I would like to voice my opposition the current iteration of Bill C-560.
Bill C-560, as introduced by my colleague, the member for Saskatoon—Wanuskewin, amends the Divorce Act by replacing the concept of custody orders with that of parenting orders. The legislation instructs judges, when making a parenting order, to apply the principle of equal parenting unless it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.
This change to the legislation, which may, at first glance, appear innocuous, has significant consequences for thousands of Canadian families that have to navigate the already difficult experience of divorce.
The main effect of the bill is that it gives priority to the best interests of parents, rather than of the child, when a parenting order is issued. However, in my opinion, it is absolutely essential that the criteria of the best interests of the child remain the primary consideration in decisions made by judges regarding custody.
In this regard, I stand squarely behind the opinion issued by the Quebec Bar Association, which publicly announced its opposition to Bill C-560. Allow me to read a couple of excerpts from the letter that the Bar Association sent to the member for Saskatoon—Wanuskewin. I completely agree with the opinion of Bar Association and, at the same time, remain hopeful that the member will bear in mind the expert opinion and jurisprudence on the issue.
In his letter, the president of the Quebec Bar Association expressed the following opinion:
The bill being studied was preceded by two other bills, introduced in 2009 and 2002, that also included the concepts of “parenting orders” and “parental responsibility”. The 2002 bill was the result of a Canada-wide reflection that lasted more than a decade.
In 2001, at the invitation of the Federal-Provincial-Territorial Family Law Committee, the Barreau du Québec participated in this reflection and attended a conference on the subject.
A brief was prepared. The Canadian government's final report on custody and access and child support payments, entitled “Putting Children's Interest First”, along with Bill C-22, were the culmination of that extensive consultation. One of the most important conclusions that came out of the consultation concerned the rejection of all assumptions about child custody and the importance of maintaining the flexible criterion of the interest of the child along with the “friendly parent” and “maximum contact” principles. This conclusion was endorsed by the vast majority of those who participated in the consultation, which targeted numerous social and legal groups across Canada.
Bill C-560 proposes amendments that are contrary to the conclusions that came out of that 2001 consultation, particularly in relation to child custody. One of the legislator's objectives is to have the Divorce Act include, under the expression “equal parenting responsibility”, a presumption of joint parental authority and a presumption of shared custody.
Why does the bill disregard a decade of consultation? Why does it fail to take into account the opinion of experts?
The difficult experience of divorce and the issue of custody already place huge pressure on families and especially on children. However, the current bill would force judges to put the interests of the child second, behind the right of parents to equal custody.
This shift has serious consequences and may have an adverse effect on the healthy development of the child. Judges already consider the option of equal shared custody as the optimal solution for a divorced couple with a child, if indeed this option is in the best interests of the child.
What, therefore, is the point of this bill when the legislative tools at our disposal already provide us with the option of equal shared custody?
Canadian judges are competent and know what to do. In the face of ongoing family conflict, it is quite simply not in the interests of the child to be in a situation where the parents share equal custody. Moreover, where in this bill is the opinion of the child taken into account? Does it come second to the custody rights of parents?
Of course, the NDP will always stand up for gender equality, and the rights of fathers are just as important as the rights of mothers.
However, this bill misses the mark, since it in no way moves us in the direction of equality. Rather, it diminishes the rights of the child, and it is high time that the debate refocused on the real issue at hand: the best interests of the child.
It is also important to avoid relinquishing any legislative space to parents who, in the throes of divorce, often lack perspective and judgment. This vulnerability may cause one parent to use custody of the child to attack the other parent. Sometimes parents’ claims come from a selfish place rather than from a place of genuine concern for the best interests of the child. This must be avoided at all costs.
I will say it again: I share the opinion of the Barreau du Québec, which is that the best interests of the child must take precedence over any other consideration when it comes to custody rights.
I would also like to inform my colleagues that the opinion of the national family law section of the Canadian Bar Association is that Bill C-560 puts the rights of parents before the best interests of the child. The association further argues that:
Parenting is not about adults claiming rights…It is about the desire and ability to put children’s interests first.
The association goes on to say:
The bill is based on the faulty assumption that equal parenting time will work for all families, regardless of abilities, circumstances, needs, history, challenges or attitudes of all those involved...
In reality, the proposed change is clearly about promoting parents’ views of equality at the expense of the interests of children, who are affected by their parents’ separation.
I hope that my colleagues will also consider this expertise when it comes time to vote.
In closing, I would like to express my concern about two other aspects of the bill. First, this bill allows custody orders that have already been made by a judge to be changed. From what I understand, an application for judicial review can be submitted for any sole-custody orders, and the courts will now have to apply the presumption of shared custody. This gives a certain amount of retroactive power to change decisions that were already made in an appropriate manner in light of the facts presented to the judge.
Finally, there also seems to be a desire to rank a number of criteria that the judge must consider when rendering a decision. How can the child's opinion and family violence be ranked lower than maximum parental contact? That does not make any sense, and it represents a major setback in terms of child and family law when compared to the laws in most other western countries.
I would like to close by saying that when parents are more concerned about their children than themselves, they are more likely to forget their differences and their own interests and find a solution that works well for their family. The existing laws already offer the possibility of equal shared custody, if that solution is in the best interest of the child.
Rather than restricting the rights of children, I urge all my colleagues to think about more constructive solutions that will enable us to develop tools and provide families with the resources they need to deal with the painful transition of divorce. Parents who are better equipped will be able to minimize the negative effects of divorce on their children's development and well-being.
Private Members' Business
May 27th, 2014 / 7:15 p.m.
Jim Hillyer Lethbridge, AB
Mr. Speaker, I am speaking in support of Bill C-560, which is the bill to amend the Divorce Act to make equal shared parenting arrangements for children following the divorce of their parents, except in proven cases of abuse or neglect.
I must admit that when this bill was first tabled and started to get some public attention and I started to pay attention to it, I was a bit surprised to see how controversial it became. I expected that most people would be in favour of it. That is part of the reason we have debate. It is because sometimes assumptions are challenged. I will say that the arguments against the bill seem as sincere as the arguments in favour of it.
I do not want to say anything about the intent of people who disagree with me on this bill. However, I will say that at home, when I have the occasional constituent come to talk to me about divorce law and family law problems, without exception, the problems have been fathers feeling that they are not getting fair representation through the courts and that the whole system is stacked against fathers having access to their children.
I want to make very clear that my support for this bill is not about preserving fathers' rights. It is not about mothers' rights. It is about the children's rights. It is not just about their rights but about the good of the children. When we talk about the good of the children, sometimes I wonder why we always say, “it is for the good of the children”. Why do children get this emphasis that other human beings do not get? It is not that children are more important. It is that children have not done anything to cause the grief they receive because of the mistakes adults make. Also, children just happen to be the people who will turn into adults who run the world, and if we have the children's best interests at heart and in mind, and we actually look after the children's best interests, by extension, we cannot fail in looking after the best interests of society as a whole.
Beyond children in and of themselves, when we have the best interests of families at heart and the best interests of families in our minds, we look after the interests of society, because family is the fundamental unit of society. When we do harm to the family, we cannot avoid doing harm to society. Decisions we make in this place, or any other place where we make decisions for all of society, must focus on children, and not just on children as individuals but on children as parts of families.
We live in a time when most men and boys are essentially fatherless. If men and boys are fatherless, so are the daughters. We live in a time when we lament violence against women, when we lament irresponsibility. Without fathers, we cannot teach our boys to treat women properly, and it is more difficult for daughters without their fathers to have a sense of who they are as well. Whatever the circumstances, when children do not have a father in the home, they find themselves on their own to figure out life, and they find out that it is a lonely place to be. They will often be ruled by their fears and anger and boredom, when lots of times all they seek is the affection of a father. There are many addictions that come from this fatherless place within them, a fundamental uncertainty in the core of their being.
In our art, our literature, our poems, our movies, our novels, there are so many written about children seeking out their parents, and in particular, their fathers. Lots of real life stories are about adopted children who at a certain age have an inner angst in their soul to find out who their parents are. They love their adopted parents and see them as their parents, but there is something inside of our souls that seeks to be connected with our fathers and our mothers.
The bill is in response to the fact that in today's current divorce law, it is fathers who are usually left out of the children's lives, and by extension, the children are left out of the fathers' lives.
What does fatherhood do? What does it teach people in general, kids in general? It is the new-found position as a requirement of the good life. It shows people how to fulfill duty. It binds us to other people in general. It binds us for real to a woman or to another adult. It is the only thing that still can do this.
Nowadays, marriage is instantly reversible and a negotiable contract, but fatherhood is not. Through this law, we will bring fathers closer to the hearts of the children and the children to the fathers.
The bill may not be perfect yet, but it is on the right track. We need to bring it to committee so we can examine it more closely. The concerns people have brought up about the bill can be addressed at committee. We cannot let it die at this point. We need to bring it to the next level. I encourage everyone in the House to vote in favour of the bill to bring it to committee.
Private Members' Business
May 27th, 2014 / 7:25 p.m.
Maurice Vellacott Saskatoon—Wanuskewin, SK
Mr. Speaker, I have some concluding comments for this second reading stage of debate on Bill C-560. I look forward to this, and I look forward to speaking again, hopefully, if the bill gets to committee and passes at that stage, amended or intact, and then back to the House. However, it has been an interesting process.
Over the past several months, I have heard from Canadians from coast to coast, from every province, from la belle province all the way across to western Canada and British Columbia. Over the course of the past years, I have heard from thousands of people.
I will confess from the get-go that the bill is not from my creative imagination per se. Certainly, I have carried the banner over the years, but there are some significant groups in the country that are involved in this.
I want to credit and thank Lawyers for Shared Parenting, a very distinguished group of lawyers that works in collaborative law and sees that all of these different things we have tried in the past, such as mediation and various other things, really have not got to the heart of the problems that of the flawed family law system.
I also want to thank the National Parents Organization, Preserving the Bond Between Parents and Children.
I want to thank Leading Women for Shared Parenting for the very considerable job it has done, and the number of its distinguished women across our country and the world grows every day.
Most of all, I want to thank the Canadian Equal Parenting Council, a very broad umbrella group comprised of 35 to 40 groups across the country that all have their own individual chapters. There is a sizeable number of people represented within these groups.
As well, I want to thank the many researchers with whom I have had the privilege to be in touch. They have weighed in on this, provided input and so on. Certainly, they will be prepared to come to committee. They are from Canada and abroad. A large consensus paper was recently written by a bunch of these individuals who have the intellectual heft on the social science kind of research that is being done.
This is coming at us in an avalanche. We are now beginning to better understand what the best interests of children are, adding already to those different criteria and parameters in the courts across the provinces.
Particularly, children want to love and be loved by both parents. The United Nations Convention on the Rights of the Child talks about that very necessary thing.
Long-time supporters of the New Democratic Party, Liberals, Conservatives, Bloc Québécois and the Green Party, from every region across the country, have been calling their elected representatives to stand up for the best interest of Canada's children in a divorce by voting in favour of Bill C-560.
I want to make the point that, resoundingly, across party lines, across the entire country, a number of polls over the last years show support at 80% and upwards, or just hovering at about 79%, in all provinces by all parties represented in the House and by both genders. In fact, it is about 80% in support from men and about 1% or 2% more for women.
Members may ask why women even more than men are supportive of this equal shared parenting bill or this concept. It is because those men and women may marry again or have another partner. The issue of children having access to them consumes them and creates different dynamics in those relationships as well.
In fact, the current adversarial litigation system of settling child-related disputes is focused on parental rights. It is about winning the boat, the car, the house and the battle over the children. The present system is focused on the rights of the parents, whereas this bill is focused on the rights of the children. It would actually foster settlements, reduce the litigation and so on in the best interest of children.
We have had the discussion about the myth of the fifty-fifty. It is actually in the 35% to 50% range. We have talked about how this is not a cookie-cutter, one-size-fits-all solution. There are variations and arrangements that could be made. This is to drive it to the best interest of children so they have access to both mom and dad, aside from abuse or neglect.
I would encourage my colleagues to read some of the good material that has been sent to them. Read the bill itself, and not what the Canadian Bar Association is saying about the bill. Read the myths and fact document that has been circulated to members.
Please help me to get this to committee where it can be looked at for further amendments or adjustments, so we do the right thing in the best interests of children in the days ahead by way of passing the bill.
Private Members' Business
March 25th, 2014 / 5:30 p.m.
Maurice Vellacott Saskatoon—Wanuskewin, SK
moved that Bill C-560, An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts, be read the second time and referred to a committee.
Mr. Speaker, I am pleased to rise today to speak to this private member's bill, a very non-partisan one, whose time has come in this country for the sake of families and for the benefit of children.
Throughout my time as a member of Parliament, next year my 19th year, I have fought for legislation and public policy that recognizes and protects the role of the family as the foundational unit of society. That is pretty important, and we pay a price when we do not support it, and try to deal with some of the fallout that happens occasionally and try to mitigate that as well in respect to family.
With Bill C-560 I am continuing my commitment to stand up for the Canadian family by seeking an amendment to our Divorce Act. These amendments would keep both parents in the lives of more children in those cases where marriage breaks down.
The amendments in Bill C-560 would direct the courts in regard to divorce to make equal shared parenting, and I will talk later of the range being 35% to 50% roughly, but making it the presumptive arrangement in the best interests of the child, except in proven cases of abuse or neglect.
I introduced a similar bill, Bill C-422, in June 2009, but it was never debated due to an election call.
Previous to that, in 2008, I introduced Motion No. 483, expressing support for the principle of equal shared parenting. At that time, the Government of the Northwest Territories expressed its solidarity with that position by way of a motion that it passed in its legislature.
Seventeen long years ago, in 1997, just prior to my having stepped onto the federal scene here, a joint House-Senate committee presented to Parliament a report entitled “For the Sake of the Children”. That report urged Parliament to amend the Divorce Act to make equal shared parenting the normative determination by courts dealing with situations of divorce involving children. The non-partisan recommendation from that joint House-Senate report was based on some pretty compelling research. Members can read that extensive testimony. It was made available to all committee members of the different parties.
Bill C-560 is a modest attempt to address some of the concerns and recommendations made in that report and, in particular, the rebuttable presumption, which takes children out of the equation as pawns in the battle for gain by adversarial parents. Some marriage breakdowns are more adversarial than others, but removing children from that equation would be good. Parents could fight over the house, the boat, the land, and whatever other kinds of assets of that marriage, but not the children. We will set some guidelines. We will have some restrictions. It will not be about the children.
Bill C-560 would require parents to co-operate toward equal shared parenting unless they can make a credible compelling case that this would not be in the best interests of their children.
In this respect, Bill C-560 is catching up to the best social science research, which demonstrates the importance of a child's continued access to both parents, a father and a mother, for the best personal and social outcomes.
There are exceptions to this ordinary reality, which is why the presumption is rebuttable, and lawyers in the House would understand what that means, and why there are exceptions for proven neglect and abuse. This is not just allegations of abuse or allegations of this, that, or the other, but evidentiary proven neglect and abuse.
Bill C-560 would also replace the language of custody and access with the language of parents and it uses terms such as “parenting order” and “equal parenting”.
Recommendation 5 from the “For the Sake of the Children” report reads as follows:
This Committee recommends that the terms “custody and access” no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term “shared parenting”, which shall be taken to include all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms “custody and access”.
The international organization Leading Women for Shared Parenting reports that:
Research also proves that, although children want a relationship with both their parents regardless of marital status, healthy bonding with a non-residential parent is impossible without a substantial amount of time spent in that parent’s physical presence.
That means very close to equal.
This legislation would not establish a firm figure for what that equal time would be. In jurisdictions across the world, from more socialist countries, like Sweden, Belgium, and so on, to more-to-the-right countries, such as I suppose Australia and some U.S. states, the range has been determined to be 35% to 50% of residential time with each parent. That is considered to be consistent with the notion as it is in the courts thus far.
Lawyers for Shared Parenting notes that Bill C-560 conforms with the principles of children's rights as advanced by the United Nations Convention on the Rights of the Child, which has been ratified by Canada. We are a signatory to that convention.
Article 9 of that UN Convention on the Rights of the Child argues for a child's prior right of access to both parents, thereby establishing a presumption for equal shared parenting in cases of divorce and separation.
Some people have objected to establishing a presumption in law regarding child custody cases, but the reality is that a presumption already exists, de facto, in the system. Upwards of 80% of custody cases are decided for sole custody. In effect, we do have a presumption in favour of sole custody as things presently stand.
What Bill C-560 would do is bring Canadian law into the 21st century by bringing it up to date with the best social science research, which indicates that a child's continued access to both parents following divorce or separation is in the typical child's best interest.
I think it is important to define what this best interest is. So often across the country we use the term, the amorphous, vague term, “the best interests of the child”. Members might have even heard it said in speeches today around the House. Certainly people will say that they do not know if they want this bill to come into place, because they are for the best interests of the child, which is amorphous, vague, and moldable as putty in the hands of lawmakers, social workers, and so on, and it does not really get at what that really is in a factual way.
We now know from social science research that the best interests of children is to have continued access to both parents following divorce or separation. That is in their best interests. That is the understanding from a social science basis of what that term actually should mean.
Others have represented this bill by claiming that it eliminates judicial discretion. I am not a lawyer and of course I would not want to offend my legal colleagues, so we are not eliminating all judicial discretion on these custodial matters. This bill would not eliminate all judicial discretion. There could still be a consideration of the situation of each family that comes before the courts.
What the bill does is tighten up the language surrounding judicial discretion, so that it becomes more difficult to use an antiquated interpretation of the best interests of the child as an excuse to rationalize a disproportionate percentage of sole custody decisions in today's family courts.
Suggestions that a rebuttable presumption is too onerous a standard are also brought forward by some people. That particular accusation is really inconsistent with multiple constitutional rulings in many countries, including Canada, where those rulings have made judgments that parents are presumed to act in the best interests of their children unless shown otherwise.
If one wants to say that rebuttable presumption is too onerous, then really one is almost arguing for the revocation of the basic legal doctrine that one is presumably innocent unless proven otherwise. That is a basic tenet of our judicial system, that one is innocent until proven otherwise, presumptively innocent. In respect to parents, it is same thing. Unless one can prove that a person is not a fit parent, we are not wise to make those kinds of assumptions.
Some have argued that a presumption of equal shared parenting would increase conflict in already acrimonious family situations. In fact it is the adversarial family court system that fuels such conflict and disenfranchisement of parents that is really the most harmful to children, pitting parents against each another in bitter court battles that frequently result in a winning and a losing parent. Do we really desire that kind of a system where we litigate over children? Do we desire a system where the courts remove fit parents from their own children's lives?
The negative impact of this current system on children, mostly and foremost, as well as on their parents and extended family is really quite unconscionable and immoral.
Bill C-560 should reduce conflict because it takes children out of the equation as objects of possession to be fought over by parents. With a presumption of equal shared parenting, access to the children cannot continue to be a part of divorce negotiations and treated like a portion of the winnings or losses of divorce agreements.
Parents would know that, barring cases of proven abuse or neglect, the courts would enforce an equitable access arrangement between both parents. Parents would be free to surrender some access, if that works better for their personal circumstances and their children, but the presumption would create a disincentive for hostile parents to try to keep access to the children from the other parent.
For example, if a father were a long-haul trucker, he might say he has the presumption of equal shared parenting but, for him, it only works to have the kids about 30% of the time and the mother to have them 70% of the time. The mother might say that she is a physician with a busy and pressured life, and she can only handle the children 35% of the time at her location. In those cases, that kind of arrangement would be made. It would not impose upon people to say that access has to be 50%. It could be arranged, and it could be anywhere from 35% to 50%.
The presumption of equal parenting would also be expected to reduce divorce rates. This is proven to be the case. As far back as 1998, researchers postulated that. When people go into a situation without the presumption that they are going to get it all, sometimes they back away a bit and they begin to work at those marriage difficulties.
People like Margaret F. Brinig, Frank Buckley, and Dr. Sanford Braver and various publications, such as International Review of Law and Economics and American Law and Economics Review, have found that there is a pre-emptive and preventive factor in this whole concept of equal shared parenting.
I think colleagues in the House are well aware of the social costs surrounding deviant behaviour among youth, whether it is in terms of the justice system or the welfare system. An important way to reduce those costs and the logistical challenges related to policing, the courts, social welfare program delivery, social worker caseloads, and more is to strengthen the families in our communities, including children's access to both their father and their mother, even in cases of separation and divorce.
Children in sole custody settings are reported as having a notably higher likelihood—three times higher, in fact—of suffering from low self-esteem, insecurity, and rejection, being underachievers, including school dropout, substance abuse, depression, suicide, teen pregnancy, and even crime. It is kind of jarring, but I am just stating the facts here. Approximately 80% of criminals are from single parent homes.
I need to quickly qualify that my hat is off to the single parents I have known, and who we all know, from the House, our ridings, and elsewhere, who do a 24-7 job and who do a remarkable job. However, it is not an easy job. The reality is, and the statistics are, that 80% of individuals in trouble with the law are from single parent home situations.
In most cases of sole custody, it is granted maybe more typically to the mother and the father is shut out. Fatherlessness in particular has been isolated as a serious indicator for poor outcomes among children. We have Big Brothers Big Sisters and other substitutes for that very reason.
I can list a host of problems. There is anxiety, learning disabilities, truancy, runaways, drug abuse, teenage pregnancies, mental illness, and suicide. They are some of the things that can occur on a long list or litany, when fathers are removed from homes unnecessarily. Equal shared parenting is an important way to combat these risks among the growing segment of children who live in homes that have experienced divorce.
There is a lot of good research. I will just drop a few names at this point. There is Dr. Edward Kruk, a professor at the University of British Columbia. There is a new study by Richard A. Warshak at the University of Texas Southwestern Medical Center. D.A. Smith and G.R. Jarjoura have an article on social structure and criminal victimization. We have a long list of many others who have done extensive research on the benefits of equal shared parenting. People can contact me later about them, and they are on my website for people to look at.
We have countries in Europe, including France, Sweden, the Netherlands, Belgium, Denmark, Italy, and Luxembourg, that have adopted shared parenting. A number of U.S. states have as well.
We find, as well, across our country, that about 80% of those who claim to be NDP supporters and 80% of Liberal supporters support this concept of equal shared parenting; also 80% of Conservative supporters. More women than men, above 80% again, support equal shared parenting. All across the country, the highest levels of support are in Quebec and the Atlantic provinces, where it is again above 80%.
I would close by thanking my colleague from the Liberal Party, Raymonde Folco, who was the seconder on my bill, Bill C-422. She is an avowed, staunch feminist, who stood with me as we launched that first bill.
The bill is one that all colleagues in the House, irrespective of gender or part of the country, would support for the benefit of children.
Private Members' Business
March 25th, 2014 / 5:45 p.m.
Françoise Boivin Gatineau, QC
Mr. Speaker, I would like to thank the member opposite for his praiseworthy dedication to this cause and his persistence.
However, I would like to ask him how the existing legislation prevents equal parenting, since everything he said over the past 15 minutes gave me the impression that if that were how the courts made decisions, there would be no need for Bill C-560.
I also wanted to mention that I am really concerned about clause 10 of his bill, the retroactivity clause. I would like him to comment on that because it means that cases that have already been ruled on could go back to court. That could result in considerable uncertainty around custody across Canada.
Private Members' Business
March 25th, 2014 / 5:50 p.m.
Françoise Boivin Gatineau, QC
Mr. Speaker, as I was saying to the hon. member for Saskatoon—Wanuskewin, I appreciate the work he has done and his persistence, because this is not the first incarnation of Bill C-560. It came up as Bill C-422 in the previous Parliament.
Clearly, it is a hot topic. I must say that, since my election in May 2011, it has probably been one of the bills on which I have received the most correspondence and heard the most opinions, all of them varied. I received even more for some other bills.
First of all, I would like to thank all those who have written to me, especially those in my riding with an interest in the matter. I think that everyone is interested in it. Everyone in the House shares the concern about providing our children with the best environment possible. There is no doubt about that. I have felt that from both sides, both from those who supported Bill C-560 and from those who expressed major reservations.
I have also had the privilege of listening to many groups on both sides. I had an absolutely fascinating conversation with Brian Ludmer, one of the people who worked on this bill, one of its architects, one might say, in terms of its terminology.
What fascinates me about the debate on Bill C-560 is that, for the most part, everyone is saying much the same thing. Views begin to diverge when it comes to the solution or to what has to be done. That is not so clear.
I have analyzed Bill C-560. I would never claim to be an expert in matrimonial law. That is why, before making any recommendations to the NDP caucus, I spent a lot of time talking with people with much more expertise than I have. I met with people from the Canadian Bar Association and the Barreau du Québec, among others.
Make no mistake, I have already heard the arguments of those who support Bill C-560. They will say that lawyers just want to protect their turf, but that is not so. I have also spoken with lawyers who have dealt with complex cases that were not always resolved the way they would have hoped. My impression is that those dramatic cases are the reason behind Bill C-560, and Bill C-422 before it. There are a number of them in Canada, including in Quebec. Sometimes, we wonder which legal planet we are living on.
That being said, just because some judges apply a law a certain way does not necessarily mean that we should shred up that law, throw it out and completely change the system. Whether the Conservative member introducing Bill C-560 likes it or not, this represents an immense change. It is not as easy as he would have us believe. What we do here, the thing that is at the heart of everything referred to as “child care” in Canada, is serving the best interests of the child. That is the basic principle. What this bill does is create a presumption.
When we create a presumption, even if it is refutable, in other words if we can counter or set aside this presumption by introducing evidence, this is still very different than starting with the basic premise, namely the best interests of the child.
In this bill, it is fascinating to see the text that speaks to presumption. I will read the exact text:
The presumptions referred to in subsection (4) [equal parenting] are rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally.
Not only does this preclude the essential nature of the best interests of the child, but it demands a considerable interest. There is a major problem with that. Imposing this presumption is the major problem with this bill.
I asked my colleague a question about retroactivity. He could very well have introduced his bill without undoing everything that has previously been done. Not only is this situation tragic, but tons of cases could end up back in court, cases that people have learned to live with. Perhaps those were not good solutions at the time, but this is what could happen now. Retroactivity provisions in legislation are rather dangerous. The Conservative government was able to see it last week with the Whaling decision. That is a red flag for me.
The NDP caucus has often supported bills at second reading to be able to conduct an in-depth analysis in committee. The major amendment that needs to be made in this case is to withdraw the presumption of equal parenting. My colleague is right that major problems need to be addressed. However, we should not do this by way of a private member's bill; we should have a government bill instead. In so doing, we would be able to better regulate the right of judges to grant custody with a view to equal parenting. Everyone agrees with that principle. I come from Quebec, where civil law stipulates that both parents have parental authority. That is something we are still hoping to achieve.
Under the circumstances, it is not even possible to amend the bill. I will therefore not waste my time. I would rather ask the government why it does not consult with experts in the field in order to draft a piece of legislation that is true to what the member is trying to do. In fact, several reports have been signed in the House for Bill C-422. That would be done legally and without undermining the fundamental principle in family law with respect to custody and the best interests of the child.
The problem is that, once custody is granted to the mother, for example, it takes a lot of convincing to get a judge to change the custody terms. Things can change over the years. Sometimes, a person is not ready for joint custody when the child is one, two or three, but is ready when the child is five or seven years old. We should make equal parenting more flexible over the years.
It would have been much better to throw the baby, meaning the system, out with the bathwater, and say that the child's interest is no longer our concern. Although that is not what I heard my colleague say, because I will not put words in his mouth, that is what his bill says.
I am prepared to accept his speech as it stands, but I must deal with the terminology in the bill. It removes the principle of the interest of the child and creates a presumption of equal parenting and a heavier than necessary burden to make the interest of the child the priority again. That is a major problem that adds to the problem with retroactivity.
With all due respect for the drafters of this bill, it is fundamentally so different from what it should be that I would rather we focus our energy on agreeing that we need to make changes to the custody system in consideration of the best interests of the child and equal custody so that both parents have access to the child. That way, we would be doing a service to society. The bill currently has major problems that we cannot remedy or amend.
It is unfortunate, but this bill should not even proceed to second reading. However, we could sit down with the people who are having problems and who have had a difficult time and listen to what they have to say.
Sometimes judges have simply not caught up with the times and need a few gentle nudges to remind them that having two parents—a father and a mother—is important for the child.
Private Members' Business
March 25th, 2014 / 6 p.m.
Sean Casey Charlottetown, PE
Mr. Speaker, may I begin by first congratulating the member for Saskatoon—Wanuskewin for his long service in this place. We differ in philosophy. We differ in political stripe. In fact, we differ on this bill. However, for anyone who has served his constituents and Canadians for 19 years, that is indeed something to be commended. I know the member has indicated that he does not intend to re-offer in the upcoming election. We have several months before the next election, I think, but it is not too early to acknowledge the significant contribution of this parliamentarian.
The bill placed before the House in his name, Bill C-560, is an effort to change the standard applied by the courts when dealing with divorce cases. Specifically, the summary contained in the bill reads as follows:
This enactment amends the Divorce Act to replace the concept of “custody orders” with that of “parenting orders”. It instructs judges, when making a parenting order, to apply the principle of equal parenting unless it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.
This is not the first time that the member has introduced a bill on this matter. The most significant changes that the bill would bring to the Divorce Act are, first, the removal of the current definition of “custody” from the Divorce Act, replacing it with “parenting”. That is defined as “the act of assuming the role of a parent to a child, including custody and all of the rights and responsibilities commonly and historically associated with the role of a parent”. Second is the creation of a presumption that allocating parenting time equally between the spouses and equal parental responsibility are in the best interests of the child. Third is the addition of factors that courts must consider in making custody orders.
The current law mandates the application of the best interests of the child test. The best interests of the child test has been a fundamental part of most legislation relating to children for years. This doctrine is not unique to family law proceedings. It is also used in federal legislation under the Immigration and Refugee Protection Act, the Citizenship Act, and the Youth Criminal Justice Act. It is also used in some provincial legislation dealing with matters, such as custody, access, and child support for unmarried couples; child protection legislation, and by that I mean legislation dealing with the apprehension and supervision of children by child protective services; adoption legislation; and in some provinces, change of name legislation.
None of the federal acts defines best interests of the child, as was pointed out by the member. However, many provincial family law and child protection acts include extensive definitions of the concept. Some provincial acts even include different best interests of the child tests for different contexts. For example, the Ontario Child and Family Services Act defines the test differently for child protection than it does for adoption.
As it stands now, courts must apply the best interests of the child from the perspective of the child, not the parents, and they must consider the long-term interests of the child as well as the child's day-to-day needs.
Three primary considerations under the best interests of the child test that the courts often consider are preserving the status quo in the interests of maintaining some stability for the child, whether one parent acted as the primary caregiver during the relationship, and the importance of keeping siblings together when considering future housing arrangements.
The best interests of the child is a critical component of the Divorce Act, and it appears in sections relating to custody. Under the current act, the best interests of the child, as it relates to condition, means that needs and other circumstances of the child are the overriding factor that the courts may consider when making a custody order. Further, when making a custody order, courts must give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child. For that purpose, it should take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
We all know that divorce is often a painful experience for couples, particularly when children are involved. In an ideal world, parents would see past their differences and would apply what the courts currently apply, which is to say, the best interests of the child standard. However, since divorce is sometimes acrimonious, painful, and filled with emotion, the best interests of the child are sometimes lost or confused with the subjective interests of a parent, and often those competing interests are to the detriment of the child or children.
It is for that reason, in part, that a judge must have the ability to apply his discretion to ascertain the facts and eventually make a determination of what is in the best interests of the child. I fear that what the hon. member is proposing would seriously alter that standard and would remove the discretion of the judge to assess the case through the best interests of the child and not the father or mother.
I am not alone in my concern about this bill. The Canadian Bar Association has very serious concerns about this bill. This is what the CBA had to say about the bill when it was introduced in a previous Parliament as Bill C-422, now Bill C-560. I will quote the Canadian Bar Association, which stated:
As lawyers, we assist all family members in restructuring their responsibilities and arrangements following separation and divorce. As a result, the CBA Section sees this issue from all sides. We firmly believe that the only perspective to foster outcomes that are best for children is to require that the courts and parents focus solely on the children’s interests in making decisions.
Bill C-422 [now Bill C-560] does not accomplish what it proposes. It does not give parties tools to resolve differences, nor does it assist them in making plans to share decision-making and physical care of children to minimize conflict and maximize children’s benefits. It would move from considering the individual child to preferring parents’ rights. It would encourage contentious litigation in future cases of family breakdown, and equally important, would cause thousands of children to be re-exposed to litigation and conflict as many settled cases would be reopened.
Those are the words of Canadian Bar Association. They are not mine.
It further stated:
Under current law, the legal playing field is even; there is no gender bias in law requiring judges to consider “the best interests of the child” as paramount. Instead, the Bill proposes an overly simplistic idea of equality: rather than considering a fair result best for the children involved in the case at hand, children must be split right down the middle. The Bill does not advance equality for either fathers or mothers. Its proposals would come at the sacrifice of the appropriate focus, solely on what is best for children.
There is more in the way of opposition to this bill, and it comes from the member's own party. Senior ministers have come out against this effort. In 2009, speaking at the Canadian Bar Association's annual conference, the then minister of justice and attorney general, now defence minister, was asked his position on equal parenting and the bill we are now debating. He stated, “the best interests of the child are always paramount...and should be”.
The member for Saskatoon—Wanuskewin will know that just two weeks ago, his colleague and friend, the current Minister of Justice, appeared at the justice committee to account for his supplementary estimates request. During the meeting, the minister was very willing to answer questions, and I felt he was reasonable and fair in some of his responses, including the response to a question about whether the government intends to invoke the notwithstanding clause of the charter on matters where it disagrees with the Supreme Court.
I posed a direct question to the minister about Bill C-560, which is before the House today. This is what I asked the minister at committee:
A private member's bill is coming before the House, C-560, dealing with the Divorce Act. Back in 2009, your predecessor, [the Minister of National Defence], indicated that the best interests of the child are always paramount. Given that this question is about to come before the House, what are your views on that, sir?
This particular private member's bill will receive, I'm sure, the rigorous examination that all private members' bills receive. I am familiar with the one you're referencing. I can tell you, having practised some family law—as you have in Prince Edward Island—that the long-held legal maxim and the jurisprudence definitely supports that the best interests of the child will remain the primary concern. I see no change in that regard.
I asked a supplementary:
The bill proposes to weaken that in favour of parental rights. Do you realize that?
The minister's response was “Yes, I do realize that”.
The Divorce Act currently establishes the best interests of the child as the paramount consideration in custody cases. In other words, the rights of the parent are subordinate to the interests of the child.
This legislation seeks to weaken that. It is not acceptable to the Liberal Party of Canada. It is not acceptable to the Canadian Bar Association. It is not acceptable to the present Minister of Justice or to the former minister of justice. That is why we will oppose the bill.
March 25th, 2014 / 6:10 p.m.
Robert Goguen Parliamentary Secretary to the Minister of Justice
Mr. Speaker, I am pleased to rise in the House of Commons today to speak to Bill C-560, An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts.
The provisions of the Divorce Act regarding custody and access have not changed since they came into effect in 1986. According to section 16 of the Divorce Act, when making an order respecting custody or access, the court must be guided by only one principle, the best interests of the child.
Provincial and territorial family laws are also guided by the principle of the best interests of the child. This principle is also recognized by many instruments of international law, such as the United Nations Convention on the Rights of the Child.
The principle of the best interests of the child recognizes that each child is unique and that his or her best interests must be determined on a case-by-case basis. When applying the principle of the best interests of the child in cases of custody or the role of the parent, the courts take into account a number of factors. The main factors pertain to the child, such as age, stage of development, presence of special needs, and the wishes of the child, if any. There are also factors related to the role of the parents, such as the parenting abilities of each parent and how they plan to take care of the child. Finally, there are a number of other factors such as the child's relationships with brothers and sisters, grandparents or any other relative.
Subsection 16(10) of the Divorce Act also refers to the principles of maximum contact and co-operative parenting, which the courts must also take into account when considering all the pertinent factors in order to determine the best interests of the child.
These principles are as follows: the courts apply the principle whereby the child of the marriage must have as much contact with each spouse as is consistent with the best interests of the child; and for the purposes of applying the principle of maximum contact, the court shall take into consideration the willingness of the person requesting custody to facilitate such contact. This is known as the friendly parent rule.
Courts do not consider a person's past conduct unless the conduct is relevant to the ability of that person to act as a parent. When a custody order is issued, the court can amend it if the court is convinced that the child's situation has significantly changed since a judge issued the most recent order.
If the court determines that there has been a significant change, it issues an order that meets the best interests of the child. When it issues a variation, the court applies the principles of the best interests of the child, of maximum contact and of cooperative parenting. It also applies the rule on past conduct, if needed. Basically, the court has the discretionary power to establish any arrangement that it deems to be in the best interests of the child.
Bill C-560 would amend the provisions on custody and access in the Divorce Act. It would add an approach based on an equal sharing of the parental role and will replace the terms “custody” and “access” with “parenting orders”, “parental responsibility” and “parenting time”.
The bill would add two presumptions about the role of the parents. These are the presumption that parenting time should be shared equally between the spouses and the presumption that parental responsibility should be equal or joint. In Bill C-560, parental responsibility essentially comes down to the power to make decisions on behalf of the child.
The presumptions would not apply if it is established that the interests of the child would be better served by the unequal division of parenting time or parental responsibility. When the presumptions do not apply, the court would still give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with that child's best interests.
The bill proposes to add several criteria that the court would have to consider when determining the best interests of the child. It also proposes to add rules about changing the child's residence. It also contains provisions encouraging the spouses to settle their differences without going to court and to use other dispute resolution mechanisms such as mediation.
Family law is a very important area of law.
Canadians are much more likely to have problems related to family law than problems related to other aspects of the justice system.
As is the case for many areas of jurisdiction set out in our Constitution, responsibility for family law is shared by the federal government and the provinces and territories. The provinces and territories have authority to legislate on issues related to couples that are not married and separate, as well as married couples that separate but do not divorce. The provinces and territories are also primarily responsible for administering this justice. This means they are responsible for the operation of the courts and family justice services, such as education programs for children and mediation. The federal government has jurisdiction over divorce and any related matters, such as custody.
Given that this is a shared jurisdiction, both levels of government, that is the federal as well as the provincial and territorial, have been working together for some time to improve the legislation on family law and the family justice system. For instance, as part of the supporting families experiencing separation and divorce initiative, the federal government provided the provinces and territories with funding to support family justice services, especially innovative projects such as specialized services for families experiencing major conflicts and using mediation services from a distance.
During these many years of collaboration, the family law system has gone through many changes. For instance, authorities now focus more on appropriate mechanisms for dispute resolution. In order to minimize the negative impact of divorce on children and other family members, families need a system that will maintain good relationships as much as possible.
Collaborative family law, alternative dispute resolution and mediation are examples of different approaches that help parents come up with solutions themselves. Another example of the ever-changing system of family law has to do with the results of custody cases.
The Divorce Act itself has not changed, but the kinds of orders handed down have changed considerably since new provisions regarding custody and access came into effect in 1986.
In 1986, the majority of orders gave so-called “traditional” custody to mothers, and only 1% of orders resulted in joint legal custody.
The data coming out of certain Canadian courts between 2010 and 2012 paint a very different picture. The data are compiled according to who is living with the child. It is sometimes known as physical custody, which is similar to the concept of parenting time in Bill C-560. The data also show that legal custody of children refers to making important decisions about them. Legal custody is similar to the idea of parental responsibility found in the bill.
The proportion of orders made under the Divorce Act that require parents to make important decisions together has increased from 1% to 75% in recent years.
Statistics show considerable changes in physical custody or parenting time. In 1998, barely 5% of divorce orders set out a shared custody arrangement, under which the children had to spend at least 40% of their time with each parent. However, if we look at the numbers between 2010 and 2012, approximately 21% of cases involved shared custody. That is a significant increase.
Between 2010 and 2012, only 5% of the cases involved sole custody arrangements. That is a lot of numbers, but that is how family law has evolved.
In more than one-third of the orders made under the Divorce Act, judges order that children spend at least 40% of their time with the father. That is a significant, positive shift from what was happening in 1998.
Bill C-560 raises important issues, and I am looking forward to hearing the other members' thoughts on it.
March 25th, 2014 / 6:20 p.m.
Pierre Jacob Brome—Missisquoi, QC
Mr. Speaker, over the past few decades, society has gone through some serious economic and social upheaval. We are seeing the emergence of new types of families. There is a growing number of single parent and blended families.
According to the most recent census of 2006, there were 1,267,000 families in Quebec. Of that number, one-third were single parent families. They now represent a little more than a quarter of all families. That is the highest percentage ever recorded. We must take this new reality into account.
That is why I am speaking to Bill C-560, which amends the Divorce Act to replace the concept of custody orders with that of parenting orders. This bill instructs judges to apply the principle of equal parenting when making a parenting order.
When it comes to divorce, we must focus the debate on the real issue and that is the best interests of the child. I fear that is not the case with Bill C-560. It shifts the emphasis from the children to the rights of the parents.
In June 2010, in the context of its submission on the issue, the Canadian Bar Association said:
...any discussion of “parental rights” is misguided when resolving arrangements for children. The sole focus must be what is best for children.
When a parent before the law must put the interests of the child first, he or she is more inclined to put aside personal interests and make compromises. What is more, under the existing legislation, there is already the option of shared custody, if that is in the best interests of the child.
By amending the existing law, as Bill C-560 proposes, I wonder if we are not encouraging families to engage in lengthy and costly legal battles that will have an adverse affect on the child and the parents.
I would like my esteemed colleagues across the way to tell me whether this bill will give rise to an increased number of more aggressive litigation cases.
I fear that the consequences of Bill C-560 will put more emotional and financial pressure on parents and children who are already vulnerable. Combine that with the fact that some jurisdictions provide very little legal or financial aid for family matters, and we see the limits of this bill. The Canadian Bar Association shares these same concerns.
Parents make decisions before going to court, and those decisions will be better informed if they have their community's support. Parental equality would be more appropriate if those communities had more funding for parental education and had better legal services.
The current legislation always takes these variables into consideration, while keeping the best interests of the child in mind. The child must remain the primary principle in family law in Canada.
Here is how Bill C-560 changes this principle. It tries to create a presumption of equal shared parenting by ignoring the best interests of the child. However, shared custody would not be suitable for all family situations. In fact, many factors need to be taken into account to determine how the child's interests would be best served.
In other words, one size does not fit all. Each child's situation is unique, with different variables. Children grow up in different communities with dynamics that are not always the same. Judges must assess each case separately.
The NDP supports the principles in certain provisions of Bill C-560 concerning the importance of consultation, mediation and arbitration, provided that all this is done in the best interests of the child.
However this bill does not take that into account. I therefore find that this bill is inadequate and, unfortunately, I cannot support it.
Statements By Members
January 31st, 2014 / 11:05 a.m.
Maurice Vellacott Saskatoon—Wanuskewin, SK
Mr. Speaker, I have had a difficult decision to make. I have four items on the order paper, and all of them are of great importance.
One is a democratic reform initiative, two are explicitly pro-life measures, and the one bill I have on the order paper is for the sake of the children. They all deserve to proceed in this place, but regrettably I can only choose one at this time.
I have selected Bill C-560 to move forward to second reading debate in this chamber. It is my bill to amend the Divorce Act to make equal shared parenting a rebuttable presumption in cases of marital breakup involving children.
Aside from proven abuse or neglect, over three-quarters of Canadians want equal shared parenting to be the presumption in our courts when marriages unfortunately break down. Research clearly demonstrates that equal shared parenting is in the best interests of children.
Also, based on conversations I have been a part of, I have good reason to believe that the other three items I have on the order paper will be picked up in due course by other good MPs who have spine and foresight. For that I am also truly grateful.
December 6th, 2013 / 12:10 p.m.
Maurice Vellacott Saskatoon—Wanuskewin, SK
moved for leave to introduce Bill C-560, An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts.
Mr. Speaker, I am quite honoured in these few moments to be introducing a private member's bill that would direct the courts in regard to divorce to make equal shared parenting the presumptive arrangement in the best interest of the child, except in proven cases of abuse or neglect.
Fifteen years ago, a joint House-Senate committee presented to Parliament a report entitled “For the Sake of the Children”. That report urged Parliament to amend the Divorce Act to make equal shared parenting the normative determination by courts dealing with situations of divorce involving children. This non-partisan recommendation from that joint House-Senate report was based on compelling research made available to the committee members.
Over the past 15 years, the best research has continued to demonstrate far superior outcomes for children in general when both parents, mom and dad, are actively involved in their children's lives, even if the parents divorce or separate.
Polling from the past several years demonstrates overwhelming support from Canadians for this equal shared parenting. There is in fact slightly more support among women than men for equal parenting. This strong support from almost 80% of Canadians exists across the country, with the strongest regional support coming from Quebec and Atlantic Canada.
Canadians claiming to be Liberal and Bloc supporters expressed the strongest endorsement for equal shared parenting, at 80.6% among Liberals and 82.9% among Bloc Québécois supporters, with the NDP and Conservatives just slightly under 80%.
A variety of countries, such as Belgium, Denmark, Norway, and Australia, and various U.S. states have implemented equal parenting, joint custody, or shared parenting presumptive legislation, which has resulted in lower court costs, less conflict, and improved social outcomes for the children of divorce.
This bill is one of the most apolitical, non-partisan pieces of legislation introduced in this current Parliament.
I look forward to strong support for this important piece of legislation from all members of Parliament who are committed to the best interests of our children.
(Motions deemed adopted, bill read the first time and printed)