Bill C-560 (Historical)

An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts

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.

Divorce Act

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Speaker, I rise to present a petition. The petitioners are drawing attention to the fact that children thrive best when raised by both parents, even in the course of a breakdown of the marriage. Therefore, the petitioners are calling on Parliament to amend the Divorce Act, as in my Bill C-560, to require that equal shared parenting be treated as the rebuttable presumption in custody decisions, except in cases of proven abuse or neglect.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, the second petition calls upon Parliament and the House to support Bill C-560, to require equal shared parenting to be treated as a rebuttable presumption of custody decisions, except in cases of neglect and abuse.

[Pierre Jacob, NDP, 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.

This is not the first time that this bill has come before the House. It is similar to Bill C-422 from the last Parliament, in 2010. As with its predecessor, I have some reservations about Bill C-560.

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.

[Robert Goguen, Conservative, 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.

The House resumed consideration of the motion 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.

[Sean Casey, Liberal, 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?

He answered:

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.

[Françoise Boivin, NDP, 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.

[Françoise Boivin, NDP, 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.

[Maurice Vellacott, Conservative, 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.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

A private member's bill is coming before the House,C-560, dealing with the Divorce Act. Back in 2009, your predecessor, Mr. Nicholson, 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?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Chair, I have a few questions for Mr. Lavoie.

If Bill C-560 is passed, will it have an impact on all the provinces with their own family law? I assume that it would have an impact on the provincial legislative framework.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

We'll now go to Bill C-560.

Shared Parenting

[Maurice Vellacott, Conservative, 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.

Divorce Act

[Maurice Vellacott, Conservative, 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)