Bill C-237 (Historical)

An Act to amend the Divorce Act (joint custody)

Property Rights

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to speak to the motion brought forward by the hon. member for Yorkton--Melville.

The Minister of Justice feels strongly about the important role of property rights in our society. Property rights represent one of the fundamental pillars of the legal system and our democratic society. Indeed our legal system is replete with protection for property rights.

However, the Minister of Justice cannot support the motion because it raises some important concerns.

The motion is merely the latest in a series of efforts aimed at amending the Canadian bill of rights and the Constitution Act, 1867 to increase property rights protections. Most recently the issue was raised in this Chamber in 1999 by the same member in the form of Bill C-237 and was afforded considerable debate at that time.

It is very important that before the House assigns additional tasks to the Standing Committee on Justice and Human Rights, the full schedule and heavy workload currently facing the committee ought to be considered.

As the idea of increasing protection for property rights has been debated on numerous occasions in the past and has repeatedly been rejected, there is no need to use the precious time, energy and resources of the Standing Committee on Justice and Human Rights to revisit the issue.

During the discussions and debates preceding the introduction of the charter, a significant amount of time and consideration was given to the idea of including protection for property rights. The idea again surfaced during the lead up to the Charlottetown accord. However, in both cases the notion of entrenching property rights in the charter was strenuously resisted by the provinces as an intrusion into provincial jurisdiction and as a restriction on their ability to legislate in areas involving property.

In this regard it should be remembered that section 92(13) of the Constitution Act assigns much of the responsibility for regulating property to the provinces. This is not to say that the federal government cannot legislate in ways that affect property, but its jurisdiction is limited in these respects.

At the federal level for example, we have environmental laws, land use laws, laws providing for the establishment and operation of corporations and the ownership and disposition of shares, laws on banking, laws on bankruptcy and copyright laws. Each of these laws touches in some way on the ownership and use of property. Each of these laws serves an important public purpose. Each of these laws also contains provisions to ensure that people are treated fairly.

Property rights are a fundamental part of our legal system and the law provides in many ways for their recognition. Canadian law contains innumerable protections for property rights, whether in the common law or by statute.

More specifically, the protection afforded to property rights contained in paragraph 1(a) of the Canadian bill of rights is one such expression. The section recognizes the right of an individual to the enjoyment of property and the right not to be deprived thereof except by due process of law.

Further, numerous federal statutes contain provisions to ensure fair dealing when property rights are affected, by providing for fair procedures and for fair compensation, that is in shareholder laws, banking laws, criminal laws.

Our common law tradition as well offers significant protection for property rights by virtue of the common law presumption of compensation when someone is deprived of property. This notion forms a fundamental part of our legal system.

On the whole, people in Canada enjoy a very high degree of protection for their property rights under the statutes and common law applicable at the federal level, including the provisions of the Canadian bill of rights. Property rights are ingrained in our laws, whether legislated or judge made.

The ample protection afforded to property rights reflects the value that Canadians place on property rights. The right to own and dispose of property is a basic component to our way of life.

As important as property rights are, as Canadians, we have also recognized that these are not unlimited rights. We have many laws that regulate the ownership and use of property in Canadian society. Municipal laws, environmental laws, laws regulating incorporation and the operation of limited companies, laws regulating the division of family property, succession and estate planning laws and personal property security laws are just some of the myriad of laws that place socially necessary limits on either the ownership or the use of property.

It is difficult to think of laws that do not affect or touch on property in one way or another. When we realize this it becomes incumbent upon us to ensure that protection for property rights is kept in balance with the other values of our society that are reflected in our laws and socially important legislation.

Increasing property rights protections under the bill of rights or the charter would have serious implications for the federal government's ability to legislate and regulate in a wide variety of areas and would have untold implications for federal laws. For example, it could affect everything from federal laws dealing with pollution to shareholder rights to divorce laws making provision for the division of property.

One only has to look at the American experience with constitutional property rights to understand the implications of extending property rights. In the United States property rights have been extended in ways that no one could have anticipated. This has led to huge amounts of litigation and has complicated and burdened the process of law making.

Early on in the history of the United States, important social reforms were struck down by the courts in the name of property rights. I am not saying that this kind of unfortunate judicial intervention would necessarily happen here, but we should be conscious of that possibility.

The protection of property rights is of course an important principle in Canadian society. No one in this Chamber would dispute that. While agreeing with the principle of protecting property rights, we must be cognizant of the impact that an increase in property rights protection would have.

In any event, as I have already indicated, it is very important to remember that our legal system presently and appropriately acknowledges property rights. The concept of property rights is fundamental to our legal system. It is the basis of the operation of our economy. This is reflected in the legal framework that governs our economy. Every day property rights guide our actions in the way we do business.

Contract law, real property law, personal property law and so on are built on the concept of property rights. Indeed our legal system could not function without it. As such, our legal system provides, as a matter of common law that has been built over hundreds of years through court decisions, basic protections for property owners. Hundreds of years of jurisprudence must not be lightly disregarded.

The common law provides basic protections for individuals regarding state action that affects their property. Statute law is also filled with protections for property rights. Whether we are looking at shareholder laws, banking laws, criminal laws or otherwise, these laws contain a wide variety of provisions that are designed to ensure fair dealings with property.

The hon. member's motion would have the Standing Committee on Justice and Human Rights examine whether our current federal laws are in compliance with our international human rights obligations and in particular, whether they comply with article 17 of the United Nations Universal Declaration of Human Rights which states:

1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.

In this regard, it is important to note that the protection for property rights already provided by section 1(a) of the Canadian bill of rights guarantees “the right of the individual to life, liberty, security of person and the enjoyment of property, and the right not to be deprived thereof except by due process of law”.

We will continue to support property rights to promote respect for these and all rights of Canadians. However, we cannot support a motion that could result in reopening the question of increased property rights protections that would disrupt the current democratic balance of property rights and other rights, thereby putting into jeopardy social and economic laws and policies that are important to the people of Canada.

Children of Divorced Parents

[Jay Hill, Canadian Alliance, Prince George—Peace River, BC]

Madam Speaker, because I overlooked it during my earlier remarks, I would like to note that you were also a member of that committee and your name does appear on the very comprehensive report, “For the Sake of the Children”. I commend you as well for the interest you have shown over the years on this subject. As colleagues from all parties have noted, this does cross all party boundaries and partisan politics.

I want to end the debate this afternoon by thanking my colleagues from the other parties: the Canadian Alliance member for Saskatoon--Rosetown--Biggar for her kind and supportive comments; and the New Democratic Party member for Winnipeg Centre for his comments about this important issue, and the support of the intent of the motion.

I note as well the remarks made by my colleague from the Bloc Quebecois. It is unfortunate that there are times when one province or another, especially in Quebec, has better family law than in other parts of the country. If we had been able to have a good debate on this subject and Quebecers could have heard the Bloc and other representatives from Quebec present their case, I think it would have been a service to other provinces to note that perhaps there is some superiority in the laws, particularly in Quebec, dealing with families of divorce and separation which we could have incorporated into other parts of the country. However that was not allowed to happen.

I want to note my disapproval, frustration and sadness with the remarks made by the Parliamentary Secretary to the Minister of Justice as he spoke on behalf of the Minister of Justice and said that yet again parents and primarily children would be asked to wait longer. He used the term May 2002 before another step would be taken on this issue. I say shame on the government for not acting on this issue.

The member also said that to support the motion would be inconsistent with the government's comprehensive strategy of working with the provinces to pursue co-ordinated, multifaceted initiatives and other glowing terms. The reality is that nothing further will be done immediately to address these injustices despite, as he termed it, the laudable intentions of my motion.

The same arguments were used on February 23 when I introduced Bill C-237 that dealt with shared custody or shared parenting. The federal government was not concerned about the federal intrusion into provincial jurisdiction when it imposed Bill C-68, the gun registry, and yet it seems to be very reluctant to do it on behalf of children.

There is only one chance left and I will take it now. On behalf of children across Canada, I seek unanimous consent of the members present on this Friday afternoon to make Motion No. 186 votable.

Income Tax Act

[Jay Hill, Canadian Alliance, Prince George—Peace River, BC]

Madam Speaker, it is a pleasure for me to rise this early evening to address Bill C-209, which seeks to amend the Income Tax Act and allow individuals to deduct certain public transportation costs from the exorbitant amount of income tax the government opposite extracts from them each year.

I would like to commend the hon. member for Jonquière for bringing forward an insightful and innovative amendment to the Income Tax Act. The merits of the bill are numerous, not just for individuals but for society as a whole, and I am delighted to bring some of them to the attention of the House this afternoon.

Perhaps before I do, I will just digress for a moment from my speech to say that I was very disappointed in the remarks made by the Parliamentary Secretary to the Minister of Finance. It is quite obvious from his remarks that the government has decided yet again that it will be advocating that all the Liberal members vote against this particular legislation, and that should come as no surprise. The government is increasingly reluctant to offer Canadians any form of tax relief and of course that is what the bill sets out to do.

I seem to have struck a nerve over there because I hear them heckling even though hardly any of them are in the House.

The reality is that the remarks made by the parliamentary secretary dealt almost entirely with how the Liberals can shovel money out the door in all their grandiose programs and plans of how to spend tax dollars rather than offer Canadians tax relief. That is indicative of the way the government has operated and continues to operate.

As to the bill itself, the first benefit is the most obvious, that is, this amendment to the Income Tax Act would reduce the tax burden on Canadians, something the government opposite is reluctant to do and something our party has been advocating for years.

The bill will not go so far as to reduce taxes to the levels we have been promising Canadians, but it will nevertheless provide relief to some Canadians who so desperately need it. I am referring to the thousands of students, seniors and low income Canadians who rely on public transit as their sole source of transportation. For these people, driving their car to work or school is not an option since they usually do not have that luxury.

I need look no further than my eldest daughter, who lives with me in Ottawa and does not have the luxury of even owning a car. She is a struggling student, as so many are in our country, a fourth year student at Carleton, and she travels for about an hour and a half every day to get to university and then to get home in the afternoon or evening. She spends about three hours every day on public transit.

That is not unique to my daughter. Many students and many working Canadians in our country have to face similar long hauls on public transit. Without the public transit system, many of these people would be forced to quit their jobs or drop out of school. Without public transit, seniors would be unable to access essential services such as health care. Providing these people with a deduction for the expense of public transportation will not give them a windfall by any means. However, as anyone who has experienced the struggle of living paycheque to paycheque knows, every dollar does count.

There are also benefits to society beyond the immediate benefit to the individuals who use public transit. The implementation of this amendment would provide an incentive for commuters to leave their cars at home and begin or go back to using public transit. Often the cost of driving is only marginally higher than the cost of public transit. Most people usually elect to drive for no other reason than the sheer convenience of it.

The statistics on public transit highlight this trend. Only 19% of Canadians are frequent transit users and 11% of them are semi-frequent users while 22% are occasional users. An astonishing 48% of Canadians do not use transit at all.

This amendment will widen the gap between the cost of driving and the cost of public transit, giving public transit greater appeal and reducing the number of cars on the road. This single action is where the benefits to society begin.

One of the immediate benefits would be to the environment and consequently to the air we all breathe. For every bus we are able to fill, we are able to take up to 50 cars off the road. This is a critical number when we consider that six of seven major air pollutants come from cars and light trucks, which emit four tonnes of pollutants every year on average.

In 1997 Canada made an international commitment to reduce greenhouse gas emissions to 6% below 1990 emission levels by 2008-12. Despite the fact that Canada has yet to ratify the agreement, there is no reason for us not to at least attempt to meet our commitments.

We could simply follow the precedent established by our neighbours to the south and renege on our international commitment because of the downturn in the economy. However, this is not an option for Canada since we are consistently reminded by the Minister of Finance that Canada is immune to a recession.

Fortunately for the environment, this means that the Canadian government could withstand the minor tax exemption such as the one being proposed today.

Also of benefit to Canadians, which may not be as apparent as the immediate benefits to the environment, are the numerous benefits that accompany a reduction in the congestion on our roadways. Congestion is very costly to Canadians in terms of its impacts on the economy and road infrastructure.

Recent studies in Canada, the U.S. and Australia have estimated that congestion costs in urban areas are in the order of $1,000 annually per household. It therefore stands to reason that if businesses are able to move their goods to market more efficiently the cost of goods will go down. This is yet another example of how the bill would improve the lives of all Canadians.

The toll that congestion takes on our roads is self-evident. We have all experienced first hand the deplorable state of our national highways, the gridlock occurring in our major cities and the inability of growing towns to expand their existing road systems to accommodate population growth.

The government has made it very clear that it does not intend to spend any more than the current 4.1% of the $5 billion it collects in fuel taxes on improving our roadways. If we intend to retain the antiques we have, without further deterioration, we have to reduce the number of people using them.

The bill would hopefully provide the incentive for the people of Canada to take action where the government refuses.

I could continue with my praise of the bill, but I would like to take a few minutes to make a few comments on the whole issue of private members' bills and their place within the House. Each year the members elected to the House bring forward their ideas for improving the lives of all Canadians. More often than not, these ideas are allowed to fall off the order paper without having been given, in my opinion, due consideration.

I have been extremely fortunate that in the past two months my name has been drawn consecutively in the two private members' draws. This was an unprecedented opportunity for me to select and to present two of my six private members' bills.

The first, Bill C-237, was a bill that would have amended the Divorce Act to ensure that divorcing parents begin custody discussions on an equal footing. They would start out with joint custody and work from there. The bill was intended to remove children from the often bitter battles that accompanied marital breakdown to ensure that they could not be used as pawns during settlement negotiations. Put simply, the bill would have put the children's interests ahead of the divorcing parents.

However, the bill was not considered important enough to vote on by the private members' committee so it fell off the order paper after one hour of debate.

My second bill, Bill C-272, has not yet been debated but regrettably has been handed the same sentence: a one hour debate before it too drops from the order paper. The bill would have allowed adoptive parents a one time income tax exemption for expenses incurred during the adoption of a child. Unfortunately, the bill has also succumb to the same fate as my previous bill despite the apparent benefits to Canadian families and children.

While I appreciate the limited time the House has to consider legislation each year, I believe that as elected members we could be doing a better job of how we select and debate private members' legislation. An opportune time for us to examine these procedures is during the all party discussions on parliamentary reform.

As elected members, we owe it to our constituents to find a more effective means of bringing bills with merit into law. I am pleased that the process worked in favour of this particular private member's bill, Bill C-209, and I am pleased to express my support for the bill.

I will sum up by saying that I really hope the bill passes. I hope that it does not succumb to the same unfortunate treatment as my previous bill in the last parliament. That particular bill, after a lot of work and with the support of the majority government, the Liberals, was passed on to the justice committee. However, in the end, the Prime Minister called a premature election and the bill died at the committee stage.

The bill today, should it pass, would go to the finance committee where hopefully it will not suffer the same fate as my last bill. I urge all members to do support the bill and to vote for it.

Divorce Act

[Jay Hill, Canadian Alliance, Prince George—Peace River, BC]

Madam Speaker, I would like to thank my colleagues from all parties who participated in the debate this afternoon. It is unfortunate that, like so many pieces of legislation, this private member's bill will not be votable and that this hour will be the only opportunity that members have to participate in a debate about such an important issue as joint custody or shared parenting as is the new term.

I would like to begin by thanking my colleague from Regina—Lumsden—Lake Centre for his eloquent remarks. I congratulate him on his first speech. I know he did not intend to speak today, late on a Friday afternoon, but he jumped to his feet and participated in the debate.

I also would like to thank my colleague from the Progressive Conservatives from Brandon—Souris for his support and for his supportive comments in this debate.

The member for Windsor—St. Clair also imparted his experience and wisdom that he accumulated when he worked in the real world, shall we say. I would dispute perhaps the fundamental opposition he voiced to the legislation, Bill C-237. If I understood his remarks correctly, he said it would probably result in more litigation, more than the present 10% that statistics show us.

I would pose the question why would it necessarily do that? Parents would understand that the courts would uphold the joint custody unless there was clear evidence of abuse, mistreatment or whatever reason the court might rule. However, it would have to be based upon fundamental, ironclad evidence that it would be not in the best interests of the child to have joint custody. Once it became the norm, I believe parents would accept that. They would quit using children as pawns in their otherwise very disruptive divorce settlements or separation settlements.

I would dispute whether it would necessarily result in an increase in that 10% number.

I congratulate the member for Erie—Lincoln on participating in this debate. I was appalled and saddened at his remarks but not surprised. I suspect that the general thrust of his speech, if not in its entirety, was put together by lawyers in the justice department for the Minister of Justice and perhaps passed to him. They may not all be his thoughts on this important subject.

If I understood him, his main argument was that the government in its infinite wisdom wants to develop a comprehensive strategy to deal with this very important subject of shared parenting or custody and access. I would argue that the government has had time. How much longer can children wait? Every day that goes by there are children caught between their love, respect and devotion for both parents. Children are being hurt the most by the government's inaction.

We can go into all the legalities. As the member for Brandon—Souris said we are not lawyers, so I will not get into the legality of it. I believe very strongly that all of us as members of parliament, regardless of party, are being beseeched by citizens, parents and grandparents across the country on this issue. There has to be a time for action and it has to be now.

I could go on but we are out of time. I could talk about my own experience having just gone through a divorce some two years ago and the fact that I have three children. Now is not the time to go into that. Many of us have been touched by divorce. We have seen children who have been hurt when parents start warring in the courts or outside the courts. We must do something for them. I believe this was the first step we could have taken to go down that road to institute a system of more fairness and to help the children.

[Rick Borotsik, Progressive Conservative, Brandon—Souris, MB]

Thank you. Really, it is nice to be able to say that I have worked for a living, although I certainly would not suggest that the member for Windsor—St. Clair has not done so. However, this was an issue this morning and it behooves us as members of parliament to be able to stand in the House and talk about pieces of legislation.

I know for a fact that the member for Prince George—Peace River is not a lawyer either, but he did bring forward something that is very important to all Canadians, certainly to those Canadians who are affected quite dramatically by the Divorce Act and custody of the children.

I am pleased to rise to support Bill C-237, an act to amend the Divorce Act (joint custody), put forward by the hon. member for Prince George—Peace River.

The purpose of the bill is to ensure that courts grant custody of a child of the marriage to both spouses, unless there exists evidence that to do so would not be in the best interests of the child. As a supporter of change to the current structure of child custody and access, I was encouraged by the report of the Special Joint Committee on Child Custody and Access entitled “For the Sake of the Children”, which was mentioned many times in the House during today's debate.

The report came to the House in December 1998. The government's response to this report did not come back until May 1999. Yet nothing has been done. The inaction of the Minister of Justice has caused great frustration among Canadians who have been affected by marriage breakdown and the ensuing child custody battles.

I share the frustration of many Canadians knowing that our children will continue to suffer because the recommendations for change will not be legislated into law. Our party supports shared custody as long as it is in the best interests of the children.

The PC Party played an effective role on the special joint committee and we were a strong voice for the issue of shared custody. We feel that the courts should work in harmony with social services to ensure that no matter what the custody arrangement, the best interests of the children will be paramount. The PC Party has stated that it will continue its efforts to have the recommendations of the committee legislated into law.

As the Liberal government seems unwilling to take action on this issue, I once again commend the member for coming forward with a proposal that will move toward a more equitable treatment of both—and I stress both—parents involved in a child custody arrangement while ensuring, again, that the best interests are those of the children.

The judicial discretion permitted in the bill will allow a judge to make decisions in the best interests of the child, depending on the merits of the individual case. The bill states:

The court may, on application by either or both spouses or any other person, make an order respecting any or all children of the marriage that is different from the order provided for in subsection (1) where, in the opinion of the court, the best interests of the child or children so require.

I cannot stress that comment enough. It is for the children, and certainly it is a piece of legislation that brings the parents together to make sure that in fact is the case.

Every other section of the bill states clearly that decisions regarding the joint custody of the child will always be subject to judicial discretion. This protects the child while enhancing the rights of both parents.

There are other problems with the current system. After a bitter divorce some parents deny visitation access to other parents and use their children to get even with their former spouses. That is in fact happening, Madam Speaker, in your constituency and in my constituency.

Police have seen recent abductions of children by non-custodial parents who have become desperate after repeatedly being denied visitation rights. I am not defending this course of action, but it provides further evidence of the negative effect this has on children. Children are forced into a fugitive lifestyle.

Shared custody should help avert the often extreme animosity that exists between divorced parents fighting for access to their children. This would provide a much healthier environment, with less conflict, for children to grow up in.

I do wish that the Liberal government would take the necessary action to fix the problem. Seeing that this is not the case, I would suggest that each member of the House support this piece of legislation as a small part of the proper thing to do to move the issue forward.

I once again thank the member for the bill. I do support it on behalf of my party, the Progressive Conservative Party.

[John Maloney, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

Madam Speaker, as presented to the House, Bill C-237 proposes to amend the Divorce Act by creating new section 15.4, which would provide that courts grant the custody of the child of the marriage to both spouses jointly, unless it is the opinion of the court that to do so would not be in the best interests of the child.

Bill C-237 would amend existing subsections 16(1) and 16(4) of the act that currently authorize courts to grant custody of or access to any or all children of the marriage to any one or more persons, by deleting the references to custody so that these subsections would pertain only to access orders. In effect, the bill creates a rebuttable legal presumption of joint custody.

The Government of Canada announced a strategy for family law reform with respect to child custody and access in May 1999 when the Minister of Justice tabled the government's “Strategy for Reform”. This strategy includes fundamental principles for reform and emphasizes the need for a comprehensive government response to address those important issues that have an impact on children's lives. In light of this commitment to a comprehensive strategy, the Minister of Justice is not in a position to support Bill C-237.

The effect of Bill C-237 is to create a legal presumption of joint custody. There are four fundamental problems with this legal presumption.

First, it is inconsistent with the government's strategy for reform which rejects the idea that a one size fits all approach may be applied to all families experiencing separation and divorce.

Second, it is inconsistent with the recommendations of the special joint committee's report “For the Sake of the Children”.

Third, the bill is inconsistent with the government's commitment to work closely with the provinces and territories to develop co-ordinated reforms that respect the constitutional division of powers and responsibilities.

Finally, the bill potentially creates confusion by imposing a legal presumption of joint custody without defining what is meant by that term.

I have noted that Bill C-237 is inconsistent with the government's strategy for reform of the family law system dealing with child custody and access. Let me explain. The reform strategy was announced by the Minister of Justice in May 1999 when she tabled the government's response to the report of the Special Joint Committee on Child Custody and Access, “For the Sake of the Children”.

The government's plan for identifying reforms, and in particular, reforms respecting amendments to the Divorce Act, is based on the primary principle that the individual needs, best interests and well-being of the children are paramount. The government's response notes that the Government of Canada has developed a strategy that is rooted in four principles.

The first principle is the desire to promote child centred reforms that focus on minimizing the negative impact of divorce on children. This strategy identifies the need to reform the legal rules, principles and processes that will better structure the decision making process in a child centred way and shift the focus of the family law system from parental rights to parental responsibility.

The second principle is the government's commitment to work closely with the provinces and territories to pursue co-ordinated, multijurisdictional efforts while respecting the division of powers and responsibilities in this area of shared constitutional jurisdiction.

The third principle refers to the critical need to explore a broad range of measures to support families going through separation and divorce, because statutory amendments alone cannot address many of the problems that are, in reality, only partly legal in nature.

The fourth principle is of the utmost importance for the matters we are currently discussing. It is the recognition that each family has unique characteristics and experiences divorce and separation much differently. It is exactly the reason why we do not want to apply a one size fits all approach such as that suggested by Bill C-237 to all Canadian families experiencing divorce.

Conflict levels of separating parents vary widely, as do individual children's needs. As well, children undergo developmental change over time and adjustments may be needed to allow for changing relationships and circumstances. The Government of Canada's reform strategy recognizes that no one model of post-separation parenting will be ideal for all children. For this reason, the minister cannot support the one size fits all approach that Bill C-237 attempts to introduce into the Divorce Act with the creation of a presumption of joint custody.

As indicated, the proposed bill is inconsistent with the recommendations of the special joint committee's report “For the Sake of the Children”. The special joint committee heard many arguments in favour of various different legal presumptions such as the one proposed by Bill C-237 when it held public hearings across the country.

The special joint committee held 55 meetings and heard from many witnesses across the country, including individual parents and children, women's groups, fathers' organizations, lawyers, judges, social workers, psychologists and physicians. The hearings highlighted the difficult, emotional and contentious nature of custody and access issues and confirmed that the very different and often conflicting views continue to be held, both about the problems and about the reforms that are required.

The special joint committee's report entitled “For the Sake of the Children” acknowledged that one of the most frequent requests at these hearings was that the Divorce Act be amended to add a legal presumption. However, the special joint committee decided not to recommend a legal presumption. Instead, the report states on page 42:

Presumptions in favour of joint custody or the primary caregiver have been adopted in a number of US jurisdictions, but in some cases legislatures have subsequently withdrawn them after finding that they were not having the intended desirable effects. Presumptions that any one form of parenting arrangement is going to be in the best interests of all children could obscure the significant differences between families...Presumptions can also have a negative effect of compelling families who might otherwise have been able to make constructive, amicable arrangements to apply to a court, if they want to avoid the application of a presumptive form of parenting arrangements.

The special committee carefully considered and rejected the use of legal presumption, such as the one that Bill C-237 attempts to introduce into the Divorce Act. This is another reason why Bill-237 should not be supported.

The government is committed to working closely with the provinces and territories. I am concerned that Bill-237 is inconsistent with the government's commitment to collaboration and partnerships in this area of law. This is one of the four fundamental principles of the government strategy for reform, to work closely with the provinces and territories to pursue a co-ordinated, multi-jurisdictional effort while respecting the division of powers and responsibilities in the area of shared constitutional jurisdiction.

The federal and provincial governments have specific constitutional powers with respect to family law, and the territorial governments have specific responsibilities under their original acts. The federal Divorce Act generally applies where parents are divorcing and need to settle issues such as child custody, access and support. Provincial and territorial laws apply when unmarried parents separate or married parents separate and do not pursue a divorce, as well as to some issues involving divorce proceedings.

Currently the federal Divorce Act and provincial and territorial legislation all have the same general legal principles to govern custody and access disputes. Bill C-237 would impose a legislative presumption that is not found in any of the provincial or territorial statutes. If the federal law is reformed without corresponding changes to the provincial or territorial laws, we risk creating confusion and uncertainty leading to more conflict between parents and increasing litigation. This would only aggravate the difficulties experienced by children.

The bill amending the Divorce Act could also have serious implications on provincial and territorial court procedures and court services. The provinces and territories have constitutional power over the administration of justice. This includes responsibilities for establishing the rules of civil procedure and administering court services within their jurisdiction, including procedures respecting Divorce Act matters.

Arguably, specialized court services and programs would be necessary to assist families who had a joint custody order imposed on them by the courts without their agreement. This could be the result of the proposed Bill C-237 presumption of joint custody. Members of parliament from every party should be concerned about supporting a bill that could have this kind of potential impact on the provinces and territories while seeking their prior co-operation and commitment.

It is critical to remind ourselves that developing and implementing family law reforms is a complex task. The challenge in reforming the Divorce Act is to identify terminology that is consistent with a child centred approach and is carefully defined so that there is a clear and accepted understanding and use by both the courts and the public. I believe that the proposed Bill C-237 does not meet this challenge.

The bill creates a presumption of joint custody without clarifying what this means. Does joint legal custody mean shared decision making? If so, can we force parents to make joint decisions concerning their children when they are unwilling or unable to communicate with each other? This would be particularly dangerous in a high conflict situation. How can this be in the best interests of the child?

It is also possible that the bill is imposing a joint physical custody arrangement that would require each of the parents to be responsible for the daily care of the children for an equal amount of time. This may not be appropriate for many families. I believe that children's living arrangements should be determined according to what is in their best interests as opposed to ensuring an equal division of time between the parents.

Separation and divorce are difficult for children. The family law system must be responsive to their needs. The bill could aggravate an already difficult situation for families. It would impose a “one size fits all” approach. That is inconsistent with the government's strategy for reform and that was rejected by the special joint committee. It could create significant demands on provincial and territorial services without seeking their prior co-operation and commitment. It also introduces a legal presumption without providing clarification of what it means.

I know that the government has spent a considerable amount of time working closely with the provinces and territories to develop well considered reform proposals. To this end a number of background research papers have been prepared and several more are underway. Work is also underway evaluating the impact of legislative reforms recently undertaken in other countries. Public consultations will be taking place this year on specific reform proposals.

Developing and implementing family law reform is a complex task. Although we need to work quickly, we also need to take the time to insure that we get it right.

[Jay Hill, Canadian Alliance, Prince George—Peace River, BC]

moved that Bill C-237, an act to amend the Divorce Act (joint custody), be read the second time and referred to a committee.

Madam Speaker, at the outset of my remarks I thank my hon. colleague for Skeena for seconding my bill today.

I am pleased to have the opportunity this afternoon to address my proposal for what I believe to be an important amendment to the Divorce Act. This is contained in private member's Bill C-237.

The purpose of the bill is to establish a new basis for sharing the custody of children following the divorce or separation of their parents. The bill would ensure that courts grant custody of a child to both parents unless there exists evidence that to do so would not be in the best interests of the child.

In 1985, Bill C-41 amended the Divorce Act, making it easier for Canadian couples to file for and receive divorces. The changes removed most of the blame from divorce proceedings. Since then, in effect, we have had no fault divorce. It is estimated that as many as 90% of divorces are now granted without a formal court hearing. Putting this 90% figure into perspective, 69,872 of the 77,636 divorces granted in 1995 did not proceed to the courts. The downside is that the remaining 10%, or 7,764, were the subject of protracted and at times difficult litigation.

In the same year, more than 47,000 children were the subjects of custody orders. Using the same 10% figure, it means that approximately 4,700 children were exposed to ongoing tension, fighting and at times even violence between their parents. It is the children who are the sole inspiration for the bill.

During the review of the Divorce Act in 1985, significant lobbying took place to encourage parliament to take action to protect the interests of children involved in divorce and custody battles. Parliament agreed that the subject required extensive review and established a Special Joint Committee on Child Custody and Access that eventually released a report in December 1998 entitled, “For the Sake of the Children”. Unfortunately, this was two years following the passing of the amendments to the Divorce Act and many of its recommendations have yet to become law.

The committee was comprised of senators and members of the House of Commons from all parties. They set aside their partisan differences to examine and analyze the impact of custody arrangements on children of divorced or separated parents. I would be remiss if I did not take this opportunity to commend all members of the special committee for their work on this very difficult and sensitive subject.

The committee approached its work with great determination and travelled from St. John's to Vancouver and conducted 39 meetings where it heard from no fewer than 500 witnesses. These witnesses included individual parents, children, fathers' organizations, women's groups and professionals, including lawyers, judges, social workers, psychologists, physicians and others. The committee paid particular attention to what was being said by all of the witnesses and one resounding conclusion was reached. Dramatic changes were needed in the way parenting arrangements are decided following divorce.

The committee concluded that there was difficulty with the current provisions of the Divorce Act, as it focuses solely on granting custody of the children to one parent and access to the children by the other parent.

Courts rarely impose joint custody orders in the absence of the consent of both parents. It is thought that unless the parents could work together amicably and constructively enough to set up their own custody and access arrangement, joint custody would not be in the best interests of the children. There is considerable evidence to suggest that this assumption is deeply flawed.

Marital breakdown is not an appropriate time for parents to be making decision regarding the division of parental responsibility. Far too often the courts are granting custody arrangements that will result in the estrangement of children from not only the non-custodial parent but also the members of a non-custodial parent's family, such as stepbrothers or sisters, aunts, uncles and grandparents.

Bill C-237 seeks to establish that the custody of the children will automatically be granted jointly to both parents. This represents a fundamental change to the current system of custody. We will no longer look upon the process as determining custody and access but as establishing joint parenting responsibilities.

Children define themselves by their parents. It follows that it is in the child's best interests to have continuing contact with both parents, based on the child's existing relationship with each parent as it has developed during the course of that child's lifetime.

It is very important for me to clarify that joint custody does not necessarily mean that parents start out with 50% access to their children. It means that the parents will have equal decision making authority with respect to the child on issues such as schooling, religious upbringing and medical care.

It is estimated that under the current system, 86% of children reside with their mother, 7% with their father, and that only 6% live under some form of joint custody arrangement. We recognize that these patterns generally reflect the division of child care responsibilities in intact households and that many divorcing parents agree to these arrangements because it continues with arrangements that existed pre-divorce or is otherwise in the best interests of the child.

By amending the Divorce Act to automatically grant joint custody we will be establishing a new starting point for discussions regarding custody of children. In these discussions both parents will be working from a position of equal footing and the children will no longer be pawns in divorce proceedings.

The proposed amendments also contain a number of additional provisions relating to the authority of the courts in determining the best interests of the children. The court retains the ability to amend the custody agreement where it can be demonstrated that the child has suffered mistreatment by one of the parents. The court also has the ability to amend the custody agreement for a definite or indefinite period of time or until the happening of a specific event or it can attach conditions that it feels are fit and just.

There is also additional protection for parents who enter into joint custody arrangements. For example, the courts may include in any order a requirement that the custodial parent provide advance notice to the non-custodial parent of any intended change of address. In addition to being of obvious benefit to the non-custodial parent, this also provides a benefit to the children, as it allows sufficient time for changes to be made to parenting agreements and to analyze the impact of the move on the child.

In advancing these amendments to the Divorce Act, Canada joins countries such as Australia, the United Kingdom and many states in the United States in the establishment of joint custody laws.

The bill is about putting the interests of the children ahead of the interests of two divorcing parents. It is about preserving the role and contribution of both parents and their extended families in the upbringing of children.

I would hope that all members of the House would join me in supporting the legislation for the sake of the children.

[Jay Hill, Canadian Alliance, Prince George—Peace River, BC]

moved for leave to introduce Bill C-237, an act to amend the Divorce Act (joint custody).

Mr. Speaker, the purpose of the bill is to ensure that the courts grant custody of a child to both parents unless there exists evidence that to do so would not be in the best interests of the child. Automatic joint custody could reduce the number of parents forced to go to court to gain access to their kids, increase the likelihood of support payment compliance and reduce the likelihood of one parent denying the right of the other to see the children.

The report of the Special Joint Committee on Child Custody and Access recommended two years ago that joint parenting be included in new legislation but the justice minister has yet to do so.

Children have waited long enough.

(Motions deemed adopted, bill read the first time and printed)

Speech From The Throne

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I congratulate you on your appointment. I would also like to thank the people of Mississauga South who elected me for the third time. I am very honoured to be here to represent my constituents and to work hard on behalf of all Canadians.

The throne speech 2001, which has been outlined so eloquently today by many members, provides the framework under which we will govern the country over this mandate. Our plan seeks to ensure a brighter future for all Canadians and to strike the right balance. It includes provisions for paying down debt, cutting taxes fairly, investing in health care, investing in research and innovation, investing in families and children and protecting our environment, just to name a few.

As a parliamentarian since 1993, most of my private member's initiatives have been directed at areas relating to family and children. There is a specific section in the throne speech which deals with various initiatives that we will be undertaking during this parliament. I want to take the time now to follow the focus on families and children, particularly on the issue of fetal alcohol syndrome.

The brain drain is a concept with which most members are familiar. It refers to the migration of our so-called best and brightest from Canada to the U.S. and abroad. It is a figurative term but it can be looked at literally as well. In a literal sense, brain drain is the physical effect of fetal alcohol syndrome, often referred to as FAS. Fetal alcohol syndrome is the real brain drain that we have to address and it is a 100% preventable tragedy.

On December 7, 1995, I first spoke in the House of Commons about fetal alcohol syndrome. It was part of my private member's bill, Bill C-237. That bill sought to provide health warning labels on the containers of alcoholic beverages to caution expectant mothers and others of the risks associated with alcohol consumption.

When I became a member of parliament one of the things I wanted to do was to become involved on the health committee. I did some research to find out what the health committee had been working on during the 34th parliament.

One of the things that I came across was a study called “Fetal Alcohol Syndrome, A Preventable Tragedy” produced by a House of Commons standing committee. I quote from the summary phraseology contained in the report:

Today, there is no question that maternal alcohol consumption can have devastating impacts on the fetus. The basic fact is that when the pregnant woman drinks, her unborn child drinks also; that is, the alcohol in the mother's bloodstream circulates through the placenta and into bloodstream of the fetus. It is possible that the blood-alcohol level in the fetus will remain at an elevated level for a longer period than that of the mother because the immature fetal liver metabolises the alcohol more slowly.

They said there was a problem and laid out some recommendations, which fascinated me. The reason that I was fascinated by the study was that I was an educated person who was active in my community. I was on a hospital board, had three children, and it was the first time that I had ever heard the term fetal alcohol syndrome. It had a tremendous impact on me. How was it possible that a preventable tragedy did not come to the attention of an ordinary person in the community? It was something that I wanted to get involved in.

I have been active in the issue and I wanted to learn more about it. In any one week as many as 10,000 babies are born in Canada. Of these, 3 are born with muscular dystrophy, 4 are born with HIV infection, 8 are born with spina bifida, 10 are born with Down's syndrome, 20 are born with fetal alcohol syndrome and over 100 are born with other alcohol related birth defects.

Fetal alcohol syndrome refers to a group of physical and mental birth defects. Its primary symptoms include growth deficiency before and after birth, central nervous system dysfunction resulting in learning disabilities, and physical malformalities in the face and cranial areas. Other alcohol related birth defects involve central nervous damage like FAS without the physical abnormalities.

FAS is incurable. Once someone has it, it will affect that person for the rest of his or her life. Most victims usually require special care throughout their lives. Depending on the severity, the estimated lifetime cost for the care of an FAS victim ranges from $3 million to $6 million.

There are secondary systems. What happens to people who have FAS? Their lifestyles are characteristic. Here are a few examples: 90% have mental health problems; 60% will be expelled or suspended from school or drop out of school; 60% will get into trouble with the law; 50% will exhibit inappropriate sexual behaviour; 30% will abuse drugs or alcohol; 80% will be incapable of living independently; and 80% will have problems in their employment situations. Tragically, these severe problems could have been prevented if the mother had abstained from alcohol consumption through her pregnancy.

Last year, I took the opportunity to look at some of the recent data from Manitoba and Saskatchewan resulting from work on FAS. One of the things I found is that they have surveyed their inmate population and found that 50% of the population in the jails in Manitoba and Saskatchewan were people who had fetal alcohol syndrome or other alcohol related birth defects.

I posed the same question during question period to the Minister of Justice. I asked her, what is the experience of the government in the federal institutions? She confirmed in the House that persons with fetal alcohol syndrome account for 50% of the inmates in our jails.

The dollars involved here are enormous. The impact on our justice system, health care system, social services system and on our education system are enormous and pervasive. The costs are enormous. It is one of the reasons why I am so delighted that the government has decided to take the initiative as part of its priorities. I hope the House will support initiatives related to the reduction of FAS.