An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other Acts in consequence

This bill was last introduced in the 37th Parliament, 2nd Session, which ended in November 2003.

Sponsor

Martin Cauchon  Liberal

Status

Not active, as of Feb. 25, 2003
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Divorce ActGovernment Orders

February 20th, 2003 / 11:35 a.m.
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Canadian Alliance

Jay Hill Canadian Alliance Prince George—Peace River, BC

Mr. Speaker, I appreciate my colleague's remarks on Bill C-22. It is important legislation for which parents and, more important, children have waited a long time.

Unfortunately, as he alluded to in his remarks, the government missed the boat entirely. It missed the fundamental principle that was enshrined in the report “For the Sake of the Children”. The fundamental guiding principle of all the 48 recommendations that were contained in the joint House of Commons--Senate report was that of shared parenting.

I would like to refer my colleague to the comments of the Minister of Justice on February 4 when he introduced Bill C-22 in the Chamber. I am quoting from Hansard . The minister said:

The term “shared parenting” has become associated for some people with a presumptive starting point about the appropriate parenting arrangement for children upon divorce. As a result, using the term “shared parenting” in the Divorce Act would have led to confusion.

My belief and the belief of the committee is exactly the opposite. To clarify that both parents upon divorce have equal standing, responsibilities and obligations to their children, we need to have shared parenting enshrined in the Divorce Act. It is the fundamental building block of the whole report.

I would ask my colleague to comment on that.

Divorce ActGovernment Orders

February 20th, 2003 / 11:25 a.m.
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Canadian Alliance

Gurmant Grewal Canadian Alliance Surrey Central, BC

Mr. Speaker, I am pleased to rise today on behalf of the constituents of Surrey Central to initiate the debate on Bill C-22, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other acts in consequence. There are many acts to be amended by Bill C-22.

Since the 1968 passage of the first federal Divorce Act, divorce has become increasingly prevalent in Canada. According to the latest numbers released by Statistics Canada, 71,144 couples divorced in 2000. Before reaching the 30th wedding anniversary nearly 38% of marriages will end. That is more than one-third. One in three marriages will end before even reaching their 30th wedding anniversary.

An important consequence of divorce is more and more disputes over the custody of children and parents' rights to access them. Custody of dependants, usually children, was granted through proceedings in one out of every three divorces in 2000. In the remaining two out of three divorces, couples arrived at custody arrangements outside the divorce proceedings, or they did not have dependents.

The proposed changes in Bill C-22 primarily affect child custody arrangements between parents after divorce. This is important for we should be worried about the impact divorce has on the lives of children.

For far too long family law legislation has perpetuated a battle of the sexes, a war between mothers and fathers.

The justice minister, when unveiling this act, said that he wanted to return family law to its core value, the best interests of the child, by making parenting after divorce less of a battle and less about mothers and fathers. Though males are perceived to be the victims of bias in family law, even that has resulted in some suicides. It is very sad.

A large number of Canadians have been critical of the terms custody and access because in their view the terms encourage too many parents to focus on their own rights rather than on their responsibilities and what is in the best interests of their children. The terms also promote the idea of a winner or a loser in a custody battle. Giving custody to one person takes it away from another. The terms represent a poor start for the future and give the impression that there is a winner and a loser, but the children are often the real losers, and we should do something about that.

Under the proposed reforms, the terms custody and access will be eliminated for the purpose of the Divorce Act. Removing the win-lose connotations will contribute to reducing levels of parental conflict and stress. The new approach used by the act and in legal proceedings will help parents to focus on their most important obligation, which is making sure their children receive the care they need. This terminology simply does not reflect the idea of co-parenting.

The proposed reforms will also allow parents, not the court, to figure out how to carry out their responsibilities to their children. Mediators, counsellors and lawyers will be able to assist if they cannot come to an agreement and judges will issue parenting orders only if mediation fails. The negative consequences for children are aggravated if parents become involved in protracted conflict over separation.

The proposed legislation is based on a parental responsibility model. Its underlying concept is that both parents will be responsible for the well-being of their children after separation or divorce. How they carry out their obligations to their children is largely a matter for them to decide using the best interest criteria as a guide.

The amendments to the Divorce Act include a list of best interest criteria for parents, lawyers and judges to consider when determining the living arrangements of a child involved in divorce.

These criteria include: the child's physical, emotional and psychological needs, including the child's need for stability, taking into account the child's age and stage of development; the benefit to the child of developing and maintaining meaningful relationships with both spouses and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse; the history of care for the child; any family violence record; the child's cultural, linguistic, religious and spiritual upbringing and heritage; any plans proposed for the child's care and upbringing; the nature, strength and stability of the relationship between the child and each spouse or each sibling, grandparent and any other significant person in the child's life; the ability of each person,in respect of whom the order would apply, to care for and meet the needs of the child; to communicate and co-operate on issues affecting the child; and finally, the safety and well-being of the child.

A mixed race child might end up spending more time with a parent who is considered to be in the best position to provide a cultural education to that child.

In 1998 the Special Joint Committee on Child Custody and Access released its report “For The Sake of the Children”. The Minister of Justice claims that the government has taken an approach to family justice reform that is consistent with the spirit of this special joint committee's recommendations in that it removes the terms “custody” and “access” from the Divorce Act and bases parenting decisions solely on the best interest of the child.

However the government has rejected the committee's recommendation, as it often does, that the government adopt the shared parenting concept in which equal access to children is presumed.

While women's groups urged the government to make no changes to the custody and access regime, father's rights organizations campaigned tirelessly, but unsuccessfully, for the inclusion of a presumption in the law that each parent had equal access to children. There is little doubt that children benefit most when they have frequent and liberal access to both their parents.

Father's groups lobbied for the presumption of shared custody because of the widely held perception that courts are inherently gender biased. Judges award sole custody to mothers 60% of the time, joint custody 30% of the time and sole custody to fathers just 10% of the time.

The assumption of shared parenting should be built into the Divorce Act. Shared custody encourages the real involvement of both parents in their children's lives.

Psychologists and social workers tell us that children benefit from maintaining a relationship with both parents after divorce. Many studies show that children's emotional development is enhanced if both parents are involved after divorce. Parents denied a significant role in the life of a child might withdraw gradually, to the detriment of the child.

Some women's groups caution that a presumption in favour of joint custody might lead to its imposition in inappropriate cases and could allow an abusive father to continue to harass his wife and children. However clearly stated criteria would prevent this from occurring. Their position also overstates the occurrence of abuse and portrays men in a negative light.

Children benefit from consistent, meaningful contact with both parents, except in exceptional cases, such as those where violence has occurred and continues to pose a risk to the child.

What counts the most are the children, the kids. They are our next generation, our future and they certainly deserve our best care.

We know that family is an institution. Family is the foundation of any nation. United and peaceful families are stronger families. We need to promote that. Stronger families are prosperous families. Stronger and prosperous families can raise children better for the future of the country.

Do I need to remind everyone that stronger families make strong communities and stronger communities make a stronger nation?

Business of the HouseRoutine Proceedings

February 20th, 2003 / 10:15 a.m.
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Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

Mr. Speaker, I understand that on some of the bills there is perhaps not much debate left, but for greater clarity and for the benefit of all colleagues we will be calling Bill C-3, Bill C-19 and Bill C-22 in that order this morning.

Business of the HouseRoutine Proceedings

February 20th, 2003 / 10:15 a.m.
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Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Mr. Speaker, I rise on a point of order. There have been further consultations and I wish to be quite clear. Pursuant to the same terms as a moment ago I would like to move that the following items be disposed of as follows. I move:

That the amendments to Bill C-3, Bill C-19 and Bill C-22 be deemed to have been withdrawn.

Mr. Speaker, I am moving that the amendments be deemed to have been withdrawn, nothing else, that is, all amendments and/or subamendments on Bill C-3, Bill C-19 and Bill C-22.

Business of the HouseRoutine Proceedings

February 20th, 2003 / 10:10 a.m.
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Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Mr. Speaker, as I said, we discussed these things this morning. I hope I have it correct. I apologize to members if there is anything that is a little different, but I hope not. There are another two here on which I think we have agreement.

I move that in Bill C-19 and Bill C-22, the amendments to the motion for second reading are deemed to have been withdrawn and that a recorded division on the motion for second reading be deemed to have been requested and that the vote take place at the conclusion of Government Orders on February 25, 2003.

That is a recorded division on Bill C-19 and Bill C-22.

Business of the HouseOral Question Period

February 6th, 2003 / 3 p.m.
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Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Mr. Speaker, I will start with the rest of this day and then go on with the future agenda.

If the opposition follows through with its offer, as promised during question period, to withdraw its motion today on the strength of the commitment made by the Prime Minister to, on the first day following military deployment should there be one which we all hope of course there would not be, call a votable opposition day that would free up the rest of the day.

Following that, this afternoon we would then deal with Bill C-19. Should there be any time left we would call Bill C-22, although I suspect that there would not be that much time, and perhaps Bill C-19 would take us close to the end.

Tomorrow we shall begin the third reading stage of Bill C-6, the Specific Claims Resolution Act, followed by Bill C-2, an act to establish a process for assessing the environmental and socio-economic effects of certain activities in Yukon.

Monday next, and Thursday as well, shall be allotted days.

Tuesday morning, we shall be resuming consideration of Bill C-13 on assisted reproduction. After oral question period, we shall begin consideration of Bill C-24 on political financing. Wednesday, we shall resume consideration of any unfinished business, with the possibility of continuing debate on Bill C-24.

Family MediationStatements by Members

February 6th, 2003 / 2 p.m.
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Liberal

Paul MacKlin Liberal Northumberland, ON

Mr. Speaker, I rise today in the House to express my support for the “Helping Families Succeed” initiative that has been launched by Family Mediation Canada, a national organization dedicating its efforts today to raising public awareness of the benefits of mediation.

Canadians have clearly signalled that families need services like mediation when parents separate or divorce.

While the amendments proposed in Bill C-22 are a very positive and timely step forward, changes to the law by themselves are not enough to improve the family justice system in Canada. Services are needed to ease the conflict and stress that come with separation and divorce and to help parents while they are making decisions about the care of their children.

Some parents need support to make decisions about their children's care. They need tools to help them minimize conflict, cooperate and work out child focused parenting arrangements. Alternative methods of resolving conflict, like mediation, can help Canadian families achieve these goals.

Divorce ActGovernment Orders

February 4th, 2003 / 5:15 p.m.
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NDP

Brian Masse NDP Windsor West, ON

An Alliance member is asking how that affects divorce? We are talking about creating a strong environment for family units. Members across the way addressed that as one of the major issues relating to breakups and divorce. I was addressing their comments as previously stated in the House.

Those are some of the things that could specifically happen in regard to creating a strong environment for family units. We know that the House has discussed the issue. However, it has not been acted upon and has not led to any action. This is one of the important factors that needs to be addressed.

Legislative changes are happening. I would like to point out that legislative changes are important. We cannot ignore the difficulty with legal aid and legislative changes. We know that women earn less and are less able to purchase effective legal services. Legal aid has been cut quite a bit in B.C. and Ontario is reinstating some of the legal aid cuts. However, legal aid has been a tool that has been reduced in this country.

We need to make sure that legal aid is available for people so that they are able to go through these processes, to make sure that they have strong opportunities to be able to put forth their cases for their actual situations.

Another issue with regard to legislative changes is that the terms of custody and access will be eliminated for the purposes of the act and the new model will be based upon a parental responsibilities framework. It is outlining more of the jurisdictional aspect over the framework. To some extent, I think that is actually good. It is jargon in the sense of the framework tool, but perhaps defining these things more will be very helpful and actually provide some framework and, more important, some obligated responsibilities.

However, like a lot of other issues, the courts cannot always legislate people to do things. We have to provide the proper environments and the proper tools for people to be effective, and that simply is not happening with the set-up we have right now.

In addition to changes to the Divorce Act, amendments will be made to the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act. They are important in consolidating some of the things we have out there. I have had a number of constituents call me with concerns in regard to being able to access the supports that were given to them through a legal process. Parents not having the ability to get those resources directly affects the child. That is one thing that needs to be addressed, as well as, potentially, the backlogs in the system so that people can actually get the resources that have been derived for them.

I would like to touch briefly as well on the fact that the bill still seems to isolate divorce as being a one-family situation. This does concern me. It is important to start to move toward understanding that it takes the whole community to raise a child, that it is the community's responsibility, not just that of the parents. The parents obviously are very important in this, but bringing children into the world and rearing them requires the support of the community. Just putting the fault on two people, on the fact that they could not get along, is not sufficient in the debate. There has to be a healthy environment and there have to be the tools necessary for them. As well, we have to provide the necessary supports for them.

We know that right now, regardless of who has custody, women have a greater challenge with single parenting. This is an important thing to recognize in single parenting. We know right now that households led by women earn less. We know that. It is an additional challenge that they are going to have to face and society has to have the supports there. We know right now that there is not access to day care. It is very important for single mothers to be able to access affordable day care that is going to be a nurturing environment for their sons or daughters.

There is a fundamental question. Whatever the family structure, a child's adjustment is associated with the quality of parenting and not the structure of the family itself. This is a fundamental question to debate. Once again it goes back to the fact that obviously the parents, in a strong environment, are going to be a great asset, but when that situation does not happen we have to ensure that the proper supports are there.

I believe the government can do that by moving to more comprehensive strategies to eliminate child poverty. That is going to ensure that at the end of the day the children who have to go through the system are going to have the supports there. It will not be whether or not someone is going to pay up somewhere down the line or whether someone is going to show up for the child. There must be proper supports for them. That is going to be very important in the future.

In summary, I will conclude my remarks by saying that it has taken a long time for the government to address the situation of child poverty. Our issue with regard to Bill C-22 is going to be the struggle on how it is going to relate to being able to advance the beneficial elements for children. The struggle will be whether or not it is going to be part of a process to eliminate child poverty or part of a process that is going to further create that problem. I think that is a loss for the country.

Divorce ActGovernment Orders

February 4th, 2003 / 5:10 p.m.
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NDP

Brian Masse NDP Windsor West, ON

Madam Speaker, I welcome the opportunity to talk about this important bill. Bill C-22 will have important ramifications on the social fabric of Canadian life. It is a good thing that at least we are talking about it. We will go to committee next and that will open up some more discussion, more debate, and potentially bring some improvements. However, the jury is out on that right now and we will see what will happen.

I would like to address a couple of comments that were made by the government side this afternoon with regard to its role, its involvement, and its thoughts on Bill C-22 and what to do next.

The first deals with comments made with regard to prevention. The words that were chosen related to the first person to dare to take this way to talk about the actual prevention aspect of divorce, and front end was also used with regard to that. This is a bigger issue with regard to the family unit and it also touches the front end. However, the government has done a horrible job at keeping families together. It has done a horrible job of ensuring that people have the opportunities to succeed, not only in the family unit but also in the economy.

One of the examples the member mentioned, and I agree it is an improvement, is employment insurance. It enables women on maternity leave to stay at home longer and spend a longer period of time with their infant. As well, there are expansions to parental leave. I think these are improvements, but it goes without saying that the government has robbed workers and employers of these funds for years.

It has taken credit for balancing the budget and deficit cutting off the backs of those very people. It has been very proud in talking about that aspect and at the same time it is offering a crumb back to the people. It is important to note the importance of a strong family unit.

Another issue is day care. Why not universal day care? Absolutely. Where has the government been on day care? We know that most women right now cannot access day care that has a format and actual standards. There are lots of issues with day care.

I recently went through that issue. I have been very fortunate. There is someone who is providing care for my young daughter. We lucked out. There are settings out there that are very difficult to get into. Parents are scrambling around at the last moment and there is a lot of pressure on them, and women in particular, because they must balance the child and the workforce. That gets even more problematic. It is important to recognize that the government has not taken the lead with that.

With regard to the new family unit, there is student debt. I have spoken about this and want to highlight it a bit as well. We are talking about younger families getting involved with procreation and creating the opportunity to start a family. They are doing so over a longer period of time now, from the time they finish their education to the time they enter the workforce. Their undergraduate degrees take them to a certain point in time with a certain amount of debt. Then from that, a graduate degree is often required now.

People are finishing an undergraduate degree, which one almost needs for a minimum wage paying job right now. One needs an undergraduate degree for just about everything now. Then they have that debt that they have to pay back. They are already in their young twenties. From that they go on to a potential graduate degree and from that go into the workforce.

The opportunity for a young couple to start a family is delayed or challenged even further. That is an important thing to recognize because the debt that is incurred, the instability of the workforce, and getting a meaningful job that has benefits to support a family, is becoming increasingly harder in our country. It is becoming more difficult. That is setting people up for difficult problems.

By the government's own admission, it has identified economics as a major factor in the breakup of the family. A number of different colleagues across the way have identified that as an important issue. Therefore, when we are increasing the student debt on students and delaying their families, delaying the years they are able to create and plan out their full lives, we are setting them up to certain conditions which are very difficult.

There was also reference to reuniting families. Specifically, the member was talking about new immigrants. I agree with the member that it is a very important issue. I can tell members from my past experience working with new Canadians that the head tax is a welcome to Canada debt that they have to pay. When they add up their family members they are in debt. We have set them back. They have to find employment, training, understand the community they are living in, and they often have language barriers. All of these circumstances make it difficult for people to move and be able to create a strong family and future.

I think it is in the interests of Canadians to ensure that they thrive during these difficult times, that they prosper and are able to plan. We look at their contributions across the country and it is one of the major reasons why Canada has become such a great country. However, we are delaying and creating problems whereas we could be supporting the family unit a lot better.

Another regressive issue that we have is the GST and how it is applied on all the different things that relate to families. The GST is a regressive tax. I know the government wanted to get rid of the GST. We are still waiting. Nevertheless, regressive tax measures such as the GST are not good and not positive for family units.

I will touch on Bill C-22 and the legislation, as well as some of the other factors that can be improved and need to be addressed. An objective that was identified in the throne speech was modernizing the family justice system. The first objective was to minimize the potential negative impact of separation and divorce on children. Second, to provide parents with the tools they need to reach parenting arrangements that are in a child's best interests. Third, to ensure that the legal process is less adversarial and that only the most difficult cases go to court.

Those were the three pillars. I think there should have been a fourth pillar relating to family justice. Family justice is about poverty, education, social involvement, and ensuring that we are supportive as a government to the family unit.

The government has a responsibility with regard to affordable housing and low income wages. The government must address the fact that Canada's minimum wage is ranked quite low and needs to be improved.

The government is still debating health care. I know the Prime Minister is meeting with the premiers right now. However, he will not attend a meeting including first nations and this is problematic. The reality is that health care is another strong pillar. I know that families have difficulties with regard to affordable prescription drugs and that too is an important aspect when raising a family.

I will now move to the actual bill itself and the services for families. The minister stated:

Services are needed to ease the conflict and stress that come with separation and divorce and help parents while they are making decisions about the care of their children. The Government of Canada will devote $63 million in new funding over five years to the provinces and territories for family justice services.

We have heard a lot about that before. I would like to see the promise fulfilled. However, there are other issues the government could be working on that would address that and one of them is taking care of the affordable housing issue in our country.

Right now we have the opportunity to create sustainable homes and environments that are positive for people that would have a long-lasting benefit to the family unit.

One of the things that campaign 2000 outlined was the creation of affordable homes. It advocated 20,000 new affordable home units each year for 10 years and the rehabilitation of 10,000 affordable units per year, requiring an investment of at least $1 billion per year over the next five years.

Divorce ActGovernment Orders

February 4th, 2003 / 5 p.m.
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Canadian Alliance

Jay Hill Canadian Alliance Prince George—Peace River, BC

Madam Speaker, I listened with great interest to my hon. colleague's speech. He brought up many important and relevant points about the need to change the adversarial system.

The one thing I found of great interest in the debate today is that almost every speaker has talked about the best interests of the child and the children. I take that at face value. I believe that every member, regardless of political affiliation, whether they sit on the government benches or those of any one of the four opposition parties, are very sincere when they say that they want to see change that is in the best interests of our children.

I do not see how that can happen and how there can be a substantive shift in the way in which courts treat those disputes between parents, which are a minority, that end up in court. We can only wish that all the parents would join the majority and settle their issues, especially where it concerns the children, before they go before the court to battle over the children. As many speakers today have pointed out, they end up using children in many cases as pawns in this tug of war between the mother and the father.

We hear that everybody wants to keep the best interests of the children close at heart, but I do not see it in Bill C-22. As I have said repeatedly today, the minister and the Department of Justice have missed the fundamental building block of the report “For the Sake of the Children”. The report calls for a dynamic shift from the focus being on parents, whether it is the mother versus father rights to see their children or someone wronged someone or someone is a better parent, to the focus being on shared parenting. We need to recognize that both parents, both mother and father, not only have rights to see their children and to participate in parenting their children, but they have obligations to their children. When I heard the minister this morning say that he chose not to put into Bill C-22 the term “shared parenting” because he thought it would be too confusing, I knew the battle had been lost.

I will try again to bring forward amendments at committee stage to get that inserted into the legislation. Without it I fear we will not see any shift in the thinking and in the way in which courts rule on these cases where they pit one parent against another, or they reinforce a parent being against another, or they exclude grandparents or siblings. There are all too many cases. Every MP, regardless of political stripe, has people coming into their constituency offices, if not every day, I am sure every week, with tales of horror of how lawyers, judges and the justice system have wronged them in this important and critical area of parenting.

Could my colleague comment on this? How will we ever send the message to the courts that it is not acceptable to try to view the mother or the father as a better parent? No matter what we call it, it is still custody and access. We can change the wording, but it is still the same. Unless there are proven cases of abuse or neglect, which are few and far between, in the vast majority of cases parents should have equal rights, responsibilities and obligations. The only way to do that is by enacting shared parenting.

Divorce ActGovernment Orders

February 4th, 2003 / 4:45 p.m.
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Canadian Alliance

Jay Hill Canadian Alliance Prince George—Peace River, BC

Mr. Speaker, I have a revelation for the hon. member across the way. The reason that both the mother and father in most Canadian families are forced to work outside the home today is because his government continues to put taxes up to a level where families cannot make it on one income. The government is taking away the choice for Canadians so they are forced out of their homes. We support mothers who want to work outside the home but they should not be forced to do so because of excessive high taxation, and that is what is happening.

I question whether the hon. member has even read Bill C-22. Hansard will show that at the end of his comments he made reference to grandparents. Grandparents are mentioned in the bill but not sufficiently enough, and I will be the first to agree with that. However they are mentioned under the criteria in clause 16.2. As one of the criteria for deciding access and custody and parenting, judges should consider:

the nature, strength and stability of the relationship between the child and each sibling, grandparent and any other significant person in the child's life.

I wanted to enlighten the member about that because he mentioned it at the end of his speech.

When the Canadian Alliance brings forward a motion amending the bill to ensure that grandparents do not have to apply to the courts and throw themselves on its mercy to get access to their grandchildren, will he support that amendment? I assume he will.

Divorce ActGovernment Orders

February 4th, 2003 / 4:25 p.m.
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Canadian Alliance

Jay Hill Canadian Alliance Prince George—Peace River, BC

Mr. Speaker, I listened attentively to my hon. colleague's comments about Bill C-22. I note that one thing we share as well as being Canadian Alliance MPs is that we both have been divorced. I do not take any pride in saying that and I am sure she does not as well, but we are both lucky in that our ex-partners believe that both mothers and fathers deserve an ongoing, loving relationship with their children. Thank goodness for that. Unfortunately, many others are not that fortunate, as we have noted during this debate.

I note as well that the member has hit on what is really the greatest deficiency in Bill C-22, which is that the government failed to enact the very basic fundamental principle of the report “For the Sake of the Children”. It was all enshrined around the concept of shared parenting: that both parents were equal, that if both parents were deemed good parents before the marriage ended then we must presume they would be good parents, given the opportunity, after the marriage ended and they were divorced.

Without this, how does my colleague believe that we can really send the message that we must send to the courts and to the judges, the message that shared parenting, except in proven cases of abuse or neglect, should become the norm? It should be automatic that the courts in their rulings, if the parents cannot come to an amicable decision whereby they both have an equal share in their parenting chores, must assume that. I wonder about that.

Divorce ActGovernment Orders

February 4th, 2003 / 4:05 p.m.
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Canadian Alliance

Val Meredith Canadian Alliance South Surrey—White Rock—Langley, BC

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-22, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other acts in consequence. The amendments pertain to child custody arrangements between parents following separation or divorce and are to provide a greater emphasis on parental responsibilities versus parental rights.

I do not think there is anybody who has found themselves in a situation with regard to divorce who does not feel that there is a need for major change in this legislation.

In the year 2000 there were 70,000 divorces in Canada. Although people would say that yes, in a perfect world everybody finds the right partner and ends up married for life, reality says something completely different. I know I join the ranks of one of the divorced persons in the House. I know for a fact that I am not alone. There are many of us.

It is not because the two players in the marriage did not try. It is not because we did not feel that when we made a commitment that it was for life. It is just the reality of the situation of what happened in the period of time we were married that a decision came that, for the sake of the children and each other, it was better to go separate ways.

That kind of decision is made daily by Canadians. It is nice to believe that when this decision is made, the parties coming to that kind of arrangement or agreement always put children first. However I know, not from my own experience but from others whom I have had come into my office, that is not always the case.

Unfortunately in our legal system, our legislation, the acts that pertain to divorce and the courts themselves have not encouraged a more amenable separation of a relationship, of assets and of child custody. Our courts have for whatever reasons increased the adversarial nature of marriage breakdown.

Over the almost 10 years that I have represented my constituents in the House, the saddest tales are those of individuals who find themselves at loggerheads because of the court system, with either an inability to use the courts because they cannot afford the process or an inability to get court orders enforced because nobody really cares and considers it to be civil.

What I perceive as a female is the biases of the courts toward females in any kind of child custody decisions and biases of the courts toward females against the males in a lot of situations that come out of a breakdown of a marriage. Although I have seen how it has happened, I do not think it is right. There has to be a complete overhaul of how our court system deals with the breakdown of marriage and all that occurs from that point forward.

To be quite honest, I do not think a band-aid solution, as I see in this bill, will really help. There is a lot more to it than the bill addresses.

Until we change the whole attitude of our court system when dealing with these kinds of family matters and until there is a change in the attitude of the judiciary which presides over these decisions, I do not think the minor changes or these band-aid solutions before us really will help.

There has to be a major overhaul and the primary focus of any legislation dealing with the breakdown of a marriage, the breakdown of a family unit, has to put the interest of the children before all else. They have to come to grips with the reality that a child needs not one parent, but two.

I go back to my earlier adult years when I lived in a community that had a lot of contact with aboriginal communities. At the time my husband of the day was a social worker. They would go into aboriginal communities and remove these kids because from the outsider's perspective the kids were in peril. From an outsider's perspective, the community was not looking after these children.

I remember one case when a well-meaning social worker went in with a school bus, after the payment for the firefighting was received and the party was going full blow, and picked up all the kids and took them out of the community because the kids needed protection.

What she did not understand was the community, knowing that this was going to happen, had its own resources. While it was not the parents looking after the children, they had the grandmothers, aunts and uncles looking after them. It was a lack of understanding in that the kids were far better off being dealt with in a different way. The kids were removed from what they knew and from what they were secure. They were put in a strange environment, a process that terrified them. One could even probably question whether they ever overcame the harm that was done to them.

Although we seem to be well-meaning and it seems to be logical thing to do at the time, there are many times when decisions are made because the interests of the children are not put first. It is the conscience of the adult, or the conflict of the adult, or who can afford the best lawyer or who can stay the fight longer than the other person. It is not what is best for the children.

I know from my own experience that the relationship between children and their father is equally important in the long run as it is with the mother, and I say that as a mother of four boys. I know that I have a special relationship with my boys that they do not have with their father. I also know that for their complete development, they have to have a relationship with their father. Whether it is a strong and prideful relationship or whether it is a different kind of relationship, that relationship is fundamental to who they are as an adult.

Any time the courts feel that they are in a position to choose one or the other, they are ultimately denying that child the ability to have a relationship with both parents, and that is fundamentally what the bill fails to do. It fails to recognize that for the well-being of children, they must have that relationship. It may be a relationship based on anger or disappointment but they need to have some relationship with both parents.

Without that lack of appreciation by our courts, courts pick sides and winners which is wrong. I appreciate there is sometimes abuse by a parent but our courts for the past number of years have accepted testimony, particularly from mothers, that the abuse is one-sided.

I know that the abuse can also be from mothers. I think there have been some instances where we have infanticide and other convicted felons, if we can call them that, of mothers who have abused their children. However for a long period of time courts automatically assumed that if the mother came in and said that the father was either sexually or physically abusing that child, they would take her word for it.

I have a situation where a father has not only made that complaint in the courts but he has substantiated it with professional psychologists, psychiatrists, others in the medical community and God knows who else who have dealt with the children. He has not only been denied access to the children but they have been left in a perilous situation with the mother simply because the courts have assumed the mother is the best caregiver.

I would not for a moment say that the mother is not important in the raising of a child. There is a special relationship between a mother and a child. Sometimes the kids may not realize it, but it is there. A mother, for the most part but not always, is the one who is most likely to give unconditional love, who is quite easily, because of her compassionate nature, and I am not saying that men are not compassionate, more willing to perhaps look beyond the slight and feel the pain, but not always. It is equally important that a child who might use the mother for the compassion, softness, forgiveness, and the warm and fuzzy stuff would have access to a father who will say to the son or daughter, “You should have known better and you could have done better”, and bring in a different approach to parenting.

Any time children are denied that parenting perspective, they are being denied part of who they are. I would suggest that there comes a time when children are old enough and mature enough to decide what kind of relationship they want with their parents. It may be a more hands-off relationship or it may be a much closer relationship, but unless they have been allowed over a period of time to continue a relationship, they are not going to be in a position to make those kinds of decisions when they are a little more mature.

I want to reinforce the seriousness of the government ignoring a report that put children first and said that one of the most important things for children to have is equal parenting, and that when a divorce happens, unless there is proof beyond proof that there is physical or emotional abuse that is not healthy for the child, there should be dual parenting.

I want to go back to this report. The government in plural, because it was a joint Senate-Commons committee, sat for a couple of years, I think, well beyond a year. It heard testimony after testimony and came up with what I thought was a very sensible report. It certainly was not a small report. I remember trying to find the recommendations. It was a very large report, with 48 recommendations of what the committee saw that needed to happen in order to put children first and to make sure that children did not become victims of a divorce. It is amazing to me that the government can for the most part completely ignore the work of that joint Senate-Commons committee, because it went through the effort that I have not seen the ministry go through, quite frankly, in order to properly understand what needs to happen.

It is one of these things whereby the government puts a lot of money into having committees set up to investigate, hear testimony and make recommendations, and then we completely put it aside. Again as a female person, I would suggest it is largely because of the lobby of the women's groups. The women's groups were quite concerned with the direction that this report was going to take. I remember one occasion when women's groups were not going to even show up at a hearing because a men's representative group was going to be there at the same time and they would not be seen in the same room. That is precisely what we need to get away from.

There is nothing that distresses me more than a guy coming into my office and telling me that he has court access to his children, that he moved from Ontario to British Columbia so that he could be close enough to see his kids, that he gave up a very well paying job in the aerospace industry in order to be close to his kids and see them, and that his ex-wife will not allow him to see his kids. A man gives up his career and moves 2,000 miles away so that he can have a relationship with his children and some female person puts a blight on all of us by refusing him access to his children.

If it were only one case, perhaps I could say that it is only one case, but I hear this over and over again. Not only do I hear it from people coming into my office, I hear it from friends and family members. The anger against the ex-spouse is so strong that it overrides any thought of what is best for the children. Whether it is a man or a female who does it, I do not care; it is wrong. The anger between two individuals about the breakup of a family, a fight over assets, or a fight over who got more out of the marriage should never come down to fighting over the kids.

That we would allow, through legislation before the House or through our court system, adults to make kids victims through a legal proceeding is shameful. We as legislators need to address the reality that one-third of marriages end up in divorce. That will not change. It would be nice if it did. It would be nice if everybody could live happily ever after, but it is not reality. We continue to allow the courts to follow through and allow our children to become victimized. Are we paying a price for it? Yes, we are. Is it because of divorce? No, not really. We allow the divorce proceeding to victimize the kids. We allow a judge to select a winner and to pick a loser. We allow our court system to allow an adversarial situation in which adults fight with each other and the kids get ripped apart as a result. We allow that.

We are allowing it again with this legislation, because we are not dealing with the fact that in a divorce proceeding the children should be granted equal parenting. The children should be granted that, not the father or the mother, but the kids. The kids should be allowed from the very beginning to have free access to both parents, and then it needs to be supported by the community and by the establishment. If any parents take it upon themselves to use their child as a pawn, to use their child to get even, to use their child to get back at or send a message to their ex-spouse, they should be punished for doing that. I do not care if it is a female or a male. Any adult who uses a child to attack another adult does not deserve to be a parent, because a parent who is legitimately concerned about a child and the child's development and wants to ensure that the child does not end up with problems as an adult would not want to use that child as a tool or a vehicle for attacking another individual.

I do not know how much time I have left, but I have made it pretty clear what I think of the government's legislation. It has missed the essence of what needs to be done, which is to put our children first, to protect our children's right to have both a mother and a father involved in their raising. Let the child decide what kind of relationship that will be. We should not let the courts or the angry parent decide that. Let the children decide whether they will have a close warm relationship with both parents or whether one parent will end up with a more distant relationship. Let the children decide that. They are capable of it. It is up to us to make sure that they get the opportunity to grow up knowing both parents.

Divorce ActGovernment Orders

February 4th, 2003 / 3:55 p.m.
See context

Canadian Alliance

Jay Hill Canadian Alliance Prince George—Peace River, BC

Mr. Speaker, I will endeavour to be brief because I see that some of my colleagues would also like to ask the minister questions.

I appreciate her comments and listened very intently. I do not think anyone could doubt the minister's sincerity in what she was saying. I am a bit disappointed that she limited her comments to the enforcement aspects of Bill C-22, because of course there is so much more to the legislation.

Enforcement is important and I do not think anybody questions that parents who do not live up to their obligations when it comes to financial support for their children should be held accountable, but it is a very small minority of cases where it actually has to go to garnishment in order to collect the money. Research I have done over the years since I have been a member of Parliament indicates that because of Canada's adversarial justice system, unfortunately in some cases non-custodial parents, primarily fathers, feel that they have no other choice but to hold back money because they do not have access to their children. That is why our party, the Canadian Alliance, is such a strong supporter of the joint committee's report “For the Sake of the Children”.

Would the minister agree with what my research has shown, that increased access results in increased compliance of support and therefore would detract from the need for greater enforcement?

Divorce ActGovernment Orders

February 4th, 2003 / 3:40 p.m.
See context

Etobicoke—Lakeshore Ontario

Liberal

Jean Augustine LiberalSecretary of State (Multiculturalism) (Status of Women)

Mr. Speaker, I am very pleased to join with my colleagues here in the House to address Bill C-22 at this stage. The bill proposes to modernize the family justice system in Canada by promoting a less adversarial system that will benefit children, their families and ultimately Canadian society.

I want to focus my remarks on the issue of enforcement because the bill also would improve support enforcement and enhance and strengthen existing provincial and territorial support enforcement programs.

These improvements are being proposed through Bill C-22 by amending the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act.

As I know we are all very interested in ensuring that we work in the best interests of our children, I will speak about the Family Orders and Agreements Enforcement Assistance Act. This is a federal statute enacted in 1986 and it is divided into three parts. The first part speaks about the release of information that may assist in locating persons in default of a family provision. The second part speaks to the garnishment of specified federal money to assist support provisions. The third part of the act refers to the denial of certain federally issued licences, including passports to those persons in persistent arrears under a support provision.

The federal government provides locating information for 14,000 requests from provincial and territorial enforcement services annually. That is a good deal of requests. In the last three years between $80 million to $90 million has been collected annually through federal garnishment services.

Several changes are being proposed to the Family Orders and Agreements Enforcement Assistance Act. The processing of electronically transmitted applications for tracing information by the provincial enforcement services will be improved by the removal of the requirement to file an affidavit in support of that application. This requirement is not needed because it is already a condition set out in the agreements entered into between the provinces, the territories and the federal government under section 3 of the Family Orders and Agreements Enforcement Assistance Act.

Additionally, the binding period of a garnishee summons is extended from five to twelve years. Recent analysis shows that 75% of garnishees that reach the five year maximum are renewed. This amendment in Bill C-22 reflects the upper range of the life of a family support obligation and will better support efficiencies in program operation.

A major amendment proposed to the Family Orders and Agreements Enforcement Assistance Act is the creation of a mechanism whereby the Minister of National Revenue may demand that a debtor who is subject to this act file a tax return.

The Family Orders and Agreements Enforcement Assistance Act provides tracing and interception services. The Canada Customs and Revenue Agency, along with Human Resources Development Canada and other federal departments and agencies, is an important partner in the delivery of these two services. Currently, Canada Customs and Revenue Agency will, at the request of the Department of Justice, search its files for address information to assist in the tracing of support debtors.

It is important that the partnership between Canada Customs and Revenue Agency and Human Resource Development Canada and other federal departments and agencies be really affirmed. This would help departments to search files to determine whether a support debtor has a tax refund that can be garnished. The effectiveness of this would be significantly reduced when a support debtor does not file a tax return.

The creation of a mechanism whereby the Minister of National Revenue could demand that a debtor who is subject to this act file a tax return would improve the effectiveness of the tracing process and would further confirm our commitment to ensuring that children continue to benefit from the financial support of both their parents after separation or divorce.

Let us keep in mind that everything we do, and the direction of this bill, is in the best interests of the children.

The CCRA and the Department of Justice would closely monitor the operation of this amendment.

Bill C-22 proposes amendments to the Garnishment, Attachment and Pension Diversion Act. That is a federal statute enacted in the early eighties to provide for the garnishment of federal salaries and other moneys. It consists of two main parts: garnishment procedures to satisfy the payments of judgments and orders, including those for family support; and the diversion of pension benefits to help satisfy financial support orders.

In addition to a number of minor technical amendments Bill C-22 proposes amendments that would provide the federal government the option of paying the garnisheed funds to a provincial enforcement service where this is allowed by provincial law, because it is not allowed in every provincial area. It would introduce in part I of the act the notion of recovery of overpayment, and that is already in one of the sections of the act, but the amendment would reflect current practice as well as provide greater uniformity within the act. It would allow for the diversion of more than 50% of a net pension benefit where there were no provincial limits to satisfy arrears, arrears that could be set out in an order or decision. This would provide greater clarity concerning the interpretation of the section as well as ensure its uniform application. We are again working in the best interests of the children.

Lastly, this section speaks about providing legislative authority to make regulations, to amend schedules, and thus ensure greater flexibility and ability to reflect changes to pension legislation that is in the schedule. We were looking for greater transparency. We hope this would be achieved in federal enforcement legislation by including specific provisions concerning the research and monitoring functions.

These functions would help us to determine if policy objectives are being met. This is legislation that speaks to policy, policy change and decision. We must see the bill as providing us with a kind of direction which is backed by the necessary research so that we do the best we can, and again in the best interests of children.

Provision has been made to ensure privacy by setting strict limitations as to whom disclosure of the monitoring and research information can be released. I am sure we are in a period of time where privacy is very important, where information cannot be provided indiscriminately to everyone who asks, so there is cognizance in the bill to ensure that measure of privacy.

There is a major amendment that is being proposed to the Garnishment Attachment and Pension Diversion Act. We are talking about the creation of a priority for family support obligations over other judgment debt, thereby acknowledging the pre-eminence of family support obligations over other debts. In other words, the family comes first, before other debts are looked at.

Both judgment debt creditors and family support obligation creditors may apply under the act. There is currently no section in the act that addresses the situation where a debtor has both support and judgment debts.

Five years ago Canada's governments launched the national children's agenda, engaging Canadians in every part of the country on how to ensure that all Canadian children have a good start in life and that families with children have the tools they need to provide care and nurturing.

We made a presentation at the United Nations regarding the elimination of discrimination against women. We were asked questions about families in our country, the situation of our children, and the issue of child poverty. What we do in all the pieces of legislation that we put forward, especially in this area, is keep the interests of the family and children at the top of the list.

In the Speech from the Throne of January 30, 2001, the government identified as one of its top priorities that no Canadian child should suffer the debilitating effects of poverty. We have been working in this area with programs and policies. We have been looking at all of the possibilities that are before us as policy makers and government to meet the issue of the effects of poverty on our children. Creating a priority in favour of family support obligations over other debts would support this goal. Putting the family first, putting debt toward the family and support obligations before all other debts, must be pre-eminent and supported in this legislation.

Bill C-22 forms part of the government's stated goal to reduce child poverty and reform the family justice system.

Much has been debated and I think all members on every side of the House would agree that we must ensure that the quality of life for families and children is really at the base and the root of everything we say and do in the House.

I applaud all members who have participated in the discussion. I look forward to the work in committee as we ensure that whatever we do as legislators and policy makers will ensure that in supporting Bill C-22, in whatever necessary changes or however the discussion goes, that we come back with something where we keep in mind the best interests of our children.

We want the justice system to work for all of us and in such a way that it will ameliorate and lessen the issue of conflict that arises and brings to some of our families the kinds of distress that faces them on a daily basis today.

This is legislation, not only for today, but for tomorrow. This is legislation that will improve our community and improve relationships. This is legislation that is trend-setting because there are many jurisdictions that are looking at us as federal legislators for the guidance and the policy route that we must take in the best interests of our children.