Bill C-41 (Historical)

Amendments and Corrections Act, 2003

An Act to amend certain Acts

International Transfer of Offenders Act

[Wayne Easter, Liberal, Solicitor General of Canada]

moved that Bill C-33, An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, be read the second time and referred to a committee.

Mr. Speaker,I rise today to speak at second reading of Bill C-33, the international transfer of offenders act. I am proud to sponsor the bill for a number of reasons, in particular because of the public safety and humanitarian objectives that the bill will further.

The current Transfer of Offenders Act came into force in 1978 following a United Nations meeting where member states agreed that international transfers were desirable because of increasingly greater mobility and the need for countries to cooperate on criminal justice matters.

The Transfer of Offenders Act authorizes the implementation of treaties between Canada and other countries, including multilateral conventions for international transfer of offenders. The Transfer of Offenders Act and the treaties serve essentially a humanitarian purpose. This is important. Imagine for a moment that a citizen of Canada is incarcerated in a country whose language and culture is foreign to him or her. Add to this an unfamiliar environment, a lack of contact with family and friends, food that is incompatible with the person's dietary requirements, unsatisfactory health and sanitary conditions and/or difficult conditions of incarceration.

It goes without saying that these factors increase the pains of imprisonment for offenders, and the hardships they face often translate into hardships for their families at home.

But there are other reasons for the legislation. The Transfer of Offenders Act serves an important public protection purpose. Offenders incarcerated in foreign states may be deprived of the opportunity to rehabilitate themselves in the absence of treatment programs in those countries, in the absence of a structured parole system, and in the absence of direct contact with family and friends in their home community. As a result, the chances of long term reintegration of these offenders, and ultimately of better public safety, are greatly reduced. This holds true even when offenders are incarcerated in a country with social standards and customs relatively similar to Canada's.

The Transfer of Offenders Act ensures that the offender does not escape justice. There is no free ride. When Canadian offenders are transferred to Canada to serve the remainder of the foreign sentence until warrant expiry, they arrive here under the supervision of the Correctional Service of Canada or of provincial correctional authorities who oversee their gradual and controlled reintegration into society. I think we can all agree that this is far better than simply deporting offenders back to Canada at the end of their sentence without any controls or supervision.

There is no doubt that most states wish to cooperate with one another on matters of criminal justice. All states attempt to deter prohibited conduct through the enforcement of criminal laws and penalties. Modern technology and global travel have led to increased opportunities for the commission of crimes in countries other than one's own. Therefore, states have a common interest in cooperating to prevent and respond to criminal conduct. This actually protects the sovereignty of states by preventing offenders from escaping justice, and this is exactly what the transfer of offenders scheme allows states to do.

Every year, about 85 Canadians are transferred to Canada under a treaty or a multilateral convention for the transfer of offenders. Since 1978, only technical amendments have been made to the Transfer of Offenders Act. Since then, more substantive issues have been identified. Policy issues relating to international transfers have expanded due to Canada's greater experience with treaties and legislative amendments brought about by the Corrections and Conditional Release Act in 1992, Bill C-41 on sentencing in 1995, and Bill C-45 on sentence calculation reform in 1996.

As a result, my department consulted with 91 private sector and government agencies and then conducted a comprehensive review of the Transfer of Offenders Act. This resulted in proposals to amend the legislation that would reflect traditional international treaty principles, close identified gaps, ensure consistency with other legislative provisions, and improve efficiencies.

In recent years, statements of purpose and principles have been added to federal legislation for several reasons: to provide a clear indication of the intent of the legislation; to ensure parliamentary endorsement of the approach and policy behind legislation; and to aid in the interpretation of provisions.

Bill C-33 would do exactly that. It would specify that the purpose of the new international Transfer of Offenders Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling them to serve their sentences in the country of which they are citizens or nationals.

Over the years, Canada has promoted key principles to guide international transfers of offenders, and in particular, the notion of the offender's voluntary consent to the transfer. This notion is based on the traditional humanitarian objectives of treaties. The prospects for an offender's successful institutional adjustment, rehabilitation, and community reintegration would likely be compromised if an offender were forced to transfer against his or her will. Foreign states may also be less inclined to approve a transfer on humanitarian grounds if the offender has not willingly consented. This is why Bill C-33 would reflect this important principle.

The bill also contains the important principle that offenders are to be informed in advance of the terms and manner in which their sentences will be completed in Canada. It would also require that a foreign offender requesting a transfer to his or her home country be provided with information from that foreign state about how the sentence is to be served in that state. This would ensure that the offender's consent to the transfer is truly informed.

The current Transfer of Offenders Act makes provisions for the transfer to Canada of young offenders committed to custody, but not for young offenders on probation. This is inconsistent with the provisions which allow for the transfer of adult offenders both on probation and in custody. Bill C-33 would close this gap by providing for the transfer of young offenders on probation in the new act. Moreover, there is no provision in the current act that allows for the transfer of Canadian children. Bill C-33 would close that gap as well by providing for the transfer to Canada of children less than 12 years of age. The bill also specifies that children transferred to Canada would not be detained by reason of the foreign sentence. They would be dealt with in accordance with the law of the receiving province or territory. By widening the net, so to speak, the bill would further the humanitarian objective of the act.

The current act provides that Canada may enter into a treaty, international agreement, arrangement or convention only with recognized foreign states. The dissolution of the U.S.S.R. and Yugoslavia highlights the problem of dealing with territories or jurisdictions not yet recognized as foreign states. Several years may pass before the jurisdictions are formally recognized as foreign states. In the meantime, Canada cannot enter into a treaty with them. Canadians incarcerated in these jurisdictions and offenders from these foreign entities do not have access to the international transfer process. There may also be instances where a treaty does not exist between Canada and a foreign state or where one has been negotiated but ratification is still years away.

However there are compelling reasons to return an offender to the home country such as harsh conditions of detention. Moreover, some foreign states may be less inclined to consider a formal arrangement with Canada but willing to negotiate less formal arrangements for the transfer of offenders on a case by case basis.

To provide access to international transfers in such circumstances, Bill C-33 would authorize the negotiation of administrative arrangements with a foreign state or a non-state entity. This would make the legislation more responsive to international developments. It would also allow Canada to bring its citizens home but always under the supervision of Canadian correctional authorities to oversee the offenders' gradual and safe reintegration.

The development of transfer agreements is beneficial to most offenders. To date, a limited number of states are bound by treaties and conventions on the transfer of offenders but the numbers are increasing and this is highly desirable. The main drive toward the international transfers of offenders is humanitarian. Serving a sentence in a foreign state increases its severity. An offender in this situation is likely deprived of contact with family and of the opportunity to reintegrate into society. This is not in the interests of the offender, the family or indeed the community.

Enforcement of a foreign sentence by the receiving state benefits the offender and both states involved. Objections to the effect that the enforcement of foreign sentences will infringe Canada's national integrity or that the foreign sentence will be improperly enforced in Canada are unfounded. These objections are fuelled by fear of the unknown rather than by informed policy reasons. The government and hon. members of the House should not allow such objections to stand in the way of the humanitarian effort that underlines Bill C-33.

Canada's Transfer of Offenders Act and associated treaties and conventions has been successful in achieving their goal and continue to be a permanent feature of the international relations between our country and many others. The progress made in this area is considerable. Since 1978, approximately 1,000 Canadians have been brought to Canada and more than 100 foreign offenders have been returned to their country of citizenship. The numbers are not large but that is because the notion of transfer of offenders is still relatively new and much is still being learned.

Let me say in closing that there is a clear need for legislative flexibility in Canada to further the humanitarian objective of transfers. There is a clear need for international cooperation in matters of criminal justice and there is a clear need for public protection with the safe and gradual reintegration of offenders into society.

Bill C-33 would respond to those needs by incorporating traditional international treaty principles, closing identified gaps and ensuring consistency with other legislative provisions. Bill C-33 would further contribute to these objectives by expanding the class of offenders who may be transferred and of jurisdictions with which Canada could enter into transfer arrangements.

For all these reasons, I urge the hon. members of the House to support Bill C-33 and see it through to completion.

Automotive Pollution Reduction Act

[Carole-Marie Allard, Liberal, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, I thank the member for Saskatoon—Humboldt for the opportunity to answer his question.

The government is a strong supporter of equality and fairness for all Canadians. For the first time, Parliament set out the purpose and principles of sentencing in 1996.

One of the new principles found in section 718.2(e) of the Criminal Code is that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders.

The need to consider restraint has been given increased importance as a result of Canada's high rate of incarceration when compared with many other industrialized nations and especially among aboriginal Canadians.

While codified for the first time in Bill C-41 in 1996, the idea of encouraging restraint in the use of incarceration is not new. A white paper was published under the authority of the Minister of Justice in 1982. It stated that restraint in the use of imprisonment have been endorsed by numerous other commissions and in various law reform reports.

There is a longstanding concern by this government and the Parliament of Canada with the overrepresentation of aboriginal people in the criminal justice system who are overrepresented in virtually all aspects, not just with respect to crime rates. Rates of offending, charging, incarceration and victimization are higher for them than for the non-aboriginal population. However the causes of this overrepresentation involve complex social and economic factors of poverty, addictions and disadvantage. They are also historical and not easily dealt with.

The purpose of including a specific reference to aboriginal offenders in the Criminal Code, 1996 and more recently in the Youth Criminal Justice Act, 2002 was to signal Parliament's concern over the especially high aboriginal incarceration rate and the socio-economic factors that contribute to this. It was to require sentencing judges to be sensitive to these matters. It was also for judges to consider the appropriate use of alternative sentencing processes including restorative, culturally sensitive approaches such as sentencing circles, healing circles and victim-offenders mediation.

In the process leading up to the passage of the Youth Criminal Justice Act in February 2002, Parliament carefully considered and agreed that young persons should have the benefit of subsection 718.2(e) of the Criminal Code that applies to aboriginal adults. The Senate refused to pass the Youth Criminal Justice Act without a similar provision for aboriginal young persons. The Minister of Justice agreed with the amendment.

After debate in the House, the Youth Criminal Justice Act, including the amendment, was passed. It should be noted that these provisions do not necessarily mean lighter sentencing. Sometimes being dealt with by a restorative justice program may even be more difficult, not just for the offender but also for the victim, family members and other community members.

The government is also focusing on programs that address the whole continuum of crime and aboriginal peoples so that long term changes will result, for example, funding of programs for aboriginal peoples through the national crime prevention program, the aboriginal justice strategy, the native court worker program, and youth justice. The government is committed to working with aboriginal peoples to ensure that changes result.

Divorce Act

[Roger Gallaway, Liberal, Sarnia—Lambton, ON]

Mr. Speaker, I am pleased to speak to the bill in general terms.

Bill C-22 is further evidence of why representative democracy is dead in terms of the Department of Justice. Section 18 of the British North America Act which gives this House the powers of representation of the public is dead. A motion was made recently by the Minister of Justice asking members of this place to waive their privileges, that is, section 18 of the British North America Act, our counterbalance to the enormous powers of the Crown as represented by the cabinet. Now we have a new evolution in that under Bill C-22.

Bill C-22 is a disgrace. It represents only the wishes and the views of perhaps seven lawyers in the Department of Justice. Bill C-22 is representative of nothing in this place. It is representative of nothing among the Canadian public, yet the justice minister brought it to this chamber.

In the 10 minutes allotted to me, I will quickly trace some of the history of this legislation.

In 1968 Canada's first Divorce Act was introduced. It introduced in some sense a no fault provision. In 1984 the act was amended and the then minister of justice in the Trudeau cabinet, Mr. MacGuigan, brought in some amendments to it. He introduced the concept of the best interest of the child, but, and this was a very traditional Liberal value, the best interest of the child included the joint financial obligations of the mother and the father to their children, and also the principle of maximum contact of the children with both parents.

The Divorce Act of 1984, or Bill C-10 as it was called ironically at that time, died on the Order Paper when Parliament dissolved in 1984. In 1985 the then minister of justice, Mr. Crosbie, brought in an act respecting divorce and corollary relief. He revamped and changed Bill C-10 but retained the best interest of the child concept and the concept of joint financial obligations toward joint and equal parenting.

I will flash forward to 1996 to Bill C-41 which introduced a revolutionary concept about child support. It put in place a regime where one parent, the non-custodial parent, would pay support and the custodial parent had no obligations. God bless those people in the other place because they resisted it. The bill passed on the very clear understanding that a joint committee of Parliament would be formed.

In 1997 that joint committee was formed by resolution of this House and the other place. That joint committee met throughout 1998 and made approximately 44 recommendations about fairness, about equality, about balance and most important, about putting two parents back into the life of a child when those parents divorced. I will read two pivotal recommendations of that committee.

Recommendation No. 5 of the joint committee report of December 9, 1998 states:

This Committee recommends that the terms “custody and access” no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term “shared parenting”, which shall be taken to include all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms “custody and access”.

Recommendation No. 6 states:

This Committee recommends that the Divorce Act be amended to repeal the definition of “custody” and to add a definition of “shared parenting” that reflects the meaning ascribed to that term by this Committee.

That is all rather interesting. At the same time, a massive public shift of opinion occurred.

A Compas poll showed that 89% of Canadians believed the stress of divorce was more severe than a generation ago, and that 70% of men and women said the courts do not pay enough attention to the needs of children.

In that same poll 62% of men and women said that they feel the courts pay too little attention to the needs of fathers and 80% of Canadians believed that the children of divorce must maintain ongoing relationships with their non-custodial parents. Also 65% of Canadians said that they feel it is a priority that the government should protect the rights of children to relationships with their non-custodial parents and that no custodial parent should be allowed to bar that access.

An Angus Reid poll on May 25, 1998 in the Globe and Mail said that 71% of residents of Ontario believe a woman's child support should be withheld if access is denied. Also it said that Ontarians are equally split as to whether or not jail terms are appropriate for access denial.

The end result was that in May 1999 the justice minister responded to the special joint committee. I quote from “Government of Canada Strategy for Reform” the Government of Canada’s response to the report of the Special Joint Committee on Child Custody and Access:

The Government of Canada is committed to responding to the issues identified by the CommitteeReport. The Special Joint Committee Report’s key themes, concerns and recommendationsprovide a foundation for developing a strategy for reforming the policy and legislative frameworkthat deals with the impact of divorce on Canadian children.

On October 12, 1999 the throne speech said “it will work to reform family law and strengthen supports provided to families”.

With respect to the throne speech of January 30, 2001, at page 8 of the Senate Debates it states:

The government will work with its partners on modernizing the laws for child support, custody and access, to ensure that these work in the best interests of children in cases of family breakdown.

On September 30, 2002 the throne speech said at page 4:

[The government] will also reform family law, putting greater emphasis on the best interests of the child...and ensure that appropriate child and family services are available.

What do we get out of all of that? What does this all mean? It means that in December last year, the justice minister tabled Bill C-22 which reflects nothing. It is not reflective of anything that three committees of Parliament have said ought to be done. It does not reflect anything that Canadians told the committee. It reflects nothing that polls across the country have shown.

A justice minister, who had been the justice minister for three months, arrived and said “I know more. I know better. I will tell you what is in the best interests of children and it is this thing I call Bill C-22”.

The end result is that we are now living in a place where the executive branch has given to the House a bill which reflects only the wishes of the so-called experts in the Department of Justice. We have been given a bill which flies in the face of everything this place stands for in terms of representative democracy. The bill is the status quo or less. The bill does not address children.

The bill brings in a new concept which is turning the Divorce Act into the form of a mini criminal code. It introduces something called domestic violence into the Divorce Act.

Since when did a civil act become a criminal act? Since when did we start passing laws in this place that would criminalize allegations? Since when did we say to half the population, “You have no place in the life of your children because you have divorced and we will allow, not Parliament which has an obligation to protect children, but judges to decide”.

This will continue to foment dissent and great bitterness. Most tragically, we will continue to see a generation of children of divorce who only know one parent, who only know one family and who will be raised under the guise of revolution if we allow the bill to pass. That is why members of this chamber must do what is best for the children of this country, not what is best for a justice minister or his bureaucrats. We must stand and say at second reading, no, we will not accept this.

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

Mr. Speaker, it is indeed unfortunate that the minister's duties called him away from the chamber so that he is unable to answer the questions that my colleague would like to put.

I appreciate the opportunity to speak to this very important legislation before us today. The government's Bill C-22 is an attempt to reform the child custody and access provisions of our divorce laws. However, like a baby's first faltering steps, Bill C-22 is a very timid, tentative attempt at reforming the antiquated Divorce Act. After so many years of waiting, the government should have been able to do better. Certainly the children of divorce deserve better.

Of all our Canadian laws, the Divorce Act is perhaps the most important to Canadians because it directly affects our families and their lives. With this in mind, it is especially important that we as parliamentarians embark upon debating this legislation with the utmost seriousness and careful consideration of the impacts it would have on Canadian families and, in particular, Canadian children.

Unfortunately divorce is an all too common occurrence in our society today. For some couples their marriages do not work out and require an annulment to provide a divorce of their relationship as husband and wife. To that end, governments provide a mechanism for people to separate under the laws that govern our nation.

The history of divorce law has constantly changed over time, evolving to meet the needs of society. The earliest form of divorce legislation enacted by the federal government was as recent as 1968. Before that time, married couples could obtain a divorce only under provincial legislation, using the strictest of conditions. Husbands could file for divorce on the grounds of a wife's adultery, yet the wife could file only on exceptional grounds, like incestuous adultery, rape, sodomy or bigamy, to name but a few. In Quebec and Newfoundland, a divorce required a private act of Parliament.

Thankfully, divorce laws provide a more accurate reflection of the realities Canadians face in their lives today. However, they still require improvement.

Although originally divorce legislation was created for the sole purpose of facilitating an end to a marriage, as a matter of consequence it also determines parenting arrangements for children of a relationship. For those families going through a divorce in the court system, children should be protected by the courts and the law. Ideally divorce law should provide a mechanism for a marital separation and deal with issues pertaining to the children of a relationship independently. After a divorce, both spouses still maintain their roles as parents and our laws should reflect that reality.

The Canadian Alliance has been a long time advocate of reforms to our divorce law. Article 27 of the Canadian Alliance declaration of policy states:

We will make the necessary changes to the Divorce Act to ensure that in the event of a marital breakdown, the Divorce Act will allow both parents and all grandparents to maintain a meaningful relationship with their children and grandchildren, unless it is clearly demonstrated not to be in the best interests of the children.

The Divorce Act as it is currently written has a chaotic set of rules dealing with parenting arrangements. The act uses terms such as custody and access to describe how children are dealt with by the courts. Bitter divorce cases over child custody often come down to declaring a winner and a loser. The “better” parent, as determined by a judge, gets custody of the kids while the other parent is only allowed access to them. As a result, the law fosters an adversarial, divisive focus on parental rights versus the best interests of the child.

For kids who have always lived with both parents, a divorce is a bad enough shock for them. The prospect of not being able to see one of their parents can be devastating. The concept of custody and access is completely foreign to children. Six year old children do not understand why they are only allowed to see their mother or father every other weekend. That is because they do not realize that a judge has decided when they can see their parents. However, in our world today too many children are forced to become acquainted with these stipulations.

Furthermore, we should not ignore the valuable role that other family members have in a child's life. Under our existing divorce law, grandparents' and other related family members' contact with the children could be substantially reduced after a separation. There are no provisions in the current Divorce Act to guarantee grandchildren access to their grandparents. In fact, grandparents must seek leave from a court before they may even apply for an access order.

Child custody arrangements are in one area of family law that invokes heated debate. Canadians are sincerely upset with how our legal system fails children. Since the government introduced this legislation on December 10 of last year, my office has received many e-mails and telephone calls on the subject of child custody and access. There is one e-mail in particular that I would like to mention because I feel it provides an accurate depiction of the capabilities of our current divorce laws. This e-mail came from a father describing his personal experience. His e-mail reads:

I'm a father of three children, ages 11, 13 and 15. On November 1, 2002 my wife was granted an ex parte order removing me from my home and our children. I believe I've been treated unfairly. Here is a brief summary of the recent events:

October 23: [I] learned my wife was having an affair with her boss.

October 24: I locked myself in our bedroom and called “911”, after my wife became enraged; kicking on the bedroom door, screaming, yelling, swearing, all within earshot of our children. The police came and found her foot stuck in the door.

October 29: My wife was served with my petition for divorce.

November 1: I received an ex parte order, after my wife lied to the judge convincing him that I was unpredictable and erratic. She also suggested I had become mentally ill. (This is a complete lie!).

December 2: The same judge acknowledged that the ex parte order was in error, however he still ruled in her favour where she now has “sole” custody of our three children and exclusive possession of the matrimonial home.

I'm self-employed, and had been working from an in-home office since 1995. My lawyer tried to convince the judge that I had been the primary caregiver, as my wife worked outside the home.

I believe the justice system favoured my wife because she is the mother. I have been a great father and husband! Can you offer me some help?

This is a very sad case and unfortunately all too representative of many others. Divorces such as this one happen way too often and they have nothing to do with mothers' rights versus fathers' rights. They are symptomatic of a legal system that simply does not care for the needs of children.

Having been through a divorce, I can say that not all divorces need to have such a devastatingly negative impact on children. Negative, yes, there is no question of that: When parents separate there is a negative effect on their children, but it does not have to devastate their lives for years to come. At the time of our separation my ex-wife and I knew that although our marriage had to come to an end, it did not mean our relationship with our children had to as well.

I want to speak for just a few minutes, not as a politician, but as a parent, for parents. About a month from now it will be five years since my separation from my former wife and three and a half years since my divorce. Even though my marriage of 25 years came to an end, my role as a parent did not. That is because it is the one job that never ends, and as parents we sometimes joke about this, but almost always in jest.

Being a parent is a terrific honour. It is something that is impossible to adequately explain to someone who is childless. That is why I fervently hope that all MPs who are also parents or grandparents and even a few who are geat-grandparents, I suspect, will take the time to really study Bill C-22 and look at these proposed changes from the perspective of a parent rather than a legislator to truly consider what is in the best interests of the children. Members must try to imagine the bill as it would apply to their families.

As I said, I want to take a few minutes to explain my own personal circumstances. About a month ago, I was fortunate enough to celebrate my 50th birthday. My children came to a surprise party here in Ottawa. My children now are 24 and 22, and my son is going to be 20 very shortly. They are young adults and I am extremely proud of these three young people.

They came to my birthday party and presented me with what is now one of my most prized possessions. It is upstairs in my office today, on a shelf. It is a pewter mug engraved with “World's Greatest Dad”. It is inscribed as well with “Love from Holly, Heather and Heath”, my three children. It is one of my most prized possessions, because I believe the most important job I have is not that of being a member of Parliament, although that is important, the most important job I have is that of being a parent and hopefully someday a grandparent. They are the roles that I think are most important in life. I have enjoyed the relationship I have built with my three children, at every stage of their lives. I often hear parents complaining a bit, perhaps, that their kids go a little off the rails when they are in their adolescent years, but I can truthfully say that although there were some trying times the love saw us through those tough times.

I have enjoyed the relationship I have been able to build throughout my lifetime and I cannot imagine not having had the opportunity to build that relationship with those three children. In fact, I cannot imagine a worse living hell than having anything bad happen to my kids. Every time we hear of children who are lost, like the seven young children lost in the avalanche a couple of days ago, our hearts go out to those parents and those families that suffer that indescribable grief.

However, I think a close second would be the frustration and anger that would well up in me if I were denied access to my children, for whatever reason. I cannot imagine anything worse than having my kids somewhere on this planet and not being allowed to have contact with them. I was lucky. As I said, my ex-wife was extremely reasonable. We just automatically decided that joint custody under today's laws was the way to go. There was no question about it from the beginning. We both recognized that we were both terrific parents and wanted that relationship to continue for our children. I was lucky. Unfortunately, so many are not.

Every effort should be made to isolate children from the negative impacts of a marital breakdown. Enhancing the roles both parents play in raising children after separation can mitigate some of the harmful influences. Our laws need to acknowledge the best interests of children by allowing them to maintain a meaningful relationship with both parents and even with grandparents after a divorce, with the natural exception of circumstances that are clearly not in the best interests of the child.

The best method of facilitating this legislative change is to provide an automatic shared parenting role for both parents. Instead of using the adversarial language of custody and access, the Divorce Act should only use a single shared parenting term to reflect custody arrangements.

I listened to the minister's speech a few moments ago. To be quite blunt, I was appalled with the fact that he said that the use of the term shared parenting in the Divorce Act would have led to confusion. That was his summation. Yet that was the centrepiece of the “For the Sake of the Children” report.

The many married couples who separate on amicable terms today already benefit from shared parenting, as in my own personal example, which I have revealed to the House. They benefit by working cooperatively together on matters affecting their children. Shared parenting does not mean that parents equally split up the time they spend with their children. It means that parents share the rights, the responsibilities and the obligations to their children.

Naturally, given the wide diversity of individual situations, we must also acknowledge instances where children should not have a relationship with a parent. Under very serious circumstances such as domestic violence the courts would not use shared parenting and one parent would be denied access to the child. My colleague from Red Deer has a private member's bill on this very topic. His bill, commonly referred to as Lisa's law, would protect children who have been sexually abused by a parent by not allowing judges to grant forced visitation to that parent.

Shared parenting should not be a foreign concept in our legal system. In 1989 the UN brought forward the convention on the rights of the child signed by 191 countries, including Canada. Within the convention, the United Nations recognized the need for children to have a relationship with both parents.

Of the many articles included in the convention article 12 refers to a child's guaranteed right to free expression in all matters affecting them. Article 3 states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The most pertinent article I would like to mention is article 9 which states:

Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

It goes on to read:

Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

The UN convention is clear on the matter of parental access for children. More important, Canada is bound by the convention due to our ratification in 1991. The United Nations is not alone in recognizing the merits of shared parenting. There are several places in the world that have properly guarded the rights of children during a divorce. Countries such as Australia, the United Kingdom and many individual states in the United States, have all established shared parenting laws. Some of these laws may vary on the individual details, however the objective remains the same. Both parents retain their shared parental responsibilities for their children, regardless of any changes to their marital relationship.

With other countries implementing a shared parenting strategy, why does Canada not have any shared parenting provisions in its family law? Canadians want the best for their children, yet it is not reflected in our laws.

Canada has refused to take the lead on providing the best for our children, nor has it followed. Instead, our government seems content with the status quo ensuring not to rock the boat by upsetting special interest groups.

The last time Parliament amended the Divorce Act was in 1997 with Bill C-41. During that period many Canadians were genuinely upset that grievances with child custody laws were not being addressed. As with any issue of importance to Canadians members of Parliament and senators heard many demands for the government to take action. After folding to public pressure the government authorized both the Senate and the House of Commons to form a special committee to examine this critical issue.

The Special Joint Committee on Child Custody and Access had a straightforward objective. It was vested with the mandate to:

...examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children’s needs and best interests;

As the committee prepared to hold its first public meeting in February 1998, all members were aware of the importance and the complexity of the work they were about to embark upon. In total 55 meetings were held across Canada allowing over 520 witnesses to testify before the committee. These presentations provided an insightful look into the many different aspects of divorce and separation, from stories of heart-rending personal experience to social workers who worked with children of divorced parents on a daily basis. Committee members heard testimony regarding all aspects of divorce law.

The end result of the committee's work was a comprehensive report to Parliament laying out 48 recommendations for improvement. The final report entitled “For the Sake of the Children” provided an accurate representation of where the government could take action to help children. Each individual recommendation would make an important improvement. I do not have time to read all of the recommendations, but I will touch on a few.

The first recommendation calls for a preamble to be included in the Divorce Act making reference to pertinent principles of the United Nations convention on the rights of the child. As I mentioned earlier, I specified three articles that should be included in such a preamble.

The second recommendation reads:

This Committee recognizes that parents' relationships with their children do not end upon separation or divorce and therefore recommends that the Divorce Act be amended to add a Preamble containing the principle that divorced parents and their children are entitled to a close and continuous relationship with one another.

That is a great recommendation, but not one which we find in Bill C-22.

Number five calls for the terms “custody” and “access” to no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term shared parenting. This is the very term that the minister has just mentioned that he did not want to use because it would be confusing. This term would then be taken to include all the meanings, rights and obligations, common law and statutory interpretations embodied in the terms “custody” and “access”.

To effectively implement shared parenting we must eliminate any cause of bias between parents in our legal system. Recommendation number eight calls for the common law tender years doctrine to be rejected as a basis for making a parenting decision. The doctrine is used by judges to help them determine the better parent for the child during the early part of its life. Many years ago courts automatically assumed this role could only be fulfilled by a mother, however today, it is not an accurate reflection of our society.

Shared parenting arrangements may not be ideal for every divorced couple, however our laws must encourage parents to work together on providing the best for their kids. The committee's report suggests that all parents seeking a parenting order from a judge should first submit a parenting plan with the court. Those parents who do not submit a plan would have to attend an education program to help them become aware of the post-separation reaction and detrimental impact that divorce has on children and the child's developmental needs at different ages. These parents would learn about the benefits of cooperative parenting after divorce and of mediation, and other forms of dispute resolution mechanisms available to them. By requiring a parenting plan, parents would be forced to at least consider the children by attempting to work out an agreement with each other.

Recommendations 15 and 16 are also very important. They call for amendments to the Divorce Act to require parents and judges to consider the best interests of the child and provides a list of criteria for deliberation. Recommendation 26 says:

...in matters relating to parenting under the Divorce Act, the importance of the presence of both parties at any proceeding be recognized and emphasized, and that reliance on ex parte proceedings be restricted as much as possible. Ex parte orders are directives issued by judges after only having heard one side of the story in a court case. These types of court orders are only supposed to be used under rare and exceptional circumstances, however all too often they are issued based upon false testimony.

The one area in which I find myself in disagreement with the report of the Special Joint Committee on Child Custody and Access is on the issue of presumption. Again, this is an area on which the minister touched on in his remarks. The report says that the committee did not believe the courts should be constrained by presuming, because in divorce, one size cannot fit all. I believe it is somewhat of a contradiction to state that shared parenting should be the norm, but we should not presume both parents are good parents and therefore quite capable of properly raising their children.

To those opposed to this presumption, I say that our entire justice system is based upon a fundamental basic presumption. We are presumed innocent until proven guilty. It is not up to those accused to prove their innocence in court. It is up to the Crown to prove their guilt beyond any reasonable doubt. It therefore puzzles, frustrates and angers me that the court does not apply the same principles consistently to divorcing couples. If both parents were believed to be good parents prior to separation, then why should the courts not presume them to be after divorce?

If we were to begin from the premise that shared parenting is in the best interests of the children, then the natural conclusion is that we must presume that both parents would be worthy of maximum contact with their children unless proven otherwise.

That being said, the report of the Special Joint Committee on Child Custody and Access is a quite a valuable document with lots of sensible proposals put forward despite the few areas I would like to see more heavily emphasized.

The members of the committee, regardless of political affiliation, and I know, Mr. Speaker, because you sat on that committee yourself, worked collaboratively on writing a persuasive report. Shamefully the government has dragged its heels on implementing these critical changes. It has taken over four years for the government to finally table legislation, but what it has presented before us is a shy and timid representation of what the report called for.

Let me explain by going over the government's reforms to family law. The first change would remove the terms “custody” and “access” from the Divorce Act. At first glance this appears to be a positive change however upon closer examination we find the terms are replaced with parenting order and contact order. Whether this change is merely semantics is anyone's guess. We do know that it is not shared parenting and it would not provide a presumption that children deserve access to both of their parents after a separation. If the government were serious about reforming divorce law it would not simply play around with the wording of the legislation.

The government has removed the maximum contact principle in subsection 16(10) of the existing legislation that would require judges to ensure children receive as much time with each parent as possible. In Bill C-22 there are no clauses that would replace this maximum contact principle.

The one area where the government's bill vaguely mentions this principle is in a new section that would require judges to consider the overall best interests of the child when granting a parenting order. The list of criteria overall is not bad. It loosely implements recommendations 16 and 17 of the committee's report, however, having a judge consider the amount of contact a child has with a parent along with 11 other decisive factors weakens a very important principle. It must be complimented with stronger statements in other sections of the bill.

Overall the criteria which comprises the best interests of children in clause 16.2 of the bill is nearly identical to those recommended in the committee's report. It provides a helpful guide to judges when deciding on parenting arrangements for children after a separation. One specific criterion was not mentioned in the “For the Sake of the Children” report. The government took the liberty of adding “The history of care for the child”, as another decisive factor for the courts to consider.

For all intents and purposes a spousal agreement regarding the care a child receiving preceding a divorce has absolutely nothing to do with what parents would agree to is appropriate care after divorce. Understandably couples make tough decisions when children enter their lives. They must decide who will take care of the child and who will continue to work to provide an income. For most families the higher income earner will continue to work outside of the home or perhaps a parent who has better than most maternity or paternity benefits will stay home with the child.

Parenting arrangements before divorce should have no relevance on the care a child will receive after a separation between parents. By examining Bill C-22 it is apparent that the government has gone through the “For the Sake of the Children” report selectively choosing which recommendations it wishes to legislate. If the government wants to provide Canadians with the real change that they are so desperately seeking, it should have brought forward a bill including all the relevant recommendations. After four years even the government should have been able to do much better.

Since becoming a member of Parliament I have worked very hard to change the Divorce Act to allow children a better opportunity to be with both parents after separation. I have introduced a private member's bill on the subject some five times since 1996. In 2001 my bill overcame many obstacles to finally be debated on the floor of the House of Commons.

Even then the government turned its back on the children of divorce. As I mentioned earlier, it argued that by using a one size fits all approach to parenting after divorce would hurt children in the end. It will use the same old argument, indeed the minister did already this morning, against shared parenting.

It is true that for each divorce case before the courts there are individual circumstances that must be considered, but we must acknowledge the assumption that both parents deserve an equal role in raising their children.

Just before I get to my summary, I want to refer to another letter that I received. I think this letter probably went to all members of Parliament of all parties. I will not have enough time to read the entire letter but I think members will get the drift. The letter is dated July 2, 2000 and it was sent to the Prime Minister. It reads:

Dear Mr. Prime Minister

I am the 14-year-old daughter of Darrin White, the father who recently took his life in British Columbia as a result of the frustration and hopelessness caused in dealing with Canada's family justice system. Although the justice system was not 100 percent the cause of his death, based on what I and members of my family have seen, it was the biggest factor. My father took his life mostly in part because of the injustices being perpetrated against him by what many Canadians say is a biased and morally corrupt Canadian family justice system. Our family justice system seems to allow good fathers to be destroyed while it allows vindictive and revengeful mothers to rule over the court.

Prior to my father's death, he told me of the anguish he was going through trying to see his children. He told me of the abuse that his wife subjected him to. She did not want him to have a relationship even with me, his own daughter, because she was jealous. He told me of the frustration in dealing with the courts and the lawyers. He told me how the court did nothing except put further barriers to him seeing his children.

As a young Canadian I can only say that I am utterly ashamed to see how the country I call Canada treats fathers in its courts. It is a disgrace! I know my father was a good man and a good father. He did not deserve to be pushed over the edge as he was. He did not deserve to be kept from seeing his children. He obviously reached a point where he could see that justice was beyond his reach and for reasons that only God will know, decided that taking his life was the only way to end his suffering.

From what I have learned about the family justice system in this country, Canada is not the home of the proud and the free. In my view, Canada has become a safe haven for corrupt lawyers and biased judges who think nothing about the lives of the children and parents they destroy every day in our family courts.

I have learned that Canada's Justice Minister...has been stalling legislation about shared parenting which is intended to prevent the kind of tragedy that has been forced upon my family. I understand that a special committee recommended that the justice department should promote a concept called shared parenting. If shared parenting had been in place before my father took his life and if our system of justice guaranteed the rights of children to see their parents, I have no doubt in my mind that my loving father would be alive today. All he wanted was to see his children, but it seems that our justice system would not give him that.

The letter goes on and on. This is from the 14 year old daughter of a gentleman who felt his only way out was to commit suicide. It was signed by Ashlee Barnett-White, the daughter of Darrin White from Prince George in my riding.

In summary, the Canadian Alliance is opposed to Bill C-22 as it is presently worded for the following reasons.

First, Bill C-22 completely misses the basic fundamental principle laid out in the report “For the Sake of the Children”, that modern Canadian society is best reflected by shared parenting.

Second, Bill C-22 would not ensure that our courts and judges receive the direction that first and foremost it is in the best interests of the children to maintain maximum contact with both parents following divorce.

Third, Bill C-22's passing reference to the relationships between children of divorce and siblings and grandparents in clause 16.2(i) is insufficient to ensure the survival of those vital relationships following divorce.

Fourth, any agreement made between the parents regarding the best parenting arrangement prior to separation and divorce is completely irrelevant following separation and therefore any reference should be removed from clause 16.2(c).

Fifth, Bill C-22 drops the so-called friendly parent rule that at least provided some direction to the courts.

For those and many other inadequacies addressed in the 48 recommendation of the “For the Sake of the Children” report, we will be proposing substantive amendments at committee stage to fix these deficiencies.

I sincerely hope that, unlike so many previous bills on so many issues that I have seen go through the House in the last nine years that I have been an MP, the government will allow those amendments to pass so that not only the Canadian Alliance can support Bill C-22 but all Canadians.

I also have an amendment. I move, seconded by the member for Edmonton North:

That the motion be amended by deleting all the words after the word “That” and substituting the following therefor:

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, be not now read a second time but that the order be discharged, the bill withdrawn and the subject matter thereof referred to the Standing Committee on Justice and Human Rights.