An Act to amend the Divorce Act (access for spouse who is terminally ill or in critical condition)

This bill was last introduced in the 39th Parliament, 1st Session, which ended in October 2007.

Sponsor

Rick Casson  Conservative

Introduced as a private member’s bill.

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Divorce Act to provide that, in the case of a former spouse who is terminally ill or in critical condition, the court shall make a variation order in respect of access that is in the best interests of the child.

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.

Votes

March 21, 2007 Passed That the Bill be now read a third time and do pass.

May 31st, 2007 / 1:55 p.m.
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NDP

The Deputy Speaker NDP Bill Blaikie

I have the honour to inform the House that a communication has been received as follows:

Rideau Hall

Ottawa

May 31, 2007

Mr. Speaker:

I have the honour to inform you that the Right Honourable Michaëlle Jean, Governor General of Canada, signified royal assent by written declaration to the bills listed in the Schedule to this letter on the 31st day of May, 2007, at 9:05 a.m.

Sheila-Marie Cook

The Secretary to the Governor General and Herald Chancellor

The schedule indicates the bills assented to were Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment)—Chapter 12, Bill C-48, An Act to amend the Criminal Code in order to implement the United Nations Convention against Corruption—Chapter 13 and Bill C-252, An Act to amend the Divorce Act (access for spouse who is terminally ill or in critical condition)—Chapter 14.

Divorce ActPrivate Members' Business

March 21st, 2007 / 5:55 p.m.
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Liberal

The Speaker Liberal Peter Milliken

The House will now proceed to the taking of the deferred recorded division on the motion at third reading stage of Bill C-252 under private members' business.

The House resumed from March 1 consideration of the motion that Bill C-252, An Act to amend the Divorce Act (access for spouse who is terminally ill or in critical condition), be read the third time and passed.

Divorce ActPrivate Members' Business

March 1st, 2007 / 5:35 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, I am pleased to speak to Bill C-252 authored by the member for Lethbridge. Like my colleague from the Bloc, I would like to acknowledge the hard work that he has done on this file. The bill addresses an important point.

It was interesting to see the positive response from all members who sit on the justice committee to this particular amendment to the Divorce Act. Although it would have limited usage, it is an important one.

I feel as though I am back teaching a family law course at the university.

What is really being said by the bill is if a custody award has been made, and if an application is made to change that custody award, more specifically the visitation rights by the non-custodial parent, the judge must take into account the health of the non-custodial parent, especially if the parent is terminally ill or in critical condition. The judge hearing the application for visitation rights will have to take that into account.

I fully expect this bill will pass. At this stage, the court is not mandated to see what we call in family law as the legal principles, a situation involving a terminally ill parent as a change of circumstances. That is the vernacular within the legal principles under family law in this country. This bill mandates the judge to treat a situation involving a terminally ill parent as a change of circumstances and the judge will have to take that into account.

We heard not only from the member for Lethbridge but from other members about a number of cases where parents, for whatever reason, had not been given access to their children. They were terminally ill, but they were not given the opportunity to see their children before they passed away. More important, and this goes beyond any consideration, the children were denied the right to see their dying parent. That is a personal tragedy in a lot of cases. It also causes psychological trauma which in all likelihood will stay with the child for the rest of the child's life.

I want to be clear, as was the member for Lethbridge, that this provision cannot be used, and a court would not order, a child to see a parent in circumstances where it was not in the best interests of the child. I use as an example a bill which was brought before the House in the last Parliament by a Conservative member. In effect, it was trying to prevent a father who had killed the mother of his children from forcing the children to visit him in prison where he was confined for life. That is clearly a situation that is not in the best interests of the children. This section would not in any way prevent a judge from determining that it was not in the best interests of the children and therefore the judge would continue to deny visitation rights.

In the circumstances where it is a valid conscientious claim by a terminally ill parent, and it gives the children the opportunity, perhaps only once, to see that parent before the parent dies, I am sure in most cases a judge would find it in the best interests of the children and would make that determination accordingly.

I am quite happy to support private member's Bill C-252. I commend the member for Lethbridge for the work that he has done on this. It is an important point. It will cover a small number of cases, but they are crucial cases. In that regard it is work well done.

Divorce ActPrivate Members' Business

March 1st, 2007 / 5:30 p.m.
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Bloc

Carole Freeman Bloc Châteauguay—Saint-Constant, QC

Mr. Speaker, I am happy to speak once again to Bill C-252, to amend the Divorce Act, at report stage.

Specifically, the goal of the hon. member for Lethbridge's bill is to amend the current legislation in order to allow a former spouse who is terminally ill or in critical condition access to any dependent children. This leads us to believe that a parent who does not have a right of daily access to their child can argue that, because of their condition, the court should make a variation order so that he or she may get closer to their child. This visit would take place during what are believed to be the parent's final moments. However, the bill stipulates that this access would be granted inasmuch as the situation is in the best interests of the child.

I would like to remind the House that subsection 16(8) of the Divorce Act very clearly defines the interests of the child as well as the basic criteria that should guide the judge's decision regarding the terms of custody. For example, according to the act, when a court makes a decision, it only considers the interests of the dependent child, defined according to the child's resources, needs and general situation.

Under Bill C-252, adding a new criterion to be considered would have an exceptional effect on previous rulings. I therefore understand the noble intent behind my colleague's efforts in presenting his bill and I commend him on that. It goes without saying that the sincere and profound wish of a seriously ill parent living out their final days is to spend the last moments of their battle surrounded by their children or one of their children. It is perfectly natural to want that.

At the outset, we had some concerns about the effect of Bill C-252, particularly regarding the reasons why this new access to the child, a sort of exception to the decision previously made by a court, had formerly been limited or prohibited by a court. This is in fact where the concept of the "best interests of the child" is most in play.

If we start from the principle that the best interests of the child are paramount, could the fact that a parent is in critical medical condition justify access to and visitation with a child, from a humanitarian point of view, on the basis that the parent in question is about to die, when the court had serious justification precisely for limiting that contact?

For example let us take the case of a parent who was denied access to the child because of physical abuse, of whatever kind. Regardless of whether the parent has only a few days to live and wants to express remorse or apologize, if it is not found to be in the best interests of the child to visit the parent, that restriction on the right of access will be upheld. In that case, amending the act would be pointless because the only criterion to be considered is that everything is subordinate to the best interests of the child.

On the other hand, I understood that my colleague's intention at the outset was not to propose a broader or more flexible interpretation of the concept of the best interests of the child. That would undeniably have reduced the original effect of the bill, and thus the paramountcy of the child in relation to the prohibition or limitation on access by the divorced parent. Consequently, it would have made it completely unacceptable. There is a basic issue that should not be revisited, even because of the probably imminent death of the parent who has been denied access.

The changes made to clause 1 by the Standing Committee on Justice and Human Rights therefore fine-tune my colleague's initial idea by eliminating some ambiguities concerning the role of the court, and in particular the idea of ensuring " that the former spouse is granted access as long as it is consistent with the best interests of the child." In fact, the amended clause reads as follows:

a former spouse's terminal illness or critical condition shall be considered a change of circumstances of the child of the marriage, and the court shall make a variation order in respect of access that is in the best interests of the child.

This amendment makes it possible to avoid certain shortcomings identified by the committee, namely the approach of “as long as is consistent” in view of certain degenerative illnesses that can last longer than the estimated life of an individual.

However, setting aside the honourable intention of the member for Lethbridge to improve the rather difficult circumstances of certain individuals, the traditional position of the Government of Quebec is staunchly defended by the Bloc Québécois. This position calls for exclusive provincial jurisdiction in divorce matters.

I would like to point out that it is not stipulated anywhere in the Civil Code of Quebec that a parent's critical state of health must be taken into account when establishing his or her visiting rights. Furthermore, our interpretation is based on article 314.2 of the Civil Code of Quebec, which stipulates that “A Québec authority has jurisdiction to rule on the custody of a child provided he is domiciled in Québec”. Articles 33 and 34 of the Civil Code, which refer to the child's interests, compel the court to seek the child's opinion.

However, I remain sympathetic to the initiative of our colleague from Lethbridge. I will be supporting this bill, as will my party, in this last step of the process in the House of Commons. Bill C-252 deserves to move forward to third reading and then to be sent to the upper house, although, with our view of the relevance of the Senate, the bill is already near approval.

Before I close, I would like to reiterate the Bloc Québécois' position that the Divorce Act should be repealed, and that Quebec and the provinces should have the power to legislate divorce. This would correct one of the aberrations of the Canadian Constitution. In the meantime, since divorce remains under federal jurisdiction, we will earnestly take part in any reform initiative that would ensure greater protection of the child's interests.

I congratulate my colleague from Lethbridge for tabling this bill.

Divorce ActPrivate Members' Business

March 1st, 2007 / 5:25 p.m.
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Liberal

Shawn Murphy Liberal Charlottetown, PE

Mr. Speaker, I am pleased to be given the opportunity today to rise and speak on this private member's bill, Bill C-252.

At the outset, I should point out that when the bill first came before the House, which is quite some time ago now although I do not know the exact date, I spoke against the bill. I felt at the time that the wording of the bill went too far on this particular issue. I did that having great respect for the intent of the bill and with great respect for the motivations of the member who introduced the bill. Obviously it probably was prompted by certain events that happened to a constituent in his riding who was probably ill-treated by the courts. Of course, in a situation like that, time probably does not allow an appeal.

However, it was my position at the time that it did not respect the intent of section 68 of the Divorce Act, which reads: “In making an order under this section, the court shall take into consideration only”--and I underline that word “only”--“the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child”.

This particular bill talked about ensuring that a parent who was critically or terminally ill would have access to the child. Of course, in the vast majority of cases that certainly would be the case, but I was reluctant at the time to put that in legislation because that would tie the hands of the judges and it would fly in the face of that particular section.

However, the bill was amended, first of all in the House and then subsequently in committee. The first amendment made it explicit that courts should grant a former spouse with “a terminal illness or critical condition” access to the child as long as it was consistent with the best interests of the child.

That amendment was made, which I think went most of the way, and then it was sent to the committee. The committee, in its wisdom, amended it further, with the provision that “the court shall make a variation order in respect of access that is in the best interests of the child”. Again, that provision was underlined and of course, based upon those amendments, I now speak in favour of the bill. I will be voting for the bill when it comes before the House.

I come back to my original comments. Sometimes in the House it is very difficult for members to second-guess a judge that has the facts of the case. We can make the laws, the Criminal Code and the Divorce Act, but I believe that at the end of the day the discretion should rest with the judge, based upon certain principles and foundations.

Again, I believe this bill in its present form is good legislation. Certainly if there is a situation where a parent is terminally ill, it would be, in the vast majority of cases, as I said before, in the best interests of the parent but more so in the best interests of the child that liberal access be granted by the judge pursuant to a variation order.

We would hope as normal people that this would happen in those cases without resorting to the courts, but sometimes things like that do not happen. In those situations, this legislation would assist certain unfortunate people who find themselves in those predicaments.

I am not going to take my full 10 minutes.

Like the previous speaker, I want to congratulate the member who put so much time and effort into this bill. This is the way the system should work.

Some of the members had the same concerns I did. The bill was amended by the member, first of all, then further tweaked by the committee, and it has come back before the House in a form that I think is very good legislation. It is legislation that should be approved by the House when it comes forward for a vote.

Divorce ActPrivate Members' Business

March 1st, 2007 / 5:15 p.m.
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Kamloops—Thompson—Cariboo B.C.

Conservative

Betty Hinton ConservativeParliamentary Secretary to the Minister of Veterans Affairs

Mr. Speaker, I am honoured to speak in support of Bill C-252. However, before discussing the bill, let me express by deepest sympathy for the children and the family of the constituent whose unfortunate experience motivated the hon. member for Lethbridge to introduce the bill.

Bill C-252 is all about compassion. It aims to give closure to children of divorce before their parents' impending passing.

The dissolution of a marriage is not a happy event. It can be highly emotional and stressful for all family members. Divorce can also take a serious toll on any children involved. Children often experience their parents' separation as a loss, the loss of their former family unit. Some children feel that they have little or no say in the events that shape their lives during their parents' divorce.

I would imagine that finding out one has a terminal illness could instill a similar sense of grief and loss of control. For a child who is already struggling with his or her parents' separation, the pending loss of the life of a beloved parent could be devastating. For a dying parent, contact with his or her child could help to alleviate some grief at a very critical time. For a child, being able to pay his or her last respects to a parent could provide some closure and peace of mind.

I believe most Canadians would agree that unless it is not in the child's best interests, a parent should be able to die peacefully, with one's children by his or her side.

My hon. colleague introduced this bill to ensure that children can say goodbye to a parent who is terminally ill or in critical condition, where it is in the best interests of the children. It is important to note that the best interests of the child will remain the primary consideration. However, the proposed bill will ensure that proper consideration is given by the courts to the amount of time left for a parent and child to spend their final moments together.

Bill C-252, if passed, will clarify that a terminal illness or critical condition on the part of a parent is a material change in circumstance for the purposes of the variation application and will ensure that decisions with respect to access in these circumstances are made in the best interest of the child.

I must say how touching it has been to see the support that other members of Parliament have shown for the objective of the bill.

The impact of divorce on some children last their entire lives. Often parents can agree on how to continue parenting after divorce. They can deal with the many emotional and financial issues that arise from their breakup with the help of family justice services that are delivered by our provincial and territorial partners. When parents can agree, there is a sense that children are better off.

The focus on the children's best interests may be easier if parents are not fighting over who wins or loses. Compassion in cases of illness may also come more easily. However, some parents cannot agree on how to continue parenting after a divorce and some may even have difficulty putting their children first. They will need the courts to help them find a solution that is in the best interests of their children.

Unfortunately, some of these parents may also find themselves one day in a situation where their days become numbered and where they cherish every last moment they spend with family and friends. We can all appreciate how important it is for people to be in the company of loved ones at such times. Those moments together are important both for the dying parent as well as for those who survive.

In some cases where a parent is dying, however inexplicable as this may be, the other parent may not find it in himself or herself to let the dying parent see the child, or to put it in another way, the other parent may not let the child see the dying parent one last time.

Can we let that happen? We have the opportunity to amend the Divorce Act to make it easier for dying parents and their children to spend time together and support each other in difficult situations.

I will speak for a few minutes about the scope of the federal Divorce Act with regard to the custody and access.

Section 16 of the Divorce Act sets out the criteria for granting custody and access for original or interim orders. Such orders are to be granted solely on the basis of the best interests of the child. Section 16 of the Divorce Act also requires the court to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the child's best interests.

Section 17 of the act allows a parent to apply for a variation of the original or interim custody and access order when there has been a material change in circumstances. As in Section 16, the best interests of the child should prevail in varying an order, and the court is to make an order that provides that a child of the marriage has as much contact with each spouse as is consistent with his or her best interests.

Section 16 of the Divorce Act as currently worded already responds, to a large degree, to the issue raised by Bill C-252. This is because, by requiring that orders be granted based on the child's best interests and that maximum contact between children and parents be ensured, section 16 of the Divorce Act already provides the courts with sufficient discretion to make appropriate orders.

In addition, although courts all maintain that a parent does not have an absolute right to access, most of them accept that it is in a child's best interest to have a meaningful relationship with both parents in the absence of a good reason to the contrary.

The proposed amendment to section 17 of the Divorce Act clarifies that a parent's critical condition or terminal illness is a change of circumstances, giving rise to a possible variation of the custody and access order. The provision further instructs the courts to make an order in respect of access that, in the circumstances, is in the best interests of the child.

I note that the Standing Committee on Justice and Human Rights has proposed an amendment to the bill that would make it more consistent with the existing wording of the Divorce Act. Consistency in legislation is important. I believe that this amendment should be accepted and that the House should pass Bill C-252.

This bill will provide greater certainty and will facilitate variation applications for parents who are terminally ill or in critical condition.

Most children want, and indeed need, continuing contact with both of their parents. They often describe lack of contact as one of the most difficult aspects of their parents' separation.

My government believes it is important that when parents divorce, both parents are encouraged to maintain a meaningful relationship with their children, unless it is not in the best interests of the children.

The objective of promoting access between a parent who is terminally ill or in critical condition and their child, when it is in the best interests of the child, is indeed most laudable.

I would like to thank my colleague, the member for Lethbridge, for bringing this important issue to the attention of the House.

The House proceeded to the consideration of Bill C-252, An Act to amend the Divorce Act (access for spouse who is terminally ill or in critical condition), as reported (with amendment) from the committee.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

January 29th, 2007 / 3:10 p.m.
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Conservative

Art Hanger Conservative Calgary Northeast, AB

Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Justice and Human Rights.

In accordance with the order of reference of Tuesday, October 17, 2006, your committee has considered Bill C-252, An Act to amend the Divorce Act (access for spouse who is terminally ill or in critical condition), and agreed on Wednesday, December 13, 2006, to report it with amendment.

December 13th, 2006 / 3:35 p.m.
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Conservative

The Chair Conservative Art Hanger

I'd like to call to order the Standing Committee on Justice and Human Rights. Our agenda, as noted, will be a clause-by-clause consideration of Bill C-252.

December 11th, 2006 / 5:10 p.m.
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Conservative

The Chair Conservative Art Hanger

Thank you, Mr. Merasty.

That brings to a conclusion this particular discussion on Bill C-252. I would like to thank the departmental officials for coming forward. We will have one other session dealing with this particular....

Mr. Petit has a point of order.

December 11th, 2006 / 4:30 p.m.
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Claire Farid Counsel, Family Law Policy, Department of Justice

Members of the committee, we're pleased that you have invited us to participate in these committee hearings.

My name is Claire Farid. I'm counsel with the family law policy unit of the family, children, and youth section. With me is Lise Lafrenière-Henrie, senior counsel and coordinator of the family law policy unit.

We will provide you today with information about the technical aspects of the Divorce Act and Bill C-252. However, before turning to the specifics of the bill, we would like to discuss the general scheme of the Divorce Act with respect to custody and access issues.

As you're aware, the federal government is responsible for the Divorce Act and the custody and access issues that arise in that context. The provinces and territories are responsible for custody and access issues that arise in the non-divorce context--for example, for common-law couples.

Section 16 of the Divorce Act is the section that provides that a court may make an order for the custody of and/or access to a child. Subsection 16(8) provides that only the best interests of the child shall be considered by the court in making an order for custody or access. The child's best interests are to be determined in light of the condition, means, needs, and other circumstances of the child.

Therefore, when a court makes an order for custody of or access to a child, it is required to look at all of the circumstances of the child and make the order that is best for that particular child.

Some of the types of issues that a court will generally examine are: factors related to the child, such as his or her age and views and preferences about the custody and access arrangement, the relationship that the child has with each parent and other significant people in his or her life, and plans that the parents have for the upbringing of the child.

It is relevant to note subsection 16(10) of the Divorce Act, which provides that in making an order for custody or access, the court must give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child, and must take into consideration the willingness of the person who is applying for custody to facilitate contact with the other spouse.

The Divorce Act therefore emphasizes the importance of the child's relationship with both parents. The particular access arrangement that is ordered must, of course, always be in the best interests of the child. Section 16 deals with original orders, and therefore looks at the circumstances of the child at a particular point in time. Those circumstances sometimes change, however, in a way that makes this original order inappropriate; thus, there is a need to return to court for a variation of that order. It is subsection 17(5) of the act that currently sets out the conditions for the variation of an order for custody or access.

There are two aspects of the inquiry under subsection 17(5). First, before the court can make a variation order, it must be satisfied that there has been a change in the condition, means, needs, or other circumstances of the child since the making of the last order. While subsection 17(5) of the Divorce Act simply refers to a change in the circumstances of the child, the Supreme Court of Canada has clarified that it is not any change in the circumstances of the child that will be sufficient for a court to consider the merits of a variation application. There must be a material change in the situation of the child. This requirement that there be a material change is to prevent parties from indirectly attempting to appeal or re-try the case by pointing to some minimal or insignificant change in the situation of the child.

In order to be a material change, the change must have altered the child's needs or the ability of the parents to meet those needs in some fundamental way. The change must be such that the previous order may have been different had the new circumstances existed at the time the original order was made. It's significant to note here that an important change in the life of a parent that is relevant to the child could be considered a material change in the circumstances of the child.

For example, in the 2002 case of Kazdan v. Kazdan, a mother was terminally ill and she sought to vary a Divorce Act custody and access order to dispense with her former husband's consent for her to travel to Israel with the children. The court found that the former wife's terminal illness and her resulting emotional need to travel with the children to Israel to see her family was a change in the circumstances of the child within the meaning of subsection 17(5) of the Divorce Act. The order was varied to allow her to travel, since it was found to be in the best interests of the children.

So the first aspect of the analysis under subsection 17(5) is to establish that there has been a material change in circumstances, which would then allow the court to consider the merits of the situation. Once this threshold has been met, the court must then embark on the second aspect of the analysis, which is to determine what order would now be in the best interests of the child. In determining what is in the best interests of the child, like under section 16, the court must seriously consider the importance of the child's relationship with each former spouse. Because both subsections 16(8) and 17(5) require that original orders and variation orders related to custody and access be based on the best interests of the child, the court must look at all aspects of the child's life to determine what order would be appropriate. The court therefore has broad discretion to fashion an order to ensure that the child's best interests are met.

Bill C-252 would add proposed subsection 17(5.1) to the Divorce Act to assist with interpretation of subsection 17(5) in circumstances where a former spouse has a terminal illness or is in critical condition. There are two elements to proposed subsection 17(5.1).

First, proposed subsection 17(5.1) would provide that for the purposes of subsection 17(5), a former spouse's terminal illness or critical condition shall be considered a change in circumstances of the child of the marriage. This aspect of the provision would have the result of deeming the terminal illness or critical condition of a former spouse to be a material change in circumstances. As a result, in cases where a former spouse has such a terminal illness or is in critical condition, the threshold requirement of subsection 17(5) will have been met, and the focus would be on the issue of whether a variation of the original order is appropriate.

The second element of proposed subsection 17(5.1) is that it provides some direction for the court with respect to the potential variation of the order. The bill states that the court “shall...ensure that the former spouse is granted access to the child as long as it is consistent with the best interests of that child”. Therefore, access between the former spouse and the child is to be ordered, as long as it is in the best interests of the child.

Since the best interests of the child are a prerequisite for making a variation order for access, the court would be required to consider all the circumstances of the child to determine whether such an order would be appropriate. In the context of this analysis, the court would also consider what type of access arrangement would be appropriate--for example, in terms of the frequency and length of visits, and who would be present at these visits.

We hope this information is helpful to the committee, and we would be pleased to take any questions.

Thank you.

December 11th, 2006 / 3:35 p.m.
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Conservative

Rick Casson Conservative Lethbridge, AB

Thank you very much, Mr. Chairman.

I have a brief statement to make and then I can answer questions, if necessary.

It's an honour for me to be here today speaking to you about my private member's Bill C-252, an act to amend the Divorce Act. I know how busy this committee has been with the volume of legislation, and I appreciate your taking the time to examine this important bill.

Since it was first read on May 4 of this year, this bill has been a work in progress. Bill C-252 received rigorous and constructive debate in the House of Commons during second reading, and I appreciate the thoughtful debate provided by members of all parties during the first and second hours of debate at second reading.

That input from all sides allowed this bill to proceed to this committee today with unanimous support from the House. From the Liberal Party, we heard from Mr. Shawn Murphy, Mr. Lee, Mr. Szabo; from the Bloc, Ms. Freeman and Mr. Ménard; from the NDP, Mr. Comartin and Mr. Siksay; and from the government, we heard from Mr. Goodyear, Mr. Shipley, Rob Moore, Lynne Yelich, and Mr. Van Kesteren. All made contributions. I really consider it to be a bill that has been shaped and moulded with the cooperation of my colleagues in the House of Commons.

I would like to say at the outset that this bill is and always has been about families. We all know divorce is an unfortunate yet common reality in our society today. This bill recognizes the importance of familial bonds in all families, especially those families where a divorce has occurred. Although families may be fractured by a divorce, the bonds and relationships between children and their parents continue to exist and deserve the support this bill seeks to establish.

I first considered undertaking a private member's bill to address this issue earlier this year after hearing about a very unfortunate situation in my riding involving a young family that had been split by divorce, and one of the parents had become terminally ill. As is the case with most divorces, there are two sides to the story. I did not undertake this bill because one person was right or one person was wrong. That was not and is not a decision for me to make. However, I did recognize that something was wrong, so I was faced not with the question of who is right, but rather of what is right.

I believe it is right that children be ensured a chance to say goodbye to a parent who is terminally ill or in critical condition, unless such contact between parent and child is not in the best interest of the child.

As you know, this bill seeks to establish that the terminal illness or critical condition of a divorced parent represents a change of circumstance of that child of the marriage, and that this change of circumstances ought to allow the child and parent to visit as long as it is consistent, as I said, with the best interests of the child.

As legislators, we need to produce and provide, where we can, ample and timely access between children and their divorced parents. Ample access is a principle provided for in subsection 16.(10) of the Divorce Act, which states that “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”.

Subsection 17.(9) reiterates the same support for ample access in the consideration of variation orders.

I have undertaken this bill because I believe it is necessary to take the Divorce Act a step ahead to provide not only ample access, but also timely access. Timely access is especially important for circumstances where a divorced parent is terminally ill or in critical condition and the child may not have the opportunity to say a last goodbye to his or her parent.

This is what I mean when I say “timely access”. The Divorce Act currently provides for maximum access, and this bill seeks to establish, or at least open the door for, timely access by affirming that a child who is on the verge of losing a parent is indeed a child in unusual circumstances, a child needing a chance to say goodbye.

Visitation rights in Canada are about the rights of the children, and this bill respects those very rights, while also seeking to expand them. During second reading debate, honourable colleagues voiced concern in relation to the rights and the best interests of children.

The original text of this bill stated that any access or custody order must be made subject to subsection 16.(8) of the Divorce Act, which clearly states that such orders must be made according to the best interests of the child.

During the second hour of debate at second reading, the bill was amended by all-party support so that the proposed subsection clearly states that such access to a child be granted only as long as it is consistent with the best interests of that child. This was an important amendment, because it provided the bill with its own provision upholding the best interests of the child.

Another important aspect of this amendment is that it preserves judicial discretion by maintaining that it is the courts who decide what embodies the best interests of the child. This bill does not dilute the ability of the courts to exercise their discretion when assessing the interests of a child and preserves the role of the courts in doing so.

This bill is meant to provide an important criterion to assist the judge's consideration, not to harness it. Terminal illness or a critical condition of a parent ought to be one factor amongst other factors that are collectively subject to the key issue, the best interests of the child. Likewise, I do not believe that terminal illness or critical condition is cause for automatic custody.

In short, although the terminal illness or critical condition of a parent is a significant factor that demands consideration, it is not the determining factor, and it cannot trump the biggest factor, which is the best interests of the child.

Another significant aspect of the amendment applied to this bill at second reading is that the bill now seeks to amend section 17 of the Divorce Act rather than section 16. This amendment is significant and appropriate because section 16 deals with custody orders, while section 17 deals with variation, rescission, or a suspension of orders. The condition of a parent who is terminally ill or in critical condition would be taken into consideration by a judge assessing the circumstances surrounding an initial custody order. This bill is aimed at situations in which the circumstances have changed due to the condition of a parent, and in which the consideration of custody or access needs to be revisited.

Mr. Chairman and members of the committee, in summary I would like to say I believe this bill is balanced as it seeks to support both familial bonds and the best interests of children. Any and every child faced with the possible loss of a parent deserves a chance to say that last goodbye unless it is decided by the court that such visitation is not in the child's best interests. This bill also respects the judicial discretion of our courts by allowing them to exercise that discretion in determining what decision ought to be rendered in the best interests of the child. This bill does not seek automatic custody for divorced parents who are terminally ill or in critical condition; rather, it seeks to establish the terminal illness or critical condition of a parent as one factor amid other factors that need to be considered when the courts are adjudicating such questions of custody.

I believe we have a responsibility to identify how we can create and fine-tune the laws to help our fellow Canadians and support them in both good and bad times. That is why I am here today speaking to you about Bill C-252. Mr. Chairman, thank you for this opportunity, and I look forward to your questions and input.

Divorce ActPrivate Members' Business

October 17th, 2006 / 6:15 p.m.
See context

Conservative

Rick Casson Conservative Lethbridge, AB

Mr. Speaker, I want to thank the members who spoke in the first two hours of debate: the member for Burnaby—Douglas, the member for Windsor—Tecumseh, the member for Vancouver Quadra, the member for Scarborough—Rouge River, and the member for Charlottetown, as well as the member for Mississauga South, who spoke today. From the Bloc, I thank the member for Châteauguay—Saint-Constant and tonight the member for Hochelaga, and from my own party, I thank the member for Fundy Royal, the member for Blackstrap and tonight the member for Chatham-Kent—Essex.

I would also like to thank the table clerks, Mr. Speaker, and you. I had asked for an amendment and some procedural things that happened. I appreciate the support that is here for members when the need arises.

I would like to thank those back in my riding who brought this issue to my attention. As someone mentioned earlier, it was an issue that was brought to my attention. I looked not just at the particular instance, but at the whole issue of access to critically ill or terminally ill parents. I thought it was something worth bringing forward.

I would like to thank the Minister of Justice and his people. They helped a lot. They helped guide me through this. I appreciate their support. Of course, I thank the staff in both my Ottawa and my Lethbridge offices for their hard work. Hopefully that hard work will continue, and I hope they are listening tonight. I must express my thanks to the Library of Parliament for its work in the legal research and writing.

The spirit of this amendment is to deal with the children and the right of a child to be able to have one last visit. It is for the children. All other things aside, that was the scope of what I was trying to get at here. It is consistent with a couple of other private members' bills. It is interesting that the member for Mississauga South said that the best way to get a bill forward is to get the government to pick it up and put it into law. I agree with that.

That actually happened with one of the first private members' bills I brought through. It dealt with the Criminal Code. I brought forward an amendment so that courts could seize materials used to produce child pornography upon a conviction. It was not in the code. The bill did not actually pass the House, but it is law now. It was picked up by the government of the time and put into law, so I feel pretty good about that.

Then, of course, there is the issue of raising the age of sexual consent from 14 to 16. That was another bill I worked on, with the member for Calgary Northeast, the member for Wild Rose and others, and that too now is in a bill that has been presented in the House.

Hopefully with this intervention tonight it looks like this is going to be supported and we can move it on to committee, but before I do that, earlier today we amended the bill, so I would like to make one more request of the House today.

In light of the fact that Bill C-252 was amended earlier today by unanimous consent of the House, it would be useful for the record if the bill could be reprinted with the new text. Therefore, I would ask the consent of the House to order a reprint of Bill C-252 as amended today.

Divorce ActPrivate Members' Business

October 17th, 2006 / 6:10 p.m.
See context

Conservative

Dave Van Kesteren Conservative Chatham-Kent—Essex, ON

Mr. Speaker, it is an honour to speak to this bill. I would like to congratulate the member for Lethbridge for this excellent amendment to the act and I commend him for this being his third private member's bill that involves children. We can see that children are very near and dear to his heart, as they are to mine.

I heard a previous member say that she has been married for 30 years. My wife and I have been married for 31 years and this year the last two of our eight children were married so we are very well acquainted with marriage. However, we also recognize that sometimes in life things do not go the way we planned and divorce is a sad reality.

I am thankful and proud that the member for Lethbridge saw a flaw in the act and saw an opportunity to correct it. It is to this that I rise today to speak to this private member's bill, Bill C-252, an act to amend the Divorce Act which would allow access to the spouse, the divorced parent, who is terminally ill or in critical condition.

We cannot imagine what that would be like. I was speaking to one of my colleagues just a minute ago and we were talking about past experiences. When my father passed away about 12 years ago I remember my whole family being around him and I remember that precious time we had together. I think my father also enjoyed having his children around him. It is hard to think that in this day and age that access could be denied. I believe that providing divorced parents who are terminally ill or in critical condition access to their child or children is important for several reasons.

First, we ensure that a spouse who is terminally ill or in critical condition has access to a child or children during his or her time of suffering. Let us think about how important it would be for a divorced parent, who is lying in a hospital bed or at home suffering, to have the presence of their child or children.

Second, we protect the child or children by considering access if it is in the best interests of the child or children of the marriage. The second part of this is the child. I am glad the member saw fit and, in his wisdom, took it upon himself to ensure that we always remember that it is in the best interests of the children as well.

Third, we allow the child or children to be involved in the overall process of dealing with the impending loss of their parent and the grieving that follows.

Again, we had opportunity to speak as colleagues just a few minutes ago and one of my colleagues was telling us about how his wife, who is an adopted child, had the opportunity to see her adoptive mother on her deathbed but who does not have that opportunity with her birth mother. Of course this is a different matter and it is something that we may want to introduce in another bill, but it strikes home to the reality of closure. If we offer that closure to the child or the children, it is in the best interest of the child and it is a good thing.

After listening to all those who have spoken on this matter, I was pleased to hear that we all agree that this is a bill that must move forward. As parliamentarians, we should be considering ways to allow families to continue to function after a breakdown. Again, these are good things. These are things that the people who elect us to this great House expect us to do.

This amendment should be supported because it demonstrates an understanding toward the strain on the spouses when a divorced parent is terminally ill or in critical condition and the responsibility to involve the child or children in the lives of their parents. Again, that bond that we share with our parents is something that is never broken.

Here again we are moving in a direction which is going to ensure that those things continue on for future generations. If Parliament accepts this amendment to the Divorce Act, it will give parents who divorce the legally entrenched avenues necessary to have access to their child or children only if access does not run contrary to the best interests of the child or children involved.

Again, this is a good amendment, because we recognize that there are times when it is not in the best interests of children, but when it is, we want to be sure they have access. It will allow the court that considers giving access to the parent the right to determine by reference to the condition, means, needs and other circumstances of the child or children that access is in their best interests. The courts would have the ability through the law to determine what is good and what is right.

For these reasons I support this amendment, because due consideration has been given to these issues faced by families in these circumstances. This amendment has a balanced approach, one which I support, as it provides parents who are terminally ill or in critical condition access to their children, while also ensuring that such access is granted by the court according to the best interests of the child or children involved. That sums it up.

We all agree that we need to put through this bill, to go through due process, and we all agree that this bill should be enacted quickly. I am thankful for the opportunity to speak to this private member's bill.