Bill C-252 (Historical)

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

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.

Divorce Act

[Rick Casson, Conservative, Lethbridge, AB]

moved that the bill be read the third time and passed.

[Betty Hinton, Conservative, Parliamentary 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.

[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.

[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.

[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.

[Rick Casson, Conservative, Lethbridge, AB]

Mr. Speaker, I want to thank those assembled tonight who spoke to the bill and the members of the Standing Committee on Justice and Human Rights who dealt with the bill. The bill has developed since I first introduced it. It was amended in the House. It went to committee and through the wisdom of members of all parties on the committee, it was amended again. I believe now we have something that is very applicable to the issue that originally got me started down this road.

As members know, trying to get a private member's bill through the House and to the other place takes a great deal of effort on the part of many people. I want to thank everybody involved.

It is time that we had a look at the Divorce Act and changed this provision. The situation that motivated me to bring this to the House needed to be addressed and with this bill moving forward, that will be done. Terminally ill or critically ill parents will be able to apply to a judge to see their children. That condition will prompt the judge to assess visitation rights in a different scope.

It has been a long road but one that has been very worthwhile. I certainly encourage other members of the House who have ideas to pursue them. I have been very fortunate to introduce private members' bills and to get my name drawn. It is a lottery situation. It is a strange thing where names are drawn out of a barrel. Some members have been here for 15 years and their names have never been drawn. I feel very fortunate.

I am sure there will be instances in this country in the years to come where divorced parents will become terminally ill. This provision will allow them to apply to the courts for changes to allow them to see their children. That will be good.

[The Acting Speaker, Royal Galipeau]

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker, Royal Galipeau]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Royal Galipeau]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Royal Galipeau]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Royal Galipeau]

In my opinion the yeas have it.

And five or more members having risen:

Pursuant to Standing Order 98, the recorded division stands deferred until Wednesday, March 21, 2007 at the beginning of private members' business.