An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts

This bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.

This bill was previously introduced in the 40th Parliament, 2nd Session.

Sponsor

Maurice Vellacott  Conservative

Introduced as a private member’s bill. (These don’t often become law.)

Status

Outside the Order of Precedence (a private member's bill that hasn't yet won the draw that determines which private member's bills can be debated), as of June 16, 2009
(This bill did not become law.)

Summary

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

This enactment amends the Divorce Act to replace the concept of “custody orders” with that of “parenting orders”. It instructs judges, when making a parenting order, to apply the principle of equal parenting unless if it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Divorce ActPrivate Members' Business

May 27th, 2014 / 6:30 p.m.
See context

Liberal

Kirsty Duncan Liberal Etobicoke North, ON

Mr. Speaker, I thank the House for the opportunity to speak to Bill C-560, an act to amend the Divorce Act in relation to equal parenting and to make consequential amendments to other acts.

My heart goes out to all those struggling through the breakup of a marriage, divorce, court cases for custody, and wanting more time with their children.

While I appreciate the terrible anguish of parents who want to spend more time with their children and the mover of the bill's intent—namely, to have two caring, engaged, and loving parents in children's lives—I believe the bill is fundamentally flawed in putting parental rights before the rights of children, the most precious and vulnerable among us.

The former Conservative minister of justice and Attorney General of Canada, in speaking to the Canadian Bar Association's annual conference in 2009 about equal parenting and the predecessor to this legislation, namely Bill C-422, stated that the best interests of the child are always paramount, and should be.

Bill C-560 was introduced by the member of Parliament for Saskatoon—Wanuskewin on December 12, 2013. This is not the first time the hon. member has introduced a bill regarding this matter.

The most significant changes that the bill would bring to the Divorce Act include the following: removing the current definition of custody from the Divorce Act and replacing it with parenting, defined as “the act of assuming the role of a parent to a child, including custody and all of the rights and responsibilities commonly and historically associated with the role of a parent”; creating a presumption that “allocating parenting time equally between the spouses is in the best interests of a child” and that “equal parental responsibility is in the best interests of a child”; adding factors that courts must consider in making custody orders; and altering the law on parental mobility.

The bill would represent a disservice both to children and to families by taking the focus away from children in favour of parental rights, detracting from the individual justice required by the Divorce Act, and promoting further and more fractious litigation.

The Divorce Act currently establishes that the best interests of the child are the paramount consideration in child custody cases. In other words, the rights of the parent are subordinate to the interests of the child. Bill C-560 seeks to weaken this in favour of the rights of the parents.

The best-interests-of-the-child test has been a fundamental part of most legislation relating to children for many years. It is used in federal legislation under the following acts: the Citizenship Act, the Divorce Act, the Immigration and Refugee Protection Act, and the Youth Criminal Justice Act. It is also used in some provincial legislation dealing with matters such as adoption legislation; child protection legislation; and custody, access, and child support for unmarried couples.

Equal parenting as defined in the bill appears to have received support from some observers, particularly certain parents' groups, but so far it has not received much support from the legal community.

The Canadian Bar Association, or CBA, represents some 37,000 lawyers, judges, notaries, law teachers, and law students from across Canada. The CBA's mandate includes improvement in the law and the administration of justice. The CBA family law section includes family lawyers from every part of the country. They are collaborative arbitrators, litigators, mediators, parenting coordinators, and practitioners. Their clients include children, fathers, mothers, grandparents, step-parents, surrogates, and so on.

The CBA family section believes that any discussion of “parental rights” is misguided when resolving arrangements for children and that the sole focus must be what is best for children. The CBA therefore opposes Bill C-560, as it would shift the way custody is determined under the Divorce Act to parents' rights and away from what is in the best interests of children.

Lawyers assist all family members during what are often impossibly difficult times in restructuring their responsibilities and arrangements following separation and divorce. As a result, the CBA family section sees the issue from all sides. The CBA firmly believes that the only perspective to foster outcomes that are best for children is to require that the courts and parents focus solely on the children's interests in making decisions.

While the bill refers to equal parenting, it would not actually advance equality. Rather, it would change the primary focus in custody and access matters from what is best for children to equal parental rights.

“Parenting is not about adults claiming rights”, says Patricia Hebert of Edmonton, vice-chair of CBA's national family law section. “It is about the desire and ability to put children's interests first”.

She continues:

The bill is based on the faulty assumption that equal parenting time will work for all families, regardless of abilities, circumstances, needs, history, challenges or attitudes of all those involved. In reality, the proposed change is clearly about promoting parents' views of equality at the expense of the interests of children, who are affected by their parents' separation.

The CBA agrees that shared parenting is a good outcome for many families. Where equal time and responsibility can be shown to be in the best interests of children, judges can and do make that order under the current law, but the CBA understands that one size does not fit all.

The CBA objects to the proposed legislation, which says equal parenting time and responsibility must be ordered in every case. This would require judges to justify any other outcome by ruling that the best interests of the child would be “substantially enhanced” by a non-equal regime. This clearly makes children's interests a very low priority, which is contradictory to the stated goals of Canadian family laws as well as Canada's obligations under the Hague convention on the rights of the child.

Finally, I would like to bring forth questions asked by my friend and colleague, the hon. member for Charlottetown, of the current Minister of Justice regarding Bill C-560 at the Standing Committee on Justice and Human Rights. My colleague asked:

A private member's bill is coming before the House, C-560, dealing with the Divorce Act. Back in 2009, your predecessor...indicated that the best interests of the child are always paramount. Given that this question is about to come before the House, what are your views on that, sir?

The Minister of Justice answered:

I can tell you, having practised some family law—as you have in Prince Edward Island—that the long-held legal maxim and the jurisprudence definitely supports that the best interests of the child will remain the primary concern. I see no change in that regard.

In closing, children must always be our primary concern. This legislation seeks to weaken that. This is not acceptable to the Liberal Party of Canada. This is not acceptable to the Canadian Bar Association. This is not acceptable to the present Minister of Justice or to the former Minister of Justice. This is why we will oppose the bill.

March 25th, 2014 / 6:20 p.m.
See context

NDP

Pierre Jacob NDP Brome—Missisquoi, QC

Mr. Speaker, over the past few decades, society has gone through some serious economic and social upheaval. We are seeing the emergence of new types of families. There is a growing number of single parent and blended families.

According to the most recent census of 2006, there were 1,267,000 families in Quebec. Of that number, one-third were single parent families. They now represent a little more than a quarter of all families. That is the highest percentage ever recorded. We must take this new reality into account.

That is why I am speaking to Bill C-560, which amends the Divorce Act to replace the concept of custody orders with that of parenting orders. This bill instructs judges to apply the principle of equal parenting when making a parenting order.

This is not the first time that this bill has come before the House. It is similar to Bill C-422 from the last Parliament, in 2010. As with its predecessor, I have some reservations about Bill C-560.

When it comes to divorce, we must focus the debate on the real issue and that is the best interests of the child. I fear that is not the case with Bill C-560. It shifts the emphasis from the children to the rights of the parents.

In June 2010, in the context of its submission on the issue, the Canadian Bar Association said:

...any discussion of “parental rights” is misguided when resolving arrangements for children. The sole focus must be what is best for children.

When a parent before the law must put the interests of the child first, he or she is more inclined to put aside personal interests and make compromises. What is more, under the existing legislation, there is already the option of shared custody, if that is in the best interests of the child.

By amending the existing law, as Bill C-560 proposes, I wonder if we are not encouraging families to engage in lengthy and costly legal battles that will have an adverse affect on the child and the parents.

I would like my esteemed colleagues across the way to tell me whether this bill will give rise to an increased number of more aggressive litigation cases.

I fear that the consequences of Bill C-560 will put more emotional and financial pressure on parents and children who are already vulnerable. Combine that with the fact that some jurisdictions provide very little legal or financial aid for family matters, and we see the limits of this bill. The Canadian Bar Association shares these same concerns.

Parents make decisions before going to court, and those decisions will be better informed if they have their community's support. Parental equality would be more appropriate if those communities had more funding for parental education and had better legal services.

The current legislation always takes these variables into consideration, while keeping the best interests of the child in mind. The child must remain the primary principle in family law in Canada.

Here is how Bill C-560 changes this principle. It tries to create a presumption of equal shared parenting by ignoring the best interests of the child. However, shared custody would not be suitable for all family situations. In fact, many factors need to be taken into account to determine how the child's interests would be best served.

In other words, one size does not fit all. Each child's situation is unique, with different variables. Children grow up in different communities with dynamics that are not always the same. Judges must assess each case separately.

The NDP supports the principles in certain provisions of Bill C-560 concerning the importance of consultation, mediation and arbitration, provided that all this is done in the best interests of the child.

However this bill does not take that into account. I therefore find that this bill is inadequate and, unfortunately, I cannot support it.

Divorce ActPrivate Members' Business

March 25th, 2014 / 5:30 p.m.
See context

Conservative

Maurice Vellacott Conservative Saskatoon—Wanuskewin, SK

moved that Bill C-560, An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts, be read the second time and referred to a committee.

Mr. Speaker, I am pleased to rise today to speak to this private member's bill, a very non-partisan one, whose time has come in this country for the sake of families and for the benefit of children.

Throughout my time as a member of Parliament, next year my 19th year, I have fought for legislation and public policy that recognizes and protects the role of the family as the foundational unit of society. That is pretty important, and we pay a price when we do not support it, and try to deal with some of the fallout that happens occasionally and try to mitigate that as well in respect to family.

With Bill C-560 I am continuing my commitment to stand up for the Canadian family by seeking an amendment to our Divorce Act. These amendments would keep both parents in the lives of more children in those cases where marriage breaks down.

The amendments in Bill C-560 would direct the courts in regard to divorce to make equal shared parenting, and I will talk later of the range being 35% to 50% roughly, but making it the presumptive arrangement in the best interests of the child, except in proven cases of abuse or neglect.

I introduced a similar bill, Bill C-422, in June 2009, but it was never debated due to an election call.

Previous to that, in 2008, I introduced Motion No. 483, expressing support for the principle of equal shared parenting. At that time, the Government of the Northwest Territories expressed its solidarity with that position by way of a motion that it passed in its legislature.

Seventeen long years ago, in 1997, just prior to my having stepped onto the federal scene here, a joint House-Senate committee presented to Parliament a report entitled “For the Sake of the Children”. That report urged Parliament to amend the Divorce Act to make equal shared parenting the normative determination by courts dealing with situations of divorce involving children. The non-partisan recommendation from that joint House-Senate report was based on some pretty compelling research. Members can read that extensive testimony. It was made available to all committee members of the different parties.

Bill C-560 is a modest attempt to address some of the concerns and recommendations made in that report and, in particular, the rebuttable presumption, which takes children out of the equation as pawns in the battle for gain by adversarial parents. Some marriage breakdowns are more adversarial than others, but removing children from that equation would be good. Parents could fight over the house, the boat, the land, and whatever other kinds of assets of that marriage, but not the children. We will set some guidelines. We will have some restrictions. It will not be about the children.

Bill C-560 would require parents to co-operate toward equal shared parenting unless they can make a credible compelling case that this would not be in the best interests of their children.

In this respect, Bill C-560 is catching up to the best social science research, which demonstrates the importance of a child's continued access to both parents, a father and a mother, for the best personal and social outcomes.

There are exceptions to this ordinary reality, which is why the presumption is rebuttable, and lawyers in the House would understand what that means, and why there are exceptions for proven neglect and abuse. This is not just allegations of abuse or allegations of this, that, or the other, but evidentiary proven neglect and abuse.

Bill C-560 would also replace the language of custody and access with the language of parents and it uses terms such as “parenting order” and “equal parenting”.

Recommendation 5 from the “For the Sake of the Children” report reads as follows:

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”.

The international organization Leading Women for Shared Parenting reports that:

Research also proves that, although children want a relationship with both their parents regardless of marital status, healthy bonding with a non-residential parent is impossible without a substantial amount of time spent in that parent’s physical presence.

That means very close to equal.

This legislation would not establish a firm figure for what that equal time would be. In jurisdictions across the world, from more socialist countries, like Sweden, Belgium, and so on, to more-to-the-right countries, such as I suppose Australia and some U.S. states, the range has been determined to be 35% to 50% of residential time with each parent. That is considered to be consistent with the notion as it is in the courts thus far.

Lawyers for Shared Parenting notes that Bill C-560 conforms with the principles of children's rights as advanced by the United Nations Convention on the Rights of the Child, which has been ratified by Canada. We are a signatory to that convention.

Article 9 of that UN Convention on the Rights of the Child argues for a child's prior right of access to both parents, thereby establishing a presumption for equal shared parenting in cases of divorce and separation.

Some people have objected to establishing a presumption in law regarding child custody cases, but the reality is that a presumption already exists, de facto, in the system. Upwards of 80% of custody cases are decided for sole custody. In effect, we do have a presumption in favour of sole custody as things presently stand.

What Bill C-560 would do is bring Canadian law into the 21st century by bringing it up to date with the best social science research, which indicates that a child's continued access to both parents following divorce or separation is in the typical child's best interest.

I think it is important to define what this best interest is. So often across the country we use the term, the amorphous, vague term, “the best interests of the child”. Members might have even heard it said in speeches today around the House. Certainly people will say that they do not know if they want this bill to come into place, because they are for the best interests of the child, which is amorphous, vague, and moldable as putty in the hands of lawmakers, social workers, and so on, and it does not really get at what that really is in a factual way.

We now know from social science research that the best interests of children is to have continued access to both parents following divorce or separation. That is in their best interests. That is the understanding from a social science basis of what that term actually should mean.

Others have represented this bill by claiming that it eliminates judicial discretion. I am not a lawyer and of course I would not want to offend my legal colleagues, so we are not eliminating all judicial discretion on these custodial matters. This bill would not eliminate all judicial discretion. There could still be a consideration of the situation of each family that comes before the courts.

What the bill does is tighten up the language surrounding judicial discretion, so that it becomes more difficult to use an antiquated interpretation of the best interests of the child as an excuse to rationalize a disproportionate percentage of sole custody decisions in today's family courts.

Suggestions that a rebuttable presumption is too onerous a standard are also brought forward by some people. That particular accusation is really inconsistent with multiple constitutional rulings in many countries, including Canada, where those rulings have made judgments that parents are presumed to act in the best interests of their children unless shown otherwise.

If one wants to say that rebuttable presumption is too onerous, then really one is almost arguing for the revocation of the basic legal doctrine that one is presumably innocent unless proven otherwise. That is a basic tenet of our judicial system, that one is innocent until proven otherwise, presumptively innocent. In respect to parents, it is same thing. Unless one can prove that a person is not a fit parent, we are not wise to make those kinds of assumptions.

Some have argued that a presumption of equal shared parenting would increase conflict in already acrimonious family situations. In fact it is the adversarial family court system that fuels such conflict and disenfranchisement of parents that is really the most harmful to children, pitting parents against each another in bitter court battles that frequently result in a winning and a losing parent. Do we really desire that kind of a system where we litigate over children? Do we desire a system where the courts remove fit parents from their own children's lives?

The negative impact of this current system on children, mostly and foremost, as well as on their parents and extended family is really quite unconscionable and immoral.

Bill C-560 should reduce conflict because it takes children out of the equation as objects of possession to be fought over by parents. With a presumption of equal shared parenting, access to the children cannot continue to be a part of divorce negotiations and treated like a portion of the winnings or losses of divorce agreements.

Parents would know that, barring cases of proven abuse or neglect, the courts would enforce an equitable access arrangement between both parents. Parents would be free to surrender some access, if that works better for their personal circumstances and their children, but the presumption would create a disincentive for hostile parents to try to keep access to the children from the other parent.

For example, if a father were a long-haul trucker, he might say he has the presumption of equal shared parenting but, for him, it only works to have the kids about 30% of the time and the mother to have them 70% of the time. The mother might say that she is a physician with a busy and pressured life, and she can only handle the children 35% of the time at her location. In those cases, that kind of arrangement would be made. It would not impose upon people to say that access has to be 50%. It could be arranged, and it could be anywhere from 35% to 50%.

The presumption of equal parenting would also be expected to reduce divorce rates. This is proven to be the case. As far back as 1998, researchers postulated that. When people go into a situation without the presumption that they are going to get it all, sometimes they back away a bit and they begin to work at those marriage difficulties.

People like Margaret F. Brinig, Frank Buckley, and Dr. Sanford Braver and various publications, such as International Review of Law and Economics and American Law and Economics Review, have found that there is a pre-emptive and preventive factor in this whole concept of equal shared parenting.

I think colleagues in the House are well aware of the social costs surrounding deviant behaviour among youth, whether it is in terms of the justice system or the welfare system. An important way to reduce those costs and the logistical challenges related to policing, the courts, social welfare program delivery, social worker caseloads, and more is to strengthen the families in our communities, including children's access to both their father and their mother, even in cases of separation and divorce.

Children in sole custody settings are reported as having a notably higher likelihood—three times higher, in fact—of suffering from low self-esteem, insecurity, and rejection, being underachievers, including school dropout, substance abuse, depression, suicide, teen pregnancy, and even crime. It is kind of jarring, but I am just stating the facts here. Approximately 80% of criminals are from single parent homes.

I need to quickly qualify that my hat is off to the single parents I have known, and who we all know, from the House, our ridings, and elsewhere, who do a 24-7 job and who do a remarkable job. However, it is not an easy job. The reality is, and the statistics are, that 80% of individuals in trouble with the law are from single parent home situations.

In most cases of sole custody, it is granted maybe more typically to the mother and the father is shut out. Fatherlessness in particular has been isolated as a serious indicator for poor outcomes among children. We have Big Brothers Big Sisters and other substitutes for that very reason.

I can list a host of problems. There is anxiety, learning disabilities, truancy, runaways, drug abuse, teenage pregnancies, mental illness, and suicide. They are some of the things that can occur on a long list or litany, when fathers are removed from homes unnecessarily. Equal shared parenting is an important way to combat these risks among the growing segment of children who live in homes that have experienced divorce.

There is a lot of good research. I will just drop a few names at this point. There is Dr. Edward Kruk, a professor at the University of British Columbia. There is a new study by Richard A. Warshak at the University of Texas Southwestern Medical Center. D.A. Smith and G.R. Jarjoura have an article on social structure and criminal victimization. We have a long list of many others who have done extensive research on the benefits of equal shared parenting. People can contact me later about them, and they are on my website for people to look at.

We have countries in Europe, including France, Sweden, the Netherlands, Belgium, Denmark, Italy, and Luxembourg, that have adopted shared parenting. A number of U.S. states have as well.

We find, as well, across our country, that about 80% of those who claim to be NDP supporters and 80% of Liberal supporters support this concept of equal shared parenting; also 80% of Conservative supporters. More women than men, above 80% again, support equal shared parenting. All across the country, the highest levels of support are in Quebec and the Atlantic provinces, where it is again above 80%.

I would close by thanking my colleague from the Liberal Party, Raymonde Folco, who was the seconder on my bill, Bill C-422. She is an avowed, staunch feminist, who stood with me as we launched that first bill.

The bill is one that all colleagues in the House, irrespective of gender or part of the country, would support for the benefit of children.

Divorce ActRoutine Proceedings

June 16th, 2009 / 10:05 a.m.
See context

Conservative

Maurice Vellacott Conservative Saskatoon—Wanuskewin, SK

moved for leave to introduce Bill C-422, An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts.

Mr. Speaker, I am quite honoured to be introducing a private member's bill today which would direct the courts in regard to divorce to make equal shared parenting the presumptive arrangement in the best interests of the child, except in proven cases of abuse or neglect.

Over 10 years ago a joint House-Senate committee presented to Parliament a report entitled, “For the Sake of the Children”. That report urged Parliament to amend the Divorce Act to make equal shared parenting the normative determination by courts dealing with situations of divorce involving children. This non-partisan recommendation from that joint House-Senate report was based on compelling research made available to the committee members.

Over the past 10 years the best research has continued to demonstrate the far superior outcomes for children in general when both parents, mom and dad, are actively involved in their children's lives even if the parents divorce or separate. Polling from the past two years demonstrates overwhelming support from Canadians for equal shared parenting. There is in fact slightly more support among women than men for equal parenting.

This strong support from almost 80% of Canadians exists across the country with the strongest regional support coming from Quebec and Atlantic Canada. Canadians claiming to be Liberal and Bloc supporters expressed the strongest endorsement for equal shared parenting at 80.6% among Liberals and 82.9% among Bloc Québécois supporters.

A variety of countries, such as Belgium, Denmark, Norway, Australia and various U.S. states have implemented equal parenting, joint custody or shared parenting presumptive legislation which has resulted in lowered court costs, less conflict and improved social outcomes for the children of divorce.

This bill is one of the most apolitical, non-partisan pieces of legislation introduced in this current Parliament. I look forward to strong support for this important piece of legislation from all members of Parliament who are committed to the best interests of our Canadian children.

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