Bill C-422 (Historical)

An Act to amend the Employment Insurance Act (elimination of waiting period)

This enactment amends the Employment Insurance Act to eliminate the two-week waiting period that follows the termination of employment.

Lyme Disease

[Terence Young, Conservative, Oakville, ON]

Mr. Speaker, I was pleased to second Bill C-422 in this House, introduced by the member for Saanich—Gulf Islands. With potential amendments, it is receiving wide support from both sides of this House.

The bill would expand the Public Health Agency of Canada's role against Lyme disease, in greater surveillance, prevention, control, research, education, and awareness.

Lyme disease is an emerging and debilitating disease in Canada. It is transmitted by ticks, and is now a risk in my riding of Oakville, and the GTA.

Canadians should be alerted that many victims go untreated due to misdiagnosis, as the symptoms are similar to multiple sclerosis, Parkinson's disease, colitis, Crohn's disease, Alzheimer's, and chronic fatigue syndrome.

Anyone hiking in tall grass or brush in parts of Canada could be bitten by a tick and end up with a severe ongoing disability.

However, with early diagnosis, Lyme disease can be successfully treated with antibiotics. Canadian patients should know that the most reliable test for Lyme disease, the western blot test, is not available in Ontario and other parts of Canada, but some naturopathic doctors will provide it through laboratories in the U.S.

Divorce Act

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, may I begin by first congratulating the member for Saskatoon—Wanuskewin for his long service in this place. We differ in philosophy. We differ in political stripe. In fact, we differ on this bill. However, for anyone who has served his constituents and Canadians for 19 years, that is indeed something to be commended. I know the member has indicated that he does not intend to re-offer in the upcoming election. We have several months before the next election, I think, but it is not too early to acknowledge the significant contribution of this parliamentarian.

The bill placed before the House in his name, Bill C-560, is an effort to change the standard applied by the courts when dealing with divorce cases. Specifically, the summary contained in the bill reads as follows:

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 it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.

This is not the first time that the member has introduced a bill on this matter. The most significant changes that the bill would bring to the Divorce Act are, first, the removal of the current definition of “custody” from the Divorce Act, replacing it with “parenting”. That is 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”. Second is the creation of a presumption that allocating parenting time equally between the spouses and equal parental responsibility are in the best interests of the child. Third is the addition of factors that courts must consider in making custody orders.

The current law mandates the application of the best interests of the child test. The best interests of the child test has been a fundamental part of most legislation relating to children for years. This doctrine is not unique to family law proceedings. It is also used in federal legislation under the Immigration and Refugee Protection Act, the Citizenship Act, and the Youth Criminal Justice Act. It is also used in some provincial legislation dealing with matters, such as custody, access, and child support for unmarried couples; child protection legislation, and by that I mean legislation dealing with the apprehension and supervision of children by child protective services; adoption legislation; and in some provinces, change of name legislation.

None of the federal acts defines best interests of the child, as was pointed out by the member. However, many provincial family law and child protection acts include extensive definitions of the concept. Some provincial acts even include different best interests of the child tests for different contexts. For example, the Ontario Child and Family Services Act defines the test differently for child protection than it does for adoption.

As it stands now, courts must apply the best interests of the child from the perspective of the child, not the parents, and they must consider the long-term interests of the child as well as the child's day-to-day needs.

Three primary considerations under the best interests of the child test that the courts often consider are preserving the status quo in the interests of maintaining some stability for the child, whether one parent acted as the primary caregiver during the relationship, and the importance of keeping siblings together when considering future housing arrangements.

The best interests of the child is a critical component of the Divorce Act, and it appears in sections relating to custody. Under the current act, the best interests of the child, as it relates to condition, means that needs and other circumstances of the child are the overriding factor that the courts may consider when making a custody order. Further, when making a custody order, courts 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. For that purpose, it should take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

We all know that divorce is often a painful experience for couples, particularly when children are involved. In an ideal world, parents would see past their differences and would apply what the courts currently apply, which is to say, the best interests of the child standard. However, since divorce is sometimes acrimonious, painful, and filled with emotion, the best interests of the child are sometimes lost or confused with the subjective interests of a parent, and often those competing interests are to the detriment of the child or children.

It is for that reason, in part, that a judge must have the ability to apply his discretion to ascertain the facts and eventually make a determination of what is in the best interests of the child. I fear that what the hon. member is proposing would seriously alter that standard and would remove the discretion of the judge to assess the case through the best interests of the child and not the father or mother.

I am not alone in my concern about this bill. The Canadian Bar Association has very serious concerns about this bill. This is what the CBA had to say about the bill when it was introduced in a previous Parliament as Bill C-422, now Bill C-560. I will quote the Canadian Bar Association, which stated:

As lawyers, we assist all family members in restructuring their responsibilities and arrangements following separation and divorce. As a result, the CBA Section sees this issue from all sides. We firmly believe 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.

Bill C-422 [now Bill C-560] does not accomplish what it proposes. It does not give parties tools to resolve differences, nor does it assist them in making plans to share decision-making and physical care of children to minimize conflict and maximize children’s benefits. It would move from considering the individual child to preferring parents’ rights. It would encourage contentious litigation in future cases of family breakdown, and equally important, would cause thousands of children to be re-exposed to litigation and conflict as many settled cases would be reopened.

Those are the words of Canadian Bar Association. They are not mine.

It further stated:

Under current law, the legal playing field is even; there is no gender bias in law requiring judges to consider “the best interests of the child” as paramount. Instead, the Bill proposes an overly simplistic idea of equality: rather than considering a fair result best for the children involved in the case at hand, children must be split right down the middle. The Bill does not advance equality for either fathers or mothers. Its proposals would come at the sacrifice of the appropriate focus, solely on what is best for children.

There is more in the way of opposition to this bill, and it comes from the member's own party. Senior ministers have come out against this effort. In 2009, speaking at the Canadian Bar Association's annual conference, the then minister of justice and attorney general, now defence minister, was asked his position on equal parenting and the bill we are now debating. He stated, “the best interests of the child are always paramount...and should be”.

The member for Saskatoon—Wanuskewin will know that just two weeks ago, his colleague and friend, the current Minister of Justice, appeared at the justice committee to account for his supplementary estimates request. During the meeting, the minister was very willing to answer questions, and I felt he was reasonable and fair in some of his responses, including the response to a question about whether the government intends to invoke the notwithstanding clause of the charter on matters where it disagrees with the Supreme Court.

I posed a direct question to the minister about Bill C-560, which is before the House today. This is what I asked the minister at committee:

A private member's bill is coming before the House, C-560, dealing with the Divorce Act. Back in 2009, your predecessor, [the Minister of National Defence], 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?

He answered:

This particular private member's bill will receive, I'm sure, the rigorous examination that all private members' bills receive. I am familiar with the one you're referencing. 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.

I asked a supplementary:

The bill proposes to weaken that in favour of parental rights. Do you realize that?

The minister's response was “Yes, I do realize that”.

The Divorce Act currently establishes the best interests of the child as the paramount consideration in custody cases. In other words, the rights of the parent are subordinate to the interests of the child.

This legislation seeks to weaken that. It is not acceptable to the Liberal Party of Canada. It is not acceptable to the Canadian Bar Association. It is not acceptable to the present Minister of Justice or to the former minister of justice. That is why we will oppose the bill.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, as I was saying to the hon. member for Saskatoon—Wanuskewin, I appreciate the work he has done and his persistence, because this is not the first incarnation of Bill C-560. It came up as Bill C-422 in the previous Parliament.

Clearly, it is a hot topic. I must say that, since my election in May 2011, it has probably been one of the bills on which I have received the most correspondence and heard the most opinions, all of them varied. I received even more for some other bills.

First of all, I would like to thank all those who have written to me, especially those in my riding with an interest in the matter. I think that everyone is interested in it. Everyone in the House shares the concern about providing our children with the best environment possible. There is no doubt about that. I have felt that from both sides, both from those who supported Bill C-560 and from those who expressed major reservations.

I have also had the privilege of listening to many groups on both sides. I had an absolutely fascinating conversation with Brian Ludmer, one of the people who worked on this bill, one of its architects, one might say, in terms of its terminology.

What fascinates me about the debate on Bill C-560 is that, for the most part, everyone is saying much the same thing. Views begin to diverge when it comes to the solution or to what has to be done. That is not so clear.

I have analyzed Bill C-560. I would never claim to be an expert in matrimonial law. That is why, before making any recommendations to the NDP caucus, I spent a lot of time talking with people with much more expertise than I have. I met with people from the Canadian Bar Association and the Barreau du Québec, among others.

Make no mistake, I have already heard the arguments of those who support Bill C-560. They will say that lawyers just want to protect their turf, but that is not so. I have also spoken with lawyers who have dealt with complex cases that were not always resolved the way they would have hoped. My impression is that those dramatic cases are the reason behind Bill C-560, and Bill C-422 before it. There are a number of them in Canada, including in Quebec. Sometimes, we wonder which legal planet we are living on.

That being said, just because some judges apply a law a certain way does not necessarily mean that we should shred up that law, throw it out and completely change the system. Whether the Conservative member introducing Bill C-560 likes it or not, this represents an immense change. It is not as easy as he would have us believe. What we do here, the thing that is at the heart of everything referred to as “child care” in Canada, is serving the best interests of the child. That is the basic principle. What this bill does is create a presumption.

When we create a presumption, even if it is refutable, in other words if we can counter or set aside this presumption by introducing evidence, this is still very different than starting with the basic premise, namely the best interests of the child.

In this bill, it is fascinating to see the text that speaks to presumption. I will read the exact text:

The presumptions referred to in subsection (4) [equal parenting] are rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally.

Not only does this preclude the essential nature of the best interests of the child, but it demands a considerable interest. There is a major problem with that. Imposing this presumption is the major problem with this bill.

I asked my colleague a question about retroactivity. He could very well have introduced his bill without undoing everything that has previously been done. Not only is this situation tragic, but tons of cases could end up back in court, cases that people have learned to live with. Perhaps those were not good solutions at the time, but this is what could happen now. Retroactivity provisions in legislation are rather dangerous. The Conservative government was able to see it last week with the Whaling decision. That is a red flag for me.

The NDP caucus has often supported bills at second reading to be able to conduct an in-depth analysis in committee. The major amendment that needs to be made in this case is to withdraw the presumption of equal parenting. My colleague is right that major problems need to be addressed. However, we should not do this by way of a private member's bill; we should have a government bill instead. In so doing, we would be able to better regulate the right of judges to grant custody with a view to equal parenting. Everyone agrees with that principle. I come from Quebec, where civil law stipulates that both parents have parental authority. That is something we are still hoping to achieve.

Under the circumstances, it is not even possible to amend the bill. I will therefore not waste my time. I would rather ask the government why it does not consult with experts in the field in order to draft a piece of legislation that is true to what the member is trying to do. In fact, several reports have been signed in the House for Bill C-422. That would be done legally and without undermining the fundamental principle in family law with respect to custody and the best interests of the child.

The problem is that, once custody is granted to the mother, for example, it takes a lot of convincing to get a judge to change the custody terms. Things can change over the years. Sometimes, a person is not ready for joint custody when the child is one, two or three, but is ready when the child is five or seven years old. We should make equal parenting more flexible over the years.

It would have been much better to throw the baby, meaning the system, out with the bathwater, and say that the child's interest is no longer our concern. Although that is not what I heard my colleague say, because I will not put words in his mouth, that is what his bill says.

I am prepared to accept his speech as it stands, but I must deal with the terminology in the bill. It removes the principle of the interest of the child and creates a presumption of equal parenting and a heavier than necessary burden to make the interest of the child the priority again. That is a major problem that adds to the problem with retroactivity.

With all due respect for the drafters of this bill, it is fundamentally so different from what it should be that I would rather we focus our energy on agreeing that we need to make changes to the custody system in consideration of the best interests of the child and equal custody so that both parents have access to the child. That way, we would be doing a service to society. The bill currently has major problems that we cannot remedy or amend.

It is unfortunate, but this bill should not even proceed to second reading. However, we could sit down with the people who are having problems and who have had a difficult time and listen to what they have to say.

Sometimes judges have simply not caught up with the times and need a few gentle nudges to remind them that having two parents—a father and a mother—is important for the child.

Employment Insurance Act

[Irene Mathyssen, NDP, London—Fanshawe, ON]

moved for leave to introduce Bill C-422, An Act to amend the Employment Insurance Act (elimination of waiting period).

Mr. Speaker, this is a private member's bill that amends the Employment Insurance Act to eliminate that two-week waiting period.

As we all know, young families suffer incredibly when they lose the job that sustains them. It is very traumatic. Low-wage single-parent families live from paycheque to paycheque. Therefore, the point of this bill is to make sure that those interminable two weeks are eliminated, because that waiting period can indeed put a great strain on any family.

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