Bill C-560 (Historical)

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

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.

Divorce Act

[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.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank the member opposite for his praiseworthy dedication to this cause and his persistence.

However, I would like to ask him how the existing legislation prevents equal parenting, since everything he said over the past 15 minutes gave me the impression that if that were how the courts made decisions, there would be no need for Bill C-560.

I also wanted to mention that I am really concerned about clause 10 of his bill, the retroactivity clause. I would like him to comment on that because it means that cases that have already been ruled on could go back to court. That could result in considerable uncertainty around custody across Canada.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Speaker, I appreciate the member's question and I look forward to her speech. We will learn from that, I am sure.

In respect to the member's first question, as things stand in our country, people can work this issue out. I remember Kris Titus, who was the president of the Equal Parenting Council across Canada, an umbrella organization for 40-some groups, telling me about when she and her ex, who were living in close communities, went to the judge the first time around to try to work out this kind of arrangement of approximately equal shared parenting. They could do it because they were living in proximity, but the judge could not get his head around it and said that, no, it would probably be a sole custody kind of thing. This was thinking in the courts at that time, and there is probably still a lot of that today.

They had to go back, and they had a battle. It is a credit to her that they actually did that. They did get an agreement of approximately equal shared parenting, but it was not easy to do in a system biased against it.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I want to come back to a question that was posed by the member for Gatineau but that was not dealt with in the member's answer. It is something that troubles me also.

Most custody and divorce arrangements result in a separation agreement that deals with custody and access to the children. Many of these agreements are then incorporated into court orders. One of the things the bill would do would be to effectively reopen all of these agreements and make them subject to further negotiation and possibly to further litigation.

Does the member have any appreciation for the chaos that would be caused in otherwise settled, stable child custody and access arrangements by this retroactivity?

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Speaker, that is quite a statement from the member about the kind of chaos that will be, as opposed to the chaos there presently is across the country.

With due respect to the member, we have shut out people along the way over the course of many years, and the tender years doctrine has sometimes done that in a very considerable way.

Parents never lose the desire to have contact with their children over the course of time. I can tell the member about too many conversations with parents who, after many years, once the money ran out after paying off the lawyers, finally came to an agreement.

I would think that there may be some opening of scenarios, and there will be some reasonable compromises come of that, based on a fair presumption in terms of access. Some of those children at this point will obviously be able to make the choice themselves and say that they want to be with mom or with dad on some kind of basis. They do that now. It is sometimes not honoured, but I think that will be something that will generally work out over time.

I think it is a bit of scare story to talk about chaos when there is actually chaos right now in the legal system in Canada.

[Erin O'Toole, Conservative, Parliamentary Secretary to the Minister of International Trade]

Mr. Speaker, I would like to thank the hon. member for bringing this debate to the floor here today, and particularly for mentioning Kristen Titus. I am happy to call Kris a friend and a resident of my constituency. She has been a passionate advocate on these issues as a mother talking about the importance of parents in the lives of children.

One of the positive developments I have seen since my years at law school and following the evolution of family law is the increase in collaborative law settings that avoid the strife and the real impact on children that the drawn-out traditional approach to divorce has caused in Canada. Many family law lawyers are opting out of that and agreeing to work within a collaborative setting that is focused on making sure that the children do not get missed as the parents settle these disputes.

I am wondering if that evolution of collaborative law toward family law would complement what the member is suggesting in terms of equal parenting and keeping the children and their needs at the focus of family law.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Speaker, I thank my colleague for the question. In fact, that is the whole point of what this bill is intended to do. There are many good lawyers in the collaborative law practice across the country whom I have talked to, and the collaborative law practices across the country are driving this kind of a bill. As a result, we would probably have more of these situations settled outside of the courts by way of collaboration and mediation.

That is what has happened in socialist countries, left-leaning countries, and right-of-centre countries, where they have implemented equal shared parenting. Collaborative law and mediation, and that kind of thing, become increasingly important when we have a rebuttable presumption of equal shared parenting, aside from cases of abuse and neglect.

That is a great question, and a sign of the times by way of what we have on the floor here today.

[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.

[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.

The House resumed from March 25 consideration of the motion 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.

[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.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to have the opportunity today to speak on Bill C-560, an act to amend the Divorce Act with regard to equal parenting and to make consequential amendments to other acts.

The preamble to the bill states a number of objectives, including that of encouraging divorcing parents to take more responsibility for their disputes with less reliance on the adversarial processes.

I would like to focus my remarks on the stated objective of the bill in order to demonstrate how this concept is consistent with our government's current approach to divorce and matrimonial settlements.

We all know that divorce is often a messy and drawn-out process in which both sides have deeply rooted resentments toward one another.

Unfortunately, at times divorce is unavoidable and happens quite frequently in our society. However, rather than turning to the courts and other adversarial processes to find a neat and tidy solution to an otherwise complex and messy situation, our government has taken the approach of encouraging and supporting both sides to find a mutually agreed upon resolution themselves.

In the context of separation and divorce, when parents are able to work together and put their children's needs and interests first, they provide a supportive environment for their children during an often challenging time. This is an important step in allowing these kids to achieve their full potential.

Working together and minimizing conflict are important and necessary goals for the approximately 70,000 married couples who divorce in Canada each year.

While the government cannot support Bill C-560, as it moves away from a strong focus on the best interests of the child, I thought it would be helpful to outline for my colleagues some of the ways in which this government is already promoting the goal of encouraging parents to take more responsibility for the resolution of their disputes.

First, this government contributes funding to a wide range of family justice services that have been shown to support co-operation and minimize conflict.

Second, this government has developed various publications to help families deal with divorce, including a booklet for children to help them understand and cope with their parents' divorce as well as a parenting guide and tools that encourage parents to co-operate with each other and that help them prepare a parenting plan that would best suit the needs of their children.

The phrase “family justice services” refers to all programs and services that meaningfully contribute to the resolution of family law issues. Those to which this government contributes funding include information and resource centres, alternative dispute resolution services, parent and child education programs, and services directed at high-conflict situations.

Here is a brief description of each type.

Information and resource centres offer free information on family law and court procedures. As a general rule, these centres do not give legal advice. However, they give out necessary information and documents, such as court forms, and provide some guidance on the steps in legal proceedings. They also refer families to legal and community resources to help meet their needs.

An alternative dispute resolution process that is widely funded by governments is mediation. A mediator is a neutral third party who helps the parents discuss issues on which they disagree. The mediator does not take sides, but may make suggestions to help the parents communicate better and reach an agreement. The mediator does not replace a lawyer.

Parent education and information programs are usually run by lawyers and social workers. They often work together to help parents understand and cope with the emotional effects of separation and divorce on themselves and their children, deal with some of the challenges of parenting after separation, and learn techniques for communicating better with each other, resolving disputes, and co-parenting. Some of these programs are also available on government websites and in other formats. This helps to make them more accessible to those living in remote areas.

Some provinces and territories have developed special education and counselling programs for children that help them cope emotionally with the breakdown of their family and understand that their parents' divorce is not their fault.

Finally, there are family justice services designed to help in situations in which there are concerns about the safety of children and the other parent. As a key example, service providers, generally with social work experience, supervise visits between a parent and a child, or they may supervise the transfer of a child from one parent to another when there is a high degree of conflict between the parents.

I would like to emphasize that these programs and services are developed and administered by the provinces and territories. As many members are aware, the federal, provincial, and territorial governments share constitutional responsibility for family law, and the administration of justice is a provincial/territorial responsibility. The federal government is responsible for divorce, including custody and support when dealt with as part of the divorce. In all other situations, the provincial and territorial governments are responsible for custody and support.

Since 1985, the federal government has provided funds to provinces and territories to develop and improve services and programs that assist separating and divorcing families. The current funding program entitled the “supporting families fund” has two objectives: one, to contribute to the continued improvement to access to the family justice system; and two, to encourage greater parental compliance with family obligations, notably support and parenting arrangements.

To fulfill these objectives, the fund was recently renewed for three years, until 2017, to provide $15.5 million per year to the provinces and territories for the delivery of family justice services to help parents resolve their issues and comply with their family obligations for the benefit of their children. The fund also provides $500,000 per year to non-governmental organizations to develop targeted family justice information and training resources. By helping to reduce conflict and increase co-operation between parents, these family justice services promote better outcomes for children.

The second way in which this government supports the goals of co-operation and minimizing conflict is to make available on the government website information and other tools that can help children cope with divorce and help parents develop parenting arrangements that respond to the needs of their children.

The government recognizes that children need information as well as adults and has developed What happens next?, a booklet for children between the ages of nine and twelve whose parents are separating or divorcing. It gives them basic explanations of key legal terms and also discusses the emotions they may be feeling. The children's calendar helps children keep track of their schedule and important dates as they move between houses.

The guide entitled Making plans gives parents information about issues they need to address when developing parenting arrangements, including a schedule for the time children will be under the care of each parent. It also suggests processes parents can use to agree on a plan, such as mediation, negotiation, and collaborative law, and provides tips on how to include their child's perspective. This guide promotes agreement between parents by emphasizing the importance of communicating, reducing conflict, and building a co-parenting relationship that focuses on the best interests of the child.

The parenting plan tool is a companion to Making plans. It is a practical guide with sample clauses to help parents develop a written parenting plan setting out their parenting arrangement.

Finally, the federal government worked with our colleagues in the provinces and territories to develop a parenting plan checklist to help parents identify issues to consider when developing a parenting plan.

The need for public legal education and information materials such as these, as well as for family justice services, is widely recognized. Recently, the Action Committee on Access to Justice in Civil and Family Matters, a group broadly representative of leaders across Canada in the field of civil and family justice, and chaired by Supreme Court of Canada Justice Thomas Cromwell, emphasized the value of front-end services, such as those family justice services funded by this government, especially those that include “live” help. It noted that:

It is widely recognized that the provision of services early in a dispute helps to minimize both the cost and duration of the dispute and thus to mitigate the possibility of protracted conflict and the corresponding harm to family relationships.

The committee was equally adamant that:

The more that families can effectively take responsibility for the resolution of their own disputes, the better.... This push towards family autonomy...[must be] balanced by a corresponding public obligation to ensure that these families are given appropriate help in doing so.

I want to reassure the House that we take that public obligation seriously. That is why I have taken the time to explain today some of the ways in which we are contributing to high-quality front-end services that support the many Canadian families experiencing family breakdown.

I have highlighted the supporting families fund and the development of public legal education and information materials. Further, the government will review the custody and access provisions of the Divorce Act and, in so doing, will consider how it can further encourage parents to rely less on adversarial processes and focus on the needs of their children.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I started at Dalhousie law school in 2001, and in my second year I took family law with the great Rollie Thompson, one of the foremost thinkers on family law in Canada. If he is watching right now, he is laughing out loud at home because I said that; but he is a great thinker when it comes to family law, and I was really lucky to be able to take that class with him.

There is one thing he drilled into our heads over and over again. Yes, it is the law, but he made sure we fully understood what it meant, and that was the best interests of the child. We talked about different scenarios and hypotheticals, such as what we would do if we were judges with a certain case in front of us and how we would make the decision. We talked about the best interests of the child, because when it comes to conflict about custody and access in Canada, the paramount guiding principle under the Divorce Act, and also in many pieces of provincial custody and access legislation, is the best interests of the child.

What does that mean? It does not mean mom; it does not mean dad; it does not mean grandparents. It is the bests interests of the child. I point out that it also does not mean children across the board. That was a tricky thing for us to understand as law students. The question was not what the best would be for the children, writ large; it was this child who stood before us, who had a specific case, a specific family situation in a specific geographic area of Canada. There were all kinds of different considerations, such as socio-economic considerations, and it was about this child before us.

When we consider the best interests of this child who stands before us, there can be many different possibilities under the legislation. There can be equal time. Equal time is allowed under the Divorce Act. There can be sole custody by one parent with access by another parent. There can be sole custody by one parent and no access by the other, because it may be determined that in the best interests of this child, he or she should not have contact with a parent. There are all kinds of circumstances where that occurs.

Shared custody is an option as well, and it is even possible to have a scenario where a child has a different set of circumstances from that of his or her sibling. Again, I come back to the idea that it is not about what is best for children; but it is this child, not his or her brother or sister; this child. It goes back to the idea that the most important thing that we consider is the child standing before us, and that is the root of the law when looking at family law and how to deal with custody and access. It is beautiful and elegant. It is an elegant concept. Let us forget about who lives where and who has more money or anything like that. What is the best scenario for this child?

The bill before us would instruct judges to find a presumption of equal sharing of parenting responsibilities. This could be rebutted. It is a rebuttable presumption if a party can show that the best interests of the child would be “substantially enhanced” to do otherwise. Even if I thought this bill was a good idea or creating this rebuttable presumption was a good idea, which I do not and I will explain why later, this is a significant departure from Canadian family law. It is a significant departure. Even if I thought this was a good idea, in no way could anyone possibly think that something as significant as this concept, this reversal, this rebuttable presumption, should be changed through a private member's bill.

I know I am talking process here, but process is important. Not everybody knows that private members' legislation is different. It gets very limited debate. There are two hours at second reading and maybe a couple of days at committee. One would think a couple of days is big, but a committee meeting is just two hours. Then there are two hours at third reading. Therefore, we are talking about four hours of debate in the House.

The best interests of the child is the cornerstone of our federal Divorce Act, the cornerstone of custody and access laws provincially, and part of the UN Convention on the Rights of the Child. This is something to which Canada is a signatory, and we cannot possibly think that four hours of debate would be sufficient for changing this concept.

The mover of the bill is speaking to this bill; I am speaking to this bill; there is a smattering of other MPs who are speaking tonight; and that is it. We are just going to have this four hours of debate. Members cannot think that there is enough thought or insight or discussion here tonight that could support this fundamental change to family law. That is in the make-believe world where I think this is a good decision.

However, I do not support this bill. I do not support it in any way, shape, or form, thanks in large part to the constant drilling of the best interests of the child by Rollie Thompson, my family law professor. This is the most important concept.

I am going to quote the Canadian Bar Association.

The Bill would represent a disservice both to children and families by: taking the focus away from children in favour of parental rightsdetracting from the individual justice required by the Divorce Act andpromoting further and more fractious litigation.

Litigation; we often hear how we need to change the Divorce Act. We need to change this idea of best interests of the child because there is all this litigation and it is so difficult. Yes, it is difficult. Of course it is difficult. However, there are lots of avenues for parents to take, so they do not actually have to resort to litigation.

When the focus is on the best interests of the child, it makes parents take stock for a minute. It makes them take a deep breath and focus on their children, rather than themselves. With this concept, they are more likely to put aside their differences. They are more likely to put aside their self-interest and to work to a resolution that works for their family.

This bill would actually make that consideration of the child secondary. I cannot support a law that is going to make the child second.

In coming up to this debate, I was contacted by a constituent of mine. He asked me to support this bill. He shared a heartbreaking story, a truly heartbreaking story of his situation with his ex-spouse and kids. He told me about how sole custody was used as a weapon against him and held out as a reward for his ex-spouse.

We are contacted often by people who want us to support legislation or to not support legislation, vote for or against, but his story really did stick with me. It was a very difficult story to read. There are always individual situations that do not fit or somehow do not work, but when I looked at his situation and he told me about everything he had gone through, I could not help but think about how much different his situation would be if we had support for parents, if we had access to justice, if people could actually access the courts and have legal representation.

I think that the goal of this bill, which is co-parenting, would be better served by greater funding for parental education, for access to justice, for access to legal representation and to counselling services. It would be better served by those things than it would by this bill.

I do not have a lot of time left. In doing research for this bill, I found there is a fantastic paper put together by the Canadian Bar Association. It was about a previous incarnation of this bill. I remember when this bill was introduced in the last Parliament. I was deputy justice critic, and my colleague the member for Windsor—Tecumseh was justice critic. We met with lots of folks to talk about the implications of this bill.

I will say the CBA discussion paper is fantastic. I wanted to quote from it, but I probably do not have a lot of time. I am going to make one quote. It talks about this committee that existed in Parliament, a special joint committee on child custody and access.

The Committee recommended:a series of criteria defining the best interests of the child, among which would be the principle that children benefit from consistent, meaningful contact with both parents, except in exceptional cases, such as those where violence has occurred and continues to pose a risk to the child. Whether an equal time-sharing arrangement is in the interests of a particular child would have to be determined on a case-by-case basis, with a full evaluation of the child's and parents' circumstances....the Committee said that “legislation that imposes or presumes joint custody as the automatic arrangement for divorcing families would ignore that this might not be suitable for all families, especially those with a history of domestic violence or very disparate parenting roles”.

I know my time is up. I thank the Speaker for being a little lenient.

[Leon Benoit, Conservative, Vegreville—Wainwright, AB]

Mr. Speaker, I am pleased to speak this evening on Bill C-560, although I must admit it is not a fun topic to deal with. Certainly, there have been all too many, usually young fathers, come to me in states of depression and desperation because they had been denied access or given very limited access to their child because of a divorce and a bad decision made by the courts and our justice system.

Bill C-560 would amend the Divorce Act to direct the courts to make equal shared parenting the presumptive arrangement for children following the divorce of their parents, except in proven cases of abuse or neglect. The key point of this legislation is that when parents divorce each other, they do not divorce their children. These amendments would keep both parents in the lives of more children in those cases where marriages break down. Bill C-560 would require parents to co-operate in establishing equal shared parenting unless they can make a credible compelling case that this would not be in the best interest of the child.

I have heard tonight many, mostly lawyers but not all, who have said that they favour a system where decisions are made based in the best interest of a child. Well, the simple truth is that a child having both parents is what is in the best interest of a child in most cases.

Far too often, cases are being decided by our courts that do not make decisions that are in the best interest of the child. I believe that the law is an ass, so to speak, in far too many cases.

I have seen the fallout of that, and it is not fun. There is nothing that wrenches at one's gut and strikes at the heart in a negative way more so than a parent, again, usually a young father, who is being denied access to his child for no good reason. It is not because they are any threat to the child, but it is because of a bad court decision. I believe that this legislation would make the outcome positive in far more cases.

Just over half of the number of divorcing couples today make their own arrangements for seeing their children without needing court intervention. For those who do need to use family courts, an equal shared parenting presumption would eliminate a key incentive for acrimonious conflict.

It is this conflict that breaks the heart, and breaks the will in many cases, and also makes lawyers rich. Of course, I would not be surprised if many lawyers did not support this legislation. I am not suggesting that all lawyers would oppose this just because they would be denied legal fees, I am not that crass, but certainly I believe that kind of thinking does come into things far too often.

Bill C-560 would foster settlements and reduce litigation due to the requirement that a parent seeking primary parent status must establish the best interest of the children, which means the focus under Bill C-560 is substantially enhanced by the disproportionate parenting time.

Studies have consistently shown that it is the very existence of custody litigation itself that causes the most harm to children. Bill C-560 focuses on the right of the child to know and to love two primary parents in accordance with the UN Convention on the Rights of the Child.

A marked drop in the use of litigation has been seen in Australia following recent equal parenting reforms in that country. This outcome was expected by advocates of equal parenting and runs counter to the scaremongering from opponents who falsely claim that equal shared parenting would produce great conflict among divorced parents and their children. That is simply not what has happened.

Another myth surrounding this bill is that it would impose a cookie-cutter, once-size-fits-all outcome on all divorcing families.

It would not do that. In fact, the opposite is true. The status quo is the cookie-cutter approach, with more than 75% of family court custody decisions being in favour of sole custody for the mother. That is a cookie-cutter approach. It is not a healthy one and it is not one that should be continued in this country.

We clearly see the de facto presumption in operation in today's family courts. Amending the Divorce Act to include a presumption of equal shared parenting, therefore, would not be a radical change to the current law. More importantly, it would be a change that replaces a parental rights framework for one that prioritizes the best interest of the child or children.

The current adversarial litigation system of settling child-related disputes is focused on parental rights. Parents are the ones represented by counsel and are the parties in the dispute. Each parent asserts that they are the better parent and are better able to meet the child's needs, and each parent defends against unfair or mistaken attacks on their parenting from the other parent. As a result, the courts are clogged with bitter, divisive, and financially devastating custody litigation between parents fighting over children like they are property.

I would also like to clarify that Bill C-560 would not impose the one-size-fits-all requirement of an exact 50-50 residential arrangement for the children of divorced parents at both parents' new homes. It would establish equal shared parenting as a starting point for parents and courts to use as they work toward a solution, typically in the range of 35% to 50% in residential access of the child to each parent, according to the unique circumstances of each family.

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...parent is impossible without a substantial amount of time spent in that parent’s physical presence.

That means very close to equal, again, in a 35% to 50% range for each parent.

Bill C-560 aims to implement selected best practices from other jurisdictions to encourage parents to make consensual decisions, to reduce conflict and costly legal battles, and to ensure that both parents have the option of equal time with their children, unless they are proven unfit. Equal time as a starting point in the divorce process means that both parents need not fear the arbitrary loss of their children.

I have got so much more that I want to say, but I see that my time is almost up. I will close by saying that we know, from the best social science research, a body of research that is growing every day, that ordinary children thrive most and produce the best outcomes when raised by both of their biological parents. This is what this bill is about. It could play a very important role indeed in helping to ensure that this is what happens, that the best rights of the child are considered and that it means, in most cases, near equal access to each of their parents. It is a result that is clearly, as I have said before, in the best interest of the child.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, I rise today to speak to a subject I feel strongly about, children’s rights. The bill currently being considered by the House poses a serious risk to the rights of Canadian children, which is why I would like to voice my opposition the current iteration of Bill C-560.

Bill C-560, as introduced by my colleague, the member for Saskatoon—Wanuskewin, amends the Divorce Act by replacing the concept of custody orders with that of parenting orders. The legislation 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 change to the legislation, which may, at first glance, appear innocuous, has significant consequences for thousands of Canadian families that have to navigate the already difficult experience of divorce.

The main effect of the bill is that it gives priority to the best interests of parents, rather than of the child, when a parenting order is issued. However, in my opinion, it is absolutely essential that the criteria of the best interests of the child remain the primary consideration in decisions made by judges regarding custody.

In this regard, I stand squarely behind the opinion issued by the Quebec Bar Association, which publicly announced its opposition to Bill C-560. Allow me to read a couple of excerpts from the letter that the Bar Association sent to the member for Saskatoon—Wanuskewin. I completely agree with the opinion of Bar Association and, at the same time, remain hopeful that the member will bear in mind the expert opinion and jurisprudence on the issue.

In his letter, the president of the Quebec Bar Association expressed the following opinion:

The bill being studied was preceded by two other bills, introduced in 2009 and 2002, that also included the concepts of “parenting orders” and “parental responsibility”. The 2002 bill was the result of a Canada-wide reflection that lasted more than a decade.

In 2001, at the invitation of the Federal-Provincial-Territorial Family Law Committee, the Barreau du Québec participated in this reflection and attended a conference on the subject.

A brief was prepared. The Canadian government's final report on custody and access and child support payments, entitled “Putting Children's Interest First”, along with Bill C-22, were the culmination of that extensive consultation. One of the most important conclusions that came out of the consultation concerned the rejection of all assumptions about child custody and the importance of maintaining the flexible criterion of the interest of the child along with the “friendly parent” and “maximum contact” principles. This conclusion was endorsed by the vast majority of those who participated in the consultation, which targeted numerous social and legal groups across Canada.

Bill C-560 proposes amendments that are contrary to the conclusions that came out of that 2001 consultation, particularly in relation to child custody. One of the legislator's objectives is to have the Divorce Act include, under the expression “equal parenting responsibility”, a presumption of joint parental authority and a presumption of shared custody.

Why does the bill disregard a decade of consultation? Why does it fail to take into account the opinion of experts?

The difficult experience of divorce and the issue of custody already place huge pressure on families and especially on children. However, the current bill would force judges to put the interests of the child second, behind the right of parents to equal custody.

This shift has serious consequences and may have an adverse effect on the healthy development of the child. Judges already consider the option of equal shared custody as the optimal solution for a divorced couple with a child, if indeed this option is in the best interests of the child.

What, therefore, is the point of this bill when the legislative tools at our disposal already provide us with the option of equal shared custody?

Canadian judges are competent and know what to do. In the face of ongoing family conflict, it is quite simply not in the interests of the child to be in a situation where the parents share equal custody. Moreover, where in this bill is the opinion of the child taken into account? Does it come second to the custody rights of parents?

Of course, the NDP will always stand up for gender equality, and the rights of fathers are just as important as the rights of mothers.

However, this bill misses the mark, since it in no way moves us in the direction of equality. Rather, it diminishes the rights of the child, and it is high time that the debate refocused on the real issue at hand: the best interests of the child.

It is also important to avoid relinquishing any legislative space to parents who, in the throes of divorce, often lack perspective and judgment. This vulnerability may cause one parent to use custody of the child to attack the other parent. Sometimes parents’ claims come from a selfish place rather than from a place of genuine concern for the best interests of the child. This must be avoided at all costs.

I will say it again: I share the opinion of the Barreau du Québec, which is that the best interests of the child must take precedence over any other consideration when it comes to custody rights.

I would also like to inform my colleagues that the opinion of the national family law section of the Canadian Bar Association is that Bill C-560 puts the rights of parents before the best interests of the child. The association further argues that:

Parenting is not about adults claiming rights…It is about the desire and ability to put children’s interests first.

The association goes on to say:

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.

I hope that my colleagues will also consider this expertise when it comes time to vote.

In closing, I would like to express my concern about two other aspects of the bill. First, this bill allows custody orders that have already been made by a judge to be changed. From what I understand, an application for judicial review can be submitted for any sole-custody orders, and the courts will now have to apply the presumption of shared custody. This gives a certain amount of retroactive power to change decisions that were already made in an appropriate manner in light of the facts presented to the judge.

Finally, there also seems to be a desire to rank a number of criteria that the judge must consider when rendering a decision. How can the child's opinion and family violence be ranked lower than maximum parental contact? That does not make any sense, and it represents a major setback in terms of child and family law when compared to the laws in most other western countries.

I would like to close by saying that when parents are more concerned about their children than themselves, they are more likely to forget their differences and their own interests and find a solution that works well for their family. The existing laws already offer the possibility of equal shared custody, if that solution is in the best interest of the child.

Rather than restricting the rights of children, I urge all my colleagues to think about more constructive solutions that will enable us to develop tools and provide families with the resources they need to deal with the painful transition of divorce. Parents who are better equipped will be able to minimize the negative effects of divorce on their children's development and well-being.