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.