Bill C-78 (Historical)

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

This enactment amends the Divorce Act to, among other things,
(a) replace terminology related to custody and access with terminology related to parenting;
(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;
(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
(d) introduce measures to assist the courts in addressing family violence;
(e) establish a framework for the relocation of a child; and
(f) simplify certain processes, including those related to family support obligations.
The enactment also amends the Family Orders and Agreements Enforcement Assistance Act to, among other things,
(a) allow the release of information to help obtain and vary a support provision;
(b) expand the release of information to other provincial family justice government entities;
(c) permit the garnishment of federal moneys to recover certain expenses related to family law; and
(d) extend the binding period of a garnishee summons.
The enactment also amends those two Acts to implement
(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996; and
(b) the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
The enactment also amends the Garnishment, Attachment and Pension Diversion Act to, among other things,
(a) give priority to family support obligations; and
(b) simplify the processes under the Act.
Finally, this enactment also includes transitional provisions and makes consequential amendments to the Criminal Code.

Divorce Act

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, I am pleased to rise to speak to Bill C-78, the government's family law bill.

As other hon. members have alluded to in this debate, issues relating to family law, by and large, fall within the parameters of provincial jurisdiction. However, section 91, class 26 of the Constitution Act provides that it is within the jurisdiction of Parliament to make laws with respect to marriage and divorce.

In order to discuss Bill C-78 and what it seeks to do in terms of updating family law and divorce legislation in this country, it would be helpful at the outset to provide some context to how divorce law in this country has evolved. Indeed, the Divorce Act is a relatively new piece of legislation. It was passed in 1968, only 50 years ago.

Prior to the passage of the Divorce Act in 1968, this country had a patchwork of laws with respect to divorce. In some provinces, there were no divorce laws. As a result, it was necessary for couples to seek a private act of this Parliament in order to obtain a divorce. In other provinces, divorce was possible if it could be established that there had been some wrongdoing in the relationship.

Fast forward to 1968 when Parliament did pass legislation to provide uniform laws with respect to divorce. The Divorce Act of 1968 remained in place until it was updated in 1985, which is when Parliament made some very significant reforms to divorce and family law. Among the changes made in the 1985 Divorce Act was to provide a single ground upon which divorce could be obtained, namely, when there was a breakdown in the relationship. A breakdown in the relationship could be established based upon a number of different criteria, including one year of separation of the couple, or if it were established that there was adultery in the relationship or physical or mental abuse.

Since Parliament took steps in 1985 to update divorce law in Canada, over the last 30-plus years there has been very little change that has been made to update family law in this country. I have to say, I was born in 1984, one year before the Divorce Act was updated, so 1985 was a long, long time ago. Canadian society has evolved considerably in these last 33 or 34 years, including the structure of families and, unfortunately, the increased prevalence of divorces and marital breakdown. It is about time that Parliament moved forward to consider a comprehensive update to the Divorce Act.

In terms of the substance of this bill, let me say that we are open to looking at it carefully. On the surface, it would seem that this bill contains a number of positive measures. Among the key substantive aspects of this bill is the updating of terminology, encouraging families to settle disputes outside of the court, improving child support enforcement, and preserving the well-being of impacted children. All of these measures, on the surface, appear to be a step in the right direction.

In terms of the road to reform, it has been, as I mentioned, a long time coming. We saw a very thorough review undertaken by Justice Cromwell, back in 2013. One of the key recommendations from the Cromwell committee was the need to update terminology. Right now, under the Divorce Act, the terminology is quite adversarial, and that is not helpful as families deal with what is often the most difficult and challenging time couples can face when they are in a situation of marital breakdown.

Among the changes Bill C-78 would make would be to change the language to make it less adversarial, in accordance with the recommendations of the Cromwell committee. In what ways would the bill make the language in the Divorce Act less adversarial? For example, it would replace the term “custody” with the term “contact” and the term “access” with the term “parenting”.

Another aspect of the bill is that it would encourage parties to try to settle disputes through mediation or alternative dispute resolution. Far too much money is spent in our courts, and to the degree that families can settle their marital matters outside of court, outside of what is, by definition, an adversarial system, is a step in the right direction. Of course, as I alluded to, it would codify what is at this time a wide body of case law and have regard for the best interests of the child.

I spoke to an acquaintance of mine, who is a judge, and he told me that upon being appointed, one of the challenges was to get up to speed on different aspects of the law that he had never practised. For example, he had never practised criminal law before, so he certainly had to spend a lot of time getting up to speed. He said that aside from the academic side and getting up to speed on different aspects of the law, what he found to be the most difficult was trying to settle disputes when children were involved in terms of making orders respecting parenting, for example, because so often, he is making a decision that is going to profoundly affect the parents, the family and the child. I tell that anecdote to underline the gravity, the importance and the impact these changes would have.

As I say, we will study the bill at committee. I look forward to hearing from a wide array of witnesses and to exploring possible amendments.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I noted that the member acknowledged some of the very strong provisions in the legislation with respect to putting children first and enforcing child support payments. I want to ask him about the bill's impact on women. The context of my question is a couple of statistics.

We know that 96% of all people in what are called registered maintenance enforcement agreements involve payments of men to women. We also know that 60% of all of those registered in these maintenance enforcement agreements are in default, and the default is in excess of $1 billion. While this bill would impact children in a positive way, I want to hear the member's comments on how it would impact women, because Liberals very much feel that this is at the heart of a feminist approach by government and putting women, including middle-class women, first.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, let me first thank the Parliamentary Secretary to the Minister of Justice for his question and also congratulate him on his appointment as parliamentary secretary. I had an opportunity to get to know the hon. parliamentary secretary over the last three years. I know that with his background as a lawyer, he will be well suited to his new role. I look forward to working with him closely on the justice committee.

The member raises a valid point about the issues around collection and in respect of women who often are disadvantaged in a divorce or marital breakdown. There is no question that it really has a significant financial impact. Oftentimes, people are losing half of what they have when there is a divorce.

All I can say is that we will look very carefully at the bill and work with the government and the parliamentary secretary in a constructive manner to hopefully craft the best possible legislation for women, families and children in Canada.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Mr. Speaker, it is a bit awkward for me to stand to speak to a divorce bill, having enjoyed almost 40 years of a very happy marriage. Although we have had a very happy marriage, we also have a number of friends who have gone through uncomfortable divorces.

One thing that comes up, and has been mentioned as part of this bill, is child support payments. I would like to ask my colleague this. If this bill gets to committee, will he ensure that there are phrases and language in the bill to address some of the ways individuals are avoiding payments, such as by working for cash and not paying income tax so that none of it is reported to Revenue Canada? If it is under the table, it cannot be seen by the courts. I would like to ensure that he can look at wording to address that issue in the bill.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, I certainly agree with the comments of my colleague from North Okanagan—Shuswap. I certainly agree with him on the importance of the matter he has raised. However, seeing that my time is nearly expiring, on a slightly more partisan note, I want to say this. It is a bit ironic that paramount in Bill C-78 are the best interests of the child, among other things, and rightfully so. What a contrast to Bill C-75, which is currently before the justice committee, which would water down sentences for a whole host of serious offences that directly impact children, including kidnapping a minor and forced marriage under the age of 16, and I could go on. The government is downgrading those offences that directly impact children from serious indictable offences to hybrid offences that could be punishable with a mere fine. Therefore, while it is encouraging that we are focused on the best interests of the child in this bill, I only wish the government would have the best interests of the child in all bills, including Bill C-75.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Mr. Speaker, I appreciate the member's comments, both in his speech and in his most recent responses to the question. However, what I would say is that we see strong statements in Bill C-78 with respect to defining family violence for the first time in a much more expansive way. It would give judges tools to use in interpreting family violence. I find a strong thematic consistency in Bill C-75, which he just mentioned, with respect to intimate partner violence. I would also say that, thematically, what both bills are trying to do is reduce reliance upon lawyers like me, and many in this House, who are involved in part of the overly litigious nature of the family law system. By encouraging people and giving them the tools to remove themselves from the court system, we would be reducing some of the backlog that characterizes that system, which is a goal that I think the member opposite and those on this side of the House share. I would put to him that those two are in fact compatible goals and that the legislation is moving in the same direction.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, Bill C-78 appears to contain a number of measures to, among other things, combat family violence, and we welcome improvements to address the very serious and systemic issue of family violence. We have always stood up for the safety and well-being of children and families as Conservatives. Again, I reiterate that I, along with all my colleagues, intend to work closely with the government to achieve some of those objectives, which are very important.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, I noticed that the government has also allotted, under this bill, approximately $77.2 million to be utilized in a program to help in situations like this. Often I get people calling my office, either one spouse or the other, who are in financial hardship, especially over these last three years of things happening in Alberta, and they do not have the funds to sit down and negotiate with a lawyer because of the cost.

I wonder if my friend from St. Albert—Edmonton could comment again on this alternate resolution process that might be started as a result of this program and whether it would be of benefit to couples and save them a lot of money. We used to have an old saying in Alberta that if people end up going through divorce, they take their estate and half goes to the legal firms, and they might end up with a quarter each if they end up going through a dispute.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, my colleague from Yellowhead is absolutely right that the costs involved in litigating family disputes are extremely high. It costs thousands and thousands of dollars, often to do very little. By the time the matter is resolved, and it really is never resolved, because these things are ongoing when we are talking about children, who often are at the centre of these disputes, tens of thousands if not hundreds of thousands of dollars may be expended on lawyers. At the end of the day, no one benefits from that. Parents do not benefit, nor do children.

Of course, the obvious consequence when people are spending tens of thousands if not, in some cases, hundreds of thousands of dollars is that a huge amount of resources that could otherwise go to support the children of the family are being expended on litigation. Lawyers, I guess, to some degree, benefit, although I do not think any lawyer takes comfort in seeing families in these disputes expending all kinds of money to no end.

As I mentioned, it is encouraging that this bill focuses on alternative dispute resolution. The faster these matters can be resolved outside of court, at as little cost as possible, stands to benefit everyone in the process. It is an encouraging sign.

[The Deputy Speaker, Bruce Stanton]

Questions and comments.

Since there are no more questions and comments. I just wanted to bring to the attention of the House that in the course of acknowledging the hon. member for St. Albert—Edmonton, force of habit and information that I had in front of me conspired to the fact that I did not realize that he was actually accorded 20 minutes for his remarks and a following 10 minutes for questions and comments. Accordingly, I gave him the two-minute mark at eight minutes into his remarks. I did sense that he had probably gotten on the record all the things he wanted to say. Nonetheless, I did cut him off midway through the time that was originally allocated to him. Therefore, I will open it up. If there are any more questions and comments, we can continue for a few minutes. We will take one more question.

The hon. member for Chatham-Kent—Leamington.

[Dave Van Kesteren, Conservative, Chatham-Kent—Leamington, ON]

Mr. Speaker, I want to take my colleague back to his concerns about the government's efforts to protect the child.

In a former committee, we had testimony for youth unemployment. It was actually called youth employment. In the testimony of one group, it said that it had found that those who finished grade 12, got married, stayed married, did not do drugs and alcohol had a greater chance. In fact, they probably would not experience poverty. Much of the talk today surrounds those issues and problems in our divorce courts today.

I am curious if the member might take us in another direction. What could governments do to help strengthen the institution of marriage? I know this is not part of the bill, but on the member's comments about the government's lack of enforcing proper punishment on crimes perpetrated against children, are there things the government could do to help propagate and build up marriages? We certainly know that would certainly help our society.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, speaking to Bill C-78, one of the criticisms that has been raised is that the bill would not provide for a rebuttable presumption for equal shared parenting. It is true that shared parenting is not always in the best interest of the child in every situation. However, I think most hon. members would agree that to the degree that it is possible for both parents to be involved in the raising of the child, in many circumstances, in the normal course of things, it would be in the best interest of the child, hence the basis for a rebuttable presumption for equal shared parenting.

That is one of the many issues that we will look at carefully when we study the bill in committee.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I appreciated the history lesson from my colleague across the way with respect to divorce acts and how they came into being. I appreciate the fact that he was born in 1984. The member talked about the patchwork in Canada at that time. To me, it emphasizes the importance of recognizing that, yes, it is good that we have this legislation and that it will move forward to committee. However, it is also important to recognize that other jurisdictions also have an important role to play in the area of divorce, maintenance and so forth.

Could the member provide his thoughts on the importance of having other stakeholders come to the plate as well?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, the hon. parliamentary secretary is absolutely right. When we are talking about family law, we are talking about shared jurisdiction between the provinces and the federal government. Subsection 91.26 of the Constitution Act provides that it is within Parliament's jurisdiction to legislate with respect to marriage and divorce. Everything outside of that falls within the provinces. Issues around separation, separation agreements, etc. would fall within provincial jurisdiction.

Beyond the issue of jurisdiction, he is also right that it is not just a matter between parents and children who are involved in these disputes. There are a number of stakeholders, whether they be social workers, or law enforcement, and I could go on. It is very important to get their perspective on the bill.

I trust we will be hearing from a cross section of stakeholders who can provide their feedback and perhaps critique or identify some shortcomings or gaps within the bill which could be closed. I trust we will do that at the justice committee.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, in one of his answers just a few minutes ago, the member mentioned Bill C-75. I am still concerned about Bill C-75. It would reduce sentences for very serious crimes, including the abduction of a child under the age of 14, participating in activities of criminal organizations, forced marriages, marriages under the age of 16 and concealing the body of a child. These policies are very alarming to me. Would he like to comment on them?