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

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I want to thank the hon. member for Mount Royal for being such a fair chair in circumstances where, as he will know, I have constantly complained of the process that forces me to bring amendments to committee at clause-by-clause, rather than bringing them forward at report stage in the House, which is the right I would otherwise have had. If anyone is wondering, that is the reason I could not vote. I do not have rights at committee to vote on my amendments. I can speak to them. However, if I had a vote, it would have remained unanimous.

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

Mr. Speaker, I acknowledge the horrific cases involving Aubrey and Chloe Berry on Christmas Day of last year and what has happened to the Azer children. Alison comes from St. Albert, and her older children went to school in St. Albert while they were there. I met teachers who taught her kids. I have had the opportunity to meet with Alison many times. She came here to fight for the return of her children. Her incredible determination is inspiring in the face of such adversity. It is so tragic that, unfortunately, she has not been reunited with her children.

I want to ask the member about the issue of changing some of the language in terms of custody and access. On balance, it is a positive, but there was some concern raised by some witnesses about the impact it might have on matters in which there is an international component. For example, for a father who abducted his children in Pakistan, it was said that the court in Pakistan was very insistent, or said it would be very helpful, to have the term “custody”, that the mother had “custody”.

I wonder if the member might speak to that and also to the fact that in terms of child support and immigration domestic legislation, “custody” and “access” are the terms that are used.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I had not realized the connection the member for St. Albert—Edmonton had directly with Alison Azer and the children in St. Albert. I always thought of them as children from Vancouver Island. It remains heartbreaking, especially when one is close to them. Alison is an amazing woman.

I think we are making progress by calling it parenting time. I had a horrific case of a child who was kidnapped by a non-custodial parent and taken to New Hampshire, where the courts looked at a custody order from the Province of British Columbia as if it had come out of a Cracker Jack box. They did not give a fig what the courts in British Columbia said. They said that the non-custodial father breaking the orders of the Province of British Columbia had no bearing for them.

There are international conventions, and I had B.C. involved with them, on the return of children in this kind of situation. It is very difficult. My point is that I do not think the wording will be definitive. It is a matter of the Canadian government getting behind the treaty and working to get children who have been kidnapped by a non-custodial parent and getting the reciprocal government to recognize that right under the treaty. The clarity the Minister of Justice or the Prime Minister could use in a situation like that would be to say that in the context of our Divorce Act, “parenting time” conveys rights that the other parent does not have.

I think we will work through it just fine. The benefits of not using the word “custody” and “access” in our family law legislation federally far outweigh the risks of another jurisdiction not understanding our law. If we could not get the United States of America to understand that British Columbia's Supreme Court was actually a responsible court, with jurisdiction, knowledge and clout, and the language at that time was the same, I think we are going to have problems whenever we have transboundary issues with children.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I thank my colleague for her speech.

I was happy to vote in favour of most of the amendments she proposed, if only as a symbolic gesture.

I would like to read out a short quote from a woman who appeared before our committee. She was speaking on behalf of the association she represents, but she was also speaking for a large coalition of women's groups. She said:

In addition, we also recommend that a definition of violence against women be added, which acknowledges that it is a form of gender-based discrimination that's experienced by women in multiple ways and shaped by other forms of discrimination and disadvantage. This intersects with race, indigenous identity, ethnicity, religion, gender identity or gender expression, sexual orientation, citizenship, immigration or refugee status, geographic location, social condition, age and disability.

I would like to know what my colleague thinks about the fact that this amendment, which sought to add a clearer definition of violence against women, was rejected. Does she think that including it could broaden the scope of this legislation?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I thank my colleague for her question.

I completely agree with her. That was a profound testimony. However, I think that Bill C-78 vastly improves the legislation regarding families. We always need to improve and strengthen women's rights, and I think that the definition of family violence will do just that.

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

Mr. Speaker, I wonder if my colleague could provide her thoughts on custody issues during a family breakup. The costs are becoming fairly prohibitive for family members. Really, the biggest disadvantage is to the children, when so much has to be paid in terms of courts.

From a personal perspective, this is one of the reasons it is good to see this proposed legislation, because it at least starts to deal with the issue in a much broader sense and brings more attention to it.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, when we are looking at the economic impact of family breakdown, especially in light of the last conversation about the impact on women, it is very much the case empirically that women suffer more economically in a family breakdown. Most of the single-parent households in Canada are single-parent households in which the woman is raising the children and is responsible for economic support and has all the additional burdens. If we add to that the spoils of war approach to divorce, with legal bills, court bills, bills for having one's own lawyer, sometimes an accountant, and these costs are large, and, when it is time to actually make court appearances, child care costs, these costs mount up.

One of the advantages the bill attempts to achieve is more efficiency, speedier handling, and wherever possible, moving to mediation. As well, of course, there is the fact that a judge could give an order to force resistant parents to provide information about their financial situations. All of this should reduce the overall burden of costs in a family breakdown.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, I am pleased to rise today for the first time in this new House of Commons. I must admit that it is much bigger. There is a lot of space. It will likely encourage us to give impassioned speeches. All sorts of nice surprises await us over the next 10 years.

I would first like to acknowledge the excellent work that was done by the members of the Standing Committee on Justice and Human Rights. I would particularly like to thank our justice critic, the member for St. Albert—Edmonton, for his work on this file and for the much-needed assistance he provided to each of our colleagues in understanding the issues related to Bill C-78. I thank him for his valuable advice.

For those watching at home, we are talking about Bill C-78, 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.

I will get into the nitty gritty of the bill a little later on, but I would like to take a moment to share something relevant to this topic. I am very fortunate to have never had personal experience with the Divorce Act. I am so blessed to have had such an extraordinary woman by my side for more than 27 years. We have been through good and not-so-good times. There have been many ups along with the downs.

Caro and I have three children, who have always been our pride and joy. Like most parents, we have tried to make every decision in the best interests of our children. There have been hits and misses, but no one can say that we have not tried to always act in the best interests of our children. The longevity of our relationship can be attributed to communication, dialogue and co-operation. Like many of my colleagues, I plan to keep investing in our family in the years to come.

I understand that, unfortunately, no two relationships are the same and that stories do not always have a happy ending. Children are often at the centre of these stories that end badly. Some divorces can be very difficult. There are fights over the children, domestic violence and children who become fought-after pawns because of the law. Parents fight for custody of their children. Any couple who turns to the courts must embark on this long and difficult process.

Throughout this process, people experience strong emotions. Some are hurt, others are angry. There are all kinds of factors that make it difficult for them to go through this legal process. There is also the whole financial aspect. In the past few years, when the time came to discuss custody and determine who was the better parent, the courts used a win-lose approach. One parent would get custody of the children and the other had to settle for weekends. It was time to overhaul this legislation.

The bill does a number of things. First, it replaces the terminology pertaining to custody and access with terms that reflect the parental role to try to minimize these wars where there is a winner and a loser. The bill establishes a list of criteria concerning the interests of the child. It will create obligations for the parties and legal counsel to encourage the use of family dispute settlement mechanisms. I know that we already have such a process in Quebec, but incorporating it into law will make it official. It is absolutely essential. It is often hard enough to make a marriage work. There is no need to make divorce even more difficult.

It is not always necessary to involve the courts. It is not always necessary to pay exorbitant lawyers' fees and spend weeks, months or years arguing in court. There are other ways. That is what this bill will help with. It will also introduce measures to assist the courts in addressing family violence. I will come back to that. It will establish a framework for the relocation of a child and simplify certain processes, including those related to family support obligations.

Those are the key principles. Based on what has been presented, this bill should help attain certain fundamental objectives.

The first is to promote the best interests of the child, by emphasizing the importance of ensuring that the child's best interests are always the primary consideration in family law when parental decisions are being made.

The second objective is to address family violence by requiring the courts to take into account parental violence, its seriousness, its impact on the child, and future parenting arrangements.

The third objective is to reduce child poverty by offering more tools for calculating child support and for enforcing support orders.

Finally, the bill should make Canada's family justice system more accessible and efficient by simplifying the various definitions and processes, giving provincial child support recalculation services more flexibility, alleviating the courts' workloads by allowing provincial administrative child support services to carry out some tasks for which the courts are currently responsible, and requiring legal professionals to encourage their clients to use means other than the courts to resolve disputes.

As I mentioned, all of these measures seek to put the best interests of the child first. In the case of separation or divorce, children are always the victims of their parents' relationship. As we all know, children do not get to choose what family they are born into. Some are lucky, while others are less so. Unfortunately, in an emotional situation like a separation, life can easily become increasingly difficult for children. We all know of children whose parents went through difficult divorces and who had a lot of problems after that, who took years to recover from the experience and who will always carry the emotional scars of that difficult period.

Thirty years on, it makes perfect sense to me that the courts should put the child's best interests first in all their decisions. What makes no sense is why it took so many years to make these changes. Neither the Divorce Act nor any of the other acts I mentioned earlier have been changed to any significant extent in over 30 years, even though the reality of Canadian families has changed a lot in the past 30-plus years. Divorce is more common now than it was when the act initially came into force in 1968.

I would like to share some statistics. According to the 2016 census, five million Canadians separated or divorced between 1991 and 2011. Of those, 38% had a child together at the time of their divorce. I will point out that the act we are discussing today relates only to divorce. It does not deal with common-law partners, only legally married parents. The 2016 census showed that over two million children were living in separated or divorced families. Over a million children of separated families were living in single-parent families, and another million were living in step families.

I want to point out that a separation creates single-parent families. The statistics show that single-parent families, and in particular ones in which a woman is the custodial parent, are more likely to be poor than two-parent families. This is a fact. It is understandable, then, in these cases, that the parent would not have a lot of money to spend on legal fees to assert her rights, for example. We cannot lose sight of this reality in our jobs as legislators.

As I mentioned earlier, one of the reasons we support this bill is that it puts the best interest of the child first. Promoting the best interest of the child, helping to address family violence, fighting child poverty and making Canada's family justice system more accessible and effective are all features that we as parliamentarians must stand up for.

Of course, I hope those folks over there do not expect us to agree with everything in Bill C-78. There are certain items that need a closer look. I know my colleagues on the Standing Committee on Justice and Human Rights had recommended some amendments to the bill, but they were rejected. There was one that really stood out for me. I would have liked Bill C-78 to provide for the possibility of shared parenting in the consideration of determining factors in the best interest of the child.

This is not always true, but I do know some people who were better at getting a divorce than they were at being married. They exist. This change would make such situations legal, when people can reach an understanding. Shared parenting would give them more flexibility. It can work, although I realize it does not work in every situation. This would have given judges the authority to consider that as a determining factor.

I would be remiss if I did not mention one important amendment to the bill made by the Standing Committee on Justice and Human Rights. On December 5, the committee unanimously adopted an amendment to include the right to testify, plead, make observations and receive a judgment in the official language of one's choice. I believe this is very important to all Canadians.

[The Assistant Deputy Speaker, Anthony Rota]

The hon. member for Mégantic—L'Érable will have eight minutes to finish his speech the next time we study this bill.

It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

The House resumed from January 30 consideration of the motion that Bill C-78, 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, be read the third time and passed.

Third Reading

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

Mr. Speaker, I will be splitting my time with the member for Mount Royal.

I am very grateful for the opportunity to speak to Bill C-78. I will use most of my time to address the important amendments the Standing Committee on Justice and Human Rights have made to this important bill. I was proud to work with the committee to bring forward these changes, which reflect witness testimony and would significantly improve access to the Canadian family justice system.

Changes to federal family laws are long overdue. The changes we are bringing forward are substantial. They would better address the challenging issues that families may face, such as family violence and disputes over relocation. They would improve access to the Canadian family justice system. Bill C-78 already went a long way toward achieving these goals and the work of the justice committee took the bill even further.

I am fortunate to represent a riding like Parkdale—High Park in this chamber, where the constituents are informed and engaged, and I am privileged to bring their concerns to this chamber every day. My constituents in Parkdale—High Park have spoken to me repeatedly about the importance of reconciling the need for a strong and fair justice system with their desire to be compassionate and understanding toward the plight of single parents and vulnerable children. This bill is precisely that middle ground.

I want to thank the many witnesses who submitted briefs or shared their thoughts on this bill in person. The committee listened closely to all the different points of view raised by members of the public and family justice system professionals in response to Bill C-78.

Committee members gathered important information from over 50 witnesses. The committee also received over 50 briefs representing a broad range of opinions and points of view. It reviewed the recommendations carefully, and many of them resulted in amendments to Bill C-78.

Relocation, particularly moving with a child after separation or divorce, is one of the most highly litigated areas of family law. There is next to no guidance on this issue in the current Divorce Act.

Bill C-78 would introduce a relocation framework to ensure that children come first and to encourage out-of-court dispute resolution. Some witnesses brought forward suggestions to improve access to justice in relocation, which is particularly relevant for northern remote communities and unrepresented litigants.

The Canadian Bar Association and the Family Law Association of Nunavut wisely recommended the use of a simplified form rather than court applications to facilitate access to justice and reduce the need to get the courts involved.

The committee addressed this concern and developed an innovative solution promoting conflict resolution and access to justice. Specifically, it passed an amendment to give non-relocating parents the option of indicating their opposition to a proposed relocation through a form set out in the regulations. This will save the responding parent time and money.

The committee also amended the bill to require that parties seeking to relocate use a form to provide notice. Requiring that notice be provided through a form will promote clarity by prompting parents to provide all necessary information in a consistent manner.

We anticipate that these measures will relieve the administrative burden on the non-relocating parent, while still helping to ensure that courts only hear cases in which there is a genuine disagreement between the parties.

I believe that all members of the House support efforts in the bill to improve protections for children and families who have experienced family violence. For the very first time in federal law, Bill C-78 includes a broad, evidence-based definition of family violence and guidance for courts making parenting orders in the context of family violence.

Bill C-78 also stipulates that courts will be required to take family violence into account when determining the shared parenting arrangement that will be in the best interest of the child.

Witnesses raised concerns that, when people fleeing violence want to relocate, it can be dangerous for them to inform the other parties of their intention to apply for an exemption concerning the notice requirements.

In response to this particular concern, Bill C-78 was amended to explicitly provide that parties may apply to a court to waive or change relocation notice requirements without notice to other parties. Courts could then decide whether or how other parties should receive notice, without risking the safety of family members. People who have experienced family violence and face ongoing risk must be able to relocate without compromising their safety. However, notice is a fundamental principle of the legal system, so courts will exercise this power only where necessary.

Now I want to turn to the important issue of poverty reduction. I said I would focus this speech on the work of the justice committee, but I must take a minute to raise another issue of importance to me and I believe to many Canadians. That is the feminization of poverty and how the bill would help address it.

Children and families going through a separation or divorce are more vulnerable to poverty, especially those living in single-parent families, which are often led by mothers.

Unfortunately, although parents are required to provide accurate and up-to-date information on their income when the child support amounts are established, many parents do not comply. In 96% of cases where child support payments are in arrears, women are the ones owed money.

Obtaining fair child support amounts is key to reducing the risk of child poverty. Children do better when a fair and accurate amount of support is set and paid for them promptly after separation or divorce.

Bill C-78 would provide for various measures to ensure that child support obligations are met, which would address the pressing need of eliminating poverty in families going through a separation or divorce. The bill would allow for information on a parent's income to be shared with the court and provincial services.

With respect to official languages, the family justice system must adapt to the changing needs of Canadian families. This includes the needs of Canadians living outside Quebec whose first language is French, as well as those living in Quebec who have English as their first official language.

Consequently, the committee adopted an important amendment. Bill C-78 will now explicitly recognize litigants' right to use the official language of their choice in divorce proceedings before the lower courts. The parties will be able to give evidence, make submissions and apply for an order in the language of their choice. They can also be heard by a judge who speaks their official language.

This important change in the family justice system will provide the parties with the same language guarantees currently provided by the criminal justice system. This will help English-language and French-language minority communities flourish in Canada. It is very important to point this out, in light of the current Ontario government's threats against its francophone community.

I would like to recognize the tireless efforts of my colleagues, specifically the member for Mount Royal and the member for Ottawa—Vanier, to ensure that this becomes a reality.

In conclusion, I would like to once again recognize the work of the entire Standing Committee on Justice and Human Rights, and of course the invaluable contributions of family law experts and stakeholders from across Canada. They have made an impressive bill even stronger and more responsive to the needs of all Canadian families.

The residents in my riding of Parkdale—High Park have said that one of the many ways to modernize the justice system in Canada is by addressing the shortfalls of our family justice system, and this bill is a comprehensive step toward realizing that important goal.

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

Mr. Speaker, I want to ask a question of the parliamentary secretary respecting the issue of relocation. He represents a riding in the centre of Toronto and I represent a riding in suburban Edmonton. We represent ridings where lawyers are readily accessible, but that is not the case in northern and remote communities.

There was a concern raised at committee about the 60-day notice period to notify the non-relocating parent of the relocation with a 30-day response time. It was noted that in many parts of Canada this time period would be very difficult, if not impossible. I was wondering if the parliamentary secretary could comment on that, and explain why the government rejected a Conservative amendment to increase the notice period from 60 days to 90 days with a 60-day response time.

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

Mr. Speaker, I thank the official opposition critic for his contributions to the bill. It is an important point about relocation. I will underscore two points. One, as I said in comments, relocation is one of the most litigated areas in the entire family justice domain. Therefore, the first thing we are trying to do is to reduce the amount of litigation and reliance upon lawyers who, yes, exist in Edmonton and Toronto but not in other parts of the country.

The second point about the relocation is about just trying to strike the right balance. If we proceed with a notice requirement that is too prolonged, it will jeopardize the ability of the relocating parent to successfully relocate, should that be determined to be in the best interests of the child and in the context of that family's situation. It is not a perfect solution, but it is an attempt to strike a balance to accommodate both the needs and the interests of each of the parents in a divorce situation.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, this bill is a great example of how a couple of members can make a difference.

At various stages of this bill, francophones living outside Quebec told us they could not get a divorce in French. That is the case in British Columbia, Newfoundland and several other provinces.

We sat there, listened and understood that this was a real problem.

All the parties worked together to introduce an amendment that would give people the right to get a divorce in French anywhere in Canada.

Divorce is one of the main reasons why people who have not been charged with a crime have their first interaction with the justice system. They want to express themselves in their own language.

It is hard for me, no matter how bilingual I am, to speak in my other language when I am emotional. I am so proud that all three parties, the Conservatives, the NDP and the Liberals, got together to promote official language rights in both minority communities in Canada. I want to thank my fellow members for having done that.

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

Mr. Speaker, I thank the member for Mount Royal for his contributions and for this important point. Both he and the member for Ottawa—Vanier were strong, solid and consistent in their support on this important issue.

This issue should not be underestimated by the House. Protection of official language minority rights is a critical priority for this government and should be for all governments in Canada. Unfortunately, we have not seen that. Most recently, we have had threats to official language minority protection in my province of Ontario.

What we stand for on this side of the House and in this Parliament, thankfully unanimously, is that the protection of official language minorities is not a partisan issue, and it should never be a partisan issue.

Making it possible for people to get a divorce in French in British Columbia or in English in Montreal is a very good example of that priority in action.