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

Sponsor

Status

Second reading (Senate), as of Feb. 19, 2019

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Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Feb. 6, 2019 Passed Time allocation for 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

Divorce ActGovernment Orders

September 26th, 2018 / 4:45 p.m.
See context

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Mr. Speaker, I recognize, acknowledge and appreciate the support my colleague has expressed for Bill C-78. I also recognize and acknowledge there have been many individuals, family law practitioners and others, who have expressed support for this legislation.

Like the hon. member, I too have had a number of discussions about where this piece of legislation could potentially be improved. That said, I hope we all share an understanding that the Divorce Act is outdated and needs to be modernized. It has not been updated for over 20 years.

I am open to hearing how Bill C-78 could be improved. I have received some letters and would be happy to continue to have discussions with all members of the House.

I look forward to this piece of legislation hopefully going to committee so we can do the work that is necessary to make sure that we get it right.

Divorce ActGovernment Orders

September 26th, 2018 / 4:50 p.m.
See context

Conservative

David Tilson Conservative Dufferin—Caledon, ON

Mr. Speaker, it is a pleasure to rise in the House to speak to Bill C-78, which, as has been said by the minister, is an 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.

As has been said, it has been 30 years since we have seen substantive amendments to the Divorce Act. In that time, the courts and the family law bar have been moving forward with modernizing divorce proceedings in Canada with updated language and terminology aimed at making the process less adversarial. It is good to see that the government is moving forward with legislation to bring the statute in line with the direction the family law sector has been moving in for several years now. While support for these amendments is by no means universal, they are generally being well received by the family law bar, at least in terms of the research that I have gone through in the response to Bill C-78.

Since its tabling in May, there has been a fairly steady stream of commentary, mostly in the legal press, regarding the bill and most of it has been positive. The bill's focus on updating the language surrounding controversial terms such as custody and access and replacing that with language that places the emphasis on parenting responsibilities, parenting time, parental decision-making, etc., is a positive one, in my view.

The language of the current statute is clearly adversarial and establishes a winner and loser scenario in which one parent wins custody of the child over the other. In the already emotional situation of divorce, this adds to the tension and is clearly not in the best interests of the child. With this change in language, my hope is that, should the bill make it to committee, the ramifications beyond the courts and involved parties with the new terminology will be looked at closely.

While many judges and family law practitioners have been using this less adversarial language for years now, other parties that have less direct involvement in divorce and custody proceedings are still rooted in the 30-year-old terminology this bill seeks to replace. I am thinking of Children's Aid societies, schools, law enforcement and others who may be called to intervene in disputes. They are operating under the existing language of custody and access. How will they react to this new language? Will their own enabling legislation or internal rule sets require changes as a result? How will they adapt? My hope is that the justice committee takes a long and detailed look at these potential rough spots.

The road to this set of reforms has been a while in coming. In 2013, the Action Committee on Access to Justice in Civil and Family Matters, which is known as the Cromwell committee, published its final report calling for meaningful change in the family justice system. Specifically, the committee report called for particular emphasis on increasing the use of consensual dispute resolution methods. It also recommended the language of custody and access be replaced by the language of parental responsibility and contact.

In preparing for this debate, I reviewed some of the case law that is of significant importance to the bill. In particular, I would like to quote a 2015 case from the Court of Appeal of Ontario, known as M v. F, 2015 ONCA, at page 277. This is with respect to the old terminology of custody and access and its tendency to produce a culture of winners and losers.

From paragraphs 38 to 40 of the decision, the appellate justice wrote:

[38] The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1) (a) of the CLRA is permissive, not mandatory: The court … by order may grant the custody of or access to the child to one or more persons.

[39] For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

[40] It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

Therefore, we see in this instance that the words “custody” and “access” have been causing trouble for a long time, and the bill's proposed move away from them should be viewed positively. How that plays out on the ground remains to be seen, of course. Divorce is, by definition, an emotional experience and with children in the mix, reason sometimes escapes the participants.

Another emphasis of the bill is to encourage those involved in divorce proceedings to use alternative dispute resolution mechanisms rather than resort to litigation. Again, I view this as a positive step. Litigation over children is very expensive and potentially very destructive. It is certainly almost never in the best interest of the child. Moving away from litigation and moving towards alternative dispute resolutions such as the use of parenting coordinators, family justice counsellors, mediators or arbitrators will go some distance in protecting children from the fallout of adult litigation.

When choosing to go the litigation route, parents can often lose sight of the fact that their children stand to be adversely affected by the litigation process. Indeed, they can even become weapons used by one or both parties to the litigation, to the great detriment of the child or children. Efforts to protect children against adult litigation are commendable and it is a positive aspect of this proposed legislation.

Another aspect of the bill seeks to establish a framework for the relocation of a child. The bill would establish a shifting burden of proof when one parent wishes to relocate. If the parties have substantially equal parenting time assigned by the court, the relocating party bears the burden of establishing that the relocation is in the best interest of the child. If the child spends the vast majority of their time with one party, the other party must establish that the relocation is not in the best interest of the child. The court retains flexibility to make adjustments to existing orders when determining these arrangements, again, in the best interest of the child.

I mentioned earlier in my comments this afternoon that while the overall reception of the bill has been positive, the reaction has not been universally so. Some critics have argued that the bill's lack of a rebuttable presumption for equal shared parenting as the default position for any divorce negotiation is less than ideal. They point to social science research that suggests that the default position of equal shared parenting leads to better outcomes for children. Of course, equal shared parenting is not always ideal, which is why they suggest that a default position should be rebuttable. The lack of this default position in the bill is a detriment for these critics.

Others have noted that replacing the terms “custody” and “access” with parenting-based terms would not substantially reduce the conflict that can be central in divorce proceedings. Some predict that the fights between parents over custody would, in future, turn into fights over who has “decision-making responsibility”, another term in the legislation. They claim that it is inherent in the process. There is clearly some work here for the members of the justice committee, should the bill pass second reading.

I trust my colleagues will seek out the views not only of the family bar but of all those who have an interest in supporting the decision of the courts in divorce matters, as well as experts in research and academia who make this their field of study. This would require a broad range of witnesses who will no doubt have suggestions for improvements to the bill. I would encourage the government side not to reject those suggestions out of hand but to consider them in light of this legislation's more positive, less adversarial approach to divorce proceedings in Canada. There may well be room for improvement here.

In closing, I for one am generally positive about the direction the bill seeks to take and look forward to the deliberations at the committee stage. I am sure they will be enlightening for all members.

Divorce ActGovernment Orders

September 26th, 2018 / 5:10 p.m.
See context

NDP

Brigitte Sansoucy NDP Saint-Hyacinthe—Bagot, QC

Mr. Speaker, thank you for giving me the opportunity to speak to Bill C-78, an act to amend the Divorce Act.

Let me begin by saying that we will support this bill, which makes substantial changes to the existing Divorce Act. The NDP supports the objectives set forth in this family justice bill, especially when it comes to promoting the best interests of the child and taking family violence into account in making parenting arrangements.

It has been 20 years since this law was last amended, and even though this bill was unexpected, I have to say that changes to the Divorce Act are long overdue. My colleagues and I have examined this 190-page bill carefully, and we are pleased to see that the child's best interests really are paramount.

I was also very pleased to hear the Minister of Justice say that this bill will apply on a case-by-case basis because every divorce is different, every situation is different, and every couple has their own story.

We believe we must continue to study this bill, consulting experts and witnesses, in order to make improvements, because there is always room for improvement, and we have some suggestions for the government. We believe that by continuing to study this bill and consulting experts, we will get an accurate perspective on this bill.

We spoke with senior law professors, lawyers, divorced parents, and other experts, and we kept hearing the same thing. We will have to see how this law is enforced by judges. Manitoba lawyer Lawrence Pinsky shared this perspective. In a CBC interview, he said that it was too early to measure the bill's overall impact. Mr. Pinsky also said that it will all depend on how judges interpret the bill, and we agree with this.

About the parenting plan provisions in the bill, according to a senior professor at the University of Ottawa Faculty of Law, negotiating a parenting plan is certainly a good idea, provided that a plan is not systematically imposed. She said that this provision should not prevent an individual from obtaining a court order in difficult-to-negotiate cases or cases involving violence, when negotiation is not possible.

She said that the addition of criteria to better define the interests of the child essentially codifies the criteria to be considered in jurisprudence. However, we must keep the interests of the child front and centre, in every case, to make sure that the list does not become a simple checklist without any further consideration. We must always remember that this list is not and cannot be exhaustive.

We also believe that the best interest of the child should be considered at all times. In that sense, we would like to see a provision on representation for the child. We suggest that it be made a right under the law that the child be represented by their own lawyer and that services and resources be made available to the child if needed. When I talk about resources I mean psychological support because, as we all know, a divorce causes turmoil in family life and we believe that the child at the centre of the dispute should be represented so that their best interests are also brought forward.

When this bill was introduced in the last session, the government said that the court should also take children's points of view and preferences into account when it hands down its ruling. The children need to be given the means to express their points of view, preferences, fears, and feelings. We sincerely hope to put the child at the centre of this entire process and ensure that the child's voice is also heard, taken into account, and respected.

In the same vein, former Senator Landon Pearson said:

When their parents separate, children's lives are changed forever. The responsibility of parents and family members as well as the professionals who engage with them, is to make that change as smooth as possible. Children have the right to be looked after, and to be protected from violence and undue emotional stress. They also have the right to maintain relationships that are important to them and to have their own voices heard. Only when these and all the other rights that are guaranteed to them by the United Nations Convention on the Rights of the Child are respected, will children be able to accept and adjust well to the new circumstances in which they find themselves.

Those wise words highlight how important it is to protect children and, above all, allow them to express their emotions and share their opinions. We therefore think it is also important to ensure that children have fair representation when needed. Members will recall that Landon Carter Pearson was appointed to the Senate in 1994 and retired in 2005. We have been talking about this for a very long time. Senator Pearson served as vice-chair of the Standing Committee on Human Rights.

Families' access to fair and equitable representation is sometimes unduly limited, and court solutions for family support in the context of shared custody are rarely fair, proportional or economic.

Consider the example of someone fleeing a situation of abuse, control or domestic violence. Those individuals often simply run away from the conflict by avoiding contact with the other parent. As a result of these kinds of situations and changing needs, many children never receive—and some parents never pay—the support payments they are entitled to.

The provisions set out in Bill C-78 are a step in the right direction, but the bill might not adequately ensure that support payments are made in shared custody situations.

In that regard, lawyer Jenny Woodruff indicated that it would have been a good idea for Bill C-78 to ensure that parents are paid appropriate child support, but that the bill does not address that issue.

It is important to ensure that the amounts paid are appropriate. Since the government claims that one of the purposes of Bill C-78 is to reduce child poverty, this shortcoming should be remedied in the interests of the child's well-being and in order to ensure that parents who are in a situation like the one I just described can obtain the child support payments their children are entitled to.

We are pleased that one of the changes this bill makes is to give the government the ability to share with and transmit to provincial entities more tax information on parents who refuse to disclose their income.

Right now, the Canada Revenue Agency can only transmit to the courts basic information such as the parent's name, address and employer. This measure will make it possible to fully assess the situation of a parent who may be trying to avoid paying child support. It is important to remember that, although the Divorce Act is a federal law that falls under the jurisdiction of our Parliament, the provinces are the ones responsible for administering and enforcing child support orders. We must therefore give the provinces our full support so that they can ensure that parents are making child support payments.

I would also like to mention that this bill seeks to better regulate the relocation of parents and children following a divorce, by requiring one parent to inform the other if he or she wants to move and by giving the courts criteria to help them determine whether the relocation is in the best interests of the child and should be allowed.

It is definitely a good idea, but we need to proceed with caution when making such a decision. I will come back to that because this was pointed out by an organization in my riding. I believe it is important to recognize the work of Céline Coulombe from La Clé sur la porte, a shelter for women and children who are victims of violence. Ms. Coulombe has extensive expertise in working with women facing domestic violence. She stated that this bill does establish important guidelines and contributes its share of necessary measures, but we must be cautious and discerning when dealing with such delicate matters as harassment and domestic violence.

Quite often, when these situations arise, the victim tries to flee from the abuser by going to another city, or even another province. We must ensure that, in these cases, the courts will exercise diligence and discretion in order to definitely protect the child and the victim.

I wanted to point that out because in the bill, it says:

A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

The bill also says:

In considering the impact of any family violence...the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

That is fairly subjective. I realize that this bill leaves everything up to the courts, but we must take great care to ensure the safety of the child and the parent fleeing a dangerous situation.

We must be very vigilant.

I am proud of the organizations in my riding that do amazing work every day with people going through divorce and women who are victims of domestic violence. Le Petit pont is a community organization in Saint-Hyacinthe and Longueuil that helps create and maintain parent-child bonds in a neutral, family-friendly, harmonious space for families undergoing separation or conflict. The organization's priority is the child's best interests, including his or her physical and psychological safety.

Le Petit pont operates outside of the parents' home to ensure neutrality and fair, professional treatment for everyone involved. Services include supervision of parents and children during visitation as well as information and support for families. The organization strives to create a home-like environment. Its facilities are suitable for people of all ages and enable people to get into a daily routine and reduce the stress associated with supervision.

We consulted Le Petit pont about Bill C-78, and I just want to acknowledge the amazing work done by Martin Tessier, the executive director, who gave us the benefit of his wisdom. First, he told us his organization believes the interests of the child are paramount. He said that, as we discussed, it would be a good idea for marriage documents to include provisions setting out what would happen in the event of a separation, to clarify any issues that are important to the spouses. These important decisions need to be made while the couple is getting along, rather than waiting until after the relationship breaks down or becomes hostile. For example, provisions could be inserted covering elements like custody, visitation, access rights, pensions, division of property, relocation and the children's education.

Lastly, he said that like married couples, common-law partners should draw up a cohabitation agreement, a will, and a financial plan that covers what will happen if they separate. Mr. Tessier said that the most important thing is to raise public awareness of the many aspects people often overlook, like legislation, agreements and statistics. These are all very fair comments. I want to thank Mr. Tessier for his insightful recommendations and suggestions.

In my riding, we are lucky enough to be able to count on the professionalism of La Clé sur la porte, a shelter organization that has been taking in women from across Quebec for 37 years, with locations in Saint-Hyacinthe, Acton Vale and Beloeil. It is a women's shelter and support centre for victims of domestic violence and their children. Since 1981, it has welcomed over 4,000 women and as many children. I think it is imperative that we consult organizations like these when studying the bill before us today, because they have special expertise and an invaluable perspective.

The primary focus of La Clé sur la porte is the safety of the women and children. As soon as clients come through the doors of the shelter, they receive a warm welcome in a trusting, respectful and supportive environment. The clients are safe there. The caseworkers listen to them, support them, and help them in their decisions. Post-shelter assistance is also available from the organization to ensure that the women return to their normal lives under the best conditions.

Members of the organization also work on prevention and awareness raising. They visit high schools, where they give workshops on abusive relationships. They also give talks on domestic violence to social, community and educational organizations and institutions or other interested groups.

I had a discussion with Céline Coulombe, the coordinator at La Clé sur la porte. She voiced some concerns over the bill that I wish to share with the House. The first has to do with family mediation. The bill before us includes some elements to encourage parents to use other avenues than the courts, including family dispute resolution and mediation. Obviously, this alternative is a good idea for reducing court backlogs, but this method can be risky for victims in cases of domestic violence.

Ms. Coulombe told me that advocacy groups had fought for, and eventually won, the right for victims to opt out. This right should not be disputed. Once again, we must be cautious.

La Clé sur la porte and Ms. Coulombe expressed concerns about a second aspect, which is the requirement that a parent give notice of relocation to the other parent, even in the case of criminal proceedings, when the abuser is subject to a no-contact order. The abuser absolutely must not know where the victim is living. We all know that even if the courts issue a no-contact order, victims must often still take additional steps to keep themselves and their children safe.

Because the courts do not communicate, criminal judgments are often not taken into account when access to the children is being decided.

Unfortunately, my riding has seen some cases recently where women have been killed, or at risk of being killed, when they dropped their child off with their former husband. One such situation is one too many. We must be cautious and make sure that women and children are protected.

Lastly, the coordinator for La Clé sur la porte emphasized that the legislation focuses on the traumatic impact that divorce can have on children, and rightly so, but we also need to bear in mind that living in fear in a home fraught with violence is far more traumatic for a child. In addition, violence unfortunately does not usually end on the day of the separation or the day a court decision is handed down. Forcing victims to take part in dispute resolution or mediation sessions can put them in danger.

I am very familiar with La Clé sur la porte, as I used to work there. Back then, I was a recently divorced single parent. Fortunately, I never experienced violence.

I worked nights, and every night I was at La Clé sur la porte, I met women who suffered from insomnia. Those women would come and talk to me and share what they had been through. What I found most moving when I listened to their stories was the realization that it could happen to any one of us. Many of them had not seen it coming and had wound up in that situation through no fault of their own.

As we work to clarify the divorce legislation, it is important to remember that it applies to people who are at a vulnerable point in their lives. We need to make sure that we put in place all the necessary measures to keep them safe and to give their children access to the resources they are entitled to.

In divorce cases, each parent often has his or her own lawyer. However, many witnesses asked us to think about implementing measures that would support the provinces and ensure that, in some situations, the child gets a lawyer. The child's lawyer would be there simply to examine the situation and make sure that the child's interests are being protected under the agreement that is reached.

This would be applied in the provinces, so we would have to ensure that they have the necessary resources to continue to support organizations such as Le Petit pont and La Clé sur la porte.

I am reaching out to the government on this. As the critic for families, children and social development, I have the best interests of children at heart. I want to ensure that the courts have the tools they need. I want to ensure that appropriate child support payments are made. I want to ensure that victims of any form of domestic violence and their children are protected. I want to ensure that the children at the centre of these disputes have the opportunity to be heard, if they so choose, and that they get the support they need.

I am pleased to have had the opportunity to share with the House our recommendations and concerns regarding this bill.