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.

[Glenn Cheriton, President, Canadian Equal Parenting Council]

Good evening, everyone.

I'm the president of a national parents organization, and before that I was involved in a number of parent support groups, going back almost three decades. During that time, we've done a lot of public opinion surveys, as well as having parents approach us. I'm passing on a lot of the opinions of parents who have come to us in desperation.

The public opinion surveys show that about 83% of the Canadian public supports the position that I'm about to present to you—that the current family law system is a major problem for parents. I'm speaking very bluntly here. The problem is that it's too costly, too inaccessible, too slow and too adversarial. Parents have lost confidence in the family court system in Canada. It doesn't resolve conflict. It doesn't work in children's interests. It's not fair. It's not efficient. It's not coherent and it's not responsible for its actions. It's arbitrary. Parents say the system is like a feudal system. Parents don't feel respected. They don't feel listened to in family court.

That said, I do support the aims of Bill C-78: the best interests of the child, accessibility of the courts, less poverty, reduced violence, improved child support. We also support the bill's movement from the terms “custody” and “access” to “parenting time” and “parenting orders”. This is perhaps just a symbolic change, but it's an important initiative in the right direction.

The real issue is whether a child will retain parenting time with both parents, not whether the adversarial legal system will profit from arbitrarily creating winners and losers. Parents want changes. Social science shows better outcomes in other jurisdictions around the world from a variety of somewhat similar approaches that I'm going to call equal shared parenting.

In these different jurisdictions, the terminology, the laws, the regulations and procedures vary, but all these approaches aim to keep both mother and father as full parents in the lives of their children. There are exceptions to equal shared parenting, but jurisdictions that get 30% to 90% of joint physical custody or equal shared parenting, or however you want to call it, show substantial improvement in the outcomes that were listed as the four objectives of Bill C-78.

In Europe, for example, equal shared parenting is made up of shared parenting plus recognition by governments of two homes for the children. A lot of other problems are recognized and solved. No longer can one parent deny the educational records of the child, or the health records, and it goes on.

In the United States, equal shared parenting is made up of joint physical custody. A number of states have moved essentially to joint physical custody and their laws vary, for example, between a law in Arizona and a law in Kentucky. There hasn't been movement away from shared parenting, as has been claimed, but the states are increasingly moving toward it against some pretty substantial opposition from the vested interests.

In Canada, there's a problem in that what we call joint custody is essentially sole custody with a coat of imaginary legal paint. The problem is that they call it “joint custody” but they say it's sole physical custody to one parent, which means that you cannot enforce one parent's side of the agreement. One parent's parenting time is not enforced; therefore, it's not a good agreement from the standpoint of that particular parent.

There is overwhelming scientific, peer-reviewed, accepted evidence that equal shared parenting is in the best interests of the child. I have some of it here from around the world. The problem is that, as far as I know, there is no evidence that Canada's primarily sole custody system acts or is in the best interests of the child. Parents don't believe it is, and by extension these parents blame the legal profession. They blame the judges, the laws and the parliamentarians who enabled, funded, regulated the system and appointed the judges.

I would like to cite a report by Supreme Court Justice Thomas Cromwell, “Beyond Wise Words”, which says that Canada's family law system is largely inaccessible.

You have a choice. You can either put substantially more funding from legal aid or social services, and a whole bunch of others, into the system, or you can try a system that is working in other jurisdictions, such as equal shared parenting in Australia, Iceland, Denmark, Sweden and many other jurisdictions, where over 90% of parents retain their parenting time and decision-making, which essentially is the “equal” part of the equal shared parenting. They do that without going to court and without hiring lawyers.

I wanted to deal with the question of poverty. If you're dealing with child poverty, you're dealing with parental poverty. Family poverty is parental poverty, and the current adversarial system produces parental poverty. Equal shared parenting reduces costs to parents, so the parents can have more investment with their children, and that's the experience of these other jurisdictions.

Dealing with the question of family violence, this is part of a continuation from conflict, abuse, violence and criminal behaviour. However, equal shared parenting in the various jurisdictions is shown to reduce conflict. It reduces violence. Furthermore, the problem with the sole custody system is that violence and conflict increase over time because the problems are not resolved, whereas in the situation of equal shared parenting, conflict is reduced over time and there is research to support this.

The question of child support is also brought up as an objective of the bill. It is clear from the research that more child support is collected if the parents are under a joint custody regime, equal shared parenting, whereas the child support problems are largely in the sole custody situation.

Even though a number of legal scholars are increasingly accepting shared parenting—I would note Professor Nick Bala as an example—they don't accept the equality part of equal shared parenting. The question is, why do parents need equality? The inequality of parents means that one parent is relegated simply as a bystander. He is no longer a parent—he or she, as it's also happening increasingly to mothers. Half of our board members are women.

The problem is that once you are unequal, the court rulings are only enforced on one side. Therefore, the other parent can decide whether your parenting time is going to be respected or not. What we're looking for.... You can call it equal shared parenting; you can call it a starting point; you can call it rebuttable presumption; you can call it an onus. Whatever you call it, the outcome should be the same: keeping both fit parents in the lives of their children.

Professor Kruk mentioned first nations. We have shared the land with them, but we have 95% of that land. They're not equal in the land. With the native residential schools, the government claimed best interests, but it caused harm. There was no consultation with the parents.

To fix this problem, we want the Department of Justice and this committee to recognize parents as stakeholders. We want to collaborate with the government. We want to collaborate with Justice Canada, and we want to fix this problem, so that parents can go back to parenting and not spend their money and time in court.

Thank you.

[Janice Christianson-Wood, President, Canadian Association of Social Workers]

Thank you very much, and good evening.

My name is Janice Christianson-Wood. I am the president of the Canadian Association of Social Workers. I'm very pleased to be testifying today on behalf of our federation and the 50,000 social workers in Canada. I'd like to thank the committee for inviting the perspective of our profession to this important consultation on Bill C-78.

On a personal note, I have had the privilege of spending my social work career in the service of a better world for children, including as a front-line caseworker with Winnipeg Child and Family Services, as a special investigator with the office of Manitoba's chief medical examiner, and as a program specialist at the General Child and Family Services Authority, in addition to research and writing on child deaths and the need for effective and equitable risk assessment.

I've seen first-hand the ways that children are deeply impacted by family relationships. Coincidentally, my last placement as a student, before my first degree, was at the Family Conciliation Services of Manitoba, back in the late eighties. It's nice to know that federal legislation is catching up with practice in a number of the provinces.

Having reviewed the submissions already received, we were pleased to see the excellent brief submitted by the Canadian Coalition for the Rights of Children, of which our organization is a proud member. We join the coalition and many other staunch advocates of children in celebrating these changes in Bill C-78, as they will bring, most notably, the centring of children in the legislation.

We feel that the bill makes a historic step forward for the rights, safety and well-being of children in Canada. The spirit of the changes and the shift in perspective and dialogue that it will bring are deeply aligned with our social work values.

As a profession that privileges consensus-building, non-violent communication, and conflict resolution techniques, we are very pleased at the change in language from adversarial terms like “custody” and “access” to terms like “parenting orders” and “parenting time”. Although these changes may take a while to have their impact, this will likely be a generational change and shift in attitudes. These phrases better support the development of healthy, safe dispute resolution, a key factor in preserving the best interests of the child.

Further, we support changes that will compel lawyers and paralegals to encourage clients to use family dispute resolution services such as mediation instead of proceeding directly to court. Not only will this help to reduce family conflict, but it will also help reduce legal costs, a significant consideration for many single parents, especially women. This would mean that the ability to pay for legal fees will not govern a certain parent's ability to establish a mutually agreeable resolution. As other speakers have said, when you have parents who are committed to this, they can significantly reduce the disruption and expense of a divorce.

We are also very supportive of the changes that would provide courts with measures to address family violence in a comprehensive way. This is such an important and often overlooked area. We are pleased to see children's safety being centred through this measure.

We also agree with the recommendations made in the joint brief by Luke's Place Support and Resource Centre and the National Association of Women and the Law on the importance of stressing the gendered nature of family violence and providing a further definition of the ways that family violence is manifested.

In the same vein, we agree with the joint brief by Luke's Place and the National Association of Women and the Law and support their recommendation for a preamble to the bill acknowledging, one, that women are more likely to be victims of gender-based violence; two, that indigenous women are disproportionately impacted by gender-based violence; and three, that family violence is experienced by women in many different ways, which are shaped by other types of discrimination relating to their race, religion, identity, age, or ability, to name only a few.

CASW also believes that each child, and each family, is unique. Again, the change in language to “parenting orders” and “parenting time” would much better reflect that a child's holistic well-being, including culture, extended family, language, and other considerations, must be paramount.

On this note, we know that there are some individuals and organizations that would have liked to see an equal parenting presumption in this legislation. It's our position that the choice to exclude a presumption in favour of any kind of parenting arrangement is a wise one and would best uphold the best interests of the child in each individual circumstance.

When it comes to a child's safety, happiness and general well-being, there is no one-size model that fits all. With that said, however, we would like to see the spirit of these changes made to centre the child cemented through an explicit reference to the Convention on the Rights of the Child. We echo the Canadian Coalition for the Rights of Children in recommending that section 16 of Bill C-78 “include reference to the Convention on the Rights of the Child, either as a separate article or adding to article 16.1 [the phrase] 'as in the Convention on the Rights of the Child.'”

In terms of next steps, we would also caution that this historic change will need to be accompanied by appropriate education. There will need to be a comprehensive and widespread campaign assisting all those involved in the legal system in making these shifts in understanding and in practice. Social workers who are already practising mediation in government or in private practice look forward to being part of the solution.

Overall, Bill C-78 aligns with our profession's values and with the values of the Canadian Association of Social Workers and our perspectives.

Thank you very much.

[Rollie Thompson, Professor, Schulich School of Law, Dalhousie University, As an Individual]

Thanks for the chance to speak to the committee.

I'm appearing as someone who has practised and taught family law for—I hesitate to say it—almost 40 years. I teach family law at Dalhousie University in Halifax, Nova Scotia.

I understand you don't have my written brief yet, but I want to emphasize, following what Professor Kruk said, that in the brief you will actually see the research. I've given you some citations in my eight-page brief on that.

In general, I'm supportive of Bill C-78. I think it's fair to say that, if anything, it's overdue.

With the time I have, I want to focus on three points about relocation. It's one of my areas of research over many years.

I come from the province of Nova Scotia, which has in fact passed legislation on relocation that looks very much like the proposals in Bill C-78. We've had it in place since 2017. It's early days, but I think it has been fairly successful so far. B.C. also passed provincial family legislation involving relocation, which came into effect in 2013—less successfully, I think it's fair to say.

Here are my three points, and without the brief, I'm going to try to be as pointed as I can.

First, the relocation burdens in proposed section 16.93, which have been talked about already, would provide important guidance to parents, lawyers, mediators and courts that is desperately needed. I think there is general, broad support for bringing some order in this area of law. It's a critical part of the bill. I'll explain the underlying rationale.

Second, there is a minor tweak I'm going to suggest in the section on mandatory notice of relocation and also the other two kinds of mandatory notices in the exception. I'll be brief on that.

Third, generally speaking, the added best interest factors on relocation, including the reasons for the move, I think are helpful and clear. It's similar to what we did in Nova Scotia. There is a proposed subsection 16.92(2), and I'm going to tell you why I think it should be deleted.

At the heart of the relocation part are the burdens that are set out in proposed section 16.93.

As little bit of backdrop, back in 1996, the Supreme Court of Canada decided a case called Gordon v. Goertz, which has already been referred to today. It's fair to say that the decision gave very little guidance on how to deal with relocation cases. It has led to case-by-case decision-making. I think it has actually encouraged litigation. It's been heavily criticized. It's important at this point in time to bring some structure and guidance to the difficult decisions on relocation where the court did not.

The court has had 21 opportunities since 1996 to give leave to a case involving relocation to reconsider Gordon v. Goertz, and they've turned them down every time. My point is that it's a matter for legislation. The courts aren't going to change that.

The starting point is burdens of proof about what's in a child's best interest at the relocation stage. I think the three-way split that is set out in that section is consistent with what social science and empirical studies can tell us. I think it's important to say what we know and what we don't know about how relocation affects children, hence the three different categories.

There are three categories in that section on burdens that are built around the care arrangements already established under agreement or court order. It's a fairly sophisticated attempt to give some guidance and to reduce litigation.

The first says that when the child spends “substantially equal time in the care of each party”, the burden of proving that a move is in the child's best interest is upon the parent proposing to move. That's the first one.

You might ask why. The answer is that when you have both parents actively involved in that substantially equal way, the child can stay with the remaining parent and gain the advantages of continuity of care, community, schools, day care, friends and family. That burden can be met by someone proving, to the contrary, that in fact the move is in the child's best interests. It's important not to treat this like a rule. It's just a starting point.

By the way, in practice, right now, in cases where there is substantially equal parenting, it's relatively rare that moves are permitted. It's fair to say that 70-75% of the moves are refused in these cases. I think it's fair to say that the ones where moves are allowed are the unusual cases. In typical cases, the answer is no; the children don't get to move.

Second, at the other end of the spectrum under that section, where one parent has the care of the child for the vast majority of the time, it would be up to the parent opposing the move to prove that a move would not be in the child's best interest. We assume as a starting point, and I'd say rightly, again, that continuity of care with a predominant primary caregiving parent the vast majority of the time is going to be critical to the child's well-being in the future.

By the way, in existing case law in Canada, in cases such as this, where someone has the vast majority of the time, courts allow moves in about 90% of the cases already, so this is reflecting also what's happening before the courts.

I'll give you some examples in this category. We have cases where a remaining parent, for example, cannot offer a viable alternative as the primary care parent if the other parent moves. We also have a fair number of cases—I want to mention this—of young mothers, because that's what they are, coming to Canada with a Canadian father. They'd met overseas, and then they split up. She has no family here. She can't speak the language and is often unable to find employment. She has a young child and applies to move back home. That's someone who has the bulk of the time, “the vast majority” as the language says. Those are a couple of examples.

In between those two, what the legislation proposes to do is add a third category that says that both parents have the burden of proof when they don't fall in either end, in one or the other, because quite frankly, we don't know enough about that category of cases to say that we have a sensible starting point. We just don't know, so we have to accept the limits of our knowledge at the present time.

That's quite a mix of cases. The ones in the middle are cases where people have been shifting their care arrangements, cases where people have lessened “the vast majority” or fall slightly short of “substantially equal”. It's a mixed bag, and it's very hard to tell what's in the best interests of the child in those cases, hence no assumption either way.

By the way, those two extremes, “the vast majority” and “substantially equal”, would account for about 65% to 75% of the relocation cases, where you can give helpful guidance to people who are out there trying to sort out their lives.

In Nova Scotia, we've had this three-way split in effect only since May 2017. It's interesting. Our courts have had no great difficulty sorting out who falls in which of those three categories. If anything, I'd say Bill C-78 is probably easier to administer than what we have in Nova Scotia.

These burdens would make a big difference. It would help resolve cases and remove some, but not all, of the uncertainty.

That's the first point, and I'm keeping an eye on my time.

My second point is on mandatory notice of relocation. One thing I want to mention is the 60 days' written notice to the other parent of the intended move. There's an exception that you can be exempted or have that modified, and there's a specific identification of a risk of family violence as a case. One thing that should be made clear, and it isn't—and on page 4 of my brief I actually suggest the wording—is that when you're applying to exempt yourself from the requirement to give notice, it should be possible to make that application without giving notice. I think that's the intention of the section, but it should be made clear that the application can be made without notice to the other party—for example, in a family violence setting. This is just to leave no doubt.

I hope I have enough time here. The last point I want to make is about the so-called double-bind question. There's a list of relocation factors that it says you can look at for the reasons for the move, and you can look at some others, but there's a provision in there that says:

the court shall not consider whether the person who intends to relocate...would relocate without the child if the child's relocation was prohibited.

It's what we call the double-bind question. That provision comes from the B.C. act, and it has caused a lot of difficulty in that province. We in Nova Scotia said we didn't want to get into this; we didn't include it.

Here's the double-bind question. You ask the parent seeking to move, “Will you move without your child?” What do you think the answer is going to be in most cases? It would be “No.” Some people have said the question is unfair and doesn't give us any probative information. That's the thing about the double bind. If you say, “Yes, I am going”, what's the implication of that? “I'm more important.”

The important thing to remember here is that courts can't tell parents where to live. Courts can only tell whether the children can move or not. Courts can't order parents to move or not to move, so the parent's intentions are important.

The other thing worth remembering is that 90% to 95% of the parents proposing to relocate are women, so the question falls upon them.

Think about the difficulty here. The fear that's underlying that question, or the answer to that question, is that if the parent says, “No, I'm not going to move without my kids”, that obviously means the move isn't so important, and there's a tendency for the courts to default to the status quo—that is, not to allow the move.

The difficulty here is that, if you think about it, that's a question for the parent proposing the move. Can you ask the parent who is not moving if they would move to the new location to be with their kids? Is that a fair question? This legislation doesn't stop that. Many parents will volunteer that they won't move without their kids. Does that mean you have to ignore that answer? It says, “shall not consider”.

I'll give one last example and then I'll stop. If you have a situation where, let's say, mom proposes to move from Ottawa to Calgary where her new partner is located, under our approach right now in Canada we say to the new partner, why can't you move from Calgary to Ottawa? That's a question we allow to be asked. It's an important question, because sometimes it can avoid the conflict. Can we ask that question? The answer is yes. We can even ask grandparents whether or not they intend to move with the grandchild. As a grandparent, how would you answer that question?

The reason I'm emphasizing this is that the provision says.... I know it's awkward to give that answer, but sometimes it may give the court important information about what the realistic options are. Leaving that provision in means that the court can't consider the answer to that question, when the answer to that question may be really important in knowing what the best option for the child is.

I'll stop there. I have other stuff, but it's in my brief.

[The Chair, Liberal, Anthony Housefather]

It's a great pleasure to have our third panel of the day with us, on Bill C-78.

I would like to introduce, as an individual, Mr. Rollie Thompson, who is a professor at Dalhousie University. Welcome.

From the Canadian Association of Social Workers, we have Ms. Janice Christianson-Wood, who is the president, and Ms. Sally Guy, who is the director of policy and strategy. Welcome.

From the Canadian Equal Parenting Council, we have Mr. Glenn Cheriton, who is the president. Welcome.

From Harmony House—which the committee had the privilege of visiting in Toronto—we have Ms. Leighann Burns, who is the executive director. Welcome.

From Germany today, we have Mr. Edward Kruk, president of the International Council on Shared Parenting. Welcome, Mr. Kruk.

Because you are on teleconference and it's so late there, we have agreed to put you first on this panel. You have eight minutes. I will turn the floor over to you right now.

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

Thank you, Mr. Chair.

I am going to follow up on my colleague’s comments. For me, if the child is represented, it will not complicate the situation, it will help it.

Ms. Wolff, in your last sentence, you said that there could be a third party whose role would be to make sure that the rights of children are respected and that their point of view is considered.

For me, that establishes a link with Ms. Irvine’s presentation. In the current system, it is particularly difficult, if not impossible, for children to make themselves understood in a legal environment that is completely foreign to them.

Bill C-78 puts the interest of the child at the centre of everything, but Ms. Irvine and other criminal lawyers and counsel have pointed out the importance of considering the interests of children and listening to their point of view. They also believe that they should be represented by a third party, just as the two parents are.

Ms. Wolff, you raised the legal issue by saying that children should be represented by their own counsel in order to get away from the two-party nature of divorce. You also raised another important point, that we should ensure that children living through the divorce of their parents have access to medical and psychological care, especially in cases of spousal violence.

Could you tell me about those two aspects, that is, children having their own lawyers, and access to medical and psychological care in order to face up to the consequences of the divorce?

[Colin Fraser, Liberal, West Nova, NS]

Irrespective of the fact that Bill C-78 puts in place the principle of maximum parenting time....

Ms. Wolff, can I ask you for your thoughts on this?

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you, all, very much for being here today. We appreciate the testimony.

Mr. Sleiman, I will continue on with you. I understand what you're saying in response to some of Mr. Cooper's questions. I think Ms. Wolff alluded to the fact that family law cases, in particular, have to be done on a case-by-case basis. Each situation is different and unique. The needs of each child in these cases are unique and different things have to be balanced.

Don't you think, therefore, that it is important that Bill C-78 is enshrining the principle of the paramountcy of the best interests of the child in these decisions?

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

Thank you for that.

What would you say in response to those who might say, well, this presumption really isn't required or it need not be incorporated into the list of factors that the court may consider in determining the best interests of the child with regard to proposed new section 16.2 in Bill C-78, which is in respect of the maximum parenting time, which recognizes to a degree that it is in the best interests of the child that it be considered by the court?

What's wrong with that?

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

Thank you, Mr. Chair.

I want to drill down a little bit on the issue of the presumption of shared equal parenting.

Mr. Hamaliuk or Mr. Sleiman, perhaps you could answer some of the questions I want to ask.

I think it was Mr. Hamaliuk who made reference to the special joint committee in 1998. In that report, the presumption of shared equal parenting was not endorsed by the special joint committee, but one of the things that the committee did recommend was that under section 16 of the Divorce Act there be a number of principles enumerated respecting the best interests of the child. That is something that Bill C-78 does do.

One of the factors recommended by the special joint committee was the importance and benefit to the child of shared parenting. Would you see that as something that would be an improvement to the legislation?

[Lisa Wolff, Director, Policy and Research, UNICEF Canada]

Thank you very much.

I'm Lisa Wolff. I'm the director of policy and research at UNICEF Canada. You may know UNICEF as the United Nations International Children's Emergency Fund. We have a presence in more than 190 countries. What we do in low- and middle-income countries is different from our role in high-income countries, but the one thing that unites UNICEF everywhere is that we work to promote decision-making, including legislation, consistent with children's universal human rights, which are their entitlements and our obligations.

The Convention on the Rights of the Child is really a fundamental instrument that is a practical tool to help make decisions and make legislation that is truly in the best interests of children. It's 29 years old tomorrow on National Child Day in Canada. I've been working with the convention in policy for about 20 years. As I reflect on one of the greatest challenges around supporting the realization of children's rights, it's in the recognition that children have the ability to participate in decisions that affect them, that they have capacity even from a very young age. And when they do that, it's a really strong, protective factor and it makes decisions better.

I'm really pleased to be here because I think this bill, Bill C-78, proposes some improvements that really help Canada bring its obligations into alignment with legislation around divorce. Close to a quarter of Canada's children and youth are affected by divorce, as you know, so the efforts that you have under way to make this process better for them and make the outcomes better for them, at least in terms of the proposed changes, are significant.

UNICEF Canada very much welcomes, in particular, the measures that affirm that children's best interests are the priority, and that help define to some extent—at least better define—what those best interests entail. These measures expand protections for children, support parents to fulfill their roles and responsibilities, and reduce delays, costs and adversity for families, but more specifically go towards better outcomes.

Enacting the changes that are proposed in Bill C-78, by and large, we think, would bring Canada into greater alignment with children's human rights obligations and entitlements and with the intention of the Divorce Act, as stated in its preamble.

Essentially, I'm speaking to two things: the call on us to give priority as the decision-makers to children's best interests in all decisions that affect them, and to recognize that when young people have the opportunity to participate in decisions, the process and outcomes are, again, generally better for all of them.

I think that affirming, as the bill does, the best interests of the child as a common north star for all parties, for everyone involved in the process of divorce, is laudable. Few object, of course, to giving priority to the best interests of the child. I think you will not hear witnesses say we shouldn't do that, but the challenge has always been that there are very divergent views about what “best interests” is. It was used to justify residential schools in Canada.

What the convention does is give a definition of what “best interests” is. It actually offers three approaches that are really helpful in deciding best interests and establishing what those are.

One is that we can think about best interests as the option for the child or children that best supports all of their interconnected rights, their human rights that are in the convention. These are things like access to education or supports for disabilities or language and culture.

Second, the views of the child really indicate what is in their best interests. They are one of the strongest clues we have to what will actually be in their best interests.

The third approach is that a case-by-case assessment of best interests, wherever possible, tends to make the most sense in legislation. Sometimes, for administrative reasons, we have to set arbitrary minimum ages, such as for driving or marriage, but when it comes to children in cases of divorce we can make case-by-case decisions and those will look different for every child in terms of the balance of the rights that can best be realized to support them.

Fundamentally, we applaud the way that Bill C-78 creates new criteria for shared understanding to apply the best interests. We think it's a good move to offer some clear criteria. It supports an overall assessment and balancing of many different factors that are consistent with children's rights, as opposed to a hierarchy, which we often think of in terms of certain needs that have to be met first and other things that are less important. Taking the convention's approach, we look at many different interacting factors, and the balance will be different for different children. It's not a checklist of requirements in which we have to meet every single element of consideration for every single child.

I think that flexibility and a case-by-case situational approach are really key, and the criteria just help us to remember to think of certain things, and help decision-makers, the courts and the adjudicators remember what to think about when they're thinking about best interests.

The other aspect of best interests that I mentioned, the importance of children's views, is also really welcome in how the BIC criteria, and particularly proposed paragraph 16(3)(e), recognize that children's views and preferences are a factor to be considered. Importantly, the bill doesn't set an arbitrary minimum age for doing that. It also recognizes that some children may not wish to participate in expressing their views.

We have just a few changes in the bill, ways to better protect the rights of children to have their best interests considered and their views considered. I think there is a bit of a paradox in setting out best interest criteria, because then “best interest” does take on a certain meaning and weight based on what is included, and therefore what is not included also becomes important. We would recommend that explicit consideration be given to children's convention rights as other factors that can be brought in.

The best interest criteria mention stability, and they pay a lot of attention to violence and protection, which are critical, but rights to access education or, as I mentioned, special supports for disabilities and to continue language and culture could be brought into consideration if it were mentioned that the convention rights are important considerations in determining the best interests.

Second, in terms of the views of the child, currently those are just one of many considerations in the BIC criteria, and we have some challenges around consideration of due weight for maturity. That's language you often hear in legislation around children's voice: give due weight based on the age and maturity of the child. We would say that due weight has always been a problem, because children can offer views, which is one half of the equation, but they're not always given import. They're not always persuasive, and they can easily be ignored. I think we would want to emphasize that even the views of young children, who may not have maturity, should be considered and taken into account.

One way to correct for some of the challenges of actually taking kids' views into account is to consider elevating the views of the child as a primary consideration. I am careful in recommending that, because I feel that once you start elevating certain priorities, you again get into this hierarchy rather than a careful balancing, but if we were to elevate any consideration that is not currently there, it would be that the views of the child need to be given due weight and considered in decision-making.

I also think there's an onus that could be clearer around reducing barriers. We acknowledge that not all children may wish to express their views, and for good reason, but I think the onus is to reduce barriers, whether by helping to ensure that they are informed or through third parties that could help them, or through views of the child reports, to make it safe and to make it a good experience for them.

Thank you very much.

[Valerie Irvine, Assistant Professor, Faculty of Education, University of Victoria, As an Individual]

My name is Dr. Valerie Irvine. I want to thank you very much for inviting me to speak with you today.

I am a professor in the faculty of education at the University of Victoria. I have a Ph.D. in educational psychology from the University of Alberta and bachelor's degrees in both education and English from UBC. I have held Government of Canada Social Sciences and Humanities Research Council funding. I have been an affiliate and received funding from the Human Early Learning Partnership and was previously a research coordinator with the Research and Action for Child Health group at the University of Victoria, focusing on early childhood development.

Although family law is not my area of research as part of my academic position, I am familiar with theories of child development. Some of the family law content overlaps with education, as we also strive to meet the best interests of the child. I hope to bring a fresh perspective to what I see as a stuck system that entrenches families oppositionally in legal structures, creating more risk and harm, especially to those most vulnerable who have experienced family violence.

To give some context, I live within walking distance of two homes—one in which two girls were killed by their father on Christmas Day last year and, before that, one where children, a mother, and her parents were killed by the children's father.

The legal system fails to protect the victims of family violence. There is a lack of support, and the supports, where available, face design flaws. I personally have been engaged in the family law system as a parent for almost 10 years, and my family has been exposed to traumatic experiences before, during, and after divorce. My children have recently accessed the new Child and Youth Legal Centre in B.C. to obtain direct representation for their voice. It was only the involvement of a lawyer for the child that brought a halt to legal proceedings. It reframed the dynamics and ended the continuation of repeated legal proceedings.

I draw from these personal and community experiences, and my background in educational psychology and schools, in making recommendations for amendments to Bill C-78. There are many families who are in situations similar to ours. Most impacted are the children.

Canadian families require more integrated services, such as data analytics, the elevation of the role of a child's direct health professional team, and legal representation for the child. While we criticize the American health system for its cruel design of cost recovery for health access, we have the same approach in family law, and family violence is also life-threatening.

For child survivors, when their voice is channelled through a parent, it can be perceived as muddied by the opposing parent, and fidelity is further weakened since child voice is only one factor and not "the" factor being considered. I am deeply concerned about how a single parent with low income, minimal education, challenges with language or articulation, and no supports for self-care might get through this experience. How can this entire process serve the best interests of the children? How can this be Canadian?

Integrated services are needed to support the child in cases of family violence. What is best for the child is access to and involvement by their own personal, trusted, ongoing health professionals, such as their family doctor, child psychiatrist and counselling psychologist, and their own legal representative. Where there is triangulation from this team, any legal action should be prohibited.

It is interesting to note that the shifts that actually materialized in our parenting time, despite all the legal costs, were made not by lawyers but by the children acting out after buildup and refusal to go for their custody transition time, which created times of crisis. If only their voice had been listened to earlier on, as supported by their health professionals, adaptations could have been made without distress. I need to ask the government why legal engagement is necessary. If the voice of the child was elevated, prioritized and determined to be sound by their own health professionals and lawyer, little of this legal escalation would happen.

When $20,000, $50,000, or $100,000 has been invested into the creation of a court order, often at the financial ruination of families, the threat of legal engagement becomes so ominous that children's rights to change parenting configurations are impinged upon. The involvement of family health professionals can defuse these risks.

It is important to note that prioritizing preferences for parenting time does not need to be forever decision, unlike the presentation of court orders. This fluidity would dissolve the high stakes of seemingly permanent and financially invested court orders. It should motivate parents to be more focused on gaining child trust and building relationships, as opposed to building a case.

I hypothesize that the sharp increase in child anxiety disorders in schools, now at 20%, or one in five, which creates significant disruptions for the education sector, is linked to family violence in shared-parenting households. Shared-parenting households have increased from approximately 13% in 1995 to 70% in 2016, as per the Government of Canada's Department of Justice and Statistics Canada.

Legislation must occur that requires judges to lean toward making type 1 errors, which is the incorrect assumption that family violence, or risk that it will occur, is present when it actually has not occurred or will not occur, as opposed to type 2 errors, which is the incorrect assumption that family violence has not occurred or is not likely to occur, when it did occur and will occur subsequent to judgment.

The judge in the Berry case in B.C., a.k.a. the “Christmas case”, where two girls were murdered, is a type 2 error. The consequences of type 2 errors are serious to deadly. The consequences of type 1 errors are not as serious and are more likely to result in peace and safety for the child. If we want to seek a system that values the best interests of the child systematically, then evidence-based, system-wide decisions should seek to reduce type 2 errors and increase type 1 errors in risk assessment and judgments. This requires collection and analysis of data from courts involving family law with periodic follow-up, proper education for lawyers and judges with regard to family violence, and direct child legal representation.

Of concern is also the encroachment of privately funded psychologists and privately funded lawyers into the world of the child, which represents a conflict of interest, as they are paid by engagement and not by outcome. Existing government-appointed medical and mental health practitioners who directly care for the child, and government-funded lawyers who directly represent the child, would remove this conflict of interest and should be prioritized over the corporatization of child welfare in divorce.

We have private third party psychologists now forming expensive corporate programs, espousing predetermined outcomes and promoting questionable psychological frameworks criticized for their gender bias and narrow conceptualization that do not apply to the bulk of the population. These are becoming popular in courts and cost almost as much as court. These programs are even striving to override the voice of the child—whom they've never met—and their health professional team, when they have zero understanding of the situation they're entering, which may include children at risk. A child's voice and the opinion of their health professional team should take precedence over these private psychologist companies.

My brief includes a number of detailed and further amendments that could make dramatic shifts to support children's best interests. Note that it is empowering for children to know that they have voice. Children of abuse especially have had their power taken from them. In many cases, they act out when someone asserts power over them again. To re-establish their voice after abuse is a huge step toward child honouring.

Thank you.

[The Chair, Liberal, Anthony Housefather]

I would like to welcome our second panel of the day testifying on Bill C-78. Again, I apologize for the rush. We just have a lot of witnesses we're trying to hear from.

We have Ms. Valerie Irvine, assistant professor in the faculty of education at the University of Victoria.

From the Canadian Children's Rights Council, we have Mr. Grant Wilson, president.

From the Men's Educational Support Association, we have Mr. Gus Sleiman, president, and Mr. Alan Hamaliuk, vice-president.

From UNICEF Canada, we have Ms. Lisa Wolff, director of policy and research.

Welcome to all.

Each group has eight minutes. We're going in the order of the agenda, so we'll start with Ms. Irvine.

[Silmy Abdullah]

Sure.

Very quickly, our last two recommendations have to do with proposed section 7.3, which encourages using family dispute resolution processes where it is appropriate to do so. Again, we would just bring to the committee's attention that in cases of family violence, it's not appropriate to go through family dispute resolution processes, especially where there is such a power imbalance. We would recommend that the language be a bit more explicit in saying that in cases of family violence, it is not appropriate and should not be encouraged.

Finally, we recommend that sections be added to Bill C-78 that require mandatory education about family violence for judges, lawyers and other people involved in the family court system.

Thank you.

[Silmy Abdullah, Lawyer, South Asian Legal Clinic of Ontario]

Good afternoon. Thank you for the opportunity to provide our recommendations on Bill C-78.

As my colleague Shalini mentioned, I am with the South Asian Legal Clinic of Ontario. I'm a staff lawyer.

Our next recommendation is regarding the definition of “family violence”. We recommend that the definition be amended to include a couple of other types of abuse. We welcome the inclusion of different types of abuse, such as physical, sexual, threats to kill or cause bodily harm, psychological and financial. However, we recommend that cyber-violence and spiritual abuse also be included in the definition, as they reflect both the reality of the communities we serve and our current society at large.

Spiritual abuse would entail, for example, mocking someone's spiritual beliefs, forcing someone to practise certain aspects of their faith, preventing someone from practising certain aspects of their faith, or using religion as a justification for violence or abuse. We see this from time to time in our casework.

Cyber-violence is increasingly being used as both an intimidation and revenge tactic against intimate partners. Recently, a client of ours who was going through a divorce and also facing immigration issues disclosed to us that her husband had spread intimate photos of her on the Internet and via email to her friends and family. This can have devastating consequences for women who belong to particular communities, especially certain South Asian communities where reputation is paramount. It's not only used as a way to threaten and control women, but it could also lead to their ostracization from the entire community.

We believe that recognizing spiritual violence and cyber-violence as part of the definition of “family violence” would provide for a more fulsome definition.

Our next recommendation is with respect to the terms “custody” and “access”. We recognize that the bill proposes to do away with these terms to promote a less adversarial framework for parenting decisions. However, we do have some practical concerns.

In terms of our international experience, just to give you an example again, SALCO recently worked with a client whose children were kidnapped to Pakistan by her abusive ex-husband, and the only way she could get her kids back was if she showed the court in Pakistan that she had sole custody. The court in Pakistan was looking for that specific language, so if we change those terms, we have to take into consideration whether that would be understood and recognized in the international context.

As well, the terms “custody” and “access” are still used in other domestic legislation, such as in immigration legislation and child protection legislation. We know that family violence does not happen in a silo. It often intersects with immigration and child protection matters, so changes would jeopardize the consistency with other legislation.

We recommend that either these terms be retained, or, if they're removed, that there be clear language that explains the equivalent of these terms as they're used in other legislation.

Finally, we also know that even though these terms have been changed in other jurisdictions, we don't really have any evidence that changing these terms has actually led to a reduction of conflict.

SALCO has been doing a lot of public legal education in communities because a lot of our clients have language barriers and simply don't have a lot of knowledge about their legal rights. We have spent a lot of time and resources in developing language-specific materials explaining these terms, so changing them would mean that we'd have to revisit and revamp all of that, and we simply don't have the resources to do so.

[Daniel Boivin, President, Fédération des associations de juristes d'expression française de common law inc.]

Mr. Chair and committee members, thank you very much for agreeing to hear the comments of the Fédération des associations de juristes d'expression française, or FAJEF, on a different aspect of the amendment to the Divorce Act, that of protecting the right of individuals to use the official language of their choice when they must go before the courts in a divorce matter.

The FAJEF brings together lawyers' associations from across the country. Our mandate is to promote access to justice in French in the predominantly English-speaking provinces and territories. The seven associations of French-speaking lawyers represent approximately 1,700 lawyers, and the number is increasing every year. More importantly, they represent a population of approximately one million Canadians.

FAJEF works with other organizations in the national legal community, including the Canadian Bar Association, which I believe will appear before this committee, and with francophone organizations such as the Fédération des communautés francophones et acadienne du Canada, or FCFA, which supports FAJEF's representations on language rights issues.

To give you some background, in 1998, the Special Joint Committee of the Senate on Child Custody and Access already recommended an amendment to the Divorce Act so that parties to proceedings under the act could choose to have proceedings in either of Canada's official languages.

The committee recommended that the amendments be based on section 530 of the Criminal Code, which gives individuals the possibility of using the official language of their choice in criminal proceedings. The Divorce Act being another federal law, that act was scaled up, which was quite appropriate.

In 2002, the Department of Justice stated in its report, “Environmental Scan: Access to Justice in Both Official Languages”, that the federal Parliament had the right to impose language requirements on the provinces if it decided to entrust them with the administration of a law. However, despite these recommendations, the Divorce Act, which is still in force, still does not recognize the right of Canadians to divorce in the official language of their choice.

This means that in many provinces, Canadians who must face the courts for what is probably the most personal aspect of their lives cannot do so in the official language of their choice, particularly in French. This is already possible in some provinces and territories, namely Ontario, Quebec, New Brunswick, Manitoba, Saskatchewan, Northwest Territories, Yukon and Nunavut.

In some provinces, if you know the clerk, if the judge is a friend, if people are able to accept certain documents by turning a blind eye, it is possible to obtain a divorce judgment by consent, but certainly not to have a debate in French before the courts. In British Columbia, and Newfoundland and Labrador, it is absolutely impossible to have anything in French.

We believe that the fact that Bill C-78 does not contain a provision on language rights is a gap. The bill should be amended to explicitly recognize language rights in any proceedings brought under the Divorce Act.

Divorce affects Canadians directly. It is an intimate and difficult matter. When people who divorce have to go to court, it is a very difficult time. It is a procedure that often has significant financial and emotional consequences. For these reasons, the ability to express yourself in court in the official language of your choice is of extreme importance.

In federal law, imposing language rights on the provinces would not be new. As I just mentioned, the Criminal Code already provides, in sections 530 and 530.1, for the obligation to provide judicial services to Canadians in both official languages.

It is also very important to recognize that many Canadians appear in family courts without the assistance of counsel. A lawyer is often able to somewhat mitigate language difficulties, with a command of both languages. However, when people appear in court without a lawyer, they have to deal with a dual problem, in that they cannot express themselves in the precise legal language needed for the debate, or in a language that the court can understand.

The FAJEF will submit a brief with the suggested wording; it looks a lot like the wording in section 530 of the Criminal Code. This recognizes the possibility of using one official language or the other in cases brought under the Divorce Act, not only for the trial, but also for all the steps that go on outside the courtroom.

There must also be a requirement for the judge to understand the language or languages used by the parties, for the witnesses to be able to express themselves in the official language of their choice without consequence, and for the record of the hearing to include all the debates in the official language that each party used.

The provisions should also indicate that courts may provide interpretation services for the parties to cases heard in both languages, and decisions to be rendered in the language or languages that the parties used in court.

Finally, we recommend that it be possible to use the official language of choice for every decision taken to appeal.

The FAJEF strongly recommends this addition, as a language right that clearly meets the federal government’s obligations to promote the use of the official languages, as set out in section 41 of the Official Languages Act.

This is a matter of access to justice. Canadians who cannot express themselves in the official language of their choice before the courts do not have adequate access to justice. This is a situation that must be resolved.

Thank you very much.