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.

[Gillian Bourke, Lawyer, Family Law Association of Nunavut]

Thank you.

I'd like to thank the committee for inviting nuimati, which is the Inuktitut acronym for the Family Law Association of Nunavut, to provide our feedback about Bill C-78. Every resident family law lawyer in Nunavut is an active participant in our group.

I would like to specifically thank Stefanie Laurella and Anne Crawford for their work on the brief and this presentation.

Overall, nuimati is supportive of Bill C-78. We believe that, if enacted, it will reduce conflict for separating families.

We have focused our response on the relocation proposals in Bill C-78. We are in favour of legislating relocation, as the current law set out in the Supreme Court of Canada in Gordon v. Goertz is highly discretionary, resulting in unpredictable outcomes for family law litigants.

There are three areas that nuimati would like to address and propose changes to.

First, we propose to simplify the procedure for relocation. The proposed procedure for relocation set out in Bill C-78 is the foremost concern for our group. Proposed section 16.91 states that when a parent receives a notice of relocation, their only means of stopping the relocation is to file a court application within 30 days.

In our opinion, the requirement to go directly to court is contrary to one of the aims of this bill—for parties and legal advisers to encourage the use of family dispute resolution processes. Parents become adversarial from the outset and rely exclusively on the litigation process. In our opinion, the court should not be the first step in resolving issues between parents.

Many factors could prevent an objecting parent from filing a court application within the 30 days, particularly in the north and remote regions. In our opinion, this causes significant access to justice issues. If a parent cannot afford to privately retain a lawyer, there may be delays in being approved for a legal aid lawyer. If a lawyer cannot be retained in the required time period, there are many barriers for people to bring a court application on their own within the 30-day time period.

Many communities throughout Canada, including 25 in Nunavut, are served exclusively by a travelling court. There is no permanent court presence in the community. There may be difficulty in obtaining the required forms from the court. If a parent cannot speak English or French, they may not have access to the resources to understand the requirements under the Divorce Act, or have the ability to prepare the necessary court documents. A parent may also be required to leave their community for work within this 30-day period. In the case of Nunavut, it's often for hunting or fishing to support themselves and the community.

We believe that a parent who objects to the notice of relocation should only be required to do so in writing to the other parent. This significantly reduces the likelihood of a parent being permitted to relocate with a child based on a procedural technicality, rather than in the child's best interest. We also believe that the notice of relocation should include a caution to the other parent, that if they do not object within 30 days the relocation will be permitted.

Second, we propose to simplify who has the burden of proof on relocation. Proposed section 16.93 sets out different burdens of proof, depending on whether a child spends substantially equal time in the care of each party, or spends the vast majority of their time in the care of the party who intends to relocate.

Relocation is defined in Bill C-78 as “a change in the place of residence of a child...that is likely to have a significant impact on the child's relationship with...a person who has parenting time [or] decision-making responsibility”. This is a high threshold that is not going to include parents who rarely see their children.

Unless a child is an infant, a relocation would also make a drastic change to the rest of the child's life. The child would have to adapt to a new community, attend a new school, make new friends and develop a new routine. We believe that a parent seeking to change the status quo should have the burden of proof of why it is in the child's best interest.

Third, we would like to add provisions about the financial consequences of relocations, and to clarify them.

In Nunavut, there's no year-round road access between any of the communities. The cost of airfare is frequently in the thousands of dollars. Currently, there is no legislation or regulations that specifically set out who is to pay the travel expenses of a child to facilitate parenting time after a relocation occurs, and there is mixed case law. The child support guidelines only speak to a reduction of the table amount of child support in cases where undue hardship is made out for the parents' high access costs. In our experience, the financial consequences are one of the most contentious issues in relocation cases.

Another factor to consider is that a relocation may trigger a child support obligation for the non-relocating party where one may not have existed previously. Proposed section 16.95 of Bill C-78 states:

If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

This proposed section is highly discretionary and creates uncertainty about who is responsible for paying to facilitate parenting time upon relocation. We suggest that there should be a presumption that the relocating parent has the obligation of paying the additional cost of facilitating parenting time as a result of the relocation, absent an undue hardship claim as is already set out in the child support guidelines.

This approach adds certainty, reduces conflict, and has safeguards to ensure that the child enjoys similar standards of living with each parent. We would also suggest adding a requirement that the parent providing the notice of relocation include a proposal for the financial consequences of the relocation. This could reduce conflict from the outset if there is an open dialogue about the financial consequences between parents from the start.

This concludes our proposals. I thank the committee for considering our feedback.

[Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

Good afternoon.

The Barreau du Québec welcomes the inclusion of family violence in the bill. It is indeed a sensitive subject, but one that must be taken into account when considering the best interests of the child.

However, we believe that the legislator must specify that the prohibition, for instance, of killing or injuring an animal does not apply when it is done in the context of hunting and fishing recreational activities. In addition, the prohibition against damaging property must be limited to situations where there was intent to cause damage.

We think these clarifications are necessary to avoid absurd situations in which normal behaviour would be considered family violence. Moreover, this behaviour could be raised by either party as a criticism in a divorce case, should things already be acrimonious.

Another factor that raises questions for us is the obligation for the legal advisor to inform the client of the possibilities for reconciliation.

Although clause 7.7 of the bill repeats clause 9 of the current act, with the exception of replacing the term “lawyer” with “legal advisor”, we believe it is important to add to clause 7.7(1)(b) the phrase “if necessary”. The Barreau du Québec is indeed concerned about the possibility that a legal advisor may put pressure on the parties to reconcile, mistakenly believing that they are fulfilling an obligation under the act. We also believe that it should be clear that it is at the discretion of the legal advisor to determine, based on the facts of the case, whether a discussion on reconciliation would be beneficial to the client. There may be situations in which a discussion on potential reconciliation would be inappropriate. This is the case when acts of family violence have occurred between the spouses.

Lastly, the Barreau du Québec raises two problems regarding section 22 of the current act, which refers to foreign divorces.

First, the provision states that a divorce granted by a competent authority would be recognized within the meaning of the act. However, it should be noted that in some countries, such as France, the parties may, when the conditions are met, sign an amicable agreement and file it with a notary instead of going to court. As a result, we think Canadian law must allow for the recognition of all divorces that respect public order and Canadian values, even if they are not granted by a judicial authority.

Second, we note that a constitutional conflict could arise between this provision and article 3167 of the Civil Code of Quebec concerning the jurisdiction of foreign authorities in divorce matters.

In closing, we would like to thank you once again for allowing us to share our thoughts on Bill C-78. We hope these in turn will be helpful in your considerations. We are available to answer any questions you may have.

[Siham Haddadi, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

Mr. Chair, committee members, good afternoon.

First of all, on behalf of the Barreau du Québec, I would like to thank you for inviting us to this meeting to discuss Bill C-78. We are very happy to be here.

My name is Siham Haddadi, and I am a lawyer with the Barreau du Québec and secretary of the Family Law Committee. With me today are Valérie Laberge, who is a member of the Family Law Committee, and Nicolas Le Grand Alary, who is also a lawyer with the Barreau du Québec.

As a professional body, the Barreau du Québec has a mandate to protect the public and the rule of law. Reform of the Divorce Act, which raises issues of promoting the best interests of the child and protecting vulnerable persons, therefore challenges the Barreau in carrying out its mission.

To begin, the Barreau du Québec would like to welcome the reform of the Divorce Act, which puts the child at the heart of deliberations, adapts terminology to soften conflicts and, above all, modernizes the Divorce Act, which had its last major reform in 1997, to make it more relevant to today's family realities. That is the challenge that the legislator set for itself with this bill, and the Barreau du Québec thinks it has met that challenge with great success.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone, and welcome to the Standing Committee on Justice and Human Rights as we resume our study on Bill C-78.

It is a great pleasure to have with us today a very distinguished group of witnesses.

Our first group of witnesses includes members from the Barreau du Québec, Siham Haddadi, Valérie Laberge and Nicolas Le Grand Alary.

We have the Family Law Association of Nunavut, represented by Ms. Gillian Bourke.

Also with us today is Daniel Boivin from the Fédération des associations de juristes d'expression française de common law inc.

We have the South Asian Legal Clinic of Ontario, represented by Ms. Shalini Konanur and Ms. Silmy Abdullah.

We're gong to go in the order in which I announced everybody, starting with eight-minute presentations.

We'll start with the representatives from the Barreau du Québec.

[The Chair, Liberal, Anthony Housefather]

Thank you.

I call will the vote.

(Motion agreed to)

Thank you very much. I will sign a letter to the finance committee letting them know that we have no comments.

Thank you, gentlemen.

Before we move to an in camera meeting related to the continuation of the review of our report on trafficking, I would like to advise the committee that your subcommittee met yesterday to discuss the business of the committee, and agreed to make the following recommendations. The clerk wrote it up, and I have it right here:

That for the study of 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, the Committee invite to appear the witnesses suggested by the parties, as well as the organizations that requested to appear

—that is, if somebody offered to appear on behalf of an organization or a group, they would also be invited—

provided that, should an additional meeting of testimony be required, it can be added at the Chair's discretion;

That is because we had agreed by motion to hold four meetings.

There's a second thing that we agreed, as follows:

That the Committee staff be instructed to select a photograph that could be used to illustrate the cover page of the eventual report on human trafficking in Canada, provided that the committee approve said photograph.

Is everyone okay with that recommendation?

(Motion agreed to)

Great, that's unanimously approved. I will sign it.

Thank you very much.

We need a short break to get set up before we go in camera for the trafficking report.

[Proceedings continue in camera]

[The Chair, Liberal, Anthony Housefather]

Okay, perfect.

Is there any further discussion? If not, we will move to a vote on the motion proposed by Mr. Clement. All those in favour of that motion?

(Motion negatived)

Now we will be moving to an in camera session to discuss our agenda for Bill C-78. I will have a brief pause of 30 seconds to allow the room to rejig for an in camera meeting.

[Proceedings continue in camera]

[Colin Fraser, Liberal, West Nova, NS]

With regard to this motion, I will not be supporting it. There are problems with it for a few reasons.

First of all, basically, it's asking the committee to invite the minister to seek what amounts to a legal opinion on the procedures, practices and precedents dealing with cabinet confidences. I don't think it would be appropriate for us to have the minister come here and give us her opinion on this. If the members want to get a legal opinion on such things, of course, they're entitled to do so, but it wouldn't be appropriate for our committee to undertake that type of work, in my view.

With regard to the Norman matter, it's obviously the subtext here for the rationale of this motion. I appreciate what my friend has said, that this would be in general terms and wouldn't be specific. It could easily stray into that type of discussion. The sub judice principle applies, that if there is a matter currently before the courts, it would be inappropriate for any member of cabinet to discuss this matter, or to make any types of submissions on that basis outside of the court process.

In addition to both of those excellent reasons, I would submit, we also have a lot of important work that this committee is doing. We started Bill C-78 today. We have Bill C-84 coming to this committee, an animal cruelty bill. It will be important for Canadians to see justice done to that bill. We have a human trafficking report that we're currently putting together to send back to the House. We have, in our agenda, a new study on the criminalization of HIV. We have lots of other important work to do.

For all of those reasons, it would be best to not support this motion. That's why I will be voting against it.

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

Thank you.

Before I get to my question, I would like to pick up on something my colleague Mr. Fraser said, namely, that the term “custody order” is replaced by “parenting order”. In its brief, the Barreau du Québec asks us to identify the cases covered by this provision in order to resolve any clarity issues and reduce the potential for unnecessary litigation.

Now to my question. You talked earlier about the reality of indigenous children. The risk of serious domestic violence with fatal consequences is apparently much higher among indigenous Canadians than the rest of the population in Canada. In your opinion, to what extent will Bill C-78 help indigenous Canadians who face domestic violence?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I'm happy to respond to that. I'll respond to it in a different way than I responded to the hybridization of offences.

I completely disagree with your characterization of the signal that I am seeking to send with Bill C-75 and Bill C-78.

The signal that I am trying to send with Bill C-75 is to ensure that we do everything we can to address the delays in the criminal justice system. I am not sending the signal that there are offences that are less serious offences that warrant a less punitive measure. With respect, that is the signal that you are trying to send. You are mis-characterizing the hybridization of offences in Bill C-75. I think it does a disservice. What we are trying to do is to ensure that prosecutors are provided with the necessary tools.

With respect, again, to my honourable colleague, you are mis-characterizing the hybridization of offences. I believe it does a disservice to Canadians, and you are working very diligently to create fear in Canadians where fear should not exist, because we are not reducing sentences in Bill C-75.

[Tony Clement]

In the minute that's left, can you try to help us understand why it's okay under Bill C-75 to treat children's offences less effectively, but it's not okay under Bill C-78?

[Tony Clement]

I already connected it to Bill C-78.

[Tony Clement]

Mr. Fraser, I already connected it to Bill C-78.

[Tony Clement]

I know, but now there are another 10 seconds gone.

I think it is important that this bill send the right signals to parents and to children, which is why on this side of this committee we raised not only Bill C-78 but were talking about signal creating in Bill C-75 as well and trying to square the two. The signal of this bill is the children, but the signal of the other bill, Bill C-75, was lessening.... I know you say that it's not lessening the sentences, but allowing the opportunity....

The justice system takes its signal from you, Minister, and the signal you have sent is that these serious offences are going to be treated less seriously. My colleague Mr. Fraser and others on the other side changed their minds on the terrorism. The reason they gave was that it's a serious offence. Well, kidnapping a child is a serious offence. You were quoted in the National Post, I believe—

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I appreciate the question.

We do not know, nor can we know, the situation of an individual family in an acrimonious reality, where there's a battle over the child. What we have sought to do in Bill C-78 is to legislate what courts have told us around the best interests of the child. We've sought to, again, change the terminology to move beyond a win or lose situation.

To your point, in discussions I've had, individuals who have been involved in family law and are family law advocates actually have spoken to me about the fact that changing the terminology is a start to actually changing the culture of family law situations and the resolutions of those situations. We have other jurisdictions that have changed the terminology, but again to your question, we're seeking to try to do everything we can to provide factors and as much information for courts to consider for individuals in alternative dispute resolution situations to move beyond the focus on individual parents and to focus on the children.

What we sought to do, by way of providing factors around the best interests of the child, around the definition of family violence, around relocation and setting a framework, was to ensure that in any of these discussions the child's interest is kept.

[Tony Clement]

Thank you.

Just on Bill C-78, obviously you've made reference, Minister, to changing the descriptors from custody to decision-making responsibility, as an example. I would hope that makes a difference, but being realistic, parents will continue to battle over custody and control of their children, sometimes tooth and nail. That's the unfortunate reality of the situation, human nature being what it is.

I know the intentions here are to lower the temperature and to focus the bill, but is there any real change we're expecting in terms of how parents behave in this system when it come to their kids?