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

Bill C-78—Time Allocation MotionDivorce ActGovernment Orders

February 6th, 2019 / 4:20 p.m.
See context

Minister of Justice and Attorney General of Canada, Lib.

David Lametti

Madam Speaker, that is effectively what I am saying. I appreciate the hon. member's question, but there is a large degree of consensus in the House and across Canada.

The experts are weighing in and the voices are fairly unanimous, that this is an excellent piece of legislation. Lawrence Pinsky from the law firm of Taylor McCaffrey said, “Bill C-78 is clearly an advance in family law in Canada, and the government should be commended from bringing it forward. This should be a non-partisan issue.”

From West Coast LEAF, Elba Bendo stated:

West Coast LEAF welcomes the important amendments proposed by Bill C-78. We are very glad that the intended purpose of the legislation—to promote faster, better and more cost-effective solutions to family law disputes—recognizes the difficult reality that many people across this country are alone in navigating the legal system during what is often one of the most difficult times in their lives.

We need to move forward, because the bill has widespread support.

Third ReadingDivorce ActGovernment Orders

February 6th, 2019 / 5:30 p.m.
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Arif Virani Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and to the Minister of Democratic Institutions, Lib.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Divorce ActGovernment Orders

January 30th, 2019 / 3:30 p.m.
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Minister of Justice and Attorney General of Canada, Lib.

David Lametti

moved that the bill be read the third time and passed.

Mr. Speaker, it is with humility that I rise for the first time as the Minister of Justice and Attorney General of Canada.

I want to thank the right hon. Prime Minister for the trust he has placed in me. I also thank the people of LaSalle—Émard—Verdun for their continued support. I would also like to thank the Minister of Innovation, Science and Economic Development and the Minister of Foreign Affairs for their guidance. I also want to thank their teams.

I would also like to salute the work of my predecessor. It was a historic appointment, and it was matched by a historic quantity of substantive legislation. I want to thank her as we move forward.

I would also like to thank the chair and the members of the committee, as well as the witnesses who expressed their support and provided insights and recommendations on Bill C-78. I would also like to acknowledge the recent expression of support for Bill C-78 on the part of the federal-provincial-territorial ministers responsible for justice and public safety.

Finally, I could not go on without mentioning the constant support of my very able parliamentary secretary, the member for Parkdale—High Park.

The needs of families going through a separation or divorce have changed significantly over the past decades. Federal family laws are now outdated and do not meet their needs. That is why we are proud to present the first major changes to these laws in more than 20 years.

The bill will modernize federal family laws and improve the family justice system, in particular by encouraging the use of alternative dispute resolution methods, and ensuring that the best interests of the child are at the heart of any decisions affecting them.

The best interests of the child is a fundamental principle in family law that must be reinforced to ensure that the support and the protection of our children are always paramount. Bill C-78 entrenches in law the best interests of the child as the only consideration when making decisions about parenting arrangements.

Along these lines, the bill introduces a primary consideration, according to which a child's physical, emotional and psychological safety, security and well-being will be considered above all else. Courts will have to weigh each best interest criterion in light of this primary consideration.

Proposed changes also recognize the importance of a child's voice in family justice proceedings. Bill C-78 puts forward concrete measures to promote the best interests of the child in situations in which children are most vulnerable. The bill introduces criteria to determine the best interests of the child, as well as important considerations and exceptions when there has been family violence.

With thanks to witnesses heard by the committee, the bill has been amended so that in some cases of family violence, applications to modify a parenting arrangement or to relocate can be made without notice to other parties, which will provide further protection to children and families fleeing these situations.

A number of witnesses addressed the issue of a presumption of equal shared parenting under the Divorce Act. While some witnesses were in favour of a presumption, most were strongly opposed to it. Creating such a presumption would have gone against our commitment to ensure that each child's best interests would always be put first. Given that each child and each family's circumstances are unique, courts need flexibility to tailor parenting orders to the needs of each particular child.

We recognize, however, the important role that both parents can play in a child's life. Bill C-78 reflects social science evidence that it is generally important for children to have a relationship with both parents after divorce. Thus, the bill requires courts to apply the “maximum parenting time” principle that a child should have as much time with each parent as is consistent with the child's best interests.

Witnesses raised concerns that this principle may create a misunderstanding that equal time with each parent should be the starting point when establishing a parenting order. To address these concerns, the bill was amended to further clarify that this principle is always subject to the best interests of the child.

Another important aspect that has been the subject of considerable discussion over the past few years is recognition of linguistic rights in the Divorce Act.

After hearing from witnesses on the matter, including the Fédération des associations de juristes d’expression française de common law and the Canadian Bar Association, we amended the bill to allow parties to use either official language in any proceedings under the Divorce Act.

Parties will have exactly the same linguistic rights as those provided for under Part XVII of the Criminal Code in criminal matters. In other words, anyone can testify and submit evidence in the official language of their choice. Parties will also be able to be heard by a judge who speaks their language and can obtain any ruling or order in the official language of their choice.

This important change will improve access to the family justice system and help enhance the vitality of official language minority communities.

I want to thank my caucus colleagues for their important work on this matter, especially the hon. member for Mount Royal and the hon. member for Ottawa—Vanier.

Our government has been growing the middle class and helping those working hard to join it. Bill C-78 furthers this work by making important contributions to help address child poverty.

Family breakdown often places significant financial strain on families. For some families, divorce may lead to poverty. Lone-parent families, most often led by women, are at a particularly high risk of experiencing financial hardship. This bill will improve federal support enforcement tools, such as the release of income information, to ensure that fair and accurate support amounts can be calculated.

Bill C-78 sets out obligations for parents who divorce in order to protect the children, promote their best interests and foster the amicable settlement of family disputes.

Parents will now be required to exercise their decision-making responsibilities in a manner that is compatible with the interests of the child and will protect children from conflict. These obligations should already have been accepted by divorced parents. However, making this an explicit rule will remind parties of their obligations under the Divorce Act.

To foster Canadians' access to justice, the Department of Justice will prepare various documents to inform the public of the changes proposed by the bill and guide families through the divorce process.

This leads me to mention another important objective, that is, making the family justice system more accessible and efficient.

In closing, Bill C-78 shows our commitment to enhancing the family justice system. This bill seeks to protect families, especially the children, from the adverse effects that can be caused by a divorce by focusing on dispute resolution and the interests of the child.

Once again, I would like to thank all those who contributed to the committee process.

I encourage my colleagues on all sides of the House to join me in supporting this very progressive bill.

Divorce ActGovernment Orders

January 30th, 2019 / 3:50 p.m.
See context

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Speaker, I am pleased to rise to speak at third reading stage of Bill C-78, an act to amend the Divorce Act. As a member of the justice committee, I had the benefit of studying the bill in some detail at committee, where we heard from a wide range of stakeholders involved in family law. While there are some aspects of the bill that could be improved upon, and I will address those specific issues in short order, I believe that many aspects of the bill would provide greater clarity and certainty in the law. This, after all, is the first major update of the Divorce Act since it was passed in 1985, and in that regard, it is a timely update indeed.

Before getting into some of the areas where I think the bill falls short, let me start with some of the positives. One positive aspect of the bill is that it contains important measures to better ensure that children are not impacted by conflict and to encourage parties, where appropriate, to resolve their disputes outside the court process. It is important to note the words “where appropriate”. That language is in the legislation, because we know that in not all circumstances is it appropriate to resolve family disputes through negotiation or collaborative law, particularly where there is a history of family violence. However, we know that where it is appropriate, it is more often than not the best possible outcome. Because the court process is adversarial in nature, it increases conflict and it can prolong disputes, and that heightened conflict, of course, can have a profoundly negative impact on children.

We also know that the court process is often inefficient, and it is, indeed, costly. That raises issues of access to justice. More and more Canadians who are resorting to the family court system are self-represented litigants, because they cannot afford legal representation. Often these self-represented litigants do not know their rights. They do not have a good understanding of the law. That creates a number of issues, including from the standpoint of backlogs and delays in the family courts, but more broadly speaking, within our entire justice system. To the degree that we can encourage parties to settle, to go through mediation or negotiation or collaborative law, that is positive, and the bill contains measures in that direction.

A second area where the bill would provide better certainty in the law is through the codification of a wide body of case law that recognizes that in determining custody or access orders, the sole determination should be based on what is in the best interests of the child. The bill sets forth a number of factors a judge would consider in fashioning an order and determining, based on the individual circumstances of the case, what, in fact, was in the best interests of the child. That is entirely appropriate and is consistent with what the family law bar has been asking for. It is consistent with the special joint committee report the House and the Senate undertook in 1998 with respect to custody and child support.

One area that I have some issues with is with respect to relocation, about which I posed a question earlier to the minister. Relocation, for obvious reasons, is one of the most difficult areas of family law when one parent seeks to relocate with that child to another location. Based upon the evidence before the committee from the family law bar, that has not been necessarily made easier by the Supreme Court in the Gordon v. Goertz decision of 1996, which provides a highly discretionary test, based upon the best interests of the child. This has let to uncertainty and, frankly, has increased litigation around relocation matters.

The bill seeks to provide certainty by establishing a three-way split with respect to which parent bears the burden of establishing that the relocation is in the best interests of a child. In that regard, the bill provides that when a child has substantially equal time with both parents, then the burden falls on the party seeking to relocate. On the other end of the spectrum, where a child is with the relocating parent the vast majority of time, the burden would fall to the other parent. Then, finally, where there are cases in between those two spectrums, neither parent would bear the burden.

This approach is consistent with the legislation that was passed in the province of Nova Scotia in 2013. There was some evidence before the committee that it was working relatively well, that judges were not having a difficult time sorting out which person or group would fall into the three categories.

However, that being said, while it is laudable that the government is seeking to provide some clarity in the face of Gordon v. Goertz and some greater certainty, I have some concern that this may create some new uncertainty. In that regard, it was raised before committee, I believe by Professor Bala, a well-respected expert in family law, that by using the term “a substantially equal time“ that it might imply or might not imply shared custody with the requisite 40% threshold. Needless to say, it is new language. It has not been tested. It will be litigated,. Therefore, that is something to monitor.

Second, I have some concern about the appropriateness of a three-way split. Again, there was some evidence before the committee, and it is a view that I share, that from the standpoint of fairness and the standpoint of achieving what this legislation seeks to achieve, which is to do what is in the best interests of the child, that as a general rule, the burden should fall on the parent seeking to relocate to establish that it is in the best interests of the child, save for those circumstances where the child does spend the vast majority of his or her time with the relocating parent.

Having regard for the fact that unless the child is an infant, relocation does have, in the normal course, a significant impact on the everyday life of that child with respect to having to go to a new school, make new friends and adjust to a community, not to mention the impact it can have on the relationship with the other parent, who might have access or custody arrangements. It can often be a major disruption. From that standpoint, it would seem more appropriate that, as a general rule, the burden fall on the relocating party.

Then there are some technical issues with the notice requirements. I alluded to one of the concerns I had when I posed a question of the minister. One of the concerns with respect to notice is that the legislation would provide that a parent need only send a letter or some relatively informal notice to the non-relocating party.

At committee, Lawrence Pinsky, who is the past chair of the family law section of the Canadian Bar Association, among others, raised questions about the appropriateness of that form of notice. It seemed to Mr. Pinsky, and it seems to me, that it could unintentionally create situations where one parent would say that he or she had sent notice and the other parent would say that he or she did not receive notice. In the meantime, the parent who claimed the notice had been sent notice may have relocated with that child. What does one do in those circumstances?

In such a circumstance, it may be that the other parent might not be able to have access and custody for which he or she is entitled pursuant to an order. Is the other parent in contempt of that order? That seems to be an aspect of the bill that needs to be re-evaluated, with a very minor amendment when it goes to the Senate, since we were not able to address it at committee.

Then there is the issue of the 30-day response period; 60 days to provide notice of a relocation and 30 days to provide a response. Thirty days is problematic for individuals who may be in remote and northern communities and might not have easy access to a lawyer. It could be problematic for persons who may be disadvantaged or unfamiliar with the court process, maybe who have never retained a lawyer before, or who might perhaps be unable to afford retaining a lawyer and then find themselves in a position where an application to respond has to be prepared. There might be some significant barriers for many groups of Canadians. That is a concern.

Then there is the whole issue of rushing into court. Effectively, the only recourse for parents who are not relocating and who receive that notice is to file an application in court objecting to the relocation. That is inconsistent with one of the key objectives of the bill, which is to encourage parties, where possible, to settle disputes out of court. In most circumstances, someone who is relocating likely will have thought about that relocation long before he or she provides 60 days' notice. By contrast, the party who is not relocating, more often than not, may only learn of it upon receiving notice, in which that parent has 30 days to respond.

That is problematic inasmuch as it might take one some time to absorb what that relocation means, how it impacts custody or access arrangements and prohibits the ability of the parties to negotiate and approach the relocation in a collaborative way and avoid litigation on that issue. It is why I brought forward an amendment, consistent with evidence from a number of witnesses, to increase the time from a 90-day period to provide notice and a 60-day period to respond, Again, it is a relatively minor amendment that hopefully can be considered in the Senate since it was not adopted when it was studied at the justice committee. It is one that could have a profound impact on many families.

I was disappointed that the bill did not recognize the fact that in most circumstances, it is desirable to maintain a shared parenting relationship. That it is not to say that it is appropriate in all cases. We know, particularly in situations where there is family violence, that it is not. However, it does not make sense to remove a perfectly fit parent from having as much access and time to spend with his or her child, and yet we know that does happen every day. The government's response, I suspect, will be that shared parenting is not consistent with this legislation and it rejects the notion of shared parenting because the legislation is focused exclusively on the best interests of the child.

I agree wholeheartedly that any issue relating to custody or access should be based exclusively on what is in the best interests of the child. However, the fact is that in many circumstances, what is in the best interests of the child is to maintain that shared parenting relationship. We know that from common sense life experience and a wide body of social science evidence to back that up. That is why, when the Senate studied custody and access in 1998, it recommended the incorporation of factors that a court should consider with respect to the best interests of a child, which the government incorporated in the bill. One of the factors was the benefit to a child of a shared parenting relationship.

With that, on the whole, the bill gets a lot of things right. There is a fair bit of consensus among the family law bar and other actors involved in family law, divorce, separation, etc., but there are areas where there is room for improvement. I hope there will be some further consideration on how to improve the bill when it goes to the Senate.

Divorce ActGovernment Orders

January 30th, 2019 / 4:20 p.m.
See context

NDP

Brigitte Sansoucy NDP Saint-Hyacinthe—Bagot, QC

Mr. Speaker, as my party's critic for families, children and social development, I am delighted to rise in the House once again to speak to Bill C-78.

I will get straight to the point. Bill C-78 is clearly a step forward, considering that the 40-year-old Divorce Act is no longer a useful tool for helping families navigate the problems they encounter during a divorce.

Let me illustrate that with a quote from Senator Landon Pearson. She was appointed to the Senate in 1994 and retired in 2005. I think this quote shows that we have long known the Divorce Act needs updating. Senator Pearson served as vice-chair of the Standing Committee on Human Rights.

This is what she said way back in the early 2000s:

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.

That is why my NDP colleagues and I will support this bill. However, I want my esteemed colleagues to realize that, although this bill is a step forward, we cannot stop here. I believe this bill can and should be improved.

I think we can all agree that the objectives set out in the text—namely, promoting the best interests of the child, taking family violence into account in making parenting arrangements, fighting child poverty and making Canada's family justice system more accessible—are all steps in the right direction. However, the major flaw with this bill is that it too often lacks the teeth to support its intentions.

Many of the witnesses who appeared before the Standing Committee on Justice and Human Rights as part of its work on Bill C-78 came to the same conclusion. I would like to thank them once again. What I took away from those meetings is that families, associations, justice professionals and academics are all waiting for a comprehensive reform of the Divorce Act.

I want to emphasize how important it is that we not let the opportunity we have today pass us by, since we will likely not reform the Divorce Act again for another few decades. Let us not make changes just for the sake of making changes; we must listen to the recommendations made by witnesses in committee and in the many briefs that have been sent to us. We do not want to realize a few months down the road that the act does not resolve certain problems and only addresses them superficially.

We need to make sure we do things right. I do not want us to end up dealing with problems that we were warned about and that we could have resolved today. I am thinking in particular about situations of family violence and about how the child's views always need to be taken into account in divorce proceedings.

I would therefore like to talk about three issues: fully protecting the best interests of the child, of all children, managing situations of family violence, and combatting poverty.

First, when it comes to promoting the best interests of the child, we must not end up in a situation where the child's interests are determined a priori by the parents or the judge.

That is why it would make sense to include a provision in the bill to give the child the right to be represented by a third party. Countless studies show that questioning a child through such a process is very beneficial. Professionals note that when a person is there to communicate to the parents the concerns and interests of their child, the divorce is settled almost immediately.

Although the bill states in clause 16(3) the need to consider “the child’s views and preferences, by giving due weight to the child’s age and maturity”, it seems that representation for the child would guarantee that the best interest of the child is central to concerns in all circumstances.

Moreover, we should give considerable attention to training on how to duly take into account the point of view of the child in matters before family court. I think that our approach has to be based on the International Convention on the Rights of the Child and best practices being used in Canada and abroad. In fact, to go even further, the Convention on the Rights of the Child should be included in the section on the best interest of the child.

Unfortunately, the departmental officials told the committee that we did not need to explicitly incorporate the Convention on the Rights of the Child because it is a given that Canadian courts are required to comply with the convention. However, several witnesses testified that explicitly including it, not only in the preamble but also in the body of the act, would enable both us and the courts to take into account all the underlying principles of this convention. Sadly, this view did not find favour.

I also want to point out how important it is that children be offered services and resources that give them psychological support.

Lastly, it is equally vital that the best interests of children, all children, be taken into consideration. This means that indigenous children's right to their own culture, religion and language must be recognized in paragraph (f) of subclause 16(3) on the best interests of the child.

The testimony of UNICEF Canada representatives was extremely pertinent and supported this point of view. It is obvious to them that the International Convention on the Rights of the Child supports the principle of considering the culture of indigenous children. Here again, as I just said, we can look to article 30 of the International Convention on the Rights of the Child, which recognizes the rights of an indigenous child to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language in community with the other members of his or her group.

I would like to read a quote from the evidence we heard at committee in support of the representation of the child. I will quote Dr. Valerie Irvine, a professor at the University of Victoria, who talked about her studies on the impact of divorce on families. She said:

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.

It is clear that, to have these professional services, we must support the provinces, which are responsible for enforcing this law. We know that compared to health services, social services are often overlooked in the provinces.

Barbara Landau told our committee the following:

It isn't lawyers that I say shouldn't interview children; it's judges. I think bringing a kid to the courtroom and having a judge take a few minutes in chambers with the child is a pretty frightening experience.

I think that mental health professionals are the best ones to be trained to work with children. Interviewing a child as part of the process is really helpful. Almost every case settles almost immediately once there is somebody to reflect the child's concerns and interests to the parents.

In the divorce process, each parent is represented by lawyers, and although both parents are concerned about the child's well-being, the child's best interests can unwittingly get lost in the process. If a professional who can speak on behalf of the child and is not intimidated by the judicial process is present for every step of that process, we could truly say that the child is our primary concern.

Second, I want to talk about three considerations regarding family violence. First, it is a great idea to include a definition of family violence in the bill. The definition is purposely broad in order to take into account the complexity and the variety of types of family violence. Nevertheless, many organizations have drawn our attention to the importance of explicitly recognizing in the definition that family violence is a type of violence against women, and rightly so.

The goal is not to minimize cases of violence against men but to recognize the fact that, in the vast majority of cases, family violence is gendered in nature, because it is most often men who commit violence against women. The statistics are clear in that regard.

Next, we need to set out in the bill that alternate dispute resolution mechanisms should not often be used in situations of family violence. Many organizations and academics are concerned that resolving divorce proceedings outside the court system will merely give the violent parent more ways of controlling his victims.

As a result, it is essential that the bill include provisions regarding training for justice professionals on how to recognize, understand and deal with situations of family violence.

I want to take a moment to again pay tribute to two community organizations in my riding that do amazing work day after day for children whose parents are getting divorced and for all women experiencing domestic violence. The expertise of these organizations has been extremely useful for helping me fully understand and document my committee work on this issue.

First, I want to thank Le Petit Pont, an organization that works to create and maintain parent-child bonds in a neutral, harmonious, family-friendly setting during situations of separation and conflict. The child's best interests and safety, both physical and mental, are the top priority for this organization, which operates in both Saint-Hyacinthe and Longueuil.

Second, I want to express my gratitude to La Clé sur la porte. In its 37 years of operation, it has taken in over 4,000 women from all over Quebec. This organization provides shelter for women fleeing domestic violence and their children in Saint-Hyacinthe and also offers support programs in Acton Vale and Belœil. La Clé sur la porte is fully focused on keeping women and children safe.

Every day, these two organizations see the toll that domestic violence takes on women and the indirect repercussions it has on their children, whose welfare is closely tied to that of their parents, as we know. These organizations can attest to the importance of the three amendments I just talked about.

Finally, there is nothing in this bill, nor in the comments made by the Minister of Justice, to convince me that Bill C-78 will do anything to reduce poverty in any meaningful way. The provisions to facilitate the settlement of support orders are good, but what happens when the parent who is supposed to pay cannot afford it?

In addition, access to justice is limited for the most economically vulnerable families. Divorce proceedings are expensive; lawyers are expensive; notaries are expensive; and incomes shrink when couples separate. The use of alternative dispute resolution mechanisms, as required under this bill, is very likely to be effective when it comes to resolving conflicts, but at the same time, this could create new inequities in terms of access to justice, because those mechanisms will also be expensive. It is therefore crucial that the bill provide funding to support those most vulnerable in our society and guarantee true equality in terms of access to justice. Funding definitely needs to be set aside for transfer to the provinces to bring in these teams of professionals.

Several witnesses told us this. One witness in particular told us that she had the financial means to hire experts, use psychological support services for her children, and access resources for her defence. However, in light of her experience, she found it important to come testify to say that it was clear to her that not all families have access to the same resources and that the children of these less fortunate families had to face this situation alone. We must therefore set aside funding for these social services. As we know, access to legal aid is diminishing. We must ensure that all Canadians have the same access to justice.

If the Liberals truly want to the reduce child poverty, then Bill C-78 is not the answer. The Minister of Justice told us earlier that this bill will not help with that. He then once again pointed to the Canada child benefit, like many of his Liberal colleagues. We know that this benefit cannot solve everything. I will therefore accept the minister's invitation to offer my colleagues some potential solutions to truly end child poverty.

We need to come up with a real national strategy to end child poverty. It is not enough to set targets. We need to provide the means to achieve them, which the current strategy does not do. Then we must build affordable housing for families, seniors and those who need it now. Too many Canadians spend more than 30% of their income on housing. In some regions, that is the case for 50% of the population. In addition, we need a universal pharmacare plan and a universal day care system. We must also establish a $15-an-hour minimum wage. Those are real social policies that will actually reduce child poverty. I hope we will not see half measures and that the government will consider the recommendations made by witnesses and the opposition.

We must consider all the recommendations. I was very impressed that the witnesses who appeared before our committee were so well prepared. We proposed amendments that, unfortunately, were rejected. I hope that the work in this place will let us go further. Ultimately, we all want the best for our families and, above all, for our children.

Divorce ActGovernment Orders

January 30th, 2019 / 4:50 p.m.
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Green

Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, as I rise for my first full speech in our new chamber, I want to begin by acknowledging that we are on the traditional territory of the Algonquin people, expressing our gratitude for their patience and hospitality. Meegwetch.

There could not be a topic that is more fraught emotionally than child custody disputes in marital breakdowns, and it certainly is not new. As I pondered, having been in the deep weeds of this bill through clause by clause with my many amendments, to step back at report stage and really think about our topic, it struck me how very long humanity has struggled with the difficulties.

As my hon. colleague from St. Albert mentioned earlier, judges have a hard time with these decisions, and it put me in mind of the first book of Kings and the wisdom of Solomon. The quite well known story was 2,500 years ago, of two women coming to King Solomon with the claim that a baby was theirs. It was a child custody dispute 2,500 years ago. In trying to discern who was the real mother—we all know the story—King Solomon said to bring him a sword. He would cut the child in half and he would give half to each one of these women. Of course, the real mother said not to, but to give the child to the other woman. Of course, that is when King Solomon said now he knew who the real mother was, and that was that.

Our courts still struggle, and when they get it wrong, sometimes children die. It is still the case in this day and age, and perhaps increasingly so, as violence against an intimate partner sometimes turns into revenge against that intimate partner.

I wanted to start with these two cases because I raised them when this bill came forward for first reading, and I raised them to our then minister of justice to ask if this bill would help in these cases. I now believe that it would or, more accurately, it might. The two cases I want to raise are the cases of two women from Vancouver Island where I live, both of whom lost their children because a judge would not listen to them in a dispute over custody.

One is a case that has been raised in this House many times. In 2015, Alison Azer's children were taken on a vacation, over her objections. Her former spouse was a very well respected doctor, even in the kind of echelons where he was at least an acquaintance of our former prime minister. He was respected in the community, and the court took his word that, in taking Alison's children on holiday, he would bring them back. Alison Azer begged the judge not to give the passports of her children to her former spouse, who was originally from Iraq. She was terrified the children might be kept there, and that is in fact what happened. The children, Canadian citizens, still live overseas. Sharvahn, Rojevahn, Dersim and Meitan have now been so culturally and egregiously alienated from their own mother that, when she finally got a chance to see them, they were not willing to run to her arms. It is one of those things that just breaks one's heart. The judge did not listen to Alison.

The next case is worse, if there is anything worse. In January 2018, more than a thousand people crammed into Christ Church Cathedral in Victoria for the funeral of Chloe and Aubrey Berry, who were murdered by their father on Christmas. I was one of those mourners. I have never been through anything as difficult. The clergy struggled to find meaning, to give people hope, because those little angels were adored by their classmates and their family—of course they were; they were beautiful little girls—and murdered by their father. Their mother also sought to convince a judge that there should not be unsupervised visits for her children with their father. Tragically, the judge did not see that there was existing evidence of threat or harm that was sufficient to deny the father an unsupervised visit.

That mother's name is Sarah Cotton. When I talked to Sarah afterwards at the reception with the mourners, she was startling in her clarity. She was articulate and asked me to help work to make sure that what happened to her would not happen to other mothers. She said that the family court system had to change, that judges had to be prepared to listen and that they should not be so concerned with the access rights of a father that they should ignore the cries of a mother that there was a reason to be concerned.

The rest of what I am going to say about Bill C-78 is dedicated to Alison and Sarah, extraordinary mothers who have lost their children because they could not convince a judge to listen to them about the threat of allowing those children to go with their fathers, either overseas or for a Christmas visit that ended in the children's murder.

Where I find hope in the bill is in the recognition of family violence and the way in which the definition section of the bill would allow for a lot of consideration by a judge of a definition that falls short of “They have already been hurt. He has made specific threats”.

I should step back and say that in some contexts it is not a mother and a father. It could be a mother who is a threat. We are also dealing with situations that are not cisgendered individuals in all cases who are always in heterosexual relationships. We recognize that gender violence and gender inequity transcends hetero norms.

However, let me just continue with the traditional way in which we talk about family violence, which is that it is generally the case in inter-spousal violence that it tends to be a father making threats and a mother who is in the weaker situation, either economically or in terms of the power imbalance, as has been referred to by other members.

In this definition of family violence, and this is what makes it helpful, there is not an exclusive list. It uses examples but it is not a closed list. It defines family violence as:

any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person—and in the case of a child, the direct or indirect exposure to such conduct—and includes

Then we have a non-exclusive list of (a) to (i). I found it impressive, really, in terms of recognizing psychological abuse and also recognizing the real warning signs, such as under subsection (h), “threats to kill or harm an animal”, a threat against a family pet. If a judge hears that now, the judge can say that it falls within this definition of family violence and we ought to take action to protect these children. We need to think of all these elements.

It is not going to be perfect because judges will continue to make mistakes, but I hope that the recognition in this first reform in more than 20 years of our family law will direct the minds of judges to these various elements of family violence and the psychological stress. I certainly used to practice a little bit of family law. I found it very difficult because it is so emotional. However, we certainly know that there were some times that because it became so confrontational, there would be false charges against one partner or the other in an effort to gain custody. The larger risk comes when one does not listen to the parent who is really concerned that the child might be at risk if parenting time, as we now describe it, is allocated to a parent who may be capable of kidnapping their own children, alienating one parent and doing huge psychological damage to the children, or in the worst case, as I have mentioned, capable of murder.

That, I think, is an improvement: the injection of a more sophisticated understanding of family violence. The context of it and definition of it is certainly an improvement. Of course, this law is primarily child-centred legislation. It is much closer to what we have had in British Columbia for some years, which is, under British Columbia's Family Law Act, a focus on the best interests of the child.

Therefore, it is interesting that the two cases I have raised took place in B.C., even though they had this kind of framework of focusing on the best interests of the children. It suggests that the changes are going to be cultural and need training. I hope this legislation is going to protect children. Its goal is certainly to always have paramount the best interests of the child, and it is for that reason that I support the legislation.

It does have some other substantial improvements that are more about logistics. One of them I just referenced, all too briefly. When we used language about custody and access we created, perhaps inadvertently, more of a contested, gladiatorial struggle to win custody, to be acknowledged as, essentially, the better parent. In an emotional context, marriage breakdowns are certainly about the most emotional time in a person's life. The children were often treated as the spoils of war, and the word “custody” tended to fuel that. At least that is what the drafters of this legislation must have considered in changing the language.

A lot of family law experts who testified at the committee said they hoped this would take away some of that notion of winners and losers, of “winning” custody, because we now talk about parenting time. Parenting time is described in ways that suggest that it is shared parenting time and requires responsible behaviour during that parenting time. This is progress. I think it will help take out some of the conflict. I certainly hope so. As I said earlier, at least it might.

Another big improvement in the legislation, and long overdue, is that it allows a judge to access income information about one or the other parent from other government sources. We certainly know that it has delayed these cases. It has cost the court time. It has stressed out already stressed-out parents, particularly where one spouse has more income than the other, which is often the case. Where they are resistant to disclose voluntarily, now the judge has an access to get other information from other government sources. This will help for sure, and it is a win-win-win in a couple of different directions.

It has already been discussed at some length the improvements around a legislated test for the question of one parent moving to another location with a child and how that affects the other parent and access to parenting time. The rules here will, by being legislated, create a lot more certainty than in the past, where we were essentially dealing with the 1996 Supreme Court case of Gordon v. Goertz. This effort to legislate the test for mobility is clearly progress.

It is also worth reinforcing that in cases where family violence is not at play, the opportunity to go to mediation is certainly an improvement. Anything that takes the adversarial nature of family breakdown, turns down that temperature and makes it all about what is in the best interests of the child is good.

I was trained as a lawyer. I have mentioned that before. There is no doubt it is an adversarial thing. We are taught to go into courtrooms and win. That is not helpful. If in a family breakdown situation we can avoid lawyers and avoid courts and work through mediation everyone will be better off, except the lawyers, and that is okay. I so hope that the kind of co-operative law we have seen developing across Canada, the access to mediation, which is stressed in this bill, will help families get through this crisis period in their lives with their relationships intact. It certainly is the most helpful thing for the children.

I brought forward a number of amendments. My amendments were not accepted. I wanted to see an amendment that dealt with the issue of maximum access. There was a Liberal amendment that was quite similar. I hope we will see that playing out in a way that addresses some of the concerns raised by legal experts. I also put forward amendments to have more of a focus on the question of the judge turning his or her mind to the specific issues when a child is indigenous.

We have seen far too many indigenous children in this country taken from their families, historically and currently, and we need to pay attention to that and wherever possible ensure that children are in their communities, are in their culture, have access to their languages and have access to other relatives. The indigenous nature of child custody is referenced in the bill, but not as completely as it would have been had my amendments been accepted.

As I have said, though, the bill is a substantial reform of family law in Canada. It is long overdue. I so hope it works. I hope it works to avoid, ever again, the tragedies I have mentioned already. There could be nothing worse for any parents than to lose their children. Losing them in divorce is tough. Losing them forever is unbearable.

I hope and pray the legislation will be followed up with additional funding and more training, perhaps mandatory training for judges to think through these cases, to read and think about Aubrey and to read and think about Chloe, and about Alison's children, so that when dealing with a case in front of them they think about what the worst thing is that could happen if they get it wrong. That is ultimately the burden judges carry. I would not want to be the judges who said that they did not worry about the Azer children going overseas or the Berry girls going to their father at Christmas.

All of us need to make the best interests of the child the guiding light of all family law. Indeed, I could not agree more with my hon. colleague from Saint-Hyacinthe—Bagot. It would have been better had this legislation included an acknowledgement of our obligations under the United Nations Convention on the Rights of the Child. However, there is much more that can still be done. We have worked for years in this country, particularly retired Senator Landon Pearson, who led the charge to have a child advocate at the federal level to look at the broad range of issues as they affect our children.

With that, I thank the House for the opportunity to speak to Bill C-78. I look forward to voting for it at report stage and third reading, and seeing it go to the Senate, which potentially may go back to some of the amendments that failed in the House.

Divorce ActGovernment Orders

January 30th, 2019 / 5:15 p.m.
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Conservative

Luc Berthold Conservative Mégantic—L'Érable, QC

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

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

For those watching at home, we are talking about Bill C-78, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JusticeGovernment Orders

October 4th, 2018 / 10:20 a.m.
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Arif Virani Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Mr. Speaker, I will be splitting my time with the member for St. John's East.

I am pleased to rise today as the Parliamentary Secretary to the Minister of Justice to speak to an important aspect of Bill C-78, which is poverty reduction.

Over two million Canadian children live in separated or divorced families. Of these, lone-parent families are the most financially vulnerable of all family types and are more likely to depend upon social assistance.

There are couple of other important statistics.

Right now, there is well over $1 billion in support payment arrears in this country. In the vast majority of such cases, 96% of all such cases, the arrears relate to money owed by men to women.

The data on the economic challenges of single parenthood are quite stark. In 2016, the median net worth of Canadian couples with children under 18 was over $300,000, while the median net worth of single-parent families was less than one-sixth of that, $57,200.

Separation and divorce can cause a financial crisis for some families. The benefits of sharing family expenses often disappear as a second home must be established. Some parents need to significantly change their work hours to accommodate their changed parenting schedule, which can affect their income and their employment opportunities. This is what I hear when I speak to families in my riding of Parkdale—High Park. I hear far too often from single mothers who are struggling to access spousal and child support after a marital breakdown. Bill C-78 will directly benefit these residents of my community and the residents of so many other communities in a similar situation right across Canada. It will help lift those individuals, whether they are mothers or children, out of poverty. It will mean less time fighting out support payments in court, which is costly and time consuming, and creates a court backlog. It will mean more tools to allow single parents to identify and locate the assets of their former spouses, and more tools to enforce the actual payment of spousal and child support to single parents and their children.

Allow me to explain. I want to first turn to the payment of child support reducing the risk of poverty.

The sooner a fair and accurate amount of child support is established after parents separate and payments are made, the better the outcomes are for the child in question. The payment of child support is a key factor in reducing the risk of child poverty, especially for low-income, single-parent families.

Parents have a legal obligation to support their children financially after separation or divorce. Children have a legal right to that support. Federal, provincial and territorial child support laws require parents to disclose specific income information, including income tax returns, and set out penalties and consequences if a parent fails to disclose this information. This includes imputing income, which means that the parent’s income is assumed to be a certain amount for child support purposes, and the child support order is based on that income.

Most parents dutifully meet their legal obligations. However, some parents do not provide complete and accurate income information, despite the possible penalties and consequences. This is a significant issue that has serious consequences for children and families going through the family justice system, as well as for the system as a whole.

Family law practitioners and judges often say that income disclosure issues are one of the most contentious areas of family law. Failure to comply with disclosure obligations can put significant pressure on the family justice system. It may also discourage parents from reaching agreements through family dispute resolution processes, such as mediation. If income cannot be properly determined at the outset, it may also prevent families from benefiting from other family justice services such as administrative child support calculation or recalculation services.

I want to turn now to the costs associated with the non-disclosure of income.

The financial and emotional costs to parents seeking income disclosure are significant. They are legally entitled to financial information from the other parent. However, when financial disclosure is not made, they must ask a court to order that the information be provided. This creates significant costs for families and can lead to overburdening of the family justice system, including the courts. The other parent may still not disclose his or her income information, even after the court has ordered it. In these situations, the court may then impute the income of the other parent.

Although imputing income may work adequately in some situations, it is very difficult for the court to determine a fair amount of support that reflects a parent's true ability to pay in the absence of complete and up-to-date income information. Imputing income may result in child support amounts that are too high, which, in many situations, will not be paid or result in support payments that are too low and thereby prevent children from benefiting from the support of both parents.

Consistent with our government's commitment to poverty reduction and to meeting the needs of low- and middle-income families, Bill C-78 would bring much needed changes to middle-class Canadians. It would limit the negative consequences of income-related disputes for the family justice system and parents. Bill C-78 also proposes much needed changes to help reduce child poverty.

I will turn to one aspect of the law that would be amended here, the Family Orders and Agreements Enforcement Assistance Act. Amendments to this act would ensure that a separating or divorcing parent's failure to meet their income disclosure obligations would not prevent the establishment of a fair and accurate amount of support. We would amend this particular law to allow the federal government to release an individual's income information, including information from tax returns, to a court for the purpose of establishing, varying, or enforcing a support provision.

The income information to be released would be listed in the regulations, and important safeguards would be included in the act. An application for information under this legislation would not be permitted if the court were of the view that a release of information would jeopardize the safety and security of any person. Where information is released to a court, it must be sealed and kept in a place to which the public has no access.

The release of this income information would help ensure that child support amounts reflect the parent's true capacity to pay. It would also reduce legal costs associated with ensuring income disclosure for a parent, as well as the associated use of court resources. Child support orders would be made more quickly, more accurately, with less conflict and less expense, helping the very women I mentioned at the outset, the 96% of recipients of spousal and child support in Canada who are women.

The legislative amendments we are proposing will also allow the disclosure of income information to child support recalculation services. Recent information on a parent's income is needed so that those provincial and territorial recalculation services, which provide an administrative service, can do their job. They are an important tool in ensuring access to justice for parents who pay or receive child support. These services help update child support amounts through a process that is fast, more effective, low cost and non adversarial.

These recalculation services recalculate the amounts indicated in child support orders and agreements based on a parent's current income. However, they cannot proceed with the recalculation on income allocated or when no income information has been provided. In such cases, parents have to go through the courts to amend the child support amount.

These amendments to the act will reduce costs, not only for parents but also for the justice system, by allowing administrative services to recalculate to obtain the income information they need. Agreements with the provinces and territories on the disclosure of information will be updated in order to guarantee the protection of income information disclosed to the services responsible for doing the recalculation.

Bill C-78 also proposes amendments to the garnishment provisions. This act provides for the payment of salaries and pension benefits payable to current and former federal employees to another person to help satisfy family support. Amendments to the legislation would help reduce child poverty by making the process more efficient so that families receive the support they are entitled to in a timely manner. For example, the amendments would prioritize garnishment for family support debts over all other debts, other than debts to the Crown, which allow for earlier garnishment where possible.

In conclusion, separation and divorce can be difficult emotionally and financially for families and children. That most Canadians dutifully meet their obligations when it comes to both the establishment and payment of child support is a testament to our society's values. However, when parties cannot agree on what their obligations should be, our family justice system should be there to help resolve those issues. Federal enforcement legislation is there to help when parties do not meet their support obligations. That is exactly what Bill C-78 would do. I am proud to support it, and I urge all members of the House to do the same.

JusticeGovernment Orders

October 4th, 2018 / 10:30 a.m.
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Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Arif Virani

Mr. Speaker, the member for Dufferin—Caledon raises a very important point. What we are doing with Bill C-78 is providing more tools in the toolbox to allow better access to and disclosure of financial information. Clearly, there are and will remain instances in which people seek to evade such disclosure, which could happen in many different cases.

However, with this legislation we are responding to the concerns we have heard from Canadians from coast to coast to coast that they need better tools and better information sharing between different components of government and departments to access that information. Then it is for the courts through the provisions already provided for in the law to ensure enforceability of that, including imputing income where necessary for those who still withhold information.

JusticeGovernment Orders

October 4th, 2018 / 10:35 a.m.
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Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Arif Virani

Mr. Speaker, family law is obviously a matter of dual jurisdiction. This issue of family law is a matter of shared jurisdiction between the provinces and the federal government. Issues of divorce and marriage are a matter of federal jurisdiction. The issue of separations that do not include divorce, for example, are a matter of provincial jurisdiction.

We have worked diligently on this bill with our FPT colleagues and collaboratively at various ministerial meetings with the provinces and territories. A component of the enforceability will continue to reside with the courts, as administered in the provinces and territories, consistent with the jurisdictional division of powers under our constitutional provisions. It will be a collaborative effort.

However, what is important to emphasize with regard to Bill C-78 is that we are giving more tools and strengthening the enforcement that is available to the very provincial actors that my friend has mentioned, to the courts that are on the front lines of the important work being done on the family law front and, importantly, not necessarily forcing people to get involved in the courts at the first instance, thereby reducing the costs, the court backlog and the necessity of seeking enforcement. We are creating more tools outside of the court structure that people can access to pursue their rights under this regime.

JusticeGovernment Orders

October 4th, 2018 / 10:35 a.m.
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Liberal

Nick Whalen Liberal St. John's East, NL

Mr. Speaker, it is a pleasure to rise today to speak to Bill C-78 and the significant contribution it would make to improve the accessibility and efficiency of the family justice system.

As mentioned, federal family laws have not been updated substantially in over 20 years and changes are long overdue. Access to justice is a priority for our government and access to family justice is a key component of achieving that. Costs, delays, and complex procedures can make it difficult for Canadians to have access to justice. Along with the expansion of the unified family courts and sustained funding for family justice services, Bill C-78 is part of our government's commitment to improving access to justice for families going through separation and divorce. Under the pen of retired Supreme Court Justice Cromwell, the action committee on access to justice in civil and family matters stated that early management of legal issues and encouraging informal dispute resolution were key to improving access to justice.

Bill C-78 recognizes the need to improve access to justice and offers guidance, information and tools to help families going through separation and divorce, including people who represent themselves, as well as lawyers and courts involved in family law issues.

Bill C-78 encourages the use of family dispute resolution processes. These are defined as out-of-court processes used by parties to help them resolve their family law disputes. Negotiation, mediation and collaborative law are examples of such processes. These are often less expensive and faster than litigation and allow parents to actively participate in creating arrangements that are in the child's best interests.

Part of the role lawyers play is to ensure that parents who have family law issues have the relevant information on family dispute resolution. Bill C-78 would create a duty for lawyers to tell parents about family justice services that could help them resolve their disputes, and to encourage them to try family dispute resolution where appropriate.

In addition, if the case is before the court, the bill gives judges the option to refer parents to family dispute resolution where available. Bill C-78 also introduces duties for parents involved in a family law matter to try to resolve their issues through a family dispute resolution process where appropriate.

That said, family dispute resolution processes may not be appropriate in all circumstances, including where there is family violence. For this reason, Bill C-78 only encourages the use of these procedures where appropriate. Courts and lawyers must evaluate each of these situations on a case-by-case basis and take into account families' circumstances, including whether there is family violence, before encouraging the use of family dispute resolution. In addition, other service providers, such as certified mediators, play a critical role in screening for family violence and power imbalances in order to promote a fair and equitable process.

There are numerous ways that Bill C-78 would facilitate the resolution of family disputes and help parents reach out of court agreements focused on the best interests of their children. For example, it proposes changes to custody and access language, the definitions in the old version of the act, to use terminology that is more neutral and child focused and reflects the actual tasks of parenting, such as parenting time and other terms used in the act. It also includes a non-exhaustive list of criteria to help determine what is in the child's best interest, as well as criteria to assist parents dealing with relocation issues. This additional information will help parents make informed and child-focused decisions and better understand what the outcome might be if they were to go to court. This in turn is intended to help reduce litigation.

Our government is bringing forward some innovative thinking to help improve the family justice system. There are issues currently determined by courts that are administrative in nature and that could be handled outside of the court. Bill C-78 will expand the range of matters that child support services may address and will allow them to perform tasks currently that were in the sole purview of the court itself.

Many provinces and territories have child support services that recalculate support orders, for instance. Bill C-78 proposes several measures to make these services more efficient. This includes the recalculation of interim child support amounts in Divorce Act orders. In addition, the bill would allow child support services to recalculate child support amounts at the request of a parent, for example, if there were a job loss. Currently, the Divorce Act requires that recalculation be done only at fixed or regular dates.

The bill also includes a new approach allowing for the calculation of initial child support amounts by provincial or territorial child support services, where possible. This will allow administrative services, as opposed to courts, to calculate, based on relevant income information, child support amounts based on child support guidelines.

These proposed additions and improvements to the Divorce Act would make it easier, less costly and less adversarial to determine or recalculate child support amounts.

Changing Divorce Act orders when parties live in different jurisdictions can also be costly and cumbersome for families. Bill C-78 proposes to improve the process to change a support order for parties living in different provinces or territories.

Currently, two courts are involved, a court in the applicant's province that makes a provisional order and a court in the respondent's jurisdiction that confirms the order. The new process would involve only one court and would eliminate the need for the current first stage hearing, thereby saving time and money. Because this new system mirrors that in most provinces and territories, it would also ensure consistency whether interjurisdictional proceedings are conducted under the provincial legislation or under the Divorce Act.

The bill also includes provisions to improve processes in international child support cases. These changes are an essential step for Canada to become party to the 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, which was signed in May 2017.

The 2007 convention is an international agreement that provides a low-cost and efficient legal framework for cross-border establishment, modification, recognition and enforcement of family support obligations. It will be of particular interest to Canadian families and children, as it provides a means for a parent to obtain child support from a former spouse living in a different country.

Another way in which Bill C-78 would increase access to justice and improve the efficiency of the family justice system is by amending the Family Orders and Agreements Enforcement Assistance Act. This act is used to help parents enforce support. The bill proposes to amend it to permit, in certain limited circumstances, the release of income information when parents do not provide it.

Accurate income information is key to determining fair child support amounts. This change would help to accurately determine child support amounts and enforce support orders, as well as to reduce time spent in court to obtain this information. Proceedings to obtain this information currently take up a lot of court time and resources and this can be expensive for people who are trying to obtain support and is not a good use of family resources.

When this information is given to a court, it would be sealed and kept in a location to which the public has no access, and the court could make any order necessary to protect the confidentiality of the information.

While the bill encourages resolution of matters outside of the court system, there are some matters that require formal court resolution.

Budget 2018 announced funding to expand unified family courts, fulfilling one of the Minister of Justice's mandate letter commitments to Canadians. The family court in my riding of St. John's East has benefited from this.

Unified family courts provide one-stop shopping for the family justice system by combining jurisdiction over all family law matters into one court. They also provide access to a range of family justice services, such as family law information centres and mediation services to help families through a range of family law issues, including separation and divorce and other services.

Funding is essential for the delivery of family justice services which fall within provincial and territorial jurisdiction. In budget 2017 our government committed $16 million per year for family justice services on an ongoing basis. This funding will increase Canadians' access to family justice by supporting provincial and territorial programs and services, such as mediation, parent information, education and support enforcement.

We have to work together to improve the accessibility and the efficiency of the Canadian family justice system. Bill C-78, along with the expansion of unified family courts and sustained funding for family justice services, will help support Canadian families going through separation and divorce and the over two million Canadian children who live in separated or divorced families. This is a great step forward and I trust that the changes we have proposed will bring positive changes to the family justice system.

In closing, I encourage all members of the House to support this legislation, as I do, so we can see it move to committee where it can be studied further.

JusticeGovernment Orders

October 4th, 2018 / 10:50 a.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

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

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

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

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

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

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

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

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

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

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

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

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

JusticeGovernment Orders

October 4th, 2018 / 11:05 a.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

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

JusticeGovernment Orders

October 4th, 2018 / 11:05 a.m.
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Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Arif Virani

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

JusticeGovernment Orders

October 4th, 2018 / 11:15 a.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

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

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

JusticeGovernment Orders

October 4th, 2018 / 11:20 a.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Speaker, there is a connection between Bill C-78 and Bill C-75 with respect to the hybridization of offences to the degree that we are talking about the best interests of the child in Bill C-78. Bill C-75 would be a step in exactly the wrong direction from that standpoint. when we talk about potentially reducing sentences from a maximum of 10 years to two years less a day.

In the case of Bill C-75, the reclassification of those offences would not only not put the best interests of the child first, it would not achieve the government's objective of trying to deal with the backlog in our courts. Indeed, 99.6% of criminal cases in Canada are before provincial courts. The reclassification of offences would simply download more cases onto our already overburdened and overstretched provincial courts.

JusticeGovernment Orders

October 4th, 2018 / 11:20 a.m.
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Liberal

Randeep Sarai Liberal Surrey Centre, BC

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

I am pleased to rise today to speak to Bill C-78 and the significant contribution it would make to addressing family violence.

The Chief Public Health Officer of Canada has identified family violence as an important public health issue, recognizing that the effects of family violence go well beyond physical injury and can have long-lasting impacts on mental health.

In 2014, 13% of individuals who were separated or divorced and who had been in contact with their former partners within the last five years reported being victims of spousal violence. While we have no solid statistics on the number of family law cases where family violence is a factor, estimates from court file reviews and surveys of lawyers and judges range anywhere from 8% to 25%, yet, the Divorce Act currently makes no mention of family violence or how it is relevant to parenting matters. Bill C-78 would take concrete steps to address this gap.

There are marked differences in the severity and the violence that men and women experience. In 2014, women were twice as likely as men to report being sexually assaulted, beaten, choked or threatened with a gun or knife. In contrast, men were three and a half times more likely to report being kicked, bitten or hit.

We also cannot forget that children can be directly and indirectly affected by family violence and that the exposure to family violence often comes with direct abuse against the child. In 2014, 70% of adults who reported having witnessed parental violence as children also reported being victims of childhood physical and/or sexual abuse. Children who witnessed that violence were also more than twice as likely to experience the most severe forms of physical abuse compared to those who had not witnessed violence.

Children can be negatively and deeply harmed emotionally when they are exposed to family violence, whether it is from seeing the violence take place or bruises on a parent. Emotional and behavioural problems and even post-traumatic stress disorder can be a serious effect.

Despite all we know about family violence, myths about it remain. There are two myths that I would like to highlight today.

The first myth about family violence, particularly intimate partner violence, is that if a survivor has not reported to the police, then the violence did not happen or it was not serious. Statistics Canada tells us that only 19% of survivors report violence to police. Some do not report violence to police out of fear of not being believed and/or that calling the police may escalate the violence. Certain vulnerable communities also have mistrust for the police.

Despite these fears, survivors may choose to start family law proceedings in order to protect their children, whether they reported violence to the police or not. In some cases, starting a family law proceeding can increase the risk of violence. Leading family violence researcher Linda Neilson notes, “Family law cases involving domestic violence are not necessarily less serious or less dangerous than criminal cases. Indeed some are more dangerous.”

The other myth is that intimate partner violence ends after separation. In fact, separation can actually increase the risk of family violence, and it often persists long after the relationship has ended.

In 2014, 41% of those who experienced family violence by an ex-spouse reported that it occurred after the break-up. In just under half of those cases, about 48%, the violence took place at least six months after the separation. Very worrying is the fact that in almost half of those cases where violence occurred after the separation, it increased in severity.

Bill C-78 includes a number of measures to strengthen the family justice system's response to the unfortunate case of family violence.

First, we must realize that when a family is in crisis, it is possible that various aspects of the justice system may be involved, such as the criminal, civil protection or child protection proceedings, in addition to divorce proceedings. Unfortunately, however, the divorce courts are often not aware of other proceedings or orders that may have been made. This lack of information about other proceedings can lead to conflicting orders, such as where a criminal order prohibits contact between a parent and other family members, but a family order provides that same parent with access to a child.

This is why Bill C-78 would amend the Divorce Act so that courts would have evidence of other pending proceedings or orders in effect. This would help improve the administration of justice.

Where parenting is specifically at issue, courts are required to consider only the best interests of the child. New criteria listed in Bill C-78 would require consolidation of any civil or criminal proceedings or order relevant to the well-being of a child, even if no longer in effect. This is to help ensure that the court has all relevant information when deciding on the best interests of the child. It is critical that family violence be taken into account when deciding on parenting arrangements for children.

As we learn more about family violence, in particular intimate partner violence, we have come to understand that not all family violence is the same. Depending on the nature of the violence, it can have very different implications on the parenting of the child and the ability of former spouses to co-parent successfully.

At least four different types of violence have been identified, but given my short time today I will only mention two. The first is separation-instigated violence. It generally involves a small number of incidents around the separation, although these can range from very minor to more serious. While no violence is ever acceptable, this type of violence may, over the long term, be less likely to negatively affect the ability of the parents to work together or care for the child.

In contrast, the second type is coercive and controlling family violence. As the name suggests, this violence involves a pattern of control based on intimidation, emotional abuse and physical violence. Coercive and controlling violence is most often perpetrated by men against women. It generally occurs over a prolonged period, has the highest risk of lethality and is most associated with compromised parenting skills. The perpetrator often attempts to control his former partner long after separation. As a result, in these situations, joint decision-making can be challenging and contact between the parents during the exchange of the child can create opportunities for further abuse.

To address the range of family violence, Bill C-78 includes an evidence-based definition of family violence. It identifies that family violence can include a pattern of coercive and controlling behaviour. It provides examples of specific behaviours that constitute family violence, such as physical and sexual abuse and psychological violence and harassment, including stalking.

Finally, Bill C-78 specifically highlights family violence as relevant to the best interests of the child when making parenting arrangements. The proposed amendments will direct consideration of any impact of the family violence, but in particular how it might affect the ability of the parents to co-operate with one another, or how it might affect the ability of an abusive parent to care for the child. The bill also provides a list of specific criteria for the court to consider that will determine the severity of the violence, the impact that it has had or may have, and whether and how this should inform the parenting arrangement.

These criteria would help put focus on the particular dynamics of family violence in each individual case. Importantly, both the definition of family violence and the best interests criteria recognize that even when children are not directly subjected to violence, they can be harmed by it. Through Bill C-78, we are taking concrete action to promote children's best interests in situations where they are most vulnerable.

JusticeGovernment Orders

October 4th, 2018 / 11:35 a.m.
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Liberal

Ali Ehsassi Liberal Willowdale, ON

Mr. Speaker, I will first thank the hon. member for Surrey Centre for focusing on the question of violence and how this bill would allow us to address that. I, on the other hand, will be taking a more general overview of this legislation, which I am incredibly proud of.

As we know, the first substantial update to Canadian family law in 20 years is occurring. Bill C-78 represents a landmark in strengthening and enshrining the best interests of the child and would make federal family law more responsive to the modern-day needs of Canadian families. Family law, as has been noted by all of the speakers today, is both complex and broad and as a result, there are significant gaps and inefficiencies, which existing laws have not adequately addressed. Bill C-78 seeks to remedy these gaps through a wide-ranging series of common-sense adjustments.

Today I will focus on six key elements of Bill C-78: strengthening the best interests of the child provisions, enshrining primary consideration into family law, important changes to terminology, modernizing the Divorce Act, creating contact orders and setting new relocation guidelines.

Allow me to start with the best interests of the child test. The best interests of the child test has been a fundamental part of family law in Canada and in many other countries for decades. Under the Divorce Act, courts must consider only a child's best interests when making decisions about who may care for or make decisions about a child. The Divorce Act, however, gives surprisingly little guidance regarding this test.

In 1998, the Special Joint Committee on Child Custody and Access called for the Divorce Act to include a list of criteria considered to be in the best interests of the child. Many others have added to this call, including academics, child advocates and the Canadian Bar Association. With Bill C-78, our government is answering their calls and taking important steps to address existing gaps and inefficiencies in the family law system.

The proposed criteria for the best interests of the child would emphasize critical elements of a child's life. They include a child's stage of development, ties to loved ones, cultural identity, and personal views and preferences. However, the list is not closed or exhaustive. If a particular factor in a child's life is especially relevant—for example, if the child has medical needs or participates in competitive sporting events—courts could consider these factors where appropriate and relevant.

Adding definitional certainty to the best interests of the child test in the Divorce Act promotes children's interests. It also promotes another one of the bill's key goals: improving access to justice. In some Canadian jurisdictions, over three-quarters of family law litigants are self-represented. Also, a list of best interests of the child criteria in the Divorce Act would help parents better understand their legal responsibilities. It would assist them to better frame their negotiations on arrangements for their children and more often come to agreements outside the court system. Alternatively, if parents cannot agree on their own, this clarity would help self-represented litigants to better frame their arguments in legal proceedings.

Allow me now to move to the second point, which is primary consideration. The reference to “primary consideration” is crucial to the values embodied in Bill C-78. Emphasizing primary consideration would ensure that courts prioritize a child's physical, emotional and psychological safety, security and well-being. Courts would weigh all other criteria in regard to this primary consideration. Doing so would ensure that the best interests of the child remain paramount in protecting families from the negative outcomes often related to separation and divorce.

I will move to the third point, updates to terminology. Bill C-78 would make important and, frankly, long-overdue changes in family law terminology. “Custody” and “access” are now archaic legal terms.

The term “custody” traces its origins to property law, which for hundreds of years has essentially treated children as possessions. The term “access”, meanwhile, refers to a right to use or pass over property. This is not how we should describe responsibilities for children in 2018. In addition, litigation over “custody” and “access” has created additional labels whereby custodial parents are viewed as winners of parenting disputes and access parents the losers. Bill C-78 would move away from such confrontational language, as Alberta, B.C. and several international jurisdictions have done.

Going to the issue of modernizing the Divorce Act, Bill C-78 would replace orders for custody and access in the Divorce Act with parenting orders. A parenting order addresses parenting time and decision-making responsibility for each parent. Specifically, “parenting time” refers to the time a child spends in a parent's care. This includes all time when a parent is responsible for a child, even when the child is at school. Each parent would have as much parenting time as is consistent with the best interests of the child.

On the other hand, “decision-making responsibility” refers to making important decisions on issues such as health, education, language, religion and significant extracurricular activities. BillC-78 would allow the courts to allocate this responsibility to one or both parents, or, alternatively, to divide elements between the parents.

Furthering the goal of improving access to justice, the bill includes a parenting plan provision, referring to agreements between parents that sets out a road map for the care of the child moving forward. The bill encourages courts to incorporate a parenting plan that is in the child's best interest. This provision recognizes that parents are generally best placed to make decisions about their child.

Moving to the fifth element, Bill C-78 also proposes a contact order, in keeping with the best practices already established by several provincial courts. Contact orders carve out time in a child's schedule with a person other than a parent, such as a grandparent. I would like to clarify that a contact order would not usually be necessary in order for grandparents and other loved ones to spend time with a child. It would only be necessary where, because of conflict, parents do not agree to let grandparents or other loved ones spend time with the child. In such cases, Bill C-78 would allow courts to make contact orders. These orders could help preserve a child's relationship with his or her loved ones, where appropriate. As with parenting orders, courts would make a contact order if it is in the best interest of the child.

Finally, the issue of relocation has challenged parents, lawyers, and courts for many years. Relocation involves moving a child after separation and divorce. It is one of the most litigated family law issues in existence. In a 2016 survey of lawyers and judges, for example, over 98% of respondents indicated that disputes are harder to settle when relocation is involved. Bill C-78 creates relocation guidelines to address this conflict. Parents would now be required to give notice if they want to relocate either themselves or their children. An assessment would be conducted using best interest criteria when considering such a request. These would include factors such as the reasons for relocation, the impacts of relocation on the child, and how reasonable the relocation request is.

JusticeGovernment Orders

October 4th, 2018 / 11:45 a.m.
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Arif Virani Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Mr. Speaker, the hon. member for Willowdale, who happens to be an old high school classmate, gave us a very comprehensive overview of Bill C-78. He touched on many different facets, so I would ask if he could zoom out a bit and provide us with his insight on how the bill fits in with some of the broader initiatives our government is pursuing. There are two I would ask him about.

We heard about how the bill impacts on child poverty. How does that fit with some of the government's broader objectives of addressing child poverty in Canada? We heard about how the bill would address family violence in a more direct way. How does that work with Bill C-75, which is before the justice committee, which my colleague is a member of, and the provisions that are being put in place in that bill to deal with intimate partner violence in the context of things such as bail conditions? Perhaps he could elaborate on the broader impact of what we are doing as a government.

JusticeGovernment Orders

October 4th, 2018 / 11:45 a.m.
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Conservative

Jim Eglinski Conservative Yellowhead, AB

Mr. Speaker, I do not think there is anybody here in this House who can deny that Bill C-78 is well overdue and is needed.

I listened in depth to the conversation about separation, families relocating, the court sitting down and evaluating a mechanism to look at both sides, and that body deciding if it is appropriate for the parties to move from one location to another.

I was reading through the bill and I am wondering if there is a mechanism of repeal if the court were to say that one party could not move. Is there an appeal mechanism built into this bill that would allow people to appeal that decision?

JusticeGovernment Orders

October 4th, 2018 / 11:50 a.m.
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Conservative

Cathay Wagantall Conservative Yorkton—Melville, SK

Mr. Speaker, I will be sharing my time with the member for Banff—Airdrie.

I am pleased to rise today to speak to Bill C-78. I do not come at this from a legal perspective—I am not a lawyer—and I do not come at it from the perspective of actually having experienced this directly. I was raised in a home with six children, a very happy, very busy home, and then when my parents were much older in life and I was a grown woman myself, they faced a difficult time when they came very close to divorcing. I have to say that even then, as an adult and with my own children, it was extremely unnerving and disturbing to me, which just raises the realization of how important it is that we have systems in place to assist children. I cannot imagine what it would have been like to actually be dealing with those circumstances as a young child in my home. Fortunately, things worked out well.

That being said, in regard to Bill C-78, I appreciate the four key objectives that are listed: to promote the best interests of the child; to address family violence; to help reduce child poverty; and to streamline various definitions and processes but, more important, to require legal professionals to encourage clients to use alternative ways to resolve disputes.

The Conservative Party has always had this perspective that we believe that in the event of a marital breakdown, the Divorce Act should grant joint custody and/or shared parenting, unless it is clearly demonstrated not to be in the best interests of the child. Both parents and all grandparents should be allowed to maintain a meaningful relationship with their children and grandchildren, unless it is demonstrated not to be in the best interests of the child. In every case where it is possible, the influence of both parents, and grandparents as well and siblings, is so key to making sure that the family unit is able to survive as best as it can through these difficult circumstances. We understand very well how traumatic divorces are on families.

We are overall pleased with the intentions of Bill C-78, especially the promotion of child welfare and the measures to combat family violence. We have always stood up for and believed in the safety and well-being of children and of families.

However, where this goes off the tracks for me is in the fact that the counterintuitive implementation of Bill C-75 is here as well. I know that Canadians' heads are spinning quite often when trying to determine, if this is a whole-of-government approach to things, how it is on the one hand we can be saying we are so concerned about children and then on the other hand be bringing in Bill C-75, which would reduce sentences for very serious crimes, including abduction of a child under the age of 14, participating in activities of a criminal organization, forced marriages, marriage under the age of 16, and concealing the body of a child. These are very serious crimes and impact children, yet the government seems prepared to bring in something that seems so contrary to me.

I want to quote something from the Lawyer's Daily, written by David Frenkel:

The impetus in the fights between parents does not begin when spouses read the terms “custody” and “access” in the Divorce Act. Therefore, unless there are additional provisions added to the proposed amendments, the family conflicts will likely continue even with the replacement of the terms “custody and access” with “parenting” as introduced by Bill C-78.

I appreciate what is being attempted there with the terminology being changed, but at the same time that is a good point, that simply changing the terminology will not in the end make a huge difference. Mr. Frenkel continues:

[A] “parenting order” will replace the traditionally named “custody and access” order.

That needs to be done, but actually it has already been taking place. He says:

The significant change in wording likely arose to answer the concerns from the courts over the years that awarding one parent the status of “custody” and the other “access” created unnecessary winners and losers.... [A]s early as 1975 Justice Robert Furlong...wrote as follows: “The time is long past when the Courts disposed of the custody of a child as a reward to a well-behaved parent or as a punishment to one who misbehaved. The custody of their children is not a prize to be contended for by parents as an award for their good behaviour.”

He continues:

In 1986, the Manitoba Court of Appeal upheld a decision to refrain from using the words “custody” and “access” because the trial judge thought “those are destructive to a child”.

He also states that perhaps the more important focus of this discussion should be the issue of “control”, as that, unfortunately, quite often is what the fights are about in these circumstances.

He continues:

Litigants, in time, will become sophisticated in understanding the effect of a future “parenting order” and couples that previously fought incessantly over the term custody will now fight over who will have “decision-making responsibility.”

In other words, although that is part of it, how can we come to a point where the extreme difficulties in making these decisions are not fought out in such a confrontational way?

He goes on to say:

Therapy and assessment orders for litigants will not solve all the problems in custody battles, but they may expose the underlying factors contributing to unreasonable positions taken by them. Therefore, in addition to a change in language to the Divorce Act, it may be necessary for a court to have the jurisdiction to order trained professionals to determine and opine whether a parent's desire for custody or a ”parenting” order is based on healthy motives or not. And if such information cannot be readily available when needed, then simply repealing the terms “custody” and “access” may not achieve the intended consequences we all have been waiting for with Bill C-78's introduction.

In other words, efforts need to be made to ensure that the individuals who are involved in these circumstances have the necessary tools at their disposal to assist them in the process more effectively. There is no question that this is probably one of the most trying and difficult circumstances to be in for a couple who at one point married because of their desire to see their life as a long-term commitment and to have children. Yes, sometimes there are very violent circumstances. Other times there is an inability to communicate. However, there needs to be a process in place to assist them.

Further to that, I read an article by Robert Harvie, a family lawyer, mediator and arbitrator with Huckvale LLP, an advisory board member for the national self-represented litigants project, and a past Law Society of Alberta bencher. Harvie comes at this from a very well-rounded perspective. He states:

The unveiling of Bill C-78 received almost uniform praise from the media and legal profession as the “first major amendment of the Divorce Act in 20 years.”

Indeed, it is.

He continues:

My opinion is less effusive. Perhaps it's the cynicism of a lawyer who has been working in family law for 32 years. Having sat as a bencher with the Law Society of Alberta, and in fact, chaired their Access to Justice Committee for two years, I have seen much promise and very little delivery in improving access to justice. As a result, I opened up the 190 pages of Bill C-78 with less optimism than many of my colleagues.

He says it is “similar to the excitement over the maiden voyage of the Titanic”, which piqued my interest. With respect to the Titanic, he talked about all of its amazing additions to improve its amenities and necessities, such as squash racquets courts, baths, a gymnasium, a swimming pool, electric passenger lifts, all these of different services, including more deck chairs, to make the trip better. However, the reality was that they did not have what they truly needed.

He indicates that, at its core, Bill C-78 is devoid of change to the overall resolution process, that lawyers charge too much money, that law societies appear focused on reducing complaints rather than caring for them, that litigation is antiquated and cumbersome, and that we need to fund and support more alternative forms of resolution.

I have a good friend who settled many divorce and custody cases for his law firm out of court and without expensive litigation. However, he lost his job. Why? It was because he did not have enough billables and was not productive enough for the firm. In other words, he did not make enough money for the firm. He was encouraged to work for legal aid, because that was where he belonged.

Our legal system needs to change so that firms invest in litigating these cases through mediation and arbitration. Yes, we can tell people that they should go and do this, that they should make this choice, but they usually first find themselves at a law firm. I would like to see this concern addressed within the legal profession in Canada, where we make this a priority and prepare our lawyers, who are clearly willing to take on this type of roll to serve Canada, and especially to serve children.

JusticeGovernment Orders

October 4th, 2018 / noon
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Arif Virani Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Mr. Speaker, I confess I find the member's comments quite puzzling. To draw an analogy between this legislation and the Titanic is preposterous, because we had widespread consultations and have since received vociferous support from coast to coast to coast for this legislation. The Conservative government in Alberta is the very government that initiated the concept of changing the terminology from “custody and access” to “contact and parenting” orders.

The member raised Bill C-75 and some of the provisions in it that she finds logically inconsistent with what we are doing in Bill C-78. It is quite the contrary. In Bill C-75, we are doing exactly the same as we are doing in Bill C-78 in two important respects. One, intimate partner violence is at the heart of what we are doing in Bill C-75. We are addressing it and would make it a prerequisite to deal with that as a condition on bail. What we are doing here is making family violence something that a judge would have to consider, including criminal orders or proceedings, in determining the best interests of the child.

The other conceptual component that is exactly the same between the two pieces of legislation is that in each instance we are trying to reduce the very backlog in our court system that my friend opposite laments, our over-reliance on the court system, the over-litigiousness of Canadian society. We would be reducing that with Bill C-75, and exactly what we would be doing here with this provision. Two cases in point are the ADR mechanisms for calculating support.

Could I have the member opposite's comments on how improving ADR mechanisms addresses the very problem she has identified?

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October 4th, 2018 / 12:05 p.m.
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Conservative

Blake Richards Conservative Banff—Airdrie, AB

Mr. Speaker, in rising to speak to Bill C-78, I would like to start with a personal story, one that will probably surprise many in the House and even many back home in my community.

I spent a number of years as a very young man as a single father. I raised by son, Quinn, who is now 22 years old. I was working two jobs while going to school full time and trying to raise him. It was a difficult time for me financially for sure, but we got through and did well. My son often tells me that some of the best memories of his life were from that time, even though I could not afford to put a lot on the table. It was Kraft Dinners, hot dogs and Hamburger Helper at best. We did without a lot of things. We lived in basement suite apartments for a few years while I went to school. However, I was able to raise him, and I think I raised him into a fine young man, one I am very proud of.

At that time, I did have some experience with family law, albeit not related specifically to the Divorce Act, which now speaks to some of the concerns this proposed legislation tries address today. It is for that reason, and from some stories I have heard from others whom I have spoken to during and since that time and during my time as a member of Parliament, that I do find the objectives and goals of the proposed legislation laudable.

Certainly, in some of the things it addresses, the bill tries to ensure that the best interests of the child are always promoted. It reinforces and emphasizes the importance of keeping a child's best interests as the absolute top priority in family law when making decisions about parenting in these cases. That is a critical principle. I also think it is important that more be done to require legal professionals to encourage clients to use alternative ways of resolving disputes, which is always something we should seek to achieve. The proposed legislation certainly has those things among its objectives. Although I do not often have occasion to do this, I do laud the government for its efforts in trying to achieve those goals.

However, I am still not certain that the proposed legislation would achieve the goals it sets out. There are some questions that I and others on this side of the House have that need to be addressed. Therefore, I want the bill to go to committee so we have an opportunity to address those concerns, issues and questions. I am hopeful they can be addressed.

I will point to a few articles about the bill. My colleague who spoke before read from one of them, but there are a few others I have noted that somewhat pan the bill. I will read very brief passages from them.

First is an article entitled “How the new Bill C-78 affects custody and access rulings”. It says that “On its face, this bill is an expression by the federal government that progress was needed in the way that separated families were treated under the law”. I would certainly agree with that. It goes on to say that “However, much of what is being proposed has been already implemented in out-of-court settlements, as well as in decisions made by judges.”

The second article is entitled “What’s in a name? Divorce Act amendment not enough to reduce parental conflict”. I will not read any passages from it, because I think the title speaks for itself.

The third is the article my colleague read from, but I want to read from some different parts of it. It is entitled “Bill C-78 amendments to the Divorce Act: ‘Rearranging the deck chairs’”.

I would like to read a little from that article. First, the author, someone who has vast experience in family law in my province of Alberta, says:

I would go further and suggest most of Bill C-78 is an expression of “good intention” without sufficient substance to accomplish real change.

That is quite a typical statement that could be made about many of the initiatives of the government. Often it tends to focus on symbolism, talking points and these kinds of things, rather than on really accomplishing anything that would achieve the kinds of objectives it often speaks about. I am not going to say that this is necessarily the case. The author of this article is certainly positing that, though.

The author goes on to say:

Also noted is that Bill C-78 is 190 pages long. The current Divorce Act is only 41 pages long. As self-represented litigants now comprise 80 per cent of the parties before many courts, one might reasonably ask how they will navigate through legislation that is over four times longer than the previous version—which was already difficult for a nonlawyer to digest.

So. My take?

Bill C-78 is a huge new ship, with some very nice looking aesthetic additions—but, with too few lifeboats.

And the iceberg is still coming.

Those are comments of the author of that article.

Obviously there may be some things we need to look at that may need to be addressed with this piece of legislation. However, as I have already stated, I believe that the objectives that are trying to be achieved here are laudable. I certainly hope that this bill will actually be found to address those or can be amended or changed in ways that would make sure that it would do just that. It is something that does need to be done. It is important.

I certainly discovered, during my time both as a member of Parliament and, as I mentioned, in my experience with family law, with my son, which ultimately worked out positively, that there were far too many parents, mainly fathers, and grandparents whose children and grandchildren were being deprived of time with them. That needs to be fixed.

That is part of the reason I am so proud to be part of the Conservative Party of Canada, which has the following policy regarding shared parenting. I will read the policy into the record:

The Conservative Party believes that in the event of a marital breakdown, the Divorce Act should grant joint custody and/or shared parenting, unless it is clearly demonstrated not to be in the best interests of the child. Both parents and all grandparents should be allowed to maintain a meaningful relationship with their children and grandchildren, unless it is demonstrated not to be in the best interest of the child.

That is a very important principle and one that I fully support and believe in. It is one we should be seeking to achieve here.

I will just tell a brief personal story. I was a child of divorce as well. My parents divorced when I was about 12 years old. I have two brothers. After my parents divorced, I spent some time living with each of my parents, and actually both of my brothers did the same, at different times.

My parents, as in most divorces, I suppose, certainly did not get along very well. To this day, I would say that they probably do not get along very well. The key point, however, is that they were able to put aside those differences when it came to their children and tried to do what was right to make sure that their children were able to maintain a strong, positive relationship with both parents. Even though, at times, my brothers and I did not live in the same house, and, in fact, lived in cities that were an hour apart, they made sure that we had the opportunity to continue to have a very strong relationship as siblings. I would say today that I have maintained that with my brothers and with both my parents. That was important, but it is not a common enough story.

That is why these changes are so important and why it is important that this bill is done in the right way and is not just about symbolism, that it is actually going to accomplish the objectives.

I certainly hope that after examination in committee, and after any amendments that might be required, it will be possible, through this piece of legislation, for more children and more families to achieve that goal of ensuring that the relationship remains with both parents and with all the children of the relationship.

If that is, in fact, the case following the completion of that examination, I would certainly be happy to support this piece of legislation.

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October 4th, 2018 / 12:15 p.m.
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NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, all of us in the House share a common interest in protecting children, particularly children who are exposed to domestic violence, children born into families, through no fault of their own, who experience things that can have a generational impact. Succeeding generations feel those effects.

We broadly support Bill C-78. If it is able to take into account the effects of domestic violence on children during divorce proceedings, if it can more clearly define the varying degrees of domestic violence to ascertain what the ruling should be in the end in custody and other decisions the court makes, would it not be a step forward in battling what I am sure we all agree is entirely one of the most difficult and reprehensible things that still exist far too much in our society?

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October 4th, 2018 / 12:20 p.m.
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Conservative

Sylvie Boucher Conservative Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC

Mr. Speaker, let me begin by saying that I will be sharing my time with the hon. member for Barrie—Innisfil.

I have been divorced for 27 years and am the proud single mother of two daughters who are now 30 and 29. I know how outdated the Divorce Act is. No changes have been made to it in many years.

I am pleased to rise in the House today to speak to Bill C-78, which seeks to modernize divorce laws. The Conservative Party is and always will be the party that wants to improve every aspect of our justice system and do what we can to put those who might suffer first, adults and children alike, in an effort to improve their situation.

Bill C-78, which seeks to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act—this one deals with child support—and to make consequential amendments to another act, is very important.

As a member from Quebec, I know that the number of cases of separation and divorce has continued to climb in my province over the past 40 years, and it is essential that our laws be appropriately reformed in order not to make it more difficult for parents, who already must deal with significant disputes that are usually very emotional.

The reforms included in Bill C-78 would replace the terminology related to custody and access with terminology related to parenting, establish a non-exhaustive list of criteria with respect to the best interests of the child, create duties for parties and legal advisers to encourage the use of family dispute resolution processes, introduce measures to assist the courts in addressing family violence, establish a framework for the relocation of a child, and simplify certain processes, including those related to family support obligations.

When looking to improve a bill, it is essential that we have objectives. In this case, we must first and foremost promote the best interests of the child. We must reinforce and focus on the crucial principle of maintaining the best interests of the child as the absolute priority of family law when it comes to parental decisions. Unfortunately, all too often children are used as pawns in separations, causing them to suffer even more, often scarring them for life.

This bill must also help address family violence by requiring the courts to consider parental violence, the seriousness and impact of the violence on the child, and future parenting arrangements. At present these situations are treated separately in cases of separation before the court, which means that the issues are dealt with separately instead of at the same time.

This bill must provide more tools to help restore child support and enforce child support agreements in order to the help reduce child poverty. Currently, when the paying parent does not pay, the parents must once again clog up the justice system and its related services. Parents must return to court to address the violation. In the end, the children do not benefit from the money and courtrooms are overloaded. That is wrong.

If we want this bill to be successful, we must make Canada's family justice system more accessible and efficient. We must simplify the various definitions and processes, offer more flexibility to provincial child support recalculation services, alleviate the courts' workloads by allowing provincial administrative child support services to carry out some tasks for which the courts are currently responsible, and require that legal professionals encourage their clients to use means other than the courts to resolve disputes.

The Conservative Party is working and will always work in the interests of victims and their families, and we believe that, in cases of divorce, the Divorce Act should allow for shared custody or shared parenting responsibilities unless it is clearly demonstrated that this is not in the best interests of the child. Both parents and all grandparents should maintain close, meaningful relationships with their children and grandchildren—unless it is shown that this is not in the bests interests of the child, of course.

All of this will have financial implications. To expand unified family courts, the government is planning to spend $77.2 million over four years beginning in 2019-20, plus another $20 million per year to create 39 new judicial positions in Alberta, Ontario, Nova Scotia and Newfoundland and Labrador.

Federal family laws have not been updated significantly in 20 years. According to the 2016 census, there were over 2 million children whose parents were separated or divorced, which is a huge number. Between 1991 and 2011, 5 million Canadians separated or divorced, which is also a huge number. Of those 5 million people, 38% had a child with their ex-spouse at the time they separated or divorced. Some 1.16 million children of separated or divorced parents lived in single-parent households, and 1.2 million children lived with a step-parent.

Single-parent families, especially those headed by women, which was my case for a very long time, are more likely to be poor than two-parent families. That is so true. Studies have shown that child support is a key factor in lifting families out of poverty following separation or divorce.

It is hard for single mothers or single fathers—let us not forget about them—to feed their children properly if they are earning $12, $13, $14, or $15 an hour and not getting support payments. We know that young children need a lot of protein. As they grow they eat a lot. Apparently boys eat more than girls do. I have daughters only so I cannot speak to that, but we do have to take that into consideration. We have to focus on single-parent families, but we must put the child first in a bill such as this. The child's well-being is essential. We see more and more people ending up poor following a separation or divorce.

In budget 2018, the Liberals announced that they would work on expanding the unified family court program. They need to keep that promise and avoid playing politics with such sad, heart-wrenching, and pivotal cases that have an impact on a child or children, whether we are talking about separation or divorce.

That is why I support the intention and objectives of the bill to protect the best interests of the child and fight against family violence.

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October 4th, 2018 / 12:30 p.m.
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Conservative

Sylvie Boucher Conservative Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC

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

A lot of numbers have been thrown around. I agree that people who owe payments must make them, but incentives are needed. Personally, I think Bill C-78 is a pretty good bill. However, it does have two points that contradict one another, and I wonder whether my colleague is aware of this.

Bill C-78 is really about children. It puts them first. However, Bill C-75 flies in the face of Bill C-78.

That bill proposes reducing sentences in cases of very serious crimes, such as kidnapping a child under the age of 16 and concealing the body of a child.

When proposing a bill pertaining to divorce, it is important to remember that, in some cases, parents commit serious acts of violence. That is a fact, and it happens everywhere. There was Dr. Turcotte's case in Quebec, for example.

How can we have both Bill C-78, which puts children first, and Bill C-75, which reduces sentences for people who use violence against those same children?

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October 4th, 2018 / 12:35 p.m.
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Conservative

Sylvie Boucher Conservative Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC

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

That is a fact. My daughter had a baby while in a common-law relationship and not married.

The bill needs to properly reflect the reality of Canadian couples. More and more couples in Quebec are living in common-law relationships, but that is not the case in every province. Some couples in Quebec do get married, but that is far less common than in other provinces.

We need to protect those children. Often they are not as well protected. The purpose of Bill C-78 is to protect children.

In my opinion, if we want to protect children, we also need to protect children born to parents in common-law relationships. They are children, they are Canadians, and we need to protect them.

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October 4th, 2018 / 12:35 p.m.
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Conservative

John Brassard Conservative Barrie—Innisfil, ON

Mr. Speaker, I want to thank my hon. colleague for sharing her time with me today to speak to this very important topic. I will be taking a different perspective.

I have no legal training or background. I have been happily married for 29 years now to my beautiful wife, Liane. However, having worked in the emergency services as a firefighter in my previous life, I have certainly witnessed a high propensity of divorce situations within the emergency services, and there are a lot of reasons why that happens. However, I saw first-hand the effects of divorce on many of my colleagues and friends, not only in the fire services, but the police services and all emergency services as well.

Bill C-78 is a very timely bill in the sense that it would bring into line and modernize, in fact, codify a lot of case law that has gone on, the many divorce cases that have been dealt with over the course of the last several decades. Therefore, there is a lot of which to be supportive.

Let us look at divorce in our country and see the extent of it. The 2016 census shows that over two million children were living in separated or divorced families. Five million Canadians separated or divorced between 1991 and 2011. Of those, 38% had a child together at the time of their separation or divorce. This affects over one-third of the Canadian population, children of those who are part of a divorce situation. In addition, 1.16 million children of separated or divorced parents were living in a lone parent family. Another 1.02 million children were living in step families.

I will also be taking another perspective. I have had meetings with several of my constituents on the implications and impact of Bill C-78, and of course I am here to represent my constituents. Later on, because I received several letters, I will be reading one letter in particular into the record. The hope is that when the bill does go to committee, there will be reflection on what people across the country would like to see as changes to this legislation.

There is a lot to support in Bill C-78. It is rather robust legislation, 190 pages. When we contrast that to the Divorce Act, at 41 pages, there is a lot to consider and reflect on within the bill. There are some things to support and some things that need to be changed when we get to committee.

The reduction in delays of the justice system would save costs. Another thing I have witnessed over my years in the emergency services is the devastating impact divorce can have on families. There is a cost not just to fathers but to mothers as well, and that impacts the family.

What does Bill C-78 attempt to do? The bill was tabled on May 22. The proposed bill amends the Divorce Act to, among other things, replace terminology related to custody and access with terminology related to parenting. This is a simple modification, but it reflects modern times. It establishes non-exhaustive list criteria with respect to the best interest of the child. All of us in the House, and quite frankly across the country, are interested in the best interest of the child. It creates duties for parties and legal advisers to encourage the use of family dispute resolution processes. As I said before, the cost associated with divorce is debilitating for many. Some parents simply cannot recover from those costs.

There are things to like about the legislation. It would modernize the Divorce Act, but, more important, as we get it to committee, we will get to hear from stakeholders.

As I said earlier, I want to read into the record a letter that I received from Mr. Andrew Corbett, a constituent of mine. He is part of a Simcoe County support group called “Fathers Equal Parenting”. This is a letter that was subsequent to a meeting we had in my constituency office in Barrie—Innisfil and it provides a different perspective, a different context.

Today we are debating Bill C-78, which the government has proposed, but it is also important, I believe, and I think you will agree with me, Mr. Speaker, to find those contrasting views, those things that can help parents across the country. The letter states:

As one of your constituents I am writing to express my concerns about Child Custody legislation and the recent Bill C-78. Bill C-78 fails to give sufficient credence to the views of the vast majority of Canadians who support a Rebuttable Presumption for Equal Shared Parenting when it comes to Child Custody law.

Although there may be some plausible, positive measures in the new government initiative, Bill C-78, there are a number of serious deficits in this proposed reform of child custody legislation. Notwithstanding, I believe that there are tenable solutions to significantly improve Bill C-78.

Andrew further wrote:

Canadians overwhelmingly support Equal Shared Parenting. In recent polls, nearly 80% support Equal Shared Parenting, country-wide. Moreover, many countries have adopted shared parenting, or have endorsed shared parenting, and are proposing legislative changes. Furthermore, social science research and literature has strongly came in favour of shared parenting, concluding that children in these relationships have superior academic, emotional, social and economic futures with drastically lower incidence of substance abuse, crime, and incarceration.

In view of the changes in social norms and family structures in the intervening 33 years since the current Divorce Act was passed, our child custody legal system requires fundamental structural changes. While the government initiative with bill C-78 should be commended for its housekeeping changes, we really need to make lives better for children and their parents, with reform of a more fundamental nature. I ask you to advocate a number of amendments to Bill C-78. I ask that you advocate for legislative change that incorporates accepted social science research findings and the consistently expressed views of the Canadian public. A rebuttable presumption in favour of Equal Shared Parenting is the appropriate course of action in light of the research and the consistent polling data over many years (ie. about 80% in favour). Interests groups, including Bar Associations and other interest groups, will surely oppose. In summary, the following points need to be incorporated into Bill C-78.

Canada needs a rebuttable presumption of equal shared parenting. This principle should be the starting point for “best interests of the child” deliberations.

Adopt continuity of family relationships as the definitional basis for the “best interests of the child” standard.

Amend proposed relocation clauses to place the onus on the relocating parent for changes in parenting responsibilities and arrangements.

Include arbitration as an explicit component of dispute resolution options.

Include provision for a “Parental Coordinator” to mediate and, if necessary, to break deadlock situations in day-to-day implementation of the Parenting Order.

Andrew goes on to say:

On paper the proposed Bill C-78 seems to support some admirable measures but I ask that you advocate for a less adversarial family justice system with implementation of the following:

Further implementation of the Unified Family Court;

Support for alternative and non-adversarial dispute resolution (e.g. expansion of such programs as “393 Mediate” where free, low cost mediation is provided in courts.);

Increased legal Aid Funding (wider access to justice in the family system is essential);

In conclusion, a Rebuttable Presumption in favour of Equal Shared Parenting will set the stage for equality and serve to reduce conflict stemming from unwarranted senses of entitlement; reduce excess legal expense, thus allocating family finances for the needs of the family and children; and promote the “best interest” of Canadian children to enjoy a decent relationship with both parents. Many like-minded Canadians support these changes. Now please propose these changes.

He thanks me for reading the letter. I will submit this into the record.

I have asked Mr. Corbett to come to committee once this bill passes through the House of Commons so that he can testify and submit his own view on where Bill C-78 needs to be approved. Many people believe that Bill C-78 is a good piece of legislation, but there are some amendments that could provide a better, solid piece of legislation that is in the best interests of Canadian children and their families.

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October 4th, 2018 / 12:50 p.m.
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NDP

Jenny Kwan NDP Vancouver East, BC

Mr. Speaker, I rise to enter into the debate on 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. Quite a title for the bill. For the purposes of this discussion, I will simply refer to the bill as Bill C-78.

In essence, what are we talking about? We are talking about a situation where there is a family breakdown. That is what it is and under no circumstances can we imagine that could ever be a positive thing for anyone, for any of the parties involved. However, sometimes making that hard decision, going down that difficult path may very well be the best thing. Sometimes in those circumstances it may well be the best thing and in the best interests of the child as well.

That said, when people have a disagreement, when they have a breakdown, often people's emotions understandably are very high. Marriage generally happens with people declaring their love for each other. Imagine for a moment when that breaks down, what that means. The anger, the hurt, all of those emotions come flooding back and the sadness that goes with it. It is very difficult in the best of circumstances, but sometimes that is a process that adults have to embark on.

There are members in the House who talked about their own personal experiences. Sadly, for me and for many people, I am one of those statistics as well. I, too, am a single mom with two children. It is not an easy path, but sometimes it is the path that we have to take. With that said, I applaud this piece of legislation. I welcome this piece of legislation. Why? Because it attempts to make the process a little easier, a little better, and most important of all, with the best interests of the child at heart.

That is not to say that Bill C-78 would do all of it and will fix everything and that there are not issues with it. I assume when it gets to committee stage there will be opportunities for witnesses to come before the committee and offer their thoughts. Then amendments, if required, would be tabled and hopefully those changes could be made in a non-partisan way with the best interests of the child at heart.

I would like to focus on a couple of aspects of the bill that are important and worthy of support. I come from the community of Vancouver East, where generally speaking, we are not affluent people. People in my community tend to be lower-income, middle-income and when they have to get a divorce, a lot of the time, particularly women, often do not have the necessary resources to fight that fight, to get to court to have custody battles dealt with. The bill attempts to bring forward a more amicable way, a less onerous way in achieving the same results that one would want to see and that is to ensure that the caring of the child, the spending of time with the child, would be divided between both parents. That is of paramount importance.

The bill proposes that whoever wants to initiate this process would be required to get a certification agreement with the other individual that they have attempted and exhausted all the other avenues in resolution of that dispute before it goes to court. That is to say, if people can get resolution, then they do not have to go to court. That is not only in the best interests of the child, it is also in the best interests of the two adults involved in that situation.

Dispute resolution at all times is a good thing, whether it be in other circumstances or in different arenas. Rather than going to court, fighting a battle, being angry and pessimistic about the litigious procedure, dispute resolution is a way to try and resolve things in a more amicable way. That would be in the best interests of everyone involved.

Of course, from the government side, from the taxpayer side, this would be important as well, because it would actually reduce the costs to the courts and the court system. That, too, is a positive outcome. From that perspective, that element of the bill, which is to move toward an alternative dispute resolution process, is absolutely worthy of support.

Of significant importance as well is the situation where domestic violence is involved. In those instances, the bill would require the court to take that issue into consideration, especially with respect to the interest of the child, which is to say that when it comes to the custody of the child, there might be situations where it is in the best interest of the child to be under the guardianship of one parent. It might be a requirement, but that is for the courts to decide. However, making it explicit that it needs to be dealt with in the best interest of the child is an important component as well.

So often we see these situations where there is a marriage breakdown and the children get caught in the crossfire. I have met family lawyers who have told me that the most heartbreaking and difficult part of their job is to have to see the sadness and tragedy because of the tension and animosity that exist. They say that often it is the child who ends up getting hurt, and the adults may not even be thinking about the fact that they are hurting their children. Sometimes they are so caught up in the situation that they are blinded by it and cannot see it, which is a tragedy.

Therefore, the bill would allow for a provision for the courts to ensure that actions taken would be in the best interests of the child, which is absolutely worthy of support.

The bill would also give a tool to the parties to ensure that child maintenance is calculated and provided accurately. I would assume that in the event of the breakdown of a marriage where children are involved, one would want to ensure that the children are supported and have the best opportunities to succeed, and that their needs are met.

It does not always happen that way, and I would say for sad reasons really. There are cases where the child support and maintenance are not there, even when one partner could afford to do so. I do not know why people do that, but sometimes that is what happens. However, the bill would provide the tools to ensure accurate calculations of maintenance contributions for the child and in the best interests of the child, which is also a positive outcome.

In British Columbia, where I come from, for a very long time, people on income assistance as single parents, usually single moms, would have a really difficult time getting maintenance payments. Trying to get that would just be so awful for them. The income assistance system requires them to report the possible access to maintenance.

For a long time in British Columbia we actually had a situation where it was incumbent on the parent, usually a single mom, to pursue that maintenance payment. Then, when she got it, that maintenance payment was actually clawed back from the income assistance payment. It was as though that money received from the ex-spouse or ex-partner would be contributed towards the support of the children, but in reality at the end of the day it was not because that money was clawed back by the government. I am glad to say that law has now been changed, and that is a positive thing.

It is of paramount importance that in the process, we ensure that the maintenance component is achieved in a fair way, and that those dollars go to support the child or children. This bill aims to do that. It gives the tools to achieve that outcome. That is a laudable goal and something I would absolutely support.

There are some gaps within the bill. Those are the areas that concern me. It has already been brought forward by other members in their debate that this bill would not apply to people who are in a common-law situation, particularly in Quebec.

I wonder how we could ensure that this bill and the intention of this bill, which is to act in the best interests of the child or children in the event of a divorce or marital breakdown, would apply to all children in Canada, including in Quebec.

That is worth looking into. I understand and fully accept that Quebec has a different system than the rest of the provinces and territories. That being said, there is a gap. That gap is worth looking into, to see if there is a way to address that.

The government says the bill provides for reducing child poverty. On the face of it, reducing the cost of these kinds of court proceedings is in the best interests of everyone. When we ensure that accurate and fair maintenance is determined in the case of a marriage breakdown or divorce, that supports families, particularly low-income families who sometimes have a tough time ensuring that fair maintenance is provided. I suppose that contributes to it.

I hope, though, that this is not the only thing we will rely on to reduce child poverty. I am a new MP, a first-time MP in this chamber, but I can look back at the history. Back in the day when Ed Broadbent was an MP, many years ago, he actually proposed a motion in this House. It was unanimously passed, by every single member of this House. It said we needed to end child poverty.

However, to this day, we still do not have a national strategy to get there. Why is that? We have one piece here. I am sure government members will get up and say the government is doing this and that, and it is all fantastic and wonderful. However, it is not really. Those are all little patchwork pieces coming into play. Bill C-78 will contribute to that, but it is also just a patchwork piece.

What if we actually brought forward a national strategy to end child poverty, a comprehensive approach that would look at all the different approaches to achieving that goal? Would that not be in the best interests of a child? We would actually be able to realize the words and the intention of this very chamber, when Ed Broadbent brought forward his motion that received unanimous consent so many years ago.

That would be a positive way forward. I hope we can achieve that. It would be a significant piece toward ending child poverty.

The other thing that would be a significant piece toward ending child poverty would be the provision of affordable housing. Many people have a tough time accessing affordable housing. Where I come from in Vancouver it is almost impossible to get access to safe, secure, affordable housing.

The government will say it has put forward a national affordable housing strategy, which was introduced two years ago. The problem with that is that 90% of that money will not flow until after the next election. It is not as if people who are homeless today can say they will sleep under an alcove and feel really good about it until two years from now when the money flows.

Also, when the money actually does flow, having come from the non-profit sector I know it often takes, at minimum, three to four years to get a project built. That means it is another five, six or seven years before someone actually gets access to housing.

Access to housing would be a significant component to the fight against poverty. Would it not be great if in budget 2019 the government said it would flow the money right now, because the crisis is before us right now?

All of that would contribute to this equation.

I have met some women in my community of Vancouver East who are faced with domestic dispute violence but do not feel they have the option to walk away from the relationship, because they cannot access housing and have no other means of supporting themselves. This is heartbreaking.

Therefore, while the bill aims to provide some support for that, we have to look deeper than that. We need to make sure that women and families also have the option of walking away from a relationship by ensuring they have some resources and support with respect to securing housing. That is an absolutely vital component to the equation.

I have met women who have told me they could not secure affordable housing and had to go back to an abusive relationship. That cannot be the way forward, and it is definitely not in the best interests of a child. Therefore, I would like for us to look at this issue in a more comprehensive way.

I absolutely support this bill. I expect that at committee there will be further discussion about it, and that witnesses will provide testimony and comments with respect to it. If there are amendments that come forward, I hope that all parties will work together to bring forward these amendments in the best interests of the child.

Beyond that, I hope the government will bring forward other components to make a difference in the lives of children, especially those who are struggling today. They should always be in the eyes of parliamentarians when we take action in their best interests.

JusticeGovernment Orders

October 4th, 2018 / 1:15 p.m.
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NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, I thank my friend for her long advocacy particularly on the eradication of child poverty. She is right that it was Ed Broadbent who in 1989 stood just a few seats down from where I am standing here today and moved a motion to eradicate child poverty in Canada by the year 2000. It was adopted unanimously by the House.

In fact, the most recent report from Statistics Canada shows that from 1989 to now, child poverty has actually gone up. Rather than being eradicated, the problem has become worse. The Liberals have claimed that they are interested in this issue, yet as my friend has pointed out, they do not actually have a plan to get there. We all know how things change without plans: They simply do not.

I have a very specific question about Bill C-78. As this pertains to divorces in Canada and there are some new amendments, which we appreciate, there is not a lot of language in the legislation around common-law couples. We know that particularly in Quebec and some of the northern territories a large number of couples now live in common-law relationships. They are not seeking to go through any kind of a procedure in a faith community or a civic arrangement, but are married by every intent under the law. This legislation is not, to my reading of it, sufficiently exuberant about describing the situation for common-law couples who then seek to separate, particularly if they have children.

I wonder if my friend can tell us what needs to be done to include common-law couples in this conversation, as that is not only a large percentage but is a growing percentage of the arrangements that many families have in Canada now.

JusticeGovernment Orders

October 4th, 2018 / 1:20 p.m.
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Conservative

Alupa Clarke Conservative Beauport—Limoilou, QC

Mr. Speaker, I could not be more thrilled to rise today on behalf of the 93,000 citizens of Beauport—Limoilou, to whom I send warm, sincere greetings. This is my first time speaking since we came back from the summer break.

Today, I will be speaking to my constituents in Beauport—Limoilou about Bill C-78, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another act. Marriage has always been extremely important to me. From a tender age, I yearned to be married someday. I have always believed that the bond between a married couple is something infinitely precious. Marriage is also a cherished tradition, and as a Conservative, I like keeping up traditions.

I say this without prejudice, but unfortunately, I grew up in the social context of Quebec, which no longer values the institution of marriage as it should. I am referring to official marriage, either civil or religious. Marriage, as an institution, is no longer held in respect. Most of my constituents are in civil unions, which is perfectly fine. Nevertheless, marriage is still dear to my heart. As a Conservative, I wanted to perpetuate the tradition of marriage. I have been with my wife, Pascale Laneuville, for 14 years. After living together for seven years, I wanted her to experience a proper marriage proposal. I was happy to do it, and I am delighted to still be married today. I hope my marriage will last until I die, hopefully in the House. I want to be an MP for 40 years. That is my most fervent wish.

That said, I would like to talk a bit about the summer I had in my riding of Beauport—Limoilou. Over the three-month summer break, I met with many of my constituents, who are watching us right now on CPAC. I said “summer break” because Parliament was on a break, but we were not on a break from work. Journalists often like to confuse Canadians about this. I was in my office the whole time, except for my two-week vacation to the Le Genévrier campground in Baie-Saint-Paul. That is a little promo. It is a beautiful campground in the Charlevoix region, in my colleague's riding.

I celebrated July 1 at Maison Girardin, in Beauport. One thousand people joined me to celebrate Confederation. I hosted my third annual summer party at Domaine Maizerets park. More than 3,500 residents came to my meeting to tell me about their concerns, and I let them know what I can do for them as their MP. There was complimentary corn and hot dogs, generously donated by Provigo on 1st Avenue in Limoilou. I want to thank the owner, Mr. Bourboin, was is very generous to the people of Beauport—Limoilou.

I continued to go door to door in my riding two evenings a week, as I do every month. I noticed that my constituents want to learn more about our leader, the member for Regina—Qu'Appelle. People are quite impressed by the Conservative Party's openness to Quebec as a distinct society. I was pleased to discover this when chatting with my constituents.

I also organized two meetings with Beauport's network of business people. These business luncheons are attended by more than 60 Beauport entrepreneurs every two or three weeks. The next one is scheduled on Wednesday, October 10, at 7 a.m., at the Ambassador Hotel. There will be an economic round table with Mr. Barrucco, executive director of the Association des économistes québécois, who will answer all questions from small and medium-sized business owners from Beauport—Limoilou.

I attended almost every event held in my riding this summer. I also held my second “Alupa à l'écoute” public consultation. The third will happen in November. I will then be introducing a bill to address an ever-present concern of my constituents. Naturally, there is also the day-to-day work at my office, with citizens' files and all the rest.

Finally, two weeks ago, together with the mayor of Quebec City, Régis Labeaume, and André Drolet, who was then the Liberal candidate for Jean-Lesage, I participated, with great fanfare, in the sod turning for the Medicago production facility. This is going to create more than 400 well-paid, quality jobs in vaccine research. It will also contribute to the revitalization of the Estimauville sector, which is very much needed because since the 1970s and 1980s, it is a sector of Quebec City that has been neglected.

Now back to the subject at hand, Bill C-78. Let me start by saying that the Conservatives plan to support this bill at second reading on some conditions. We are eager to hear from the witnesses at committee and to see how the Liberals react to our concerns and our vision for this bill because, as I will explain in a moment, some of the things in this bill make very little sense to us.

I would like to explain the gist of this bill to the people of Beauport—Limoilou. The main goal is to act in children's best interest. My constituents should know that the Divorce Act has not been amended in 20 years, or two decades. In that time, we have seen generation X, generation Y, and the millennials. They have had a major impact on Quebec elections. As the years go by, things change, social mores change, and culture evolves. Two decades, 20 years, is a long time.

I might go so far as to compliment the Liberal government on its decision to review this legislation and amend it to better reflect everything children go through when their parents divorce and take into account the situations they find themselves in. The Liberals are absolutely right about the importance of putting children first during the divorce process, just as patients should be at the centre of conversations about health care. The Conservatives agree 100% that this should be the focus of the bill. Yes, children should be central to discussions during the divorce process to keep their suffering to a minimum regardless of what goes on between their parents.

As a brief aside, I would like to tell a joke that I always tell my friends and even my family. My parents are divorced, and so are my wife's parents. Quite frankly, it was pretty common for their generation. As I often say jokingly, divorce is not an option for me and my wife, even if we wanted one, because my daughter and son already have four grandfathers and four grandmothers. The situation is already so ridiculous that I would not want to add another four grandfathers and four grandmothers. As members can see, divorce is not an option for me. However, for individuals who need to divorce for unavoidable reasons, it is important that the legislation reflect the mores, customs and conventions of the present day.

In addition, the bill brought another thought to mind, and I think members will see its relevance. The United States-Mexico-Canada agreement was reached this week, so I drew a parallel. Since we are talking about marriage, agreements and concerns, we could look at the USMCA as an economic marriage, of sorts, between two countries. In this economic marriage, which has been arranged for sound and objective reasons based on a win-win logic, the aim is to protect the children, which, in this case, are the Canadian economy and our sovereignty.

The USMCA is an important agreement between two countries that have decided to open their borders and create a relationship and ties in order to move forward together toward shared growth and an economy that works for both sides. However, we see two big problems with this marriage. First of all, it simply does not cut it economically speaking, because the Prime Minister and member for Papineau failed to ensure its fairness.

For example, the softwood lumber dispute has not been resolved. This is the third or fourth softwood lumber crisis. I visited Rimouski in the Gaspé region. Actually, I know the people who live there would not be happy to hear me say that Rimouski is in the Gaspé, so I will say that I visited Rimouski, which is in the Lower St. Lawrence region, where there are a number of lumber mills. Obviously, they are tired of dealing with one softwood lumber crisis after another. This would have been the perfect opportunity for the government to strengthen Canada's relationship with the United States and resolve the softwood lumber dispute.

Let us think too of all of the other regions of Quebec that will be negatively impacted by the imminent breach in supply management on dairy products. Once again, Canada is giving without getting anything in return. I realized that this marriage is not at all fair. When we officially entered into a relationship with the United States in 1989—

JusticeGovernment Orders

October 4th, 2018 / 1:30 p.m.
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Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Arif Virani

Mr. Speaker, I am sorry to interrupt the member for Beauport—Limoilou in the middle of his speech, but I have to say that it is one thing to discuss Bill C-78, which is now before us, and quite another to give a long speech on NAFTA and the new agreement between Canada, the United States and Mexico and bring supply management into it. I do not believe that is relevant.

lt is not relevant at all. I would ask, Mr. Speaker, that you make a ruling as to whether that is in order and ask the member opposite if he could direct his comments to this legislation.

JusticeGovernment Orders

October 4th, 2018 / 1:30 p.m.
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Conservative

Alupa Clarke Conservative Beauport—Limoilou, QC

Mr. Speaker, I can understand my colleague's concern. I did have a point I was getting at. I want to talk about clauses 54 and 101 of Bill C-78 and how they contradict Bill C-75.

However, I was talking about something that is very important to me. I will use a different analogy. Let us leave NAFTA behind for a different analogy.

We have a Prime Minister who introduced Bill C-78, telling Canadians that after 20 years, he is proposing important amendments, some fundamental and others more technical, that will strengthen the legislation and the institution of marriage in Canada.

Notwithstanding the fact that we Conservative members plan to support this bill, following the committee studies, we feel it is hard to trust the Prime Minister when he says he wants to strengthen marriage, considering his behaviour as the head of government.

For example, when Mr. Trudeau was elected in 2015, we might say that it was a marriage between him and the people of Canada. However, after everything that the Prime Minister has done in the past three years, a marriage would not have lasted a year since he broke three major promises. I would even say that these are promises that break up the very core of his marriage with Canada. I will get to the clauses in this bill that have me concerned, but I want to draw a parallel. How can we trust the Prime Minister when it comes to this divorce bill, when he himself does not keep his promises to Canadians?

He made three fundamental promises. The first was to run deficits of only $10 billion for the first three years and then cut back on that. He broke that promise. The deficits have been $30 billion every year.

The second fundamental broken promise of his marriage with the people of Canada was to achieve a balanced budget by 2020-21. Now we are talking about 2045, my goodness. Is there anything more important than finances in a marriage? Yes, there is love. I get it.

However, budgets are essential in a home. Finances are essential for a couple to remain together. I can attest to that. Love has its limits in a home. Bills have to get paid and children have to eat. Budgets need to be balanced, something that Canadian families do all the time. Our Prime Minister is unable to keep that promise.

The other promise has to do with our voting system, how we are going to run our home, our political system. Just before they got married, the Prime Minister promised Canadians that he would reform the voting system. That was a key promise and he broke it. In fact it was one of the first promises he broke and it is a serious broken promise in his marriage with Canadians in my opinion. It is a broken promise to every young person who trusted him.

Personally, I completely disagree with reforming the voting system because I believe that the first past the post system is the best guarantee for a parliamentary democracy. That said, it was a key promise that he made to youth and the leftists of Vancouver, Toronto and Montreal, who view proportional representation as being better for them, their future and their concerns. However, he broke his promise. The marriage has been on the verge of breaking up for a long time now. I predict that it will only last one more year.

I have one last point to make in my analogy and then I will discuss the bill. I want to talk about his infrastructure promise. The Prime Minister said that he would invest $183 billion in infrastructure over the next 14 years. It was the largest program in the history of Canada because, according to the Liberals, their programs are always the largest in the history of Canada. I would remind members that ours was incredible as well, with $80 billion invested between 2008 and 2015.

I will ask my colleagues a question they are sure to know the answer to. How many billions of the $183 billion have been spent after four years? The answer is $7 billion, if I am not mistaken. Even the Parliamentary Budget Officer mentioned it in one of his reports.

Therefore, how can we have confidence in the Prime Minister, the member for Papineau, who is introducing a bill to strengthen the institution of marriage and the protection of children in extremely contentious divorces when he himself, in his solemn marriage with the Canadian people, has broken the major promises of his 2015 election platform?

The bond of trust has been broken and divorce between the Liberals and the people of Canada is imminent. It is set to happen on October 19, 2019.

Bill C-78 seeks to address some rather astonishing statistics. According to the 2016 census, more than two million children were living in a separated or divorced family. Five million Canadians separated or divorced between 1991 and 2011. Of that number, 38% had a child at the time of their separation or divorce. I imagine that is why the focus of Bill C-78 is protection of the child.

However, we have some concerns. Clause 101 introduces the idea that Her Majesty ranks in priority over the party that instituted the garnishment proceedings if the debtor is indebted or has any moneys to pay. That has us concerned. We will certainly call witnesses to our parliamentary committee to find out what they think and to see if we can amend this.

We also believe that clause 54 is flawed. It extends Her Majesty's binding period from five to 12 years. That is another aspect of the bill that could be problematic in our view.

I do not like to end on a negative note, but I absolutely have to mention a major contradiction pertaining to Bill C-78. Today, the Liberals enthusiastically shared with us, through this bill, their desire to make the protection of children, rather than parents, a priority in cases of divorce. However, when we look closely at Bill C-75, which, with its 300 pages, is a mammoth bill if ever there was one, we see that it seeks to rescind all of the great measures to strengthen crime legislation that our dear prime minister, Mr. Harper, implemented during his 10 years in office, a fantastic decade in Canada.

We are distressed to see that this bill lessens sentences for crimes committed against children. The Liberals are not content with just saying that they are good and the Conservatives are bad. They, who profess to believe in universal love, want to lessen the sentences for criminals who committed terrible, deplorable crimes against children. Then they tell us that the purpose of their bill is to help children.

We see these contradictions and we are concerned. I do not think that my constituents would let their spouses break promises as important as the ones the Prime Minister has broken since 2015. They would not want to stay in a relationship like that.

Canadians need to realize that their divorce from the Liberal government is imminent.

JusticeGovernment Orders

October 4th, 2018 / 1:40 p.m.
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Conservative

Alupa Clarke Conservative Beauport—Limoilou, QC

Mr. Speaker, I completely agree with the member opposite. He is perfectly right that this is one of the excellent amendments to be brought about by Bill C-78. It would enhance the power of the Canada Revenue Agency to verify the financial information of either spouse in order to ensure equity, not for the spouses but for the children. We all agree with that. Of course, it would be a good thing for my constituents of Beauport—Limoilou. There is no doubt about that.

However, I have two concerns, one regarding this and the other regarding the bill. The bill does not anticipate or propose enhancing the budget of the CRA to do what he is talking about, which would allow it to have more power in verifying the information. The CRA does not operate with free-paying jobs or written words on a blank piece of paper. It has paid employees with pensions, so one would need to inject more money into it to increase its power. I hope that actions will follow the words of the government in the budget.

Unfortunately, the member will not be able to answer my question, unless no one else stands. I do not understand why the government wants to obligate both spouses to meet and consult with a lawyer. In many instances, people go through a divorce in an amicable way. I know friends who went through a divorce for the well-being and good of their children, and it was done in an amicable and appropriate way. Why does the government want to impose the obligation to consult with a lawyer, which would necessitate spending? I would like the Liberals to address this concern.

JusticeGovernment Orders

October 4th, 2018 / 1:50 p.m.
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Conservative

Karen Vecchio Conservative Elgin—Middlesex—London, ON

Mr. Speaker, I am honoured to rise to speak to Bill C-78. I am not approaching this as a lawyer, as many of the others have done today. I am approaching this as a woman who has been divorced as well as a woman who has worked in a constituency office, dealing with people who have come from divorce and with different government departments.

I am going to begin with some of my experiences as a constituency assistant and how the Canada child benefit divvies out the money. The Canada Revenue Agency, under the leadership of the Conservative government, did an excellent job when it came to shared custody and shared parenting. That has become a nuance for many new families. If I was asked 20 years ago, when I look at that, shared parenting was not really an option. Now many families are looking at this. When the Canada Revenue Agency gave people the opportunity to divide their benefits, it became very beneficial for many of those families.

The only question I will have for the government with respect to this, what does 40% mean? A lot of times when we look at those numbers, it can be very difficult. We have to recognize that when someone has custody of his or her child, is that child in school? Is that parent picking the child up from school? Is the child sleeping in that parent's home? So many factors have to be looked at. I want to ensure that when we talk about the 40% for parenting, that it is looked at with a microscope.

As a person who has had a divorce, I understands what it is like to raise children who have come from that situation. It has been very difficult. If we talk about child support, I am pleased to see in the bill that child support does not have to go in front of a judge or to a court and that it can be done at an administrative level. For many families, this is a huge barrier, whether it is having to pay the legal fees or having to go through the entire process. Making it easier for families is very important.

We have to understand that there are barriers to that as well. My colleagues have raised question on how we addressed some of those, such as when people are being paid under the table. Many parents, both fathers and mothers, across the country do not pay their child support. They and are trying to rip off their children. At the end of the day, the children are the ones who are most affected. Anything we can do to ensure we always put the best interests of our children forward is very important.

Let us talk about the psychology and the emotional issues that occur around a divorce. I fully support what is in the bill on child welfare. Children have to come first during a divorce. When I look at myself, I think of divorce as 20-20 hindsight. If I could have done things differently, I would have. However, at that time, the emotions, the anger, wanting revenge, all of those horrible things people feel during separation and divorce occur. We have to recognize that it is such an emotional issue. I apologize to all of the lawyers in the room, but sometimes it gets worse when people go to lawyers and they put themselves $20,000 behind the eight ball because of it.

Brian Galbraith, a lawyer in Barrie, wrote this on his website:

Depression can often follow separation and divorce. According to the National Population Health Survey, the two-year period after a divorce has high rate of serious psychological problems for the couple. This is not a surprising effect given the anxieties about children and the drastic life and income changes people experience during this time.

In an issue of Psychology Today, it states:

Divorce introduces a massive change into the life of a boy or girl no matter what the age. Witnessing loss of love between parents, having parents break their marriage commitment, adjusting to going back and forth between two different households, and the daily absence of one parent while living with the other, all create a challenging new family circumstance in which to live. In the personal history of the boy or girl, parental divorce is a watershed event. Life that follows is significantly changed from how life was before....The dependent child's short term reaction to divorce can be an anxious one.

The government talks about child welfare, mediation and about the opportunities to have a lawyer assist children. If we to look at this, we have to ensure we have those resources for them.

When I went through my divorce 18 years ago, the opportunities for low-income women, as I was at that time, were not available. An appointment for my son to sit down and talk about it was not available to him. It took eight months.

Business of the HouseOral Questions

October 4th, 2018 / 3:05 p.m.
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Waterloo Ontario

Liberal

Bardish Chagger LiberalLeader of the Government in the House of Commons

Mr. Speaker, this afternoon we will continue second reading of Bill C-78, the family justice act. Tomorrow we will begin debate at third reading of Bill C-79, the comprehensive and progressive agreement for trans-Pacific partnership implementation act.

Next week, members will be working with Canadians in their ridings. When we return, we will begin debate on Senate amendments to Bill C-65, the harassment prevention act. Priority will then be given to the following bills: Bill C-77 on the Victims Bill of Rights and Bill C-82, the multilateral instrument in respect of tax conventions act.

Lastly, I would like to take this opportunity to wish all of my colleagues and their families a happy Thanksgiving.

Divorce ActGovernment Orders

October 4th, 2018 / 3:10 p.m.
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Liberal

Anthony Housefather Liberal Mount Royal, QC

Mr. Speaker, it is a pleasure to rise today to speak to Bill C-78, which aims to strengthen our family justice system by amending three federal laws, the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act.

As colleagues in this chamber have noted, the reforms proposed in Bill C-78 would represent the first substantive reforms to our federal family laws in over 20 years. We can all agree that these changes are long overdue.

Separation and divorce affect millions of Canadians. We all know that marriage breakdown can be hard on families, especially children.

Our government is committed to ensuring, to the greatest possible extent, that federal family laws protect families from the negative consequences that too often arise in situations of separation and divorce. As I have followed the debate on Bill C-78, I have been pleased to hear the expressions of support from all sides of the House for the key objectives of this legislation, namely promoting the best interests of the child, addressing family violence, helping to reduce child poverty and making Canada's family justice system more accessible and efficient.

It appears that when this bill comes to the Standing Committee on Justice and Human Rights, there will be a very collegial approach to making sure that we improve it in the best possible way and actually work together to improve our family law system.

As the Minister of Justice has emphasized, Bill C-78 is really about putting children first. The proposed changes to the Divorce Act reaffirm that the best interest of the child is the only consideration in relation to parenting arrangements, and the bill proposes several changes to further support this fundamental principle.

The changes include a non-exhaustive list of criteria that judges must consider when determining what is in the child's best interest.

Bill C-78 also introduces a primary consideration to the best interests of the child test, which would require courts to consider elements crucial to a child's life, including physical, emotional and psychological safety, security and well-being above all other considerations. Among other factors, the best interests of the child criteria would require courts to consider a child's views and preferences, giving due weight to the child's age and maturity.

This is consistent with Canada's obligations under the United Nations Convention on the Rights of the Child. It is important for children to have the right to have a voice in decisions that affect their lives and to express their own opinions, depending on their age and maturity.

We have all seen in our own lives areas where there have been disputes over child custody. Too often, the voice of the child has been ignored. Now, under our proposed law, as soon as this bill is adopted, the voice of the child predominates.

Bill C-78 would also require judges to consider a child's linguistic, cultural and spiritual heritage, and the child's upbringing. That includes indigenous heritage, which is something currently absent from the Divorce Act but obviously necessary to take into account when making decisions about a child.

For example, should a child come from both the English- and French-speaking communities, it is essential that the child learn both languages and the culture of both communities. The same is true when one of the parents comes from an indigenous community. To strip the child of their heritage would be an unfortunate mistake, and now the law would ensure that it is taken into account.

Given that the best interest of the child is the only consideration in making decisions on parenting arrangements for a child, Bill C-78 would not create parenting presumptions in the Divorce Act. The bill would include a modified maximum parenting time principle, requiring courts to ensure the child has as much time with each spouse as is in the child's best interests.

Time with parents fosters a child's social, emotional and cognitive development, and sufficient time with each parent is necessary to establish and maintain these relationships. However, it is important to note that this provision stipulates that the child should have as much time with each parent as is consistent with the best interests of the child. Thus, courts would ultimately determine what allocation of time would work best for the child.

In addition to the amendments pertaining specifically to the best interests of the child test, Bill C-78 proposes several other reforms that promote the best interests of the child. A key example is the proposed change to parenting language.

The terms “custody” and “access” will be replaced by terminology that can help reduce conflict between parents. Bill C-78 also provides for the creation of parenting orders and contact orders, by means of which the courts will give clear instructions to parents about the care of their children.

In addition, in recognition of the fact that there are often other people who play a critical role in a child's life, the bill would make contact orders available to non-spouses, such as grandparents. In most cases, parents facilitate contact between their children and other special people in their lives during one parent's parenting time. These orders would be available as an option in situations where the parties do not agree to allow this to happen. Of course, contact orders would also be based solely on the best interests of the child. However, as we have all seen, and as we have all heard from our constituents, there are tragic incidents where after a divorce, grandparents are not allowed to visit children. Great-aunts, great-uncles and other people who are close are suddenly stripped away from the contact they have had their entire lives. This bill would now ensure that those people would also have a right to say that they want to have contact with a minor child.

Turning now to the second objective of Bill C-78, which is addressing family violence, the government recognizes that family violence is traumatic for children who are exposed to it as direct victims or as witnesses. Increasingly, research is providing important insights into the lifelong effects of childhood trauma, and it is critically important that family violence be appropriately taken into account when decisions about parenting arrangements are being made.

To provide guidance to parents, courts and family justice professionals, Bill C-78 proposes a statutory definition of family violence based on social science research. It would explicitly include family violence as a factor to be considered in determining the best interests of a child, and it would include an additional set of factors to guide courts in considering the impact of family violence.

Finally, Bill C-78 would require courts to inquire about any other civil protection, child protection or criminal proceedings or orders that involve the parties to avoid conflicts between family and criminal court orders.

The third objective of Bill C-78 is to help reduce poverty. It has been demonstrated that the sooner a fair and accurate amount of child support is established after parents separate and payments are made, the better the outcomes are for the child. While most parents meet their obligations when it comes both to the establishment and payment of child support, many parents do not provide the complete and accurate income information required by the law to establish support. There are more than one billion dollars in unpaid child support payments in Canada, and this bill would provide additional tools to provinces and territories to ensure that those debts are paid.

This has serious consequences for families who use the family justice system. More than one million Canadian children of separated or divorced parents live in single-parent families. Those families are more likely to be living in poverty. The risk of poverty following a separation or divorce can be reduced when the parents and the children receive the financial support they are owed.

Bill C-78 would bring much-needed changes to limit the consequences of income-related disputes on the family justice system, parents, and most importantly, children. Amendments to the Family Orders and Agreements Enforcement Assistance Act would permit the release of income information to courts and provincial child support services to help determine fair and accurate support amounts and to help them enforce these support orders.

In addition, the amendments to the Garnishment, Attachment and Pension Diversion Act will allow for faster garnishment of wages where possible, so that families can receive the money garnished more quickly.

As my colleague from Elgin—Middlesex—London said in her speech about when she was working as a constituency officer for a former member of Parliament, one of the themes that is the most frustrating for MPs and their staff is when people come in who are the custodial parents and are asking for support. They have to go through hoops to try to find a way to administratively get to the right amount of custodial payments, because the other parent is not cooperating or is lying about his or her income, etc. Now, at least, we can do this in an administrative way and not have to run to court every single time.

Finally, Bill C-78 includes a number of measures intended to streamline processes to help make family justice more accessible and affordable for Canadians, while encouraging family dispute resolution.

To assist Canadian families in resolving international disputes, Bill C-78 would make the necessary changes to the Divorce Act and the Family Orders and Agreements Enforcement Assistance Act in order to implement two international conventions: the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

We have all heard of horrible cases of parents taking children abroad and the Canadian custodial parents spending years trying to get the children back. We need to do everything possible to work with international forces to make sure that we allow those parents to get their kids back to Canada.

I also want to take a moment to talk about something very important to me, to my colleague from Ottawa—Vanier and to many other members in the House, namely access to justice—and to divorce courts in particular—in Canada's two official languages.

Whether people are English-speaking Quebeckers or French speakers outside Quebec, we want to make sure that access to divorce and access to our courts is available in both languages.

We heard from representatives of the Fédération des associations de juristes d'expression française de common law as well as English-speaking legal experts from Quebec. In committee, we are going to consider amendments to the bill in order to ensure that Canadians have access to divorce courts in both of Canada's official languages.

To ensure that French and English have official language status in divorce proceedings, we must ensure that the judge or judicial officer who hears the case understands the language in question properly. Witnesses also need to be able to express themselves in their preferred language, and the final decision must be provided in both official languages when testimony is given in both languages. French-speaking Canadians outside Quebec have the right to access justice in their own language.

The English-speaking community of Quebec has a right to justice in its own language. That is something, among other things, I know we will be considering at committee.

In conclusion, we all know how difficult separation and divorce can be for families. I have heard some of my colleagues talk about their own experiences. In retrospect, there are always things that could have been done better. I know the pain some of my friends have suffered going through divorce.

When the law instructs that we need to focus on putting the best interests of the child first, that helps everyone in the picture.

I appreciate the bill. It addresses family violence, it would help reduce poverty and it would make the family justice system more accessible. I believe that Bill C-78, as put forward by our Minister of Justice and Attorney General, represents significant change that would better support Canadian families.

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October 4th, 2018 / 3:25 p.m.
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NDP

Karine Trudel NDP Jonquière, QC

Mr. Speaker, I listened carefully to my colleague's speech. Before Bill C-78 is sent to committee, I would like to know what he thinks about adding criteria to better define the interests of the child in the case of separation.

The NDP believes that we need to look at the big picture when determining the interests of the child. We want to come up with a list of criteria, but it should not be exhaustive. Since we are all only human, we understand that other variables may come into play. I would like to know what my colleague thinks about making a shorter list and providing a little more flexibility in the case of separation.

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October 4th, 2018 / 3:35 p.m.
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Conservative

Kelly Block Conservative Carlton Trail—Eagle Creek, SK

Mr. Speaker, I am very pleased to rise today to speak to Bill C-78. The bill would amend three different acts and modernizes divorce proceedings. There is much in the bill that I am very pleased to see, however, as with any bill, there is room for improvement. I hope that my hon. colleagues across the way will be willing to hear and implement helpful suggestions in the same spirit of co-operation that the bill recommends for divorce proceedings.

Before I go any further, I will be sharing my time with my colleague from Edmonton Griesbach.

Much has changed in the legal realm over the past 30 years, including a growing understanding of the impact that our current legal framework for divorce has on children and their parents. That understanding has led courts toward a less adversarial and more co-operative framework for divorce proceedings.

Bill C-78 amends the statute to bring it in line with the prevailing legal thoughts as delineated by our courts. I want to expand on that. Marriage is a societal institution on which our society is built. A key aspect of marriage is the creation of a stable structure in which children can grow and learn. When a marriage dissolves for whatever reason it is important that the welfare of the child be placed in the highest priority. I am pleased to see that Bill C-78 has placed an emphasis on children.

Bill C-78 makes strides toward the recognition of the rights and considerations of children. An example of this change in focus can be found in the adjustments of the language used throughout the process. Bill C-78 does away with the dichotomy of winning custody versus visitation. The current language creates an adversarial situation wherein one parent is defined as the winner of the proceedings, making the other parent the loser of those same proceedings.

Bill C-78 adjusts the focus from a winner-and-loser mentality wherein the child is a prize to be fought for to that of parenting wherein the child is to be protected and cared for. This may seem like an inconsequential change, but the evidence of the past 30 years shows that this is not the case. This is not to say that we can fully understand or predict precisely how these changes will play out in the emotionally fraught experience of a divorce.

Nevertheless, this is a positive step toward the protection of children. While clearly changing terminology is only one step along the path, the change of language denotes an underlying change in the framework of a divorce proceeding.

This is further advanced by the emphasis placed on the use and encouragement of alternative dispute resolution mechanisms to avoid costly and damaging litigation. Litigation over children is costly, hurtful and often very damaging for children.

I mentioned before that divorces are emotionally fraught proceedings. Nowhere is this more evidenced than in litigation over children. Often parents, faced with the prospect of losing the adversarial contest delineated in the current statute, resort to litigation.

Rarely is this in the best interests of the child. ln fact, I am sure that many of us can point to examples within our own spheres of friendship and family wherein children have become pawns in the litigation process by parents who unwittingly acted against their own children's best interests.

Furthermore, as a Conservative, I am uncomfortable with the thought of a court deciding the best interests of a child between two opposed parents. While it may at times be necessary, I believe we can all agree that it ought to be a last resort rather than a first option. I believe it is far better if the parents work together to come to an arrangement that properly addresses the concerns, rights and responsibilities of each parent while protecting the rights and considerations of the child or children.

For this reason, I applaud Bill C-78 for the move away from exposing children to litigation and instead directing the proceedings to alternative dispute mechanisms. These mechanisms may include counsellors, mediators, mental health experts and parenting experts.

The dispute resolution mechanisms require parents to work together for the good of their children and head off potential adversity by placing the welfare of the child as the goal rather than winning custody of that child. This results in the parents being in a position of working together rather than on opposing sides. However, I also have a concern that Bill C-78 perhaps does not address this to the degree that it could.

As I mentioned earlier, I appreciate the focus that this act places on alternative dispute resolution mechanisms, as they create a co-operative framework rather than an adversarial one. However, I believe it should be clear to everyone that divorces are often, despite best efforts, adversarial and emotionally charged. One or both parents could and often do choose to proceed directly to litigation in order to win. As positive a step as the revised language in the introduction of the dispute mechanism is, it is not enough to address this issue.

I believe the government considered this issue while drafting Bill C-78, as it put in place the requirement for legal professionals to encourage clients to use the alternative dispute resolution mechanisms. Nevertheless, I would argue that this amounts to slightly more than a “requirement to inform”. While it is sure to make a difference, there will be many cases where one or both parents write off resolution mechanisms immediately without a second thought.

Would my colleagues on the other side consider the possibility of including arbitration as a clearly defined provision within the dispute resolution options? Having this in place would allow the courts to have more leeway in requiring that the divorcing parties go through a resolution process before resorting to litigation. At the least, I would encourage the justice committee to consider this issue to ensure that the processes put in place would indeed be as effective as intended.

Another concern I have is with the lack of a default position wherein both parents share equal parental responsibility. Critics of this bill point to results of research within the social sciences, which suggests equal shared parenting as the best outcome for children in a divorce proceeding. Of course, this may not always be ideal, which is why it would certainly have to be rebuttable. However, as a default position, it would require disproving in order to be changed. Given what we know from the social sciences, I believe that adding an assumption of equal shared parenting is worth serious consideration at the committee stage of this bill and worthy of some discussion.

I would like to pause for a moment here to reiterate that my criticisms of this bill, if my concerns can even be called that, come from a place of goodwill.

As I mentioned earlier in my remarks, and as so many others have stated, this bill is the first major amendment to the Divorce Act in 30 years, and indeed only the second amendment in 50 years. I believe it is very important that we get this right, as it will likely be the divorce framework for many years to come.

There are many other points that I could address about this bill. Unfortunately, I know that I am out of time. Instead, what I will say is that I am pleased to support this bill through to committee, where I hope it is closely reviewed and ardently debated, and where I hope to see my concerns addressed.

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October 4th, 2018 / 3:50 p.m.
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Conservative

Kerry Diotte Conservative Edmonton Griesbach, AB

Mr. Speaker, we all know that divorce is a very terrible thing. It can be a traumatic experience for families, children and parents. However, when it does occur, it really is imperative that the best interests of children should be at the heart of any divorce proceeding they may be caught up in.

According to the 2016 census, more than two million Canadian children are now living in separated or divorced families and 38% of the five million separations and divorces in Canada between 1991 and 2011 involved a child. Therefore, divorce has, sadly, become a regular part of the lives of everyday Canadians. With this legislation, we really have a duty to try to minimize the trauma of divorce as much as possible, especially on children.

Overall, the intention of Bill C-78 is good. I am especially glad to hear the legislation will be centred on the child. Too often, children become pawns in bitter divorces. We have all heard those heart-wrenching horror stories.

A woman near and dear to my heart has been going through a living hell, battling to get what is best for her daughter for years after her divorce. Under shared custody, the daughter was succeeding in school and attending regularly, especially when she was at her mother's home. However, at subsequent family court appearances, the daughter's dad managed to convince the family court it would be in the best interest to have the daughter spend all of her time at his residence. After that happened, the teenage daughter's marks plummeted. She missed a ridiculous amount of school and got into trouble with police. It is a very sad story.

Despite fighting tirelessly in family court, this woman's daughter is now hopelessly alienated because one parent wanted to punish the other. This child was used as a weapon and essentially brainwashed by one parent to punish the other parent. This daughter will now no longer speak to her mother, her grandmother, her aunts, uncles or young nieces and nephews, who absolutely adore her.

Alienation is one of the most terrible things that can be inflicted upon a child. It is something that can literally ruin a person's life and could take years of psychological help to overcome.

Part of the problem I have witnessed in family court is people who appear there do not even testify under oath. Remarkably, there is no requirement to actually tell the truth. Therefore, how can a judge truly make a correct decision in the best interests of the child if there is little or no ability to compel people to tell the truth? It is really quite ludicrous and it is no wonder that some people criticize family courts as kangaroo courts.

That is also why subsection 16(10) of the act is an important first step and states the principle that children should have as much contact with each parent within the confines of their best interest. It also takes into account the willingness of the parent to facilitate visitation as a consideration in custody disputes. It is a move that will penalize parents who, for petty reasons, try to limit visitation and access of the child or children to the other parent. It is a positive first step to ensure that even in acrimonious divorces, the best interests of the child are always first and foremost, and that is as it should be.

Promoting the use of alternative dispute resolutions, such as divorce mediation, to settle divorce cases is also an encouraging move. It should help make divorce proceedings as amicable as possible in very bitter situations at times.

Being caught up in the middle of an acrimonious divorce is never in the best interests of children. Therefore, taking steps to create a valuable alternative to litigation in family court is a sensible idea. It obviously would not solve the worst of cases, like the case I mentioned, but it is a start. If done correctly, it could have a meaningful impact for millions of Canadians.

Ultimately, Canadian children are best served when the custody and divorce proceedings are as harmonious as possible, with both parents having a meaningful relationship with their children.

A third important part of the legislation is the introduction of measures on combatting domestic violence and child abuse. That is a laudable goal. Having dispute mechanisms and courts taking into consideration domestic violence and child abuse is imperative, considering the move to a more dual parenting framework.

As I stated before, it is always in the best interests of the child to have both of their parents having meaningful relationships. That, however, is definitely not the case in situations where one of the parents is violent, neglectful or abusive. I see the government is committed to creating 39 new judicial positions in Alberta, Ontario, Nova Scotia and Newfoundland and Labrador. That is another positive step, especially considering the extraordinarily slow pace the current government has taken in appointing badly needed new justices and judges. Let us certainly hope they appoint them a lot faster than they have been filling other judicial vacancies.

Unfortunately, my colleagues across the aisle's support of the best interests of children rings somewhat hollow. Let us talk about another case from the headlines about which everybody is talking.

It is the case of Terri-Lynn McClintic, a convicted child murderer who is now living at a healing lodge. Canadians are saying, loudly and clearly, that she should be back behind bars. The Liberals are refusing to act on that, saying that the Conservatives are ambulance chasers, that we are just creating this whole controversy and that it is very low of us. However, all we are doing is reflecting on what the father wants. He has spoken about it very clearly on CBC and other media.

For instance, I just am not sure how it can be said that promoting the best interests of the child is best served. She was murdered. The Liberals talk about promoting the best interests of the child in this legislation, yet her murderer is not even behind bars. She is in a healing lodge. Would Tori's best interests not be ensured by her murderer being held behind bars?

I also do not see how having a child murderer at a healing lodge is in the best interests of the children who are often present there, yet this is the position the members across the way supported in votes. It is really enraging Canadians. One day there is what seems to be a flippant disregard for what is Tori Stafford's best interests and the best interests of children at that healing lodge. Then on the next day we hear the Liberals' talking points about this bill and how much they care about children. It is rather shameful, to be honest.

This is also the case with Bill C-75, the government's new crime bill. Again, l am not sure how many parts of that bill mesh with the priority of the best interests of the child, which my colleagues across the aisle seem to believe today. How is giving a mere fine in the best interests of children who are forced into marriage, or marriage under the age of 16 or the abduction of a child under the age of 16? How does that act in the best interests of the child? I fail to see that.

How do any of these reforms put the interests of the child first? Very simply put, I do not believe they do and that it is not the government's position. If the minister would like to truly put children first, as she should, I recommend she do so in a consistent manner and go forward from there.

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October 4th, 2018 / 4 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Speaker, I appreciate my colleague's comments regarding Bill C-75.

in the course of the member's speech, he talked about the fact that in most circumstances it is in the best interests of the child to have both parents involved in the child's development and for there to be ongoing contact and support with both parents. One of the criticisms some have put forward with respect to Bill C-78 is it would not provide for a presumption of shared parenting. As the hon. member for Carlton Trail—Eagle Creek noted, sometimes shared parenting is not in the interests of the child. Would the member agree that perhaps one flaw of the bill is that it does not contain a provision for a rebuttable presumption for shared parenting?

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October 4th, 2018 / 4:05 p.m.
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NDP

Karine Trudel NDP Jonquière, QC

Mr. Speaker, Bill C-78 talks a lot about children and making them a priority.

As I have said many times in the House, I am a mother to two boys. I have also said that my children were born to a common-law couple. The bill in its current form addresses only married individuals.

I would like to know whether my colleague thinks that more amendments are needed to take into account common-law spouses as well as parents who separate but were not married, yet still need support. They could also be included in Bill C-78.

I would like to know what my colleague thinks about that.

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October 4th, 2018 / 4:05 p.m.
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Winnipeg North Manitoba

Liberal

Kevin Lamoureux LiberalParliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, it is such a pleasure to rise and speak to what I believe is a significant piece of legislation.

It has been many years since we have had substantial changes to the Divorce Act. In fact, one would have to go back a couple of decades to when we saw some reforms.

One of my colleagues across the way gave us a little history and mentioned his year of birth being 1984. He also mentioned the patchwork of divorce law across Canada at the time and questioned how one could even get a divorce. The 1980s was not that long ago. When my colleague was born, I was in the forces, posted in Edmonton. A lot has changed.

In the last three years we have seen a minister take a look at what is a very important issue to Canadians in all regions of the country. As opposed to trying to dictate in any fashion, she took it upon herself and the ministry to reach out to many different stakeholders. It is important for us to recognize that Ottawa plays an important leading role on a number of issues. Divorce happens to be one of them. A part of playing that leadership role included the minister reaching out to different stakeholders. The stakeholders ranged from women's groups and advisory groups that can offer a lot of opinions, thoughts and valid information to the many different provinces and territories, in looking at ways in which we can reform the system so that it works better.

This legislation is so important. I had the opportunity to ask the minister about the legislation. The first thing she said is that it is about the child. It is the children's interests that we are debating today and have debated before. The chamber has captured the essence of why it is so important. I have listened to the debate, and even though members might agree to disagree on some of the finer points, most have acknowledged that it is important that the legislation pass so that it can go to committee. We are very grateful for that. It means that all members of the House are in support of the legislation, at least in principle, and are prepared to see it go to committee.

At committee, I am sure we will have an opportunity to hear more feedback. The department is very much interested and is following the debate. Members have had the opportunity to provide some thoughts. I do not want to prejudge what is going to take place at committee, but based on the debate and the discussions that have been taking place, I suspect it will be a very fruitful discussion.

I want to emphasize that when we think of divorce and we put the child first, we must also think about the whole issue of jurisdiction. Committee members and those who are participating in the ongoing discussions in regard to this bill, must remember that the legislation is meant to establish the framework. It is long overdue. We have needed the types of changes in this legislation for a number of years.

As we go through the clauses, I would encourage members to reflect on the fact that those clauses were derived from many different forms of consultation with advocates, provinces, and interested individuals. At times on the surface it might seem that we could simply modify the clauses. However, I would ask members to consider that there was in fact a lot of discussion that incorporated many thoughts and ideas when creating the clauses. I say that because I sense there is a great deal of interest in making some modifications.

We are now almost three years into our mandate and we are debating this legislation today in good part because of a lot of the background work that has been done.

When we talk about putting the child first, it is not only through legislation. Virtually from day one, this government and in particular the Prime Minister have focused a lot of attention on the middle class. Every day we hear about the importance of Canada's middle class and what we need to do to enhance and strengthen the middle class. We have a responsibility to look at some weaknesses and vulnerabilities.

On numerous occasions today, the parliamentary secretary mentioned the $1 billion that is being denied to children. Through budgetary measures and the Canada child benefit we came up with significant amounts of money, hundreds of millions of dollars, to put into the pockets of the parents and guardians of children. This legislation, in good part, is going to enable those very same children to get the money they are due.

This legislation proposes to do many things, but as the minister herself has made very clear, it is the child who comes first. One of the best ways to make sure that the child comes first is to ensure that the child has the necessary financial resources to do the things that are necessary in order to have opportunities in the future.

Relationships can be complicated. Any relationship can be touch and go. No relationship is destined to everlasting peace and harmony. Every relationship will have challenges. When children are factored in, things can become very difficult.

I am sure all of us can share some stories that we have heard. Maybe some of us have even provided some counselling. I have provided counselling services. It is difficult at the best of times.

Some children, depending on their age, might recognize that it is a good thing that mom and dad are separating, because they want both parents to be happy. Then there is the opposite situation, where a child is absolutely emotionally torn and does not know what to do.

Parents might be in a difficult position. They are at odds with each other. Things can range from having a peaceful sit-down discussion with a third party to the more violent type of interaction that we know takes place. Because of the child and because of the parents at times, there is a role for government and society to play to ensure that the child's best interests, in fact, the family's best interests, are ultimately served.

This is the type of legislation that moves forward the idea of an alternative to going to court in all instances. A good example of that is the issue of income and having to have it readjusted. I have a number of friends who have experienced divorce and they talk about the cost of it, having to go through the court process and the waiting periods. Sometimes they were dealing with issues such as income or income readjustment.

Shortly after the minister first introduced the legislation, I happened to be on an Air Canada flight when someone I knew from the past, who I understood was a judge, came up to me. She provided the comment that this bill is good, sound legislation. I do not know to what degree she read it through, but I can tell members that she thought it was sound legislation that would have a profound, positive impact in terms of issues such as time and peace within families. That gave me a vote of confidence that the legislation we are talking about is really sinking in, in terms of the community, since shortly after the minister brought it for first reading, someone of that calibre raised the issue. I had known her many years ago, knew her attitude towards families, and was quite pleased to hear that sort of comment.

In the discussions I have had to date on this proposed legislation, the feedback has been very encouraging. I am glad to see the general support we are receiving not only from outside this chamber from stakeholders and other interested individuals who are following the debate but from across the way, which is encouraging to see, given how important it is that this dated law be updated.

The best interests of the child, reducing child poverty, addressing family violence and more access to the justice system through things that will ultimately resolve more issues related to divorce outside the courts are all positive, strong points that I think we need to repeat again and again to reinforce that this proposed legislation will put us on the right track.

Bill C-78 is a change in terms of the title itself, 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. It is very comprehensive.

I will highlight some of the things this proposed legislation would actually do. For example, it would promote the best interests of the child, which is something I have highlighted. One of those points would include replacing the words “custody” and “access” with more parenting terminology. Words matter, so we would have more consistency of that wording throughout Canada. There has been a great deal of work on using the same terminology, and that matters.

Establishing criteria and legislating a list of best interests of the child is incredibly positive. Requiring the courts to take the child's view into account is an appropriate thing to do. Allowing for the implementation of the 1996 Hague child protection convention, clarifies rules around recognition and enforcement judgements and makes it easier for authorities in different countries to communicate and co-operate with each other about many cross-border issues involving children.

We talk about Canadian divorce laws, but often in these divorces, the interests of the child go far beyond our borders. In fact, many countries around the world look to Canada and the types of things we put in place to resolve some of our societal issues. The Philippines is an example. It does not have a divorce law. It is a beautiful country. I have had many opportunities to visit, and I will continue to visit in the future. We can learn a lot from a country like the Philippines.

However, some countries do not have divorce legislation. Therefore, world organizations try to provide international leadership. By Canada incorporating ideas and thoughts that come through those international bodies speaks well with respect to us continuing to play a leadership role not only in Canada but potentially in other areas of the world.

We talked about reducing poverty. The parliamentary secretary referenced $1 billion. Close to two million children in Canada live with one parent or a guardian. Hundreds of thousands of them live in poverty or borderline poverty. In good part that is because the spouse or individual who is supposed to pay support for the child has not fulfilled that obligation.

Therefore, the legislation would allow for the release of CRA information to help establish, vary and enforce family support. Income information would come from T1 form, for example. That is a significant step forward. It is why I suggested earlier the importance of working with other stakeholders, such as provinces and others.

On family violence, a definition of family violence will be included in the Divorce Act for the very first time. It will include any conduct that is violent, threatening, a pattern of coercive and controlling behaviour that causes a family member to fear for his or her safety, or directly or indirectly exposing a child to such conduct. Violence means more than just physical violence. It includes mental and monetary. There are many ways one can have an unhappy family. The definition includes a child that has been compromised to the degree it causes pain, whether physical or mental.

Thousands of children are in custody in my home province of Manitoba. Many of those cases are rooted in family violence in their homes. I am glad we have finally recognized that family violence does exist and have incorporated that in the legislation.

Mr. Speaker, it looks like you are about to tell me to stop speaking. I have quite a bit more that I would like to share with members. Possibly through questions, I might be able to do so.

Suffice it to say that increasing access to justice and improving its efficiency is another very important point. I will not be able to give examples of that. However, it is always a privilege to be able to share a few thoughts.

Divorce ActGovernment Orders

September 26th, 2018 / 4:20 p.m.
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Vancouver Granville B.C.

Liberal

Jody Wilson-Raybould LiberalMinister of Justice and Attorney General of Canada

moved that Bill C-78, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another act, be read the second time and referred to a committee.

Mr. Speaker, it is a great pleasure that I rise today to speak to Bill C-78. The bill, which I tabled on May 22 of this year, would help support and protect families, especially children, from the negative outcomes and conflicts that are the sad reality of separation and divorce.

Our government has taken great strides to strengthen the Canadian family justice system. In budget 2017, we created ongoing funding for federal, provincial and territorial family justice activities through the Canadian family justice fund. In the same year, we also signed two international family law conventions. This year in budget 2018, we announced funding to expand unified family courts, fulfilling one of my mandate letter commitments. However, despite all this progress, we still need to do more.

Separation and divorce can be difficult for families, especially for children. We know that the impacts can be wide-reaching. Over two million children live in families with separated or divorced parents. There is no other area of law that touches as many Canadians.

Federal family laws should help families resolve their disputes quickly and effectively, but these laws have not been substantially updated in over 20 years and were in desperate need of modernization. Over the past two decades, families have changed and our justice system has changed. Our government understands that much should be done to improve federal family laws and the family justice system to better meet the needs of all Canadians.

Bill C-78 advances four critically important goals: promoting the best interests of the child, addressing family violence, reducing child poverty, and improving the efficiencies and accessibility of the family justice system. I will address all of these in turn.

I will begin with the best interests of the child. The best interests of the child test is the cornerstone of family law. It is the only basis upon which decisions about who may care for a child can be made under the Divorce Act. This test has been called a child's “positive right to the best possible arrangements in the circumstances”. It allows courts to consider how to best foster the child's overall development and protect the child from conflict and the disruptive effects of divorce at such a vulnerable point in the child's life.

Despite the importance of the best interests of the child test, the Divorce Act currently provides minimal guidance on how courts should apply this test. Bill C-78 would change this. It proposes an extensive, though not exhaustive, list of criteria for courts to consider when making decisions in the best interests of the child.

The criteria we have proposed include elements such as the child's needs, given the age and stage of the child's development, the child's relationships with important people in his or her life, especially parents but also others such as grandparents, and the child's culture and heritage, including indigenous heritage.

One criterion in particular, the requirement that courts consider the views and preferences of the child, giving due weight to the child's age and maturity, demonstrates Canada's ongoing commitment to its obligation under the United Nations Convention on the Rights of the Child. This criterion encourages parents and courts to consider the voice of the child in determining parenting arrangements reflecting the importance of children expressing their views in matters that affect them.

The most significant change that Bill C-78 would bring to the best interests of the child test and the lens through which all other factors would be examined is the provision that would be called the “primary consideration”. This would be a requirement that courts consider the child's physical, emotional and psychological safety, security and well-being. It would help ensure that the most critical elements of the child's well-being are always the centre of focus and of any best interests analysis.

Also, to further the best interests of the child, we are proposing to remove the terms “custody” and “access” from the Divorce Act. For years, these terms have been criticized for fuelling conflict between parents. Custodial parents have been long seen as the winners of custody disputes and access parents have long been seen as the losers. The terms are relics from property law, reflecting a time when children were legally considered to be their parents' property.

To help parents collaborate and focus on their child's best interests, we are introducing terms based on parents' responsibilities for their children. Instead of custody orders, courts would make parenting orders. Parenting orders would address parenting time and decision-making responsibility. Two provinces, Alberta and British Columbia, and many of our international partners, such as Australia, New Zealand and the United Kingdom, have replaced property-based language with this sort of language focused on the child-parent relationship. In Canada, even where custody and access are still on the statute books, many judges, lawyers and other family justice professionals have already begun to abandon property-based language in their orders and agreements about children, favouring language focused on the parent-child relationships.

Another major change Bill C-78 proposes with the best interests of the child in mind is the creation of a relocation framework in the Divorce Act. Relocation or moving with children after separation and divorce is one of the most litigated areas in family law. The stakes are often very high, particularly when a proposed move would involve a significant geographic distance. The bill creates notice requirements for parents proposing to move, best interests criteria for courts to consider in relocation cases and rules for courts to apply depending on the parenting arrangement in place for the child. This would help courts and parents make informed, child-focused decisions.

Canada has recently taken steps to advance the interests of Canadian children in international family law disputes. On May 23, 2017, Canada signed two international family law conventions. One of these conventions, the 1996 convention on the protection of children, would make it easier for Canadian parenting orders to be recognized and enforced in other countries that are also party to the convention. This would provide better assurance to families that travel or relocate to another convention country that their Canadian court order would be respected. Bill C-78 also includes amendments that are necessary for Canada to become a party to the convention. The other convention is the 2007 child support convention, which would help with poverty reduction, as I will discuss a little further on.

The next aspect of Bill C-78 that I would like to address is family violence, an issue of great importance to our government and to all Canadians. Most provincial and territorial family laws address family violence in separating couples, but federal family laws are conspicuously silent. It is long past time to address this silence.

Although separation may be a means of escaping an abusive relationship, evidence shows that spouses are at an increased risk of violence at the time of separation. We are also learning about the lasting effects of trauma such as family violence on children's developing brains. The impact can be debilitating and lifelong. More can and must be done to prevent this from happening. Bill C-78 includes three amendments to address family violence in the Divorce Act and one in the Family Orders and Agreements Enforcement Assistance Act.

First, we have proposed an evidence-based definition of family violence in the Divorce Act that highlights common indicators of abusive behaviour. Coercive and controlling behaviour which is known to be particularly dangerous is highlighted.

Second, we have proposed a distinct set of best interests of the child criteria to help courts make appropriate parenting orders when there has been family violence. These include considerations such as the nature, seriousness and frequency of violence.

Third, we have a provision that would require courts to consider whether there are any child protection or criminal orders or any other proceedings that could influence an order under the Divorce Act. This provision would help prevent conflicts between courts, such as a family law order that gives a parent time with a child in a manner that conflicts with with a criminal restraining order.

Finally, we have proposed an amendment to the Family Orders and Agreements Enforcement Assistance Act that would restrict the sharing of personal information in situations of family violence where a family member's safety may be at risk.

Together, these measures would help courts better address family violence at a time when family members are particularly vulnerable, and help prevent family violence as families adjust to their new post-separation arrangements.

Next, I will explain how Bill C-78 would address poverty reduction, and child poverty specifically. Many families who go through separation and divorce experience a dramatic increase in expenses. The transition from a single family home with separate expenses to two homes with duplicate expenses can be a great burden. Shifting child care responsibilities can affect a parent's ability to find and maintain employment. These changes make many families vulnerable to poverty. Therefore, it is critically important that families receive the child and spousal support owed to them and that these amounts be fairly and properly calculated, reflecting accurate financial information.

Bill C-78 includes several measures that would help reduce poverty and help families recover from the financial crisis many experience as part of separation. First, we have proposed changes to the Divorce Act that would make it easier for families to determine and change child support without going to court, saving them money and, potentially, complication and stress. We have also proposed measures that would introduce a new application-based procedure to establish or vary a support order when parties reside in different jurisdictions.

Earlier, I mentioned the 1996 child protection convention. Canada also signed the 2007 child support convention. The 2007 convention will help families by providing a low-cost and efficient way to obtain or change support orders across international borders. As with the 1996 convention, amendments to federal laws are proposed as an essential step for Canada to becoming a party to the 2007 convention.

We are also proposing a number of changes to federal laws that would facilitate the enforcement of child and spousal support. For example, the Family Orders and Agreements Enforcement Assistance Act would be amended to allow for the search and release of a party's income information to courts and provincial services, including provincial enforcement services, for the purposes of establishing, varying or enforcing support. This amendment is intended to allow child support orders to be made more quickly, accurately and with less trouble and expense. Costs would be reduced for families and courts.

There are billions of dollars of unpaid child support payments in Canada. With this bill, we would be giving provinces, territories and individuals more tools to ensure that those obligations are being paid. In addition, the vast majority, some 96%, of cases registered in maintenance enforcement programs involve male payers paying female recipients. The problem of unpaid support contributes to the feminization of poverty, which the measures in this bill would help address.

Finally, another proposal in this bill is to prioritize child and spousal support debts above all other debts except Crown debts under the federal Garnishment, Attachment and Pension Diversion Act. Again, this would help make sure that families receive the money they are owed.

I will now move on to the bill's final theme, which is to improve the efficiency of, and families' access to, the Canadian family justice system. We know that changes to the family justice system are long overdue. Retired Supreme Court Justice Thomas Cromwell has noted the many calls for fundamental change to, or a paradigm shift in, the family justice system. Parents struggle to pay for lawyers and often have no choice but to represent themselves in family law disputes, which may be highly contentious and emotionally charged. It is not easy to be one's own advocate in these circumstances, yet research tells us that between 50% and 80% of Canadians in family law disputes represent themselves in court.

Self-represented family law litigants risk making choices without understanding their rights and obligations, and can find the process incredibly stressful. They also add to the strain of overburdened courts. Judges and court staff take significantly more time with self-represented litigants to help them navigate their complex legal challenges. The bill includes several measures to facilitate family law processes for families and to divert people away from the courts, saving time and resources for cases that require a judge's consideration.

One of these measures is to encourage family dispute resolution processes, which can include mediation, negotiation, collaborative law and other forms of out-of-court dispute resolution. These processes are generally less expensive, can help families come to agreements faster, and often allow parents to play a more active role in crafting appropriate arrangements for their families.

After the bill's proposed changes, lawyers would have a duty to tell parents about family justice services that could be of assistance to them and to encourage them to try a family dispute resolution where appropriate. Courts would have the option of referring parents to a family dispute resolution where available.

Other measures to increase access to family justice include expanding the range of measures that the administrative services that determine child support may address. Provinces and territories have administrative child support services that recalculate support orders based on a parent's current income. The bill would expand the role of these out-of-court services, including allowing for the recalculation of interim support orders. Families could use these services rather than having to retain lawyers to go to court to change their child support orders, again saving them money and reducing court time.

I would like to conclude by again stressing how important it is for our government to improve federal family laws. As I said, our family laws are outdated. They no longer reflect the reality of middle-class Canadian families. Many of the processes set out in federal family laws are slow, cumbersome and heavily dependent on the courts. Bill C-78 will help Canadians find faster, more cost-effective and lasting solutions to family law disputes, with the best interest of the child at the heart of all of it.

I am confident that the changes we have proposed would bring positive change to the Canadian family justice system and to Canadian families and children. I look forward to working with all of my parliamentary colleagues to help promote the best possible outcomes for families experiencing separation and divorce. I urge all hon. members to join me in supporting this incredibly important piece of legislation.

Divorce ActGovernment Orders

September 26th, 2018 / 4:40 p.m.
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NDP

Brigitte Sansoucy NDP Saint-Hyacinthe—Bagot, QC

Mr. Speaker, I would like to thank the Minister of Justice and Attorney General of Canada for introducing this important piece of legislation.

As she pointed out, the Divorce Act has not been amended in over 20 years, so there was certainly room for improvement. It is only right to support amendments based on principles like the best interests of the child, the fight against family violence and poverty reduction.

I want to pick up on something the minister said at the end of her speech and ask her a question. In her conclusion, she said she hoped that we would support her in promoting this bill. We consulted a number of experts and organizations in our preparations to study Bill C-78. While they heartily welcome the bill, they did see other possible improvements, even though the bill is already 190 pages long.

I would like to know whether the government members who sit on that committee will be open to hearing and supporting the amendments brought forward by members of various parties based on evidence given by the experts who will be appearing before us to discuss possible improvements, in addition to the amendments moved by the minister.

Divorce ActGovernment Orders

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