Bill C-78 (Historical)

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

This enactment amends the Divorce Act to, among other things,
(a) replace terminology related to custody and access with terminology related to parenting;
(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;
(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
(d) introduce measures to assist the courts in addressing family violence;
(e) establish a framework for the relocation of a child; and
(f) simplify certain processes, including those related to family support obligations.
The enactment also amends the Family Orders and Agreements Enforcement Assistance Act to, among other things,
(a) allow the release of information to help obtain and vary a support provision;
(b) expand the release of information to other provincial family justice government entities;
(c) permit the garnishment of federal moneys to recover certain expenses related to family law; and
(d) extend the binding period of a garnishee summons.
The enactment also amends those two Acts to implement
(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996; and
(b) the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
The enactment also amends the Garnishment, Attachment and Pension Diversion Act to, among other things,
(a) give priority to family support obligations; and
(b) simplify the processes under the Act.
Finally, this enactment also includes transitional provisions and makes consequential amendments to the Criminal Code.

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

I'm happy to respond to that question.

As the member noted, the best interests of the child is the basic premise of Bill C-78. I'm really pleased to hear, right around this table, that everyone embraces the best interests of the child. I hope that the study from this honourable committee will proceed expeditiously to ensure that we update our divorce laws.

In terms of the member's comments around Bill C-75 and the hybridization of offences, I will go back to my previous answer to our honourable colleague. The answer is the same. Bill C-75 is a very bold piece of significant legislation that seeks to address delays in the criminal justice system. This is a piece of legislation developed very closely with my counterparts in the provinces and territories. The comprehensive nature of the legislation will reduce the delays in the criminal justice system.

One of the pillars of the reform in that bill is around the hybridization of offences. I'll say again that hybridizing offences in no way changes the fundamental principles of sentencing. Serious crimes will continue to be prosecuted in a serious manner. Through the hybridization of offences, prosecutors will be given the tools, or the ability to use their discretion, to proceed in the manner that they deem appropriate given the circumstances of a particular case. In no way are we reducing or diminishing the serious nature of offences. Once a conviction is put in place, a court will determine the sentences based on the proportion of the gravity of the offence and degree of responsibility of the offender. It does not change the sentencing principles.

[The Chair, Liberal, Anthony Housefather]

I'm going to note that question for the record. I'm not taking from your time. I'm stopping the clock for a second. I waited to the end to see if it related to Bill C-78. It seems to relate to how a principle in Bill C-78 squares with Bill C-75, which is not what the minister is here to testify about today.

I'm going to ask the minister if she wishes to respond to that question or if she prefers not to. It's up to her.

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

Thank you, Mr. Chair.

Thank you to the minister for being here.

First, it's encouraging that the best interests of the child is a centrepiece of Bill C-78. The best interests of the child is well established in Canadian family law. Under Bill C-78 proposed section 16 provides that only the best interests of the child shall be considered in respect of orders applicable to children in family situations.

While that's encouraging, I want to follow up with the line of questioning from Mr. Clement. It relates to how we square Bill C-78 on the one hand, which puts the interests of the child first, with Bill C-75 that hybridizes a number of serious indictable offences, including offences that relate to crimes against children.

Mr. Clement referenced kidnapping a minor under the age of 16 as well as the offence of kidnapping a minor under the age of 14. I want to raise the issue of the hybridization of individuals who breach long-term supervision orders. These are individuals who have received sentences of more than two years. They're deemed to have a substantial risk of reoffending. The offences for which they were convicted involved a range of sexual offences, often against children. They're considered to be a serious risk of reoffending, so serious that they can be subject to up to 10 years, subject to an order that imposes a whole series of very strict conditions. We're really talking, Minister, about the worst of the worst when it comes to offenders who are at risk of offending again, often against children.

How does that square with putting the interests of the children first by hybridizing the offences related to those breaches, which are often the first sign that these bad actors are going back into their history of violence and escalation toward that? It's a serious public safety concern.

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

I believe, in terms of family violence, and violence generally, the more we are aware and the more we provide individuals and the court system with the necessary tools to be able to identify when it has occurred and understand the definition of family violence, and that it goes beyond physical violence. It can include financial violence and coercive behaviour. Understanding various situations and having examples or lists of factors around what violence can mean.... That list, as I've said, is evolving.

This definitely helps. These lists of various types of conduct have been discussed over the years and have led to changes in legislation in provinces. We want to ensure, with the changes to the Divorce Act, that we elevate and raise the issue of family violence as a really substantial challenge that comes into play at marriage breakdowns, separation and divorce, and that needs to be considered to ensure that, where it occurs, the best interests of the child are provided for. That's what we've sought to do in this legislation.

Are there other ways that we can address family violence? Absolutely, and, beyond Bill C-78, we have sought to provide a list and to ensure that we elevate this conversation, because we know that this is an incredibly destructive factor that happens, and children find themselves in the middle of those conversations. We want to make it as easy for the children as possible and provide the best parenting order for them.

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

What we've sought to do broadly in Bill C-78 is to provide as much information as possible to enable courts and other legal agents to be able to make determinations. We have taken the lead of other jurisdictions that have proceeded ahead of us in this regard. You mentioned British Columbia. Another jurisdiction, I would say, is Alberta.

We have, in terms of the definition around family violence, also put in place a list of the types of conduct that may constitute family violence. It's not an exhaustive list, but it provides a bit more detail or various situations that the court could consider in making the determination of a situation of family violence and being able to determine what is in the best interests of a child in those particular situations.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Minister.

You touched briefly on the changed definition of family violence, which I believe is from British Columbia's definition. There's a 2013 report that says that the courts still too often underestimate the consequences of family violence or being exposed to abuse.

How will the family violence provisions set out in Bill C-78 change the courts' approach to that, if at all?

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

Thank you for your question. I guess the premise of your question is that, in your riding and in ridings across the country, Canadian families are incredibly different. Individuals find themselves in difficult situations. As I said in my opening remarks, individuals' first and possibly only interaction with the courts is through the breakdown of a marriage: separation and divorce.

What we're seeking to do, based on advocacy over many decades, is to ensure that where there's a child of a marriage, we put the best interests of that child first in terms of parental orders. We also, for the first time ever, in Bill C-78 seek to amend the Divorce Act to account for particular circumstances where there is family violence and to put a definition of family violence into the Divorce Act, as well as factors that will determine and assist in determining the severity of the family violence to which we know many women are subject. That needs to be taken into account, especially in terms of the relationship with the children.

To the affordability question, in terms of efficiencies and in terms of access to justice, we're trying to encourage alternative dispute resolution processes, as we talked about earlier, that take us out of the courts and are, for the most part, lower cost for individuals who seek to find parenting arrangements in a less combative environment but also a less costly one.

We do know—as I said in my remarks—that there is a feminization of poverty. Some 96% of the unpaid family support orders are for women. They don't receive those orders. We need to make sure we can do everything to provide the necessary tools to gain access to the financial information of a parent who owes those support orders and to make the correct determinations for what those orders should be, as well as additional tools like being able to garnish a parent's wages, to be able to comply and reduce as much as we can the billions of dollars of outstanding child support payments.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you, Minister, for coming in today and talking about this very important legislation.

Minister, this is a topic that comes up very often among my constituents, especially those who are women who are finding it difficult to really even start divorce proceedings or to get themselves out of a bad marriage or a bad home, just because of the financial implications.

Can you help us understand how Bill C-78 would really help those who are in the middle class—and those who are working hard to join it—be able to go through this process, liberate themselves and their families, and get themselves out of those bad situations?

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

We are seeking to provide additional tools in this legislation.

There are, as I said, billions of dollars of outstanding child support that has not been paid. We're providing, by way of this bill—if it becomes law—the ability to gain access to income tax returns to have a better idea of the amount of money an individual has and to be able to collect and garnish income, potentially.

As you say, that doesn't answer all family situations where individuals live in poverty. That's why our government has sought to take other measures to address the poverty that children live in through the Canada child benefit and through various other means. This is poverty with respect to children. Having the ability to be raised in a comfortable manner is a broader issue that can be addressed in this piece of legislation.

What we're seeking to do in the changes that we're proposing in Bill C-78 is to provide the tools to enable, as much as we can, billions of dollars of unpaid child support to be paid.

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

You talked about the need to reduce child poverty, which is an objective of Bill C-78, specifically through measures to facilitate the enforcement of support orders. Such measures are clearly very helpful in reducing the impact of divorce on the parent who has custody of the children. Some people argue, however, that their effectiveness is limited, especially for families with low socio-economic status.

I have three sub-questions.

What percentage of parents in Canada do not meet their support obligations? Do we have that data?

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

First of all, the whole premise of Bill C-78 is to ensure the best interests of the child are paramount and central to any considerations.

I know that this representation of the child and the child's interests was something that was raised by a colleague of yours. This falls within provincial and territorial responsibility around representation, but again, I suspect this is an issue that will come up when I have conversations with my counterparts in the provinces and territories.

Rest assured, in terms of the best interests of the child, this is central to the legislation. It's the central premise we uphold.

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

I think it touches on the previous answer that I gave around what our department is going to do and the commitment that we have to make sure that we are using the resources, updating our website in terms of the tools that are available around family law, and helping to explain the provisions that are contained in Bill C-78, so that, hopefully, when it becomes law, we can provide those tools to practitioners to explain various factors that are in the best interests of the child.

As you will note from the legislation, there are many factors there to assist practitioners, lawyers and CYS courts in interpreting the law.

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

Sure. That's a great question and one that we've had many times.

The central premise of Bill C-78 is to put the child first, and we purposely did not put any presumptions, in terms of equal parenting, in this legislation because of that very fact.

Children are different. Family situations are different. We wanted to ensure that the primary consideration was around the best interests of the child, and not the consideration of what's in the best interests of a particular parent. We provided many different factors around what could be determined and weighed, in terms of the best interests of the child. To have a presumption would put individuals in a place where they rebut that presumption in favour of one parent or the other. We want to ensure in every way possible that the focus is on the best interests of the child.

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

Thank you for the question.

In terms of the last convention you mentioned, the rights of the child, we're pleased, in terms of being able to assess the best interests of the child. One of the factors for a court to consider or individuals to consider in terms of the best interests of the child is the child's interests and the child's views, in appropriate circumstances. That brings us into compliance with what has been asked for in that particular convention.

In terms of the other two conventions, Bill C-78 provides us with the steps to be able to accede to those other two conventions, as you say the 1996 Hague convention on the protection of children, and the 2007 convention on child support. As you probably know, these are significant conventions, and we will be able to move forward with signing on to these conventions.

Briefly, the 1996 convention sets out rules to clarify issues, such as what country's courts can make decisions about parenting arrangements for a child, and what law should apply when a child lives in one country but also has close connections to one or another country. The 2007 convention is an international agreement that provides a low-cost and efficient way for people to get family support across international borders.

This enables us to move forward with respect to these two conventions.

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

I appreciate the question. I completely disagree with the characterization of rhetoric.

Bill C-78 is a very substantial, significant piece of legislation. It seeks to update the Divorce Act, which hasn't been updated in two decades, as well as to ensure that we are putting in place factors that will enable and assist a judge to determine the best interests of the child, and factors around domestic violence and relocation, all of which are to protect and put a child first.

In terms of Bill C-75, which is our criminal justice reform bill, I am very familiar with the 136 offences that we're seeking to hybridize in that piece of legislation. I will say, as I've said many times before this committee, but particularly in the House, nothing in terms of the hybridization of offences changes the fundamental principles of sentencing. Serious offences will still be prosecuted in a serious manner, due to and having regard to the proportion of the gravity of the offence and the degree of responsibility of the offender.

We are not reducing sentences. We're providing prosecutors with the necessary tools and discretion that they need to proceed in the manner that is most appropriate in the individual circumstances of a particular case.