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]

Thank you for the question. It's a pleasure to have you at this committee.

As to the further bogging down of the family justice system, I will answer that by reference to a number of tools we're working on to provide information and resources not only to self-represented litigants but also to individuals, legal agents and lawyers involved in the family justice system.

Of course, our department is going to work very diligently to provide information and materials to the public on the various aspects of Bill C-78. We are in the process of working on that and will do so in conjunction with our colleagues in the provinces and territories, who are also responsible for the shared administration of justice in the family courts.

Beyond that, I'm pleased that in the previous budget we were able to receive endorsements for 39 new judges, who will comprise an expansion of the unified family courts in four jurisdictions, which will help to streamline the process. By introducing changes to the Divorce Act and the other acts, we are updating and modernizing the acts. We have been doing so in concert with my colleagues in the provinces and territories. I look forward in the next week to sitting down with my colleagues to discuss Bill C-78 and the tools we are going to be making available.

[Tony Clement, Parry Sound—Muskoka, CPC]

Thank you, Chair, and thank you, Minister, for being available for this important bill.

I want to convey to committee members that I have two notices of motion, and I will read them now. We won't debate them now, as I understand it. I don't want to cut into the minister's time, but I did want members to be aware of these notices of motion.

The first one says:

That the Committee invite the Minister of Justice and Attorney General of Canada to appear to answer questions with respect to any rules, precedents, or procedures related to the invocation of cabinet confidence to prevent the disclosure of information as requested by counsel in a trial process.

This, obviously, relates to the Norman issue.

My second notice of motion is:

That, pursuant to the Order of Reference of Wednesday, October 24, 2018, the Committee consider the Supplementary Estimates (A) before the reporting deadline set out in Standing Order 81(5); and that the Committee invite the Minister of Justice and Attorney General of Canada to appear in view of this study.

I want to get that on the record and proceed with a few questions and answers, if you don't mind, Minister.

First of all, I note that there's quite an increase in the judicial system when it comes to self-represented litigants. That's true of many courts, not just the family court, of course. Bill C-78 is now four times longer than the previous act, so non-lawyers are going to have difficulty, I would say, digesting all of that and making sense of it.

I wanted to get your thoughts, Minister, on how this will impact case management and not lead to a further bogging down of the family court system, which, I think you will agree, is somewhat overburdened right now.

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

Of course, thank you to all of the members of this committee for the opportunity to present on an incredibly important bill, 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 am incredibly proud of the work our government has done to improve the lives of Canadians experiencing separation and divorce, particularly children. Bill C-78 is the cornerstone of this work.

Federal family laws have not been substantially updated in over 20 years. Over the past two decades, families have changed considerably, and so has our justice system. Our government understands that there is much to be done in order to improve federal family laws and family justice systems so that they better meet the needs of Canadians.

Separation and divorce can be incredibly difficult for families, especially children. For most Canadians, their only interaction with the justice system will be through the experience of family breakdown. Two million children in this country are impacted by separation and divorce. With this bill, we are taking concrete steps to help parents come to a timely and lasting resolution of their disputes, with the primary focus of what is best for their children.

Bill C-78 advances four important goals: promoting the best interests of the child, addressing family violence, reducing child poverty, and improving efficiencies and accessibility to the family justice system.

I will briefly address each of these in turn.

Promoting the best interests of the child is a common theme, tying together all policy initiatives reflected in this bill. The primacy of the best interests of the child is a fundamental principle of Canadian family law. Bill C-78 will further entrench and bolster this principle.

The bill includes a non-exhaustive list of criteria for a court to consider in determining the best interests of the child, including elements such as the child's needs, given the age and stage of development; the child's relationship with people in his or her life, especially parents, but also others such as grandparents; and the child's culture and heritage, including indigenous heritage.

The bill also proposes a primary consideration. Any plans for the child's care, any allocation of time or responsibilities, and any imposition of terms or conditions in a parenting order would have to be made on the basis that the child's physical, emotional and psychological safety, security and well-being must be considered above any other matter.

The bill also removes the archaic language of custody and access that the Divorce Act currently applies to parents' relationships with their children. The Ontario Court of Appeal and several associations of family justice professionals have highlighted that these labels focus more on parents winning and losing rather than on what is best for the child.

Instead, Bill C-78 embraces the principle that children are individuals who have their own needs and rights, and therefore, it proposes clear definitions of “parenting time” and “decision-making responsibility”. Children's rights organizations have been particularly supportive of this proposed change.

The bill does not contain any parenting presumptions, such as equal shared parenting. Rather, it focuses on what is best for each child. A presumption would force courts to impose one particular parenting arrangement on every family unless a party could convince the court otherwise. This would mean that judges would have to be actively involved in more cases to hear evidence to displace the presumption, which could increase conflict between parties and place additional and unnecessary pressure on already overloaded family courts.

Moreover, in cases that involve family violence, abused spouses may not have the financial or emotional resources to prove to a judge that the presumption would not be in the child's best interests. Fundamentally, a presumption would detract from the focus on the best interests of each individual child, which the bill aims to promote.

We know that each child and each family is different, and children deserve to have their own unique needs and situations considered. That is why we have taken this approach.

Bill C-78 will still preserve the maximum-contact principle that a child should spend as much time with each parent as is consistent with the best interests of that child. This would not be a parenting presumption, however, and it would be subject to the primary consideration of the child's physical, emotional and psychological safety, security and well-being.

For the first time ever, we are defining family violence in the Divorce Act. In Bill C-78, we have introduced an evidence-based definition of family violence that provides a non-exhaustive list of different forms of family violence and is designed to evolve over time to capture additional behaviours and patterns as our understanding of family violence expands.

This definition explicitly mentions “coercive and controlling” violence, which social scientists believe to be the most dangerous form of family violence. Again, this definition is designed to evolve over time to capture additional behaviours and patterns as our understanding of family violence expands.

The bill also proposes best interests of the child criteria to help courts draft a parenting order where there has been family violence. These criteria will also be subject to the primary consideration that the child's safety, security and well-being would be considered above all else.

The bill introduces other measures to keep family members—especially children—safe. The non-removal provisions will help prevent child abduction in appropriate cases. Another provision will remind courts of the option to order supervised parenting time to promote safety and reduce children's exposure to conflict.

Our government has committed to lifting Canadians out of poverty. In addition to initiatives like the Canada child benefit, we are supporting middle-class families by helping to ensure families facing separation and divorce have the support payments to which they are entitled. We know that families are especially financially vulnerable in these circumstances.

Single-parent families have a significantly lower median net worth than do couples with children and tend to have lower levels of employment. We also know that single-parent families are disproportionately led by women, so these financial pressures contribute to the feminization of poverty. Receiving a fair and accurate amount of child and spousal support can help prevent these families from experiencing poverty. Addressing family poverty helps to target child poverty, which we know can have long-lasting impacts. Bill C-78 therefore proposes several important changes to make it easier for families to receive the support to which they are entitled.

A significant impediment to families receiving the child support they need is parties' failure to disclose incomes, despite their obligation to do so. The bill will amend the Family Orders and Agreements Enforcement Assistance Act to allow the federal government to provide information from a party's tax returns to a court as well as other provincial services such as maintenance enforcement services and provincial child support services.

There are currently billions of dollars in unpaid child support payments in Canada, the vast majority of which are owed to women. With this bill, we are giving provinces, territories and individuals more tools to ensure that those obligations are being paid. The bill includes rigorous privacy protections to support this change. If this information were released to a court, it would have to be sealed and kept inaccessible to the public.

The bill's fourth priority is increasing access to justice and improving efficiency. Bill C-78 will provide parents with more options to resolve family law disputes. While the courts may be the best route for some families, others may benefit from out-of-court dispute resolution processes as a lower-conflict, more expeditious and lower-cost option. These processes enable parents to play an active role in crafting their own agreements, which increases compliance and makes for better agreements that are uniquely adapted to each family's situation.

However, Bill C-78 does not make family dispute resolution mandatory. Situations of family violence or power imbalance can make some mediation or dispute resolution processes inappropriate. What Bill C-78 does is require that lawyers must now inform their clients of all their options, both in and out of court, so that families are sufficiently informed of all available options.

In conclusion, Bill C-78 includes a number of other important changes that I'm happy to discuss further, but for now I would like to thank all the members of the committee for the meaningful work that you will undertake in studying this bill and for the ongoing dedication to making Canada's laws as strong as they can be.

Through Bill C-78, we have an important opportunity to make a real difference in the lives of Canadian children and families. Separation and divorce are among life's most challenging events, and I am proud that Bill C-78 proposes significant ways to make these processes a bit easier for all involved.

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone, and welcome to this meeting of the Standing Committee on Justice and Human Rights.

Ms. Sansoucy is replacing Mr. Rankin. I am very pleased that she is joining us for the consideration of Bill C-78.

It is a great pleasure to commence our study of this very important bill with the Honourable Jody Wilson-Raybould, our Minister of Justice and Attorney General of Canada, who is testifying.

She is joined by two distinguished representatives of the Department of Justice, Madame Nathalie Drouin, deputy minister of justice and deputy attorney general of Canada, and—this time we have only one Laurie—Laurie Wright, senior assistant deputy minister.

Madam Minister, the floor is yours.

Budget Implementation Act, 2018, No. 2

[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 Richmond Hill.

I am proud to rise today as the member of Parliament for Parkdale—High Park to speak on behalf of my constituents in support of Bill C-86, legislation that would entrench, among other things, pay equity throughout federally regulated workplaces in this country.

My constituents in Parkdale—High Park are dedicated advocates of women's rights. They include many who work hard in the federal civil service, in Crown corporations, in the transport sector, in banking, in telecommunications companies and in the Canadian Armed Forces. These are women whose request is very simple: equal pay for work of equal value. This is not a complicated ask. This is not a controversial ask. It is an ask simply for fairness. It is an ask to be treated equally.

This is what Bill C-86 would deliver: equal pay for work of equal value. It would deliver, at long last, a system that compensates women in federally regulated industries at the same level as men. My constituents in Parkdale—High Park deserve no less. The women in this country who have been fighting for equality for so long deserve no less.

Importantly, this is not a zero-sum game. When women receive the salaries they have deserved for so long, that does not come at the expense of men. To the contrary, men and women both gain when salaries are paid equally. Canada benefits when fairness applies throughout our federally regulated industries. Indeed, pay equity will spur economic growth in which all of us will share.

Let us start with where we are now. In Canada, women earn 31% less than men. Extensive research has shown that women with the same experience and the same socio-economic and demographic background earn approximately $7,200 less than their male counterparts on an annual basis. Years of inaction in the field of gender equality have only compounded the problem. Policies implemented a decade ago are now outdated and limit our potential to effectively include women in our nation's growth. Our government is committed to changing this, and that is why we are moving forward with proactive pay equity legislation through Bill C-86.

It is pretty straightforward to get a basic grasp of how flawed the current system of pay equity in Canada actually is. For example, the model we currently use is based on responding to complaints. This has proven to be ineffective for current times, because it puts the onus on workers to challenge pay discrimination. Bill C-86 would remove the complaint-based reactive system and replace it with a new regime that was proactive and that placed responsibility on employers to ensure that their compensation practices were balanced.

Second, as an additional obligation, the proposed legislation would require federally regulated public and private sector employers to establish and maintain a pay equity plan. This is because we understand the necessity of redressing the systemic gender-based discrimination experienced by employees who occupy positions in predominantly female job classes.

Bill C-86 lays out two sets of requirements, one for employers with between 10 and 99 employees and one for workplaces with 100 or more employees. According to this bill, federally regulated public and private entities would be obliged to set out specific timelines for implementation and do a compulsory review of their pay equity strategies. The bill would also permit the government to apply accountability measures to ensure that the compensation practices were consistent with the new requirements.

Further, the proposed legislation would require federally regulated employers across the banking, transport and telecommunication sectors, for example, to review their pay equity plans every five years to ensure that pay gaps had not surfaced since the plan first came into effect. If a pay gap was created, the employer would be expected to retroactively pay those female employees who were making less than they deserved.

I want to turn now to a third important component of Bill C-86. The bill would create the position of pay equity commissioner, who would have a professional team to assist in enforcing the new approaches to pay equity entrenched in the proposed legislation. This pay equity commissioner would facilitate the resolution of disputes, conduct compliance audits and investigate objections and complaints. The pay equity commissioner would have the means to impose fines should an employer be found to not be paying employees equally, and he or she would then report annually to Parliament on the administration and enforcement of this proposed legislation.

Fourth, Bill C-86 would establish pay equity standards, from the Prime Minister's office to all parliamentary workplaces throughout Canada. This is part of our whole-of-government approach to addressing gender inequality. Through this bill, for example, we would formalize our commitment to promoting gender equality and increasing the participation of women in the labour force by establishing concrete reporting requirements for analyzing budgets through a gender lens.

As the parliamentary secretary to the Minister of Justice, I am also proud of the whole-of-government work we have done under the Minister of Justice and the Department of Justice to ensure that a gender lens is applied to efforts to increase access to justice and legal reform.

Bill C-78 is a case in point. That bill, as part of our whole-of-government approach towards gender, takes specific aim at the plight of middle-class women struggling to access spousal and child support they are owed after a marital breakdown. Via Bill C-78, we would be taking steps to facilitate access to information about a former spouse's assets via the Canada Revenue Agency and their records. That would prevent spouses from hiding assets and ensure that more women were paid the spousal and child support they rightly deserve. I say “women” in this context, because we know that in this country, over $1 billion is owed in enforcement arrears to those owed spousal and child support. We also know that among the entire group in an enforcement arrears situation, 96% of the people owed money are women who are owed money by men.

I outline this example of Bill C-78 as a further example of the whole-of-government approach we have taken on this side of the chamber in terms of our approach to addressing gender inequity.

Bill C-86 is clearly an example of such legislation. It would make Status of Women a full department, called the department of women and gender equality, or WAGE.

It is well established that gender equality creates economic growth, thus entrenching the department of women and gender equality would strengthen our capacity to advance gender equality and grow the middle class through policy, programming and the support of equality-seeking organizations and community partners. The mandate of this new formalized department would further promote gender equality by breaking down barriers in respect of sex, sexual orientation, gender identity and gender expression.

Status of Women has been working on the issue of pay inequity for decades, but Bill C-86 would secure the department's place as a centre of gender expertise. It would recognize its work as a driver of economic growth and make it less vulnerable to alterations without widespread public debate and discourse. In addition, we are determined to formalize this new department to ensure that no future government ever again questions the importance of equal pay for work of equal value in Canadian society.

As I mentioned at the very outset, pay equity is not a zero-sum game. Giving to one gender is not about taking from another. To the contrary, pay inequity that has persisted for so long is actually limiting our growth. It is damaging to the development of our nation. I know this, my constituents in Parkdale—High Park know this, and our government knows this.

The “Global Gender Gap Report 2017”, from the World Economic Forum, substantiated that it will take approximately 217 years to close the economic gender gap worldwide if present trends are allowed to continue. They will not be allowed to continue, not under our government's watch.

It is essential for us to implement policies that will remove barriers that prevent women in the labour force from being fairly compensated for their work. It is critical that the Government of Canada uphold the basic principles of equality and fairness and continue to build a country and an economy that works for all genders.

From appointing the first gender-balanced federal cabinet and the first federal minister fully dedicated to gender issues, to tabling Canada's first-ever budget analyzed through a gender-based lens, to launching Canada's first-ever strategy to prevent and address gender-based violence, to an unparalleled focus on women and girls in our international development assistance, our government has demonstrated that it is committed to advancing gender equality within Canada and around the world.

Pay equity for women is long overdue. I am proud to support this bill, and I encourage every one of my colleagues in this chamber to do the very same.

[The Chair, Liberal, Anthony Housefather]

I want to thank everyone, including the department, for their incredible patience.

I want to let everyone know that Wednesday, even in my absence, the meeting will be on the trafficking report, to go through it line by line. The draft was circulated a couple of weeks ago. It will be an in camera meeting to start work on that report.

On Monday the minister will be here on Bill C-78. We'll go through the witnesses on Bill C-78 after that. I imagine the analysts will then have time to distribute the list of witnesses that everybody has proposed.

Thank you, everyone. The meeting is adjourned.

[The Chair, Liberal, Anthony Housefather]

We can blame government for many things. This is the committee, and the committee has set a schedule. We ourselves agreed to move to C-78 the week after next. I never block people from speaking. We can discuss clauses ad nauseam, but I would hope that everyone can agree, as we always have in the past, that we sit longer to get through clause-by-clause.

Now, again, it's 7:30, and we're good to stop at 7:30. I would hope that perhaps we could agree that on Monday we go again from 3:30 to 7:30 and do four hours, because we only made it through 85 clauses in the time we had.

No matter how long we keep going, we will eventually have to finish.

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

I am very amenable to sitting extra times to get this through because I believe there's a lot more that we have to get done. My human trafficking report, I really think that we want to focus on that. It's a priority for me. I'm hoping that it's also a priority for you.

We have a lot of other bills coming forward that I'm very excited to work on. Bill C-78 is another great bill that I'm very excited to work on. I feel that if members are not able to sit the extended hours, perhaps they can find substitutes.

Access to Justice

[Arif Virani, Liberal, Parkdale—High Park, ON]

Mr. Speaker, this week is Access to Justice Week. Launched by The Action Group on Access to Justice, the goal is to ensure that our justice system addresses the needs of all Canadians, including the most vulnerable, who either exist on the periphery of our system or are victimized by it. We share this goal.

Our government is committed to improving access to justice. In Bill C-78, we are streamlining family justice to make things less complex and less costly for single parents seeking the financial support they are owed, the vast majority of whom are single women. In Bill C-75, we are improving criminal justice to end peremptory challenges and ensure that our juries actually represent our communities, which will directly impact indigenous persons and black Canadians, two groups overrepresented in the criminal justice system. We have overhauled our judicial appointments system, because we know that accessing justice improves when Canadians can see themselves reflected on a more diverse bench.

Access to justice is a priority for our government, not just this week but 52 weeks a year.

Divorce Act

[Kevin Lamoureux, Liberal, Parliamentary 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.

[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.

[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?

[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.

[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.

[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.