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.

Criminal Code

[Ya'ara Saks, Liberal, Parliamentary Secretary to the Minister of Families]

Madam Speaker, it is an honour today to speak to Bill C-233. I would like to start by thanking the member for Dorval—Lachine—LaSalle for putting forward and creating space for the bill. Throughout her career, she has been a tremendous advocate for those who have suffered from domestic and partner violence, both for those who have endured physical violence and for those who have silently suffered emotional and psychological abuse: coercive control that is no less harmful and in many cases has a violent or even deadly outcome after protracted years of silent suffering.

The member understands deeply that deterrent tools to preventing such violence, which happens to far too many partners and their children behind closed doors in far too many homes in this country, require education and a trained comprehension to effectively use the tools in our legislative tool box to protect those who are most vulnerable in a court system that is, in many cases, failing them.

When the member for Oakville North—Burlington and I came to the member with the story of Keira Kagan, she compassionately understood and made space for the work we are debating today. We have heard the story of Keira Kagan: the little girl who was the brightest of sparks who was tragically lost and whose death was completely preventable. I note, as did other members, that yesterday should have been her seventh birthday. We have shared the tireless advocacy of her mother, Dr. Jennifer Kagan-Viater, and her stepfather, Phil Viater, on the floor of the House. It was a parent's cry for justice in a system where there was every effort to do what every mother wants to do at the very core of her being: protect her child.

We heard their call. It became the siren for many others, including leading advocates for women from my community in York Centre and from across this country who were no longer asking, but demanding that light be shed on this pervasive form of abuse: to name it, to know it and from there to be able to use the tools we have to protect them.

To each one of the large and small organizations in my riding, from Tikvah Toronto to the North York Women's Shelter, from local advocates for immigrant and racialized women to the National Council of Jewish Women of Canada, Toronto chapter, and to the many parents and victim-centred organizations from coast to coast to coast, I can clearly and with gratitude say as we enter the last hours of debate here in the House that they have been heard.

It is a rare but incredible thing when we have consensus across the floor. When we do, we know it is because we have heard the call of Canadians at the deepest levels.

Bill C-233 was first tabled in early February. It went through to second reading and to committee in April with a co-operative effort to move schedules and get it to the important work of the committee by May. I would like to thank the member for Elgin—Middlesex—London, in her role as chair for the status of women committee. She, like many of us, understood the importance of the bill and her co-operation and leadership from across the floor must be acknowledged as we contemplate the bill now.

Much of the work that goes into the legislative process involves many conversations and emails, coordination of witnesses and stakeholders, asking the hardest of questions and unpacking key issues here and at committee. Each of the members who I have mentioned played a key role in the learning and advocacy that has taken place for Bill C-233.

Bill C-233 seeks to address two key components of education and legislative tools. It amends the Judges Act to expand judicial education, which currently covers topics such as sexual assault and social context, to include coercive control in domestic violence. It amends the Criminal Code to require a justice to consider whether an accused who is charged with intimate partner violence should wear an electronic monitoring device before a release order is made.

Through this process, we have shed light on the definition of coercive control. An important piece of this legislation is providing education to understand that while physical forms of intimate partner violence and domestic violence are well known and easy to detect, there are more covert forms of psychological abuse that are not always recognized as violence.

Coercive control can often be an early indicator that abusive relationships will escalate into physical or even lethal violence. A study of femicides from 2015-19 found coercive, controlling behaviours such as stalking, isolation and threats were frequent components. On average, a woman is killed by an intimate partner every six days in this country.

The patterns of behaviour for coercive control are intended to isolate, humiliate, exploit or dominate a victim. This can include emotional, verbal and financial abuse; isolation, such as preventing someone from going to work or school; and limiting their access to finances.

This invisible chain of behaviour escalates and can be quite visible through warning signs, when we know them, that include monitoring movements, sexual coercion, threats to harm a child and restricting access to money or even food. This outline of coercive control only scratches the surface of what judges will need training on in what has until now been a murky side of the court system. Victims straddle family and criminal court systems, and there is a dire, and at times deadly, impact on children.

We now understand the pathology of this form of intimate partner violence. It is unseen and brutally harmful. Its victims are the partners and children of these relationships where dependency, vulnerability and children themselves become weaponized. We cannot look away any longer.

The second aspect of Bill C-233 addresses the contemplation of using e-monitoring as a deterrent tool. In Keira Kagan's case, her father had 53 court orders against him. None ultimately served as a tool to keep her safe from harm. What we know is that education and implementation go hand in hand, and that is what this bill intends to do. It is a start.

There are those who see these amendments as first steps. We heard from many national advocates who expressed their concerns on the implementation of e-monitoring in terms of the settings and who would be subject to it. There is undoubtedly more work to do; there always is, but we must start and we have.

With this bill, coercive control and its understanding would become part of the language used within our legislative system. Our judicial system would have the tools to be educated on this and to identify it when it is in their courts. It would have deterrent tools that could prevent escalating violence in a cycle that does not end with the separation of a relationship.

We must be talking about this, and Bill C-233 has opened the conversation nationally, so that judicial training can set a precedent for the discussion of coercive control and the needed deterrent tools in other aspects of our system, be it with lawyers, social workers, health care workers or the many aspects of our system that are meant to protect victims and children.

We are in lockstep with other countries doing this work and exploring education on and, in some cases, criminalization of coercive control. These range from Australia, where studies have been done on the impact and potential criminality of it in the framework of domestic violence since as early as 2020, to the United Kingdom's section 76, which includes coercive controlling behaviour in an intimate family relationship as an offence.

Even here in Ontario, more recently than any of the above mentioned, the former Bill C-78 sought to update the definition of “family violence” in the Divorce Act to include “coercive and controlling behaviour”. The discussions and the work have begun, so that we can ensure the victims are not left unprotected.

Each morning I wake up and spend a short bit of time in the practice of the Jewish tradition called Daf Yomi, the daily page of Talmud, whereby around the world, over a cycle of seven and a half years, an entire community studies a page of law. We review the compendium of Jewish law that has evolved over thousands of years, studying each debate, each small change and its lead-in to the next. We are taught to first learn much and then seek to understand it profoundly.

This daily practice humbles me and reminds me that, each day in the House, we are putting our efforts forward to create change, and that the work we do here each day is a small step that makes space, as the member for Dorval—Lachine—LaSalle has done, and sheds light to understand how we can protect and create safety for our community and all of its members, especially its most vulnerable. It is a profound responsibility and a privilege to do this work, and we must. For the many victims of abuse, families, partners and children, we owe it to them to protect them, and yes, we owe it to Keira Kagan.

[Pamela Cross]

The only comment I'll make about that, and it's a fairly general one, is that in 2021, when Bill C-78 was passed, it introduced these massive amendments to the Divorce Act, which a number of us have mentioned this afternoon. It resulted in some inconsistencies between provincial and federal family law. In Ontario, where I am, the Children's Law Reform Act did not reflect the same approach as was being taken by the Divorce Act, which put families in complicated situations in terms of trying to select the appropriate legislation to use.

I think that as we move ahead with any kind of legislation at the federal level that has implications at the provincial level, for example, the division of power such that provinces are responsible for the administration of justice, we have to build in time to allow provinces to get on board so we don't have inconsistencies or gaps between what's passed at the federal level and what's actually playing out on the ground at the provincial or territorial level.

[Manon Monastesse]

I will try to slow down.

In Quebec, the political will takes the form of specialized courts and a review of family law in order to consider spousal violence and domestic violence when determining the best interests of children.

At the Federation, however, we know that just 35% of children are supported and seen by Youth Protection. We also know that Youth Protection recognizes the major consequences of spousal violence. Therefore, we see a national plan as extremely important. Actually, I am a former co‑chair of Women's Shelters Canada, a Canada-wide network. Through our advocacy, we recognize the federal government's proactive stance in establishing a national action plan to which it will provide leadership. It will also work more closely with the provinces. That is extremely important.

Let me give you a very specific example. We know that amendments were made to the Divorce Act by means of Bill C‑78. For the first time, it includes a definition of family violence, as well as measures to set better criteria with respect to the best interests of the child. So the Divorce Act is now very good, but the act is federal. Working with the provinces, the federal government can take the lead to include that aspect, for example, in Quebec's Civil Code and family law. The Government of Quebec was actually enthusiastic about the act. This shows the importance of a national action plan that prompts the provinces and the federal government to work much more closely together.

Is that okay?

[Claire Farid]

Provincial family law has a broader scope than the Divorce Act does. The act applies only to certain aspects of the divorce itself, as well as matters related to child support and parenting arrangements.

The amendments in Bill C-78 include a definition of family violence that applies when parenting arrangements are being determined. That has already been covered in the Divorce Act.

[William Amos, Liberal, Pontiac, QC]

I appreciate the intent of the amendment here. I think the issue, as far as we see it, is that the removal of the notion of physical, emotional and psychological safety, security and well-being brings us into a space where there's inconsistency with Bill C-78 addressing the Divorce Act, so with a view to ensuring consistency across legislation, I think it would be important not to amend it in this fashion.

(Amendment negatived [See Minutes of Proceedings])

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Removing the reference to the best interests of the child being the paramount consideration when making decisions or taking actions related to child apprehension could be found inconsistent with the United Nations Convention on the Rights of the Child, and Bill C-78 amending the Divorce Act.

As a result, we won't be supporting this amendment.

(Amendment negatived [See Minutes of Proceedings])

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Chair, the hon. member is the epitome of thoughtfulness. I think that has come out in his time in the House.

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

The one thing I will focus on for the purpose of the answer is that Bill C-78 proposes a non-exhaustive list of criteria for the best interests of the child, a list that did not exist before, in order to promote consistency and clarity in guiding family legal professionals, lawyers and courts. The proposed list is non-exhaustive, but it does give guidance. That is a far better place than we were before and it will help children in a very difficult time in their life. Forcing people through the hoops of having to look at criteria is something that is critically important in the framing of judicial analysis decisions and in making decisions that are ultimately in the best interests of the child.

[Colin Fraser, Liberal, West Nova, NS]

Madam Chair, I am pleased to talk about Bill C-78, which will have a direct impact on Canadians.

Bill C-78 was introduced on May 22, 2018. I was proud to partake in the deliberations at the Standing Committee on Justice and Human Rights, which reported on the bill, with amendments, on December 7, 2018. The bill received third reading in the House of Commons on February 2, 2019 and is currently with the Senate Standing Committee on Legal and Constitutional Affairs.

Bill C-78 is a key milestone in our government's ongoing efforts to improve the lives of Canadian families. To better reflect the current needs of Canadian families, Bill C-78 proposes to advance four key priorities: promoting the best interests of the child, addressing family violence, contributing to poverty reduction and making the family justice system more accessible and efficient.

We listened closely to various points of view expressed by members of the public, family justice professionals and witnesses in response to Bill C-78. During the study, committee members gathered a significant amount of information from over 50 witnesses and received more than 50 briefs representing a broad range of opinions and viewpoints. The committee reviewed the recommendations carefully, and many of them resulted in amendments to Bill C-78.

Bill C-78 takes a child-focused approach. In addition to including a non-exhaustive list of best interest criteria, the bill requires that when determining the best interests of the child, courts give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

The bill also replaces property-based terms, such as “custody” and “access” with terms that best describe the parents' responsibilities for their children.

Some groups have expressed concern about the continued presence of the Divorce Act's “maximum contact” principle. First, I must be clear that the new maximum parenting time principle is not a presumption in favour of any particular allocation of parenting time. It states that children should have as much time with each parent as is consistent with that child's best interests. In most cases, this will be significant time with each. In some cases, such as when there are safety concerns, it may mean very little time or no parenting time for a parent.

Following the committee study, the bill was amended so that the maximum parenting time principle would appear in the part of the Divorce Act that relates to the best interests of the child. The provision's new placement in the act will remind parents and the courts that the time allotted to each spouse must be consistent with the best interests of the child and with the primary consideration, which is the safety and well-being of the child.

Relocation, particularly moving with a child after separation or divorce, is one of the most highly litigated areas in family law. Bill C-78 proposes to introduce a relocation framework that promotes the child's best interests and encourages dispute resolution. Witnesses praised our government's introduction of the relocation provisions in particular.

Bill C-78 originally provided for the non-relocating parent to oppose a move by way of court application. This was to ensure that courts only became involved if there was a genuine disagreement between the parties. We heard from the Canadian Bar Association and the Family Law Association of Nunavut that having to respond through a court application was an unreasonable barrier to access to justice. This is particularly true for families living in the north, who may rely on the schedule of a circuit court.

Amendments to the bill would allow a second approach, the creation of forms that parents would use to give notice of and respond to a proposed relocation. If a non-relocating parent responds by form and the parties cannot come to a resolution, the parent seeking to relocate would have to bring a court application seeking authorization. Requiring that the notice be provided through a form would promote clarity by prompting parents to provide all necessary information in a consistent manner. Allowing for a form to respond to notice would relieve the 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.

The bill also sets out a broad evidence-based definition of family violence under the Divorce Act that will include any conduct that is violent or threatening, constitutes a pattern of coercive and controlling behaviour, or causes a family member to fear for their safety or the safety of another person. The definition would apply to intimate partner violence and to other types of violence, such as violence against children. In the case of a child, it would also include direct or indirect exposure to such conduct. Bill C-78 makes it clear that courts will be required to consider family violence in determining the best interests of the child.

At the committee, we heard from witnesses who underscored that it can be dangerous for someone fleeing violence to notify other parties of their intent to seek an exemption from the notice of relocation requirements. In response to this 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 the other party in those rare circumstances.

I want to talk for a minute about one of the objectives of the bill, which is poverty reduction. I note that our government has been focused on poverty reduction for all Canadians, including children, in this case through the Canada child benefit, which has removed 300,000 children from poverty situations, and also seniors, almost a million of whom have been lifted out of poverty by policies of the government that were voted against by the parties opposite.

Families going through separation or divorce are more vulnerable to experiencing poverty. Obtaining fair amounts of child support is a key factor in reducing the risk of child poverty. Bill C-78 includes amendments that will help ensure that financial support is based on accurate and up-to-date income information.

The bill will amend the Family Orders and Agreements Enforcement Assistance Act to allow for the search and release of a parent's income information to courts to establish or vary family support. Parents, lawyers and courts have advocated such an amendment for many years, and we are finally getting it done under this bill.

To further help families receive fair child support amounts quickly, Bill C-78 will improve the Divorce Act's process for the establishment and recalculation of child support. The bill will allow provincial child support services, rather than courts, to establish initial child support amounts.

For several decades now, the Commissioner of Official Languages of Canada and official language minority communities across the country have been calling for recognition of the right to use either official language in divorce proceedings.

A committee amendment to Bill C-78 will allow parties to file proceedings under the Divorce Act in the official language of their choice. Parties would be able to file proceedings under the Divorce Act, seek an order, be heard, testify and submit evidence in the official language of their choice. They would also have the right to be heard by a judge who speaks their official language, or both official languages in the case of a bilingual matter.

The bill also demonstrates our government's commitment to increasing access to justice and improving the efficiency of the family justice system. For example, the bill's increased focus on family dispute resolution processes will help divert people away from the courts, saving time and resources for cases that require judicial intervention.

Our government recognizes that family dispute resolution may not be appropriate for all families, as may be the case when there has been family violence or high levels of conflict. Bill C-78 was carefully drafted to promote the use of family dispute resolution only when appropriate.

I am thankful for the opportunity to highlight some of the most important proposals in this important bill, Bill C-78, which I believe would make a significant difference in the lives of Canadian families and children. I was pleased to be part of that process at the Standing Committee on Justice and Human Rights in making thoughtful amendments to the bill, which I hope will see a speedy passage through the other place and become law in Canada.

With that said, my first question for the minister is as follows. As I have discussed during my remarks, federal family laws in this country have not seen any amendment in over 20 years. This inaction does not reflect societal change. Thanks to data from the 2016 census, we now know that as many as two million Canadian children live in separated or divorced families.

Could the justice minister expand on how the justice department is promoting the best interests of children in a divorce with this legislation?

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Chair, I very much appreciate that explanation, because it is important for us to recognize that the federal Parliament may indeed have a role to play in preventing genetic discrimination. Regardless of the constitutional or legal argument we use, the objective is the core that I want to reach here.

I very much appreciated the government's decision to support the committee's amendment to Bill C-78 related to access to divorce in both official languages. I wonder if the minister could tell this chamber why the government feels that the right to divorce and the right for other court cases to be heard in both official languages are important to Canadians.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Chair, I will speak to two issues: access to justice in both official languages, and genetic discrimination. I will speak for about 10 minutes. Then I will ask the minister questions in both official languages.

One thing I do want to say before I begin is how much I have appreciated the opportunity to work with the Minister of Justice. Since he has been appointed, he has been nothing but a pleasure to work with, and I want to thank him for that.

One of my concerns is the issue of access to justice in both of Canada's official languages. I represent a bilingual riding where two-thirds of the population speaks English and one-third speaks French.

In my view, all Canadians from all provinces and territories should have access to justice in both of Canada's official languages.

One of the things that I was pleased with is that at the beginning of our tenure at the justice committee, we proposed a unanimous report that asked for the reinstatement of the court challenges program, with both an official language component and an equality component. That program was restored by this government, and I appreciate that, because it allows official language minority communities throughout the country to seek funds in order to challenge government rules that pose a challenge to their charter rights. That is something that the government did that I really appreciate.

We looked at that at the justice committee. At the justice committee, when we were doing our access to justice study, we also proposed that funding be offered to allow provinces to create templates for lawyers that allow them to enter into contracts in both official languages throughout Canada. It was actually frightening to hear that in some provinces, contracts could not be drawn up in both official languages because lawyers did not have access to templates. One of the things I am really pleased with, which I will get to a little later, is that the government has offered funding to improve that access.

Another thing that is very important is for judges to be able to hear witness testimony in both official languages.

The government's action plan for official languages delivers on many of the recommendations made by the Commissioner of Official Languages and his counterparts in Ontario and New Brunswick in the 2013 report entitled “Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary”.

Our action plan takes a multidimensional approach that guarantees that participants in Canada's justice system have better access to justice in both of Canada's official languages.

First, in many cases, access to justice would be moot without a justice system capable of rendering justice in both languages. To that end, in October 2016 there were reforms to the Superior Court appointments process, and those measures are contained in the action plan to enhance the bilingual capacity of the Superior Court judiciary. These changes have increased the transparency and accountability of the appointments process while laying the groundwork for a longer-term vision for continuous improvement, including in the area of bilingual capacity.

The other important change regarding judges is the process for appointing judges to the Supreme Court of Canada. Our government set out to make this process more open, transparent and accountable and to ensure that judges appointed to the Supreme Court are truly bilingual.

We followed that process when we appointed Justices Malcolm Rowe and Sheilah L. Martin. I am sure that we will do the same thing when we find a replacement for Clément Gascon.

Ultimately, it is very important to ensure that all judges appointed to the Supreme Court of Canada are bilingual, and one day, that might be the case for appeal court judges as well.

I am really proud of that progress.

I would also like to talk about a couple of other things we have done with respect to bilingualism. The justice committee, once again unanimously, amended Bill C-78 so it would ensure people have the right to divorce in both official languages across Canada. One of the things we heard from witnesses from British Columbia and a couple of Maritime provinces such as Newfoundland was that one could not obtain a divorce in French in those provinces. That is shocking.

A divorce proceeding might be the only encounter a person has with the justice system, and it is a very emotional time. As a witness, a person would not want to have to talk to a judge about such emotional things in a language that is not their mother tongue. That is what was happening in some provinces in Canada.

I am proud that the Standing Committee on Justice unanimously recommended changing Bill C-78.

I am proud that the government agreed to that recommendation. That is what passed this House of Commons and I hope will pass the other place.

I also want to talk about the enhancement of the access to justice in both official languages support fund under the action plan for official languages 2018-2023. This grants and contributions program provides funding to not-for-profit organizations, post-secondary institutions and provincial and territorial partners, including provincial courts, to improve access to justice in official language minority communities.

Beyond the existing amounts, our government has committed to additional funding of $13.75 million over five years to improve access to justice in both official languages. These new investments will enable the consolidation of current access to justice activities for official language minority communities, the creation of new fields of activities and the re-establishment of operational core funding for eligible community organizations.

In addition to this funding, consultation with stakeholders is key.

I know that our Department of Justice organizes an annual meeting as part of the advisory committee on access to justice in both official languages. This advisory committee brings together legal representatives of official language minority communities and spokespersons for these communities, such as the Fédération des communautés francophones et acadienne du Canada and the Quebec Community Groups Network.

I know this money will go to a good cause. We heard from these groups how difficult it was in certain cases to obtain access to justice in both official languages. Despite constitutional and legal rules, people who come from a small rural community often have a difficult time finding an attorney and a court that will hear them and work with them in their language. The more tools governments across Canada, including our federal government, can offer to this process, the better the chance all Canadians will have of seeking access to justice in their official language.

I also said I wanted to talk about one other thing, which is genetic discrimination. This House, by majority, adopted a law to prohibit genetic discrimination. That was a proposal that was unanimously adopted by the justice committee. The previous minister of justice did not agree with that, and a factum was filed by the Government of Canada in the Quebec Court of Appeal, saying that the Genetic Non-Discrimination Act adopted by a majority in Parliament was not within the criminal law power of Parliament.

I have noted with interest that the government has now filed a factum in front of the Supreme Court of Canada, which highlights the importance of privacy and the chance that such a law would be intra vires the privacy interests or the right of Parliament to legislate on privacy issues.

Madam Chair, I am going to ask my first question to the Minister of Justice now. Mr. Minister, could you explain to the House the privacy arguments advanced in the factum on the genetic discrimination bill before the Supreme Court of Canada?

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Chair, I will provide 10 minutes of remarks and then I will welcome questions from my parliamentary secretary, the outstanding member for Parkdale—High Park.

I would first like to recognize the Algonquin nation, on whose traditional territory we are gathering this evening.

I will briefly describe how the funding allocated in the main estimates 2019-20 will support our work at the Department of Justice.

I would like to remind the committee that the department strives to promote and maintain a fair, transparent and accessible justice system. The department also helps guide the modernization of the justice system. What is more, it provides the federal government with legal services and support.

The Department of Justice has a total budgetary authority of $744.52 million through 2019-20 main estimates, which is an increase of $46.77 million from the previous fiscal year. This additional funding is for major priorities, including but not limited to innovating and modernizing how regulations are drafted and implemented, enhancing the integrity of Canada’s borders and asylum system, providing Canadians with better access to public legal aid education and information, and supporting renewed legal relationships with indigenous peoples.

Much of this year's authority will support the administration of justice and the Canadian legal framework by directing funding to the provinces and territories, with whom we share the responsibility in this important area.

The funding will also help maintain and support our bilingual and bijural national legal framework. It will also support the department’s ability to transform and modernize the justice system, while protecting and promoting the rights enshrined in the Constitution and the charter.

I would like to outline some of the key funding we have received and the initiatives that it will help support.

First, we are currently conducting a comprehensive review of the criminal justice system in order to determine how effective it is in protecting Canadians. The review, which involved extensive public consultations, will also help ensure that our laws hold offenders accountable, that they are fair and equitable, that they respect the charter and that they show compassion and support for victims.

This ongoing review has already helped inform the initiatives and reforms we have introduced.

For one thing, the review contributed to Bill C-75. With this bill, our government is fulfilling its promise to move forward with substantive criminal justice reforms that will have a real and lasting impact on court delays. It will help increase efficiencies and reduce delays for all those involved in the criminal justice system while respecting their rights and protecting public safety. This important legislation is now before the other place, and I look forward to seeing it passed during this Parliament.

We are deeply committed to reconciliation and to transforming our relationship with indigenous peoples.

The directive on civil litigation involving indigenous peoples was released in January 2019. It supports our commitment to reconciliation and rights recognition by providing advice on the approaches, positions and decisions taken in the context of civil litigation involving indigenous peoples and related issues.

I would also add that we recognize the importance of revitalizing indigenous legal systems and the important role that indigenous law institutes can play in understanding, developing and implementing indigenous laws.

To this end, budget 2019 proposes $10 million over five years, starting in 2019-20, in support of indigenous law initiatives across Canada through the justice partnership and innovation program, JPIP, to improve equality for indigenous peoples in Canada's legal system. This builds on the $9.5 million per year we already provide for the delivery of indigenous courtwork services through the indigenous courtwork program. With their knowledge of indigenous culture, language and traditions, court workers provide direct support before, during and after court proceedings.

We are also continuing our efforts to fill judicial vacancies and increase diversity in the Canadian judiciary. The appointment process for superior court justices that we introduced is more transparent, inclusive and responsible.

We have made over 300 judicial appointments since November 2015. These exceptional jurists reflect the diversity that gives Canada its strength. More than half of those judges are women, and 30% are functionally bilingual. The appointments reflect an increased representation of visible minorities, indigenous peoples, people from the LGBTQ2S community, and people who identify as living with a disability.

While on the subject of diversity, it is important to highlight our continued support for protecting the rights and freedoms of the LGBTQ2S community. One example is our Bill C-16, which received royal assent in June 2017. It amended the Canadian Human Rights Act to add two prohibited grounds of discrimination: gender identity and gender expression. It also amended the Criminal Code by adding gender identity or expression to the list of identifiable groups that are protected from hate propaganda. Finally, it made clear that hatred on the basis of gender identity or expression should be considered an aggravating factor in sentencing for a criminal offence.

We are also very proud of Bill C-78, which is currently before the other place. The legislation seeks to modernize federal family law and put the needs of the child first.

The last time our family laws have undergone significant amendments was 20 years ago. They fail to address a number of difficult issues, including relocation and family violence. I hope the reform will pass quickly.

Completing this legislation is our expansion of unified family courts. In budget 2018, our government funded the creation of 39 new judicial positions beginning April 1, 2019. Twelve of these new appointments were recently made to Ontario's Unified Family Court.

We are also maintaining and strengthening access to justice in both official languages.

Budget 2019 would give the Department of Justice $21.6 million over five years, starting in 2020-21, to support the legislative changes in Bill C-78 that seek to increase access to family justice in either official language.

This funding builds on our efforts in budget 2018, which provided an additional $10 million over five years and $2 million per year ongoing for Justice Canada's access to justice in both official languages support fund.

Another top priority for our government is ensuring that victims receive the support they need.

In 2019-20, the victims fund at the Department of Justice will provide $28.72 million in grants and contributions to support research and innovative pilot projects, as well as front-line services for victims and survivors of crime across Canada.

The Department of Justice is also committed to helping immigrants and refugees. Budget 2017 included funding for immigration and refugee legal aid on an ongoing basis: $62.9 million was identified over a five-year period, with an additional $11.5 million per year thereafter. This funding helps prevent delays in immigration and refugee processes and, most importantly, helps ensure access to justice for economically disadvantaged immigrants and refugees.

Budget 2019 builds on previous investments and commits an additional $52 million over three years, primarily for immigration and refugee legal aid, but also to support the delivery of legal services.

I want to thank the committee for giving me an opportunity to speak to them today. The work of the Department of Justice is complex, and my brief comments offer merely a glimpse of the excellent work done by department employees.

Bill C-84—Time Allocation Motion

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Speaker, I share the substantive concern that the hon. leader of the Green Party is raising. I can speak to the bills that I am, as minister, shepherding through the House. Certainly, on Bill C-84, the process has worked in the sense that a number of very good amendments were made at committee stage and there was robust debate.

Both Bill C-75 and Bill C-78 have had a number of interesting discussions in the House. They have gone to the other place. We are thinking about amendments on them based on our work in this House and on what the Senate is doing.

The process is working. I think we are approaching it in good faith. The fact of the matter is that sometimes we run out of time, and we feel we have done that in this particular case.

An Act Respecting First Nations, Inuit and Métis Children, Youth and Families

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and to the Minister of Democratic Institutions]

Mr. Speaker, it is an honour to rise today to speak on a historic piece of legislation, Bill C-92, an act respecting First Nations, Inuit and Métis children, youth and families.

It is also an honour to welcome over 30 students from Mr. Dingwall's grade 12 politics class at Humberside Collegiate Institute in my riding. They are here to study xenophobia and refugees, but the concerns and the aims of that study have a link to this legislation. The link is that their study and this legislation both identify key areas of inclusion, of the promotion of diversity, and of the remediation of historical injustices.

Let us talk about Bill C-92.

Bill C-92 seeks to do two very important things. First, it would affirm the jurisdiction of indigenous peoples in relation to child and family services. Second, it sets out several principles, including the best interests of the child, cultural continuity and substantive equality, that would be applicable on a national level to the provision of child and family services to indigenous children.

Let us start with my past role as Parliamentary Secretary to the Minister of Canadian Heritage in 2017. At that point, I had the privilege of engaging with first nations, Inuit and Métis leaders and elders, and subsequently assisting in the co-development of a different bill, Bill C-91, which aims to promote and preserve indigenous languages in Canada. I am very pleased to see that this bill, a companion bill, seeks to enshrine the importance of culture and language when it comes to determining what is in the best interests of the child.

When indigenous children are navigating our child and family services system, their culture and language must be taken into account and must be protected.

Indigenous leaders across this country have called on successive governments to make changes to address the overrepresentation of first nations, Inuit and Métis children in the child and family services system. They have been doing that important advocacy work on this file for over a decade and have highlighted the important voices of indigenous children from across the country to shed light on the shortcomings of our current child and family services systems.

It is undeniable that the levels of indigenous children in care have reached the point of what has been described as a humanitarian crisis. Indigenous children under 15 make up 7.7% of the Canadian population, but they account for 52.2% of children in foster care in private homes. That is a staggering statistic—7.7% of the population, yet 52.2% of the children in foster care. Incredibly, we know that there are more indigenous children who have been removed from their homes and placed in the child welfare system, right now in 2019, than there were at the height of the residential school system, which is such a shameful legacy in Canadian history.

We also know that often indigenous children are separated from their families and communities, which deprives them of their language, their culture, and their connection to their people. That is absolutely and categorically unacceptable. It is vital that we address the root causes that have led to this humanitarian crisis, including such things as poverty, intergenerational trauma, and culturally biased child welfare policies and practices. That is what Bill C-92 will address.

Our current child and family welfare system is failing indigenous peoples and has been failing them for some time. It is for this reason that our government is taking steps today with Bill C-92 to redress the situation.

Our goal as a government has always been to support legislation that respects the principle of self-determination of indigenous people and legislation that advances what we would call meaningful reconciliation. These two objectives were the basis for our actions taken while crafting this legislation.

Recognizing the urgency of addressing these issues, the Minister of Indigenous Services at the time hosted an emergency meeting on indigenous child and family services in January 2018. During that meeting, our government had the opportunity to hear from experts, advocates, indigenous partners, and provincial and territorial people, but most importantly from youth, such as the youth who are here today from my riding, but especially youth from right around the country who had a lived experience of navigating the child and family services system. It is of the utmost importance to continue to elevate the voices of those with first-hand experience so that we can learn from their experiences and make the legislative changes that address the problems individuals face when accessing our child and family services system.

Following that emergency meeting back in January of 2018, 65 sessions were held during the summer and fall of 2018 to engage with people around the country, whether in Toronto or Winnipeg, from coast to coast to coast.

That engagement, which was mentioned by the Parliamentary Secretary to the Minister of Indigenous Services, engaged 2,000 individuals in different sessions, including representatives of first nations, Inuit and Métis peoples, as well as treaty nations, self-governing first nations, provinces and territories.

In January of 2019, further in-person engagement sessions with indigenous partners and provincial and territorial representatives were conducted to consult on the proposed content of Bill C-92.

What is critical is what we learned in those consultations. We learned that Canadians care about reforming child and family services in a way that better meets the needs of indigenous peoples. It is clear that Canadians are shocked by the statistics with which I started my discussion and my contribution to this debate. This is an issue that has been raised by many of my colleagues in the House. It is certainly an issue that my constituents in Parkdale—High Park feel strongly about.

Whether they are students at Humberside Collegiate or at any of the other secondary institutions in the riding, whether they are younger people or older people, constituents of all backgrounds have told me, “I am not an indigenous person, but I know we need to remedy a historical injustice. To do right by the colonial and racist legacy of the residential school system and the policies and practices put in place by successive governments for 152 years, we have to implement legislation to remedy those wrongs.” Bill C-91, coupled with Bill C-92, does exactly that.

People have spoken to me about ensuring that we have culturally appropriate child and family services to protect the vibrancy of cultures. I have often told them it is important for people such as me or random constituents to engage with and learn more about and understand indigenous history, knowledge and culture. It is even more important to restore that knowledge and understanding to indigenous communities without doing it in a paternalistic way, as in past practices, but by co-developing solutions with indigenous people and empowering them to implement the solutions they feel are appropriate for their communities. That is what the bill will do.

Let me explain that indigenous children are being removed from their homes and communities in greater numbers than they were at the height of the residential school system. We have had conversations regarding the next steps our government must take to protect indigenous children, and as a result we are affirming the jurisdiction of indigenous peoples over child and family services.

Bill C-92 does not provide a one-size-fits-all model. Rather, it would allow indigenous people to exercise partial or full jurisdiction over child and family services at a pace that promotes the well-being of their communities. The bill would allow indigenous groups to exercise their inherent and rightful jurisdiction over child and family services, which will result in their laws prevailing over federal laws and laws of the provinces and territories, in the case of a dispute between the two. This is a very important point, because it gives meaning to this notion of self-determination and self-governance.

The legislation also sets out a robust mechanism whereby indigenous groups would enter into tripartite coordination agreements with the federal government and the provincial government of each province in which the indigenous group is located to work together for up to 12 months to reach a tripartite agreement. Along with affirming jurisdiction, the bill also sets out principles such as the best interests of the child, cultural continuity and substantive equality around the provision of child and family services to indigenous children, applicable at the national level.

Let me pause here to say that this is something we are working hard to implement across government. The analogy I would draw to this “best interests” provision is to a different bill that I have been privileged to work on as Parliamentary Secretary to the Minister of Justice, Bill C-78. It is a family law reform bill that again entrenches the best interests of the child, but importantly, it echoes the language we find in Bill C-92, language that talks about the spiritual, cultural and linguistic continuity for indigenous children remaining with indigenous family settings. That is critical to Bill C-78, and also critical to Bill C-92.

With regard to decisions as to what is in the best interests of the children, Bill C-92 elaborates several factors that need to be taken into account. They are the child's physical, emotional and psychological safety; the child's security and well-being; the child's cultural, linguistic, religious and spiritual upbringing; and the maintenance of an ongoing, positive relationship with the family, community and indigenous group to which they belong.

Let me restate that, because it is so critical and gets to the heart of what the bill is about: When there is a child welfare situation that involves removing a child from their original home to a foster care type of setting, we need to think about what is in that child's best interests.

How we evaluate that is by thinking about continuity in the child's ongoing positive relationship with his or her family and with his or her indigenous group. That is the key in what we are talking about here. That creates stability for the children through the connection for the children to their language and, importantly, to their territory. By emphasizing these factors, the legislation would ensure that child and family services take into account cultural context when making decisions as to what is in the best interest of first nations, Inuit and Métis kids. The goal is to decrease the number of indigenous children who are separated from their families and their communities.

Additionally, when decisions are being made about what is in the best interests of children, this bill would prioritize a shift from apprehension to prevention, thereby promoting preventive care that supports the entire family.

What does this mean?

We know, unfortunately, that too often child welfare advocates will arrive at a situation and say that a child needs to be removed from a family setting because of the conditions in which the family lives. The solution is not then to remove more children; the solution is to repair and correct the conditions in which indigenous people live. That has to be the solution. It bears common sense scrutiny. It bears logical scrutiny.

It also is completely consistent with an approach toward reconciliation whereby we accept and acknowledge historical racism and the legacy of colonialism and move forward together with indigenous peoples to correct that legacy. That is what this bill is doing by targeting this specific issue.

How does it do it?

The bill says that a child should not be apprehended solely on the basis of his or her socio-economic conditions. Instead, it calls upon governments to work with families to find solutions that uplift all family members and keep the child in that home. Moreover, if apprehension and placement are deemed necessary to ensure the best interests of the child, then Bill C-92 delineates an order of priority to be respected when placing that child, and this order is important.

If apprehension needs to occur, this is the classification, and it is a prioritized list: first, keeping the child with one of the child's parents; second, keeping the child with another member of the child's family who is an adult; third, keeping the child with an adult who belongs to the same indigenous group, community or people; fourth, keeping the child with an adult who belongs to an indigenous group, community or people other than the one to which the child belongs.

That is an important prioritization, because it emphasizes exactly what we are trying to do: We are not trying to create further rupture between indigenous people and their culture and communities, but trying to restore and enhance that connection. This order of priority emphasizes family members first, and subsequently adults belonging to the same indigenous group, community or people.

By formalizing in law the need to keep indigenous children with indigenous communities, Bill C-92 takes a huge step forward in protecting cultural continuity by taking into account the things that I have been mentioning when determining what is in the best interests of the child: language, culture, connection with family.

To give a mundane example, if a child who speaks Cree lives on a reserve in rural Manitoba and if a removal is required, the services do not remove that child all the way to Winnipeg. First, they make every effort not to remove the child. If a removal needs to occur, they keep the child on the same territory with the same community, with people who will continue to speak Cree to the child so that the child can maintain that connection to their people. It is that straightforward.

The importance of cultural continuity is further enshrined in this legislation by establishing an ongoing obligation to reassess the possibility for an indigenous foster child to reside with one of the child's parents or an adult member of his or her family.

That is the kind of legislation that people in Canada want, including those in my riding and including the very patient people who have been sitting here from Humberside Collegiate Institute.

What they have said to me over and over again, and what I have heard in my riding and right around the country when I was working in my capacity as Parliamentary Secretary to the Minister of Canadian Heritage, is that indigenous reconciliation is the responsibility for all of us. It is not simply the responsibility of indigenous communities or the government vis-à-vis indigenous communities; it is the collective responsibility of the 36 million people who inhabit this country to move on that path together.

Bill C-92 is a milestone piece of legislation that would have significant impacts on the lives of indigenous youth, their families and their communities. It is an important step in advancing meaningful reconciliation and in implementing the vital recommendations made by the TRC. I want to thank the indigenous leaders across Canada who have advocated on this issue for years, as well as the current minister and the previous minister, the member for Markham—Stouffville, for their invaluable contributions, without which this legislation would not have been possible.

We are committed to working collaboratively with all levels of government and all relevant stakeholders to continue to advance the well-being of indigenous peoples, but as I said during the course of my remarks, we will not do this in a paternalistic or colonial way, but in a manner that empowers indigenous peoples and allows them to make decisions for their communities and for themselves.

Bill C-92 is an important first step in that direction, and I strongly urge every member in the House to support it.

Third Reading

[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.

The House resumed from January 30 consideration of the motion 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 third time and passed.

Bill C-78—Time Allocation Motion

[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.

Bill C-78—Notice of time allocation motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, an agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to the third reading stage of Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.

Business of the House

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, any move has challenges that come with it, but it has been great to be able to work together to overcome them, because it is a beautiful new space.

This afternoon we will continue debate on the NDP opposition day motion.

Tomorrow we will debate the Senate amendments to Bill C-64, the abandoned vessels act.

Next Monday and Tuesday will be allotted days.

On Wednesday, we will resume third reading debate of Bill C-78, an act to amend the Divorce Act.

[David Lametti]

As legislators, I think any piece of the puzzle we can improve.... There are many moving parts, with Bill C-78 and the Divorce Act being one, as is administrative justice reform, which you have already looked at, and Bill C-75 and moving forward with that are all a series of parts to improving the criminal justice system and the administration of justice. With all of these pieces of legislation, whether they be social or criminal, or help in some other way, we hope to improve the lot of families and children, and to better protect animals.

I guess there isn't one single answer other than to say that we're trying to make a number of things better, and we will continue to do that.

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

We talk about really having that fulsome approach to providing safe communities. How do you think this bill will impact that fulsome approach to making sure that our children, our pets and our families are safe, especially in light of BillC-78, which passed through this committee with respect to divorce? Oftentimes, that does impact animals that are sometimes part of the family that is broken up. How does it impact that fulsome approach?

Divorce Act

[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.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

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

I completely agree with her. That was a profound testimony. However, I think that Bill C-78 vastly improves the legislation regarding families. We always need to improve and strengthen women's rights, and I think that the definition of family violence will do just that.

[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.

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

Mr. Speaker, we talked about integrating the Convention on the Rights of the Child. UNICEF Canada made it very clear that integrating the convention would ensure better recognition of the rights of indigenous children. The justice system would recognize their culture and their environment and it would mean they could be addressed in their language. Several witnesses raised that concern.

We know that is the federal government's responsibility. We cannot download that onto the provinces, as we often do. We have a duty to ensure that the best interests of indigenous children are taken into consideration in Bill C-78.

[Karine Trudel, NDP, Jonquière, QC]

Mr. Speaker, I thank my colleague from Saint-Hyacinthe—Bagot for her excellent work, both in her riding and at committee.

I wonder if she could speak to us briefly about the rights of indigenous children in the context of Bill C-78. The NDP proposed an amendment in that regard at committee.

[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.

[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.

[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.

The House proceeded to the consideration of Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, as reported (with amendments) from the committee.

Justice

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, I have the honour to present, in both official languages, the 23rd report of the Standing Committee on Justice and Human Rights concerning Bill C-78, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another act. The committee has studied the bill and has decided to report the bill back to the House with amendments.

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

Thank you, Mr. Chair.

A number of witnesses have told us that it would be in all our interests to include, in a clause of Bill C-78, a reference to the preamble of the Convention on the Rights of the Child, passed by the United Nations General Assembly on November 20, 1989. That is why I am asking that we add a reference to the Convention on the Rights of the Child to clause 12 of the bill.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. It is a pleasure to welcome everyone to the Standing Committee on Justice and Human Rights' clause-by-clause review of Bill C-78.

We are very pleased to welcome our witnesses from the Department of Justice. We have Ms. Elissa Lieff, senior general counsel.

I totally apologize for your missing the menorah lighting.

[Kathy Vandergrift]

Thank you very much for the opportunity to contribute to this important legislation.

The Canadian Coalition for the Rights of Children is a national network of groups and individuals committed to promoting and implementing children's rights. It started in 1989 when the Convention on the Rights of the Child was adopted. Next year we celebrate 30 years.

Canada is currently undergoing a review of how it implements the convention. That implementation is weak, but Bill C-78 is an important step toward realizing children's rights, and it will benefit many children.

Before I make specific remarks, I want to speak to the high priority of passing this legislation.

Improvements to better protect the rights of children have been proposed and debated for over 20 years in the area of family law. During that time, I have witnessed and met with too many children who had barriers to their development that they shouldn't have had because the systems we created did not adequately protect their rights. Please don't let this opportunity to make those changes pass.

My first comments relate to the best interests of the child. Making this paramount is consistent with the convention. Providing guidelines is something that Canada was asked to do in each of the three previous reviews of how it implements the convention. The change in language is positive. Best interests must be done on a case-by-case basis, with no presumptions.

I would suggest that you might wish to strengthen that best interests of the child section by adding explicit reference to the convention in proposed section 16. Best interests should be framed in terms of all the rights of the child, including things like the right to education and the right to develop their potential. Some of those things become particularly important for adolescent children who are involved in family disputes. If you add the reference to the convention, it means that all the rights of children will be taken into consideration.

Several MPs spoke about the need for public education during the second reading of this bill. We agree, and we would urge the committee to make a recommendation that training in best interests be based on the convention and on general comment no. 14 by the UN Committee on the Rights of the Child, which is guidance for states on best interests of the child.

My next comments relate to consideration of the views of the child.

This is a basic principle of the convention, but this is the first time it is being required in federal legislation. That's a good move for Canada. It begins to fulfill Canada's obligations under article 12 of the convention. Members of our coalition are very active in promoting good practices for considering the views of children in all areas of decision-making. There is a growing body of evidence that outcomes are better when children are informed about their rights and have input into the decisions that affect them. There are good practices also for younger children. These should be based on capacities, not arbitrary age. The challenge we have is to scale up those good practices with all stakeholders.

There will be benefits for children in other areas as well if we do that. Yes, there is a requirement for adequate support for the child in this process, and we would suggest that in some cases, but not all, separate legal counsel is warranted.

My next comments relate to the right to be protected from violence. The committee has heard testimony about the impacts for children of exposure to violence in the home. I would like to highlight, in addition, the safety of children returned to a parent with a history of violence. In the last review under the convention in 2012, Canada was specifically asked to ensure effective follow-up for children who are returned to a family member who has had an experience of violence. Since then, we have seen tragedies in Canada. It's very important that we implement that recommendation and pay special attention to that area.

Finally, concerning child support payments, putting the focus on children's right to support is consistent with the convention and it is specifically named in article 27. Canada continues to have high rates of arrears in parental support orders.

Canada has received recommendations to improve this in every previous review, with no action, so measures to strengthen enforcement are needed. I would encourage this committee to take a close look at that matter after you complete this bill, as part of the review of implementing the convention. In keeping with giving paramount attention to the best interests of the child, perhaps child support payments should have priority over all other payments, including crown debts.

In conclusion, passing legislation to protect the rights of children in family law is urgent as well as important. A program of public legal education for all parties and legal training for lawyers and judges is also necessary, but the convention provides a useful framework that will also make our federal system work better for children in the area of family law.

Thank you.

[Dr. Linda Neilson]

Okay. Thank you very much.

I'd like to thank the committee for taking the time to really examine Bill C-78, and I also thank you for the opportunity to comment.

I'm a legal academic. I work at the intersection of law and social sciences. Much of my career has been devoted to attempting to correct problems in the legal system in family violence cases. Among many of the others you have heard from, I applaud some of the changes proposed by this bill.

I worked on the joint NAWL and Luke's Place brief, and particularly on the LEAF brief. You'll find that many of my comments are connected to those briefs. I commend, as have many others, the absence of parenting presumptions in this bill, and particularly the direction to courts to take into account only the best interest of the child.

Many children are blessed with two parents who do not engage in abuse and are supportive, caring and co-operative. This bill doesn't discourage parenting of children by more than one parent. Other children face enormous stress and adversity: violence in the home directed at mothers, stress from parental conflict, child abuse, mental illness, substance abuse, and poverty. These children require a range of responses from the legal system in accordance with their particular individual needs.

We can't anticipate the diverse experiences of all families. Presumptions—any presumptions, such as maximum contact—are beneficial only to the extent that families are the same. When contact increases child adversity, that kind of presumption can cause harm. Removing presumptions frees courts to respond to the needs of children in accordance with individual circumstances.

Also welcome is the direction to give priority to the child's physical, emotional and psychological safety, security and well-being. That provision is long overdue. The hope is that the term “priority” will counter a failure to investigate domestic violence and child abuse that we see in the case law, forceful removal of children from preferred parents, and the ordering of children against their will to comply with punitive orders that may not be beneficial or safe. That “child safety first” provision has been recommended by family academics for decades. That's a very positive change.

As others have said before me, many problems are the result of limited understanding of family violence. The less one knows, the simpler it looks. Family violence is a gender equality issue. It is a child human rights issue too. Every child is directly harmed when coercive control, abuse and violence are directed against the child's caregiver.

Some children will experience long-term fear responses and emotional and even developmental harm. Participating in abuse against mothers is often combined with abuse directed against children. The patterns of behaviour associated with family violence are: demeaning domination; monitoring and surveillance; excessive physical discipline; risky or sexualized parenting; undermining; and coercive control. Those patterns that we associate with family violence commonly continue in the parenting practices against children after separation. Failure to protect impairs children's recovery from fear and reduces child resilience. The new focus on safety, security and well-being will help, particularly if false assumptions are disallowed.

I share with others an enthusiasm for proposed paragraph 16(3)(e), the duty to consider the child's views and preferences. Children have the right to insist that family courts and experts listen more respectfully to their experiences and views, particularly when it comes to parenting and their own safety. I would also, however, confirm what some of your other witnesses have said: that it's really important to hear from children in a way that doesn't put them in the middle of conflict.

I have some concerns about the definition of “family violence”. Inclusion of coercive and controlling terminology is welcome, as is harm to animals and property, but the definition misses an important opportunity to identify family violence as child abuse and to articulate clearly the distinction between dominant aggressor abuse or violence and targeted person resistance violence. That kind of clarity could have helped with what will probably become problems with interpretation in connection with self-protection.

Proposed paragraph 16(3)(j) is framed incorrectly. The central concern is what engaging in family violence tells us about a person's capacity to co-parent effectively and supportively. Please refer to the list of considerations to be included in proposed paragraph 16(3)(j) and in proposed subsection 16(4), as recommended in the LEAF brief.

I have very serious concerns about the new “best interests of the child” consideration in proposed paragraph 16(3)(c)—the duty to consider “each spouse's willingness to support the development and maintenance of the child's relationship”—if, from the child's point of view, the relationship is non-existent or harmful. The provision places the responsibility on the wrong parent. In my view, it's potentially harmful to children. Removal of that provision would be best. At the very least, it requires a “best interests of the child” qualification.

I share the concerns that others have mentioned that proposed subsection 16.2(3) imposes parallel parenting. This can be a serious issue in a family violence context, given that we know that perpetrators often engage in frightening, lax or coercive parenting in order to harass or frighten. The suggested modifications in the three briefs would help to correct that problem.

Others have noted the need for additional clarity in the relocation provisions. There's also a need to ensure that proposed section 16.9(3) clearly allows ex parte applications in family violence cases. Proposed relocation has—

[Robert Harvie, Lawyer, Advisory Board Member, Huckvale LLP, National Self-Represented Litigants Project, As an Individual]

Thank you for inviting me today. I'm awed, flattered, and humbled, particularly because of the other members of this panel.

I am a lawyer. I've been a lawyer in family law for 32 years. In the context of that practice, I've seen how family law impacts families in dysfunction and hurts children. As a result of that, I became involved as a mediator. I had training as a collaborative lawyer. I later became a bencher with the Law Society of Alberta. I was the chair of their access to justice committee for two terms, and I became involved with the self-represented litigants project through the University of Windsor and Dr. Julie Macfarlane.

The pain that I feel for my clients and that I see for children is real and is what motivates me to do things like being here today.

My comments, in general, are that my concern about Bill C-78 is that it doesn't fundamentally change the problem, which is that the way families matters get resolved is still seen through the spectrum of litigation. Litigation doesn't work for families in disputes. It's a terrible way for people to resolve problems.

We have a clear two-tiered system in which people with money and resources can abuse people who don't have those resources. The process itself is premised on an adversarial approach to resolution, whereby two parties who are already in dispute are actually encouraged to dispute more.

My fundamental concern is that Bill C-78, while having good intentions, laudable intentions, doesn't really make any fundamental change to the process. It's in that context that I've provided a brief to this committee.

I embrace the positives in Bill C-78. I think it's very helpful that we refer to “parenting” instead of “custody” and “access” and that we have stopped referring to children as “assets” or “property”. I think it's very positive that we have better support variation and enforcement provisions interprovincially in the new legislation. I think that expanding and focusing on what the considerations are for the best interests of children is helpful, particularly for self-represented litigants. I think having a more detailed examination of how domestic violence should impact parenting decisions is also helpful.

My concern is that they change the “what”, but they don't change the “how”. That's always been my concern as I've become more concerned with access to justice, and it's in that context that my recommendations are made. I'll just touch on them; I won't go into them in detail.

My first concern—and to some extent it mirrors Professor Bala's comments—relates to the presumptions inherent in the provisions relating to relocation of parents. I think requiring notice, if people are relocating and impacting the other parent's relationship, is good, but I think the extent to which we've created presumption in the legislation flies in the face of the case of Gordon v. Goertz, which I think was incredibly well reasoned by former Madam Justice McLachlin. She basically said that as soon as we create a presumption, we almost ask the court to start with a preference, and that avoids the necessity of looking in a nuanced way at what's truly in the best interest of the child.

Just as Professor Bala says, a presumption in favour of equal parenting will create a bias in favour of equal parenting. Creating a presumption in favour of a parent with the vast majority of time with children to be able to move creates a presumption. Likewise, a presumption against a move whereby parents would have equal access also potentially creates a bias and distracts the court from just looking at all the circumstances and asking what is really best for the child or children. I would strongly urge the committee to reconsider those presumptions in the legislation.

With respect to my second recommendation, consistent the United Nations Convention on the Rights of the Child, which the Canadian government adopted in 1991, we must and should inquire as to the wishes of the child. I think it's laudable that we've included that as a consideration, but we haven't provided any support as to how that occurs, and so we're inviting poorly trained lawyers and, with respect, poorly trained judges, and, clearly, self-represented litigants—who are a growing part of our experience—to put children in the position of picking which parent they like more.

After they've done that and a decision is made based on that information, that child then has to exist with the parent that they didn't prefer.

I think if we're going to invite children—and we have to invite children—to look at what their preferences and their feelings are, we need to provide some administration and some infrastructure to allow that to happen in a way that's consistent with the interests of the children. To not do that is to invite further abuse of the children in that regard.

With respect to encouraging non-judicial dispute resolution, again, I think the aims in the legislation are laudable, but there's no meat there. There's nothing there to compel people. There's nothing there to push people to actually do that, as opposed to engaging in a litigation process.

My experience is that most parties in divorce—maybe all parties in divorce—are in trauma, and they're not making the best decisions they can, so while it may make sense to encourage them and to require them to go through a consideration of alternate dispute resolution mechanisms, with the greatest of respect, I would make that mandatory. I would say, “You have to go through some alternate form of resolution prior to proceeding through a litigation stream”, because otherwise it's a good intention with nothing more.

Finally, related to that, it's my experience that people going through a divorce are not making the best decisions as their highest selves. I think that when we have legislation that implies that they can make reasoned decisions without providing an infrastructure for them to get the counselling necessary to make them functional, you're not likely to create any real change. You're likely to have damaged people who continue to make damaged decisions, particularly against the interests of their children.

Fundamentally, my concern is that we have legislation created by lawyers for lawyers and judges. There's an adage that goes, “When you're a hammer, every problem looks like a nail.” With the greatest of respect, we have laws that are created by lawyers, and to a lawyer, every problem looks like it needs a courtroom. My concern is that we need to do more to move people out of that.

I know that's difficult in a federal jurisdiction, because administration is provincial, but I would urge this committee to go a little bit farther towards creating infrastructure and process changes, not simply changes to the law.

[The Chair, Liberal, Anthony Housefather]

I call the meeting to order.

Welcome, everyone. It is a pleasure to resume our study of Bill C-78 with a very distinguished panel of witnesses.

Joining us today we have Professor Nicholas Bala from the faculty of law at Queen's University. Welcome.

We have Julie I. Guindon, a Lawyer, Mediator and Parenting Coordinator at Société professionnelle Julie I. Guindon.

Welcome

We have Mr. Robert Harvie, attorney, advisory board member at Huckvale LLP, National Self-Represented Litigants Project. Welcome.

We have Ms. Laurie Pawlitza, who is a Partner at Torkin Manes LLP. Welcome.

We will go in that order in terms of testimony, so we will start with Professor Bala.

[Shawn Bayes, Executive Director, Elizabeth Fry Society of Greater Vancouver]

Thank you.

I work for the Elizabeth Fry Society of Greater Vancouver. E Fry is our registered trademark. We provide support services and programs for women, girls and children affected by the justice system. We are the oldest, most diversified and largest of the Elizabeth Fry societies in the country. We are also a member of Child Rights Connect. Child Rights Connect is the United Nations NGO working group on the rights of the child, and we're one of 80 organizations in the world who belong to that organization. Our programs address the intersection of justice involvement and women's daily lives. We understand that rights compete, and that the rights of the child come before all else. It is from that perspective we speak today.

Our programs support not only women exiting the prison, but also offer shelters, outreach for women who are homeless and a full spectrum of addictions treatment from detox to intensive intervention for women, including those pregnant with children. We offer counselling programs inclusive of traditional one-on-one programs; income support programs for people banned from accessing government offices so they have difficulty receiving their statutory and regulatory entitlements like every other British Columbian; and therapeutic access programs for families involved in child protection investigations or family custody disputes.

We enable children to see their parents for those reasons related to family violence and parenting deficits. In addition to that, we have programs for children impacted by homelessness, parental neonatal exposure to substances, and parental incarceration. In short, we see ourselves as a living laboratory provided with the opportunity to see where gaps exist within the current system.

As it would apply to domestic violence and family breakdown, those are the predecessors leading to homelessness for women. Because inevitably when we talk to homeless women in our shelters and we explore what led to that road of homelessness, we are talking about domestic violence, which is the most common pathway women eventually enter. This is inclusive of when we work with street women who are homeless, again through our housing first outreach program.

We see failures in child and spousal support payments that lead women in utter frustration to be labelled as difficult and uncooperative, and therefore, banned from receiving services in government offices or speaking to workers to access things like social assistance entitlements or to discuss problems. We see women struggle with those same frustrations when faced with representing themselves in court against a spouse of higher income represented by a lawyer, and the impact that has on both their ability to explain what they think is important for the court to consider and to orchestrate a response to a well-ordered opposing argument in court.

Lastly, we see the failure of government programs both provincially and federally, such as child support enforcement programs and the child benefit to enable children to receive benefits to which they are entitled.

My comments to the bill are directed to the lives of children. We believe that the Convention on the Rights of the Child would offer the viewpoint that all children in Canada, no matter where they live or who they live with, should enjoy the equal benefit and protection of the state. They do not in fact now do so because of the patchwork of differing provincial and federal laws addressing marriage, common-law marriage and provincial child support enforcement programs, and even income assistance programs and the treatment of child support payments that are paid for women on welfare.

Secondly, divorce disproportionately impacts women and their ability to participate in the process. According to the 2016 census, over a half of Canadian taxpayers who are women have an income of less than $30,000. For women with an income of less than $20,000, that's 40% of Canadian women, and that directly impacts their access to justice.

The federal government, under article 2 in the Convention on the Rights of the Child, should respect and ensure that the rights set forth and presented in the convention are there for every child within the jurisdiction, without discrimination. It says that state parties should take “appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status”.

While recognizing the limitations the federal government operates within, one of the ways it can at least influence and level the playing field over time for children, as provincial legislation is rewritten, is to ensure there is a higher benchmark than what currently exists within provinces. Therefore, we encourage it to identify from witnesses particularly those points where provincial legislation is higher—and we do so on a few.

As it applies to the definition of family violence, the bill sets out a limited definition when it says that “family violence means any conduct” and then goes on to list measures. Many of the women and children we serve can describe the forms of violence they have endured as inclusive of isolating a woman from her family and/or her religious community, and the erosion of her sense of self, connection to others and, therefore, her ability to seek help, which this has created. We would encourage the committee to include and consider a definition that is broader and not finite.

When it comes to understanding family violence and the best interests of the child, this change would not be inconsequential. The ability of women to participate in a process is linked to their experience of family violence.

Proposed paragraph 16(3)(c) states that, in determining the best interests of the child, the court shall take into consideration “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse”. Although Bill C-78 proposes extensive considerations with regard to family violence, this factor may be problematic for women who are in abusive relationships or are afraid of what the court will say if they are unwilling to co-operate and accommodate their abuser. The provision may silence women because of fear of the impact on custody and access, and consequently, it may impact the full consideration of the best interests of the child.

Second, the provision is often used against women who have experienced family violence, when they are labelled as uncooperative. The mental health of women is affected by their experience of abuse, and it is demonstrated in their lives by their ability to manage stress and their emotions. These women are commonly labelled as personality disordered in the Diagnostic and Statistical Manual of Mental Disorders, the DSM, by mental health professionals. The importance of this is that those symptoms—anxiety, depression, intensive mood swings and paranoia—can cause a woman to be labelled as uncooperative, but they are also an expression of the situation in which she has been living, and they are used against her for the benefit of the person who has abused her.

In B.C., the Family Law Act is the act most often used by the women we serve because they are unmarried or unable to afford the legal fees involved in using the Divorce Act, which can only be heard in the Supreme Court. The Family Law Act sets provisions for mandatory family violence screening and education for all professionals involved in dispute resolution. Those same safeguards are not included in Bill C-78. Such training is imperative to understand and contextualize why one party may appear to be reasoned, rational and well resourced, while the other appears unable to order their thoughts, appears angry or hostile, and is unemployed. It is this understanding that can inform the dispute process and the requirements asked of the parties.

Second, Bill C-78 sets out that at least 60 days' notice must be given to the other parent prior to a relocation, and the notice must include the new address of the parent as well as a proposal for parenting time. Although there is an exception for family violence included in the legislation, the exception must be court-ordered prior to the relocation. Under proposed paragraph 16.92(1)(d), when deciding whether to authorize a contested relocation application, the court will take into consideration whether the person who intends to relocate complied with the notice requirement. That requirement may lead to abused women reconsidering fleeing a violent situation. It also places women in a difficult situation if there is child protection legislation in their province, such as in B.C., where, if you leave a child in that circumstance, you can be held responsible and it can impact your ability to keep your child with you.

Therefore, I would suggest that in considering this issue, consideration be given to whether or not you are ensuring that all children in Canada receive equal protection under the law. I suggest that you cannot do so, and therefore, I suggest this rule of looking to be a high water mark. Second, I suggest that you contextualize that information by ensuring training for staff on family violence and its impact. Third, I suggest that you consider the safety of children and women to be important, and ensure that their safety is not compromised by decisions related to custody and access.

[Paulette MacDonald]

I am a family law reform advocate. That came to be in 2005 after meeting a “non-custodial” father and his two young children struggling in a custody battle. Becoming a second wife and stepmother, I witnessed first-hand the destruction of an entire family simply because mom and dad got a divorce. I was dumbfounded. I couldn't get my head around what was happening to this family and how our family law system seemed to facilitate the worst kind of parenting behaviour, with its bias and winner-take-all approach.

I previously had no idea that the custodial parent, typically the mother, could run rampant within our family law system and child protection agencies. I saw breaches of court orders, false statements of arrears to the family responsibility office, false allegations of physical child abuse, and verbal and emotional child abuse. I also saw that the non-custodial parent, usually the father, is automatically guilty until he has proven his innocence, and by then, the damage is done.

This all took place because the children wanted more time with their father and he was seeking equal parenting time. Mom wanted no part of that, and the family court process allowed her to just about destroy him and her children.

I can confirm to you first-hand that the family justice system is indeed broken. That's why I became an advocate, and that's why I am here speaking to you.

Regrettably, Bill C-78 is not intended as a much-needed and overdue overhaul. Instead, it's targeted as more of a legal housekeeping exercise. Still, through the action of this committee I believe that Bill C-78 represents the best opportunity in more than 20 years to make select changes in the Divorce Act, demonstrably supported by Canadians and backed by authoritative social science research.

My remarks address a presumption of equal shared parenting as being in the best interests of the child. Equal shared parenting should be the starting point for judicial consideration. If both parents are deemed fit while the marriage or relationship is intact, then both parents should be deemed fit when the marriage or relationship ends.

Social science informs us that children do much better with both parents. Conversely, children raised without both parents generally underachieve, are prone to more medical and social problems, and have significantly higher rates of incarceration, all at taxpayers' expense. Continuity of parental and family relationships to the maximum workable extent is what is in the best interests of the child. Hence, fit parents should not have to spend their life savings in family court simply to maintain a pre-existing relationship with their children, as is all too often the case.

Equal shared parenting is fully endorsed by social science research as the preferred child arrangement post-dissolution, barring issues of abuse, neglect or violence. In fact, 110 eminent researchers publicly endorsed this scientific conclusion in 2014.

Moreover, in a 2018 special edition of the prestigious Journal of Divorce & Remarriage, a panel of social science experts, went further by stating that the scientific body of research was sufficiently powerful to now justify a rebuttable presumption of shared parenting. I submit that this evidence-based consensus should be reflected in Bill C-78.

Not only is equal shared parenting supported by science, but it is overwhelmingly supported in many countries and jurisdictions, according to polls, as is the case in Canada. In polls commissioned in 2007, 2009 and 2017, Canadians supported a presumption of equal parenting by a ratio of more than 6:1. Notably, the strong support was generally the same, regardless of gender, age, geographical region or political affiliation. This is a non-partisan issue for Canadians.

In 1998, all parties endorsed the shared parenting recommendations of the “For the Sake of the Children” report by the Special Joint Committee on Child Custody and Access. Likewise, the Liberal government of the day commissioned a poll in 2002, which found that Canadians supported shared parenting even then.

The Conservative Party and the Green Party currently have shared parenting as part of their policies. Now is the time for the others to reaffirm their commitment to shared parenting as a non-partisan issue.

Moving towards my conclusion, I’d like to share with the committee the public perception of shared parenting after its adoption in other jurisdictions. A recent example is Kentucky, which became the first U.S. state to adopt an explicit rebuttable presumption of shared parenting in April, 2018. Subsequent poll results of July 2018 indicate favourable support of shared parenting by a ratio of 6:1, about the same as in Canada. The poll also provides valuable insight on children’s rights versus parental rights.

As you know, detractors of shared parenting paint it as a parental rights issue on the erroneous assumption that parental rights and children’s rights are somehow mutually exclusive rather than overlapping. Here’s what the poll reported. Two questions were asked on children’s rights, and two on parental rights.

For the children’s rights, it is in the best interests of the child to have as much time as possible with their parents following divorce—a ratio of 12:1 agree. Children have the right to spend equal time or near equal time with both parents following divorce or separation—a ratio of 16:1 agree.

For parental rights, both parents, whether living together or living apart, should have equal access to their children and should share responsibility for raising their children—a ratio of 12:1 agree. Separating parents should have equal rights versus either father or mother having more—a ratio of 11:1 agree.

The results strongly indicate that children’s rights and parental rights are not mutually exclusive but complementary—oftentimes flip sides of the same coin—while recognizing the primacy of the child.

In that respect, the Minister of Justice was badly advised by her staff for her testimony before this committee on November 5 when she framed shared parenting as a parental issue rather than a children’s rights issue. Social science research and the public at large are telling you they are indivisible. To treat them as disjoint is not only scientifically incorrect. It is openly disingenuous.

Children’s best interests are served by having both parents actively involved, while parental rights are satisfied by allowing fit parents to raise their children. Canada has no better example of the benefits of shared parenting than Prime Minister Justin Trudeau, who was raised by Pierre Trudeau and Margaret Trudeau.

I conclude by urging the committee to amend Bill C-78 to incorporate presumptive shared parenting to reflect social science consensus and the long-standing wish of Canadians of all persuasions.

[Paulette MacDonald, Member, Canadian Branch, Leading Women for Shared Parenting]

On behalf of Leading Women for Shared Parenting Canada, I thank you, Mr. Chair and members of the committee, for this opportunity to address proposed changes in Bill C-78.

I am a family law reform advocate—

[Daniel Melamed, Torkin Manes LLP, As an Individual]

You can imagine what it's like to practise against Ms. McCarthy. She's a challenge.

To follow up, I'm going to talk about mediation.

I've been practising for 30 years, and like Ms. McCarthy, I have done high-conflict custody cases. I've focused on my mediation practice for the last number of years. I didn't write a long paper. I tried to focus on a couple of things that I thought I could bring to this table to consider when talking and thinking about the mandatory requirement of the adviser to raise alternative dispute resolution with individuals, which leads to mediation as one of the options.

My practice now is about a third to a half mediations only, where I'm the mediator. After you hear the witnesses, when considering changes to the legislation, I'd like you to think about a couple of things that I've learned that relate to two things. One is the family violence content and the second is to timing. I'm referring specifically to what I see in Bill C-78, proposed subsection 7.7(2). Let me just describe a bit about how practice actually works, so that you can appreciate why those two things interplay as a recipient of dispute resolution mechanisms that are outside of the court process that Ms. McCarthy has spoken about. I actually agree with her comments.

When a client comes into my office, the first thing we talk about is their problems, what they're thinking about and their worries. If it's an extreme situation—perhaps an assault or perhaps the possibility that money will be taken out of the country or will disappear—as an adviser, I immediately start a proceeding. Under the legislation now, we're required, as advisers, to address alternative dispute resolution. I'll do that, because I have a signed certificate that requires me to do it. Then we're in the throes of litigation that sometimes goes on for years.

This is the thing I want you to think about: There's no secondary requirement to revisit that provision as the process is undertaken. That should be something you should consider. I could imagine the legislation saying that at various stages in the proceedings the adviser is required to do the same thing again. The initiation is the starting point, and perhaps after every step in a court proceeding—that seems a little extreme—or at various times, or at what we call the settlement conference.... It's different things across the country. Things get very hot at the beginning of lots of files, and the advice isn't really thought of at the time. An important function of our adviser responsibility is to talk about how now that we've had all this fighting, should we stop? Should we talk to each other? Should we go to someone who could help us sort these things out?

I'd like the committee to consider whether there should be some ongoing obligation of the adviser to consider that option for discussion, maybe in some general way. Again, not all cases are appropriate for mediation. Some of them should be just settlement. Ms. McCarthy and I can talk across the table. We don't need a third person to understand the issues and the problems. Can we problem-solve together to create a solution maybe as effectively as a mediation? That's not always the case, so sometimes you need that third party.

Regarding family violence, as you describe it in the legislation.... Let me tell you a story of what happened to me last week to highlight why you should very seriously consider what FDRIO has put forward in their brief, as well as what we call a screening of domestic violence before mediation occurs. I'm sure Dr. Landau spoke about it. Two weeks ago, a mediation came into my office.

How it works in my office is that lawyers—very rarely individuals—call me and say, “Hey, Danny, do you have time to do a mediation in the next couple of weeks?” They call me up, they talk to my assistant, and we do a conflict check to make sure no one else in my office has met with them. If we are conflict free, they talk about dates. Sometimes I'll have a phone call to do what we call a pre-mediation conference with counsel to explain what the fight is about, although sometimes I don't. Then, all of a sudden, I get briefs on my desk.

Two weeks ago Wednesday, the briefs land on my desk. The husband's brief talks about the issues in the case. They're the usual things. The kids are older, so there's no custody. It's just money, money, money—all good things. In the other brief, the first two paragraphs are about the vicious assault on the wife and the criminal conviction of the husband. I'm looking at these briefs and I'm wondering how I am going to mediate this. Everyone talks about power imbalance—

[Brian Ludmer, Advisory Counsel, Canadian Association for Equality]

Thank you very much, and thanks for having me.

I'm a co-founder with Mr. Colman of Lawyers for Shared Parenting, and I'm here today on behalf of the Canadian Association for Equality.

In 2014, I participated in the drafting of Bill C-560. I was the one who came up with the operative language of a presumption, unless it could be established on evidence that the needs of the children would be substantially enhanced by a different parenting plan. That remains, in my view and the view of many you're hearing from, how to advance the best interests of children.

The fact of the matter is that adding a list of other criteria and continuing to hear about a unique and individualized approach in each case will subject the children of this country to a continuation of the litigious environment that results in the conflict that all the studies say is the principle damage to the children. They won't be damaged by equal parenting. They're damaged by the conflict over two parents, one of whom wishes to be the primary parent, hence the litigation, and the other one who is willing to share the child and co-parent.

In a sense, while you've heard from an organization representing 36,000 lawyers, you should hear from your constituents.

For over 20 years, public opinion poll after public opinion poll has reiterated that the Canadian public has a terrible experience with the current system, and that is on par with public opinion polls across North America. The current system does not work to advance the best interests of children. It says that's the goal, but in practice, if you're a family lawyer seeing what happens out there, the current system damages children. It forces parents to triangulate the children. It causes conflict. It is maintained at immense cost, billions and billions of dollars.

There is no science that substantiates that anybody, including a judge, can say that a particular parent should see the children 37.2% of the time. The only science...and I'll differ from Ms. Landau on this. Peer-reviewed journal research, very robust, almost indisputable, and ratified by experts from around the world, substantiates that the closer you get to two primary parents after separation, the better the outcome for children. That research is thorough and cannot be minimized on sample sizes. You have to see it yourself.

The committee is getting submissions from Professor Fabricius, who drafted Arizona's legislation, from Professor Kruk and from Professor Nielsen. The joint submission of which CAFE is a part also highlights some of the leading research.

The current system is built on a series of assumptions that don't play out in real life. It produces arbitrary results depending on what judge you get, what their background is, and the day. Are they young? Are they from an urban centre? Is your case being litigated in the countryside? Which province is your case being litigated in? Those produce arbitrary results that are contrary to the goals of the legislation.

The legislation is premised, and you can tell that from the presentations you've heard today, on all the facts getting before the court and a judge somehow having the ability, in a three-day trial or a four-day trial, to figure it out.

In practice, it's not what happens. Budgets are limited. Over half of family law litigants are self-represented. When people represent themselves against a lawyer, the true family saga will never make it to the judge. Judges themselves, when they are polled and when commissions and studies are done, say they also doubt about whether they're getting it right. There are no retrospective studies of families coming through the system to determine whether today's system is working or not. Look at child outcomes three years out or five years out. The only science that's there supports equal shared parenting.

In terms of public opinion, over half or close to half of families today will get separated, so you're talking over 10 million people who will be affected, and millions and millions of children. Their actual experience with today's system trumps the experience of 36,000 lawyers.

For 20 years the public has been telling us it's not working. You're either going through a separation yourself, or a sibling or a cousin or a best friend is. No one is satisfied with the current system.

The proposed changes in Bill C-78—the technical ones—are pretty good. You can't argue with a lot of the stuff that's there, but it was put forward as a means of advancing the best interests of children, and it fails to make any fundamental change. If you start with a system that's broken, because it's built on a series of failed assumptions, you can't rescue it with technical language. You have to try to understand the better way to do it.

If you have a rebuttable presumption of equal shared parenting.... Domestic violence issues live harmoniously today with the maximum contact principle. It doesn't stand in the way and doesn't impact on that. Same with equal shared parenting—it can live harmoniously with provisions designed to capture and separate situations where that's a concern, like alcoholism or absenteeism or a parent who is an investment banker travelling all the time.

Equal shared parenting is not for everyone, but it is for about 90% to 95% of the families who litigate. When you look at what they're asking for, they're close, but one wants to be the primary parent. We taxpayers of Canada are all paying for that. It's a very expensive system with no science to determine that it produces optimum results or even results that can justify the cost. The only science and the views of the public who live with the system.... The true experts are the public. They really don't like it and they don't like it right across North America.

There are currently proposals for equal shared parenting in at least half the States. Kentucky has introduced the first true rebuttable presumption of equal parenting. The public opinion polls and the experiences are great. Arizona had something similar about four or five years ago, and from all their polling and the results since, everybody's happy with it. Australia has been put forward as an example but maybe that's not the case. That's not what happened there. There was no problem with the equal parenting. There was a political dynamic.

No matter how you look at it, there's no meat, no evidence behind the objections to equal parenting, and there's so much for it. It will save our children from conflict, it will accord with the will of the public—that's why we're here—and it will fit the science.

I will have a printed presentation. It will be filed within the next day or two, and then I know it has to be translated, but I'll respect the time allotment today and any questions you have.

[Sarah Rauch, Chair, Child and Youth Law, Canadian Bar Association]

Thank you.

Good afternoon. I am currently the chair of the child and youth law section of the Canadian Bar Association. We are the newest—or maybe I'll say the youngest—section of the Canadian Bar Association. We consist of experts from across Canada: legal practitioners, advocates, and others who are experts in seeing things from a child's perspective. We have a section of professionals who are expert in children's rights as seen through the United Nations Convention on the Rights of the Child.

It's from that perspective that we say this bill is a great and positive step and we support it fully. There's a diversity among the profession, and that diversity includes, in our section, those who practise regularly in family law and child protection.

The United Nations Convention on the Rights of the Child was ratified by Canada 25 years ago and provides a foundation for a perspective that is shifting slowly and surely in Canadian family law. That foundation focuses on the rights and interests of the child.

This submission especially welcomes an explicit reference to the UNCRC in the Divorce Act provisions. That was done in the Youth Criminal Justice Act in 2002, so there's precedent for it. It works on a number of levels in terms of applying the UNCRC to family law, especially given that on this issue of the rights of the child and the UNCRC there's a limited awareness among legal professionals and the judiciary and so on.

There is also the CBA's “Child Rights Toolkit”, which our section as a committee was instrumental in forming. My colleague just referred to it. There are references to social science and other expertise that has been drawn upon to illustrate and enhance the understanding of the application of the UNCRC.

The UNCRC in its preamble recognizes that for children and youth there are special safeguards and special considerations that all children are entitled to without discrimination. These special considerations are founded in the knowledge that each child who is affected by decisions concerning them made under the law is unique, and that without exception each child is entitled to have that unique circumstance be fully assessed and considered in keeping with their rights and their best interests. It's a shift in perspective.

Our CBA sections strongly support the focus on the child's best interests in Bill C-78. We support the submission that there be no presumptions regarding what is best for children. The example is the allocation of parenting time. The CBA section stresses the importance of assessing each child in all of the provisions—that one by way of example—regarding the point of view of the child, the interests of the child and how to apply all of the provisions from that perspective.

In the section related to parenting time, decision-making and contact, any suggestion of a presumption has been eliminated, which we support. We are pleased especially in light of the reference to family violence that there will no longer be a presumption that fails to fulfill an individual assessment of the child's best interests.

Our submissions seek to avoid confusing or misleading language. For example, the proposed heading “Maximum parenting time” could suggest that a maximum amount of parenting time is always a desirable outcome. We submit that this undermines.... It's not always the case that maximum parenting time will be in the child's best interests. That current heading risks being inconsistent with a strong and clear approach that mandates the primary consideration of the child's best interests in each case. We recommend changing that heading to “Allocation of parenting time”.

There is an inextricable link between the best interests of the child and keeping their individual circumstances the central focus of every decision being made about them. We support including proposed changes to the Divorce Act that will clarify all considerations made in resolving disputes regarding the day-to-day lives of children and youth and their futures, decisions that are important to them in a different way than they are to their parents or to adults.

A child-rights approach provides a consistent manner of making decisions that affect children from all backgrounds across Canada. Bill C-78 provides an opportunity for the kind of careful consideration and safeguards that are noted in the UNCRC, both broadly and specifically, in the articles and in the comments.

Thank you for the opportunity to present our perspective, and we welcome any questions.

[Melanie Del Rizzo, Chair, Family Law, Canadian Bar Association]

Thank you very much for the invitation to present the Canadian Bar Association's views on Bill C-78 today.

Our submission represents the joint position of the CBA's family law section and the child and youth law section.

My name is Melanie Del Rizzo. I'm a family lawyer practising in St. John's, Newfoundland and Labrador. I'm the current chair of the national family law section of the CBA. The family section represents specialists in family law from across Canada. With me is Sarah Rauch, who's chair of the child and youth law section.

The CBA is a national association of over 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us here to you.

Our brief also includes input from other CBA sections, which I'll highlight. The French-speaking members and the constitutional and human rights law section highlight that Bill C-78 omits any provisions to address current linguistic inequalities in family courts. The bill provides an important opportunity to offer explicit recognition of French language rights in any proceeding.

The alternative dispute resolution section contributed to our comments on the bill concerning greater use of dispute resolution processes. Some aspects of the bill may seem contradictory, and we suggest some changes to strengthen the importance of ADR processes in resolving family disputes.

While our submission contains 45 recommendations, which we hope that you'll review, I should stress that we strongly support the passage of Bill C-78. Much of it would address long-standing CBA concerns. All recommendations that we have made are made with a view to make the bill better from the perspective of lawyers who practise in this area.

One of the most important parts of Bill C-78 is the confirmation that the best interests of the child remain the pivotal test in any parenting determination. The CBA has long opposed any presumptions in this area, which can only muddy the primary focus on the children's best interests. Given this primary focus, any presumption with respect to parenting of children and any concept of parental rights is misguided. Equal time with both parents is an option. It's already an option and is an increasingly popular option, but it is only appropriate if that arrangement is in the child's best interests. With respect to the social science, I would refer you to the tool kit the CBA has produced on parenting after separation and the “Child Rights Toolkit”, which provide good summaries of the social science in this area.

We support the list of factors relevant to determining best interests under proposed subsection 16(3). We offer suggestions to further improve and clarify those factors, including adding more direct language to protect a child who's been exposed to family violence.

We also support the bill's focus on the use of parenting plans, but we believe it could be clearer that they're not intended to be mandatory.

We also find that the bill could provide added clarity about how courts should assess parenting plans to ensure they are in the child's best interests, particularly when a parenting plan is on consent of both parties. We suggest that the parties at least be given an opportunity to respond to any of the court's concerns before a plan is varied.

Family violence is very relevant to determining a child's best interests. We commend the bill for including it in the best interests factors. We offer some suggestions in our submission to strengthen the family violence proposals. In proposed section 7.8, courts would have a duty to consider existing protection orders to facilitate a coordination of proceedings. Different rules and processes are in place across Canada and we note that some efforts are going to be required to ensure appropriate cross-referencing.

We appreciate and have also called for a list of factors in considering relocation applications. We recommended a few additions to the list in Bill C-78.

We also propose that a simple notice form be provided for relocation applications, perhaps with a place for a responding party to also note any objection or their consent. An even-handed approach to the process is only fair. The requirements for a party wishing to move should be similar to those for a party objecting to the move. We also support a longer notice period than that proposed in the bill to increase time for a mediated or negotiated solution and also to provide more time for people living in remote or rural locations to be able to access services. The ability to apply for a default order in cases where there is no objection should also be considered. Otherwise, we see a situation where a person could have a statutory right to move that could then be inconsistent with an existing order or agreement.

We also support the shifting burden of proof as proposed in the bill and the idea that a move is presumed to be in the best interests of children who have little to no relationship with the non-relocating parent. However, we note that children can have significant attachments to both parents even without equal parenting time. As such, the CBA sections recommend that the bill provide that relocation be presumed not to be in the child's best interests when it would likely damage the attachment to the left-behind parent.

We note that adequate funding must be available to ensure that federal, provincial and territorial governments can provide the services required by the bill, such as mediation, supervised access services and the communication between various levels and jurisdictions of courts with respect to civil protection orders.

My colleague will now highlight some other suggestions we have for improving the bill.

[Gene Colman]

I hope we don't lose me again.

Thank you.

I was talking about the areas where L4SP agrees with Nick Bala's submissions. I talked about new terminology, the use of parenting coordinator and counselling services, and the best interests lists. I'm going to go forward. I want to make sure I finish this within the next three minutes.

I'm very proud to be a member of FDRIO and when I hear Barbara Landau giving such wonderful submissions—aside from the one, which you all will probably know that I didn't like—I am proud to be a member of the organization with Barbara.

To return to Nick Bala, we applaud Nick for bringing to the forefront the need to specifically address alienation and children resisting contact with a parent. We agree that children's views need to be considered, but his recommendation to encourage judicial interviews we cannot condone. As you'll see, I'm on the same page with Barbara Landau on that point. Interviewing children is an art and not all judges are sufficiently trained in that area. It places judges and children in a pressure cooker.

We agree with Nick's analysis of family violence and heartily welcome his call to the federal government to provide resources to support educational efforts and supports for victims of family violence.

With respect to relocation, we disagree with Professor Bala that there should be a 40% threshold, which he lifted from the child support guidelines. The L4SP brief points out that the onus or burden of proof should always be on the parent who proposes to relocate and thus deprive the child of significant contact with the other parent.

The other recommendations that Nick puts forward, we disagree with. In particular, of course, we disagree with his protestations against the rebuttable presumption. His discussion on pages three and four of his brief tends to largely cite his own work and gives propositions that are simply contrary to the social science literature.

In conclusion, for kids' benefit, we need to thwart the custody access wars from the get-go. We need to remove incentives to strife. No longer should parents need to prove the other unfit in order to win. To reduce conflict, the legal system employs presumptions, onuses and burdens of proof. Even C-78 proposes relocation presumptions. In 1997, we implemented some strong presumptions in the federal child support guidelines and succeeded in removing a huge source of conflict in our system.

Implementing a presumption for equal, shared parenting—that is shared decision-making and residential time that is approximately equal—is a progressive and totally child-focused reform. It's not about parents' rights and it's certainly not about fathers' rights. It's all about adopting legal and social policy that is bound to substantially improve the lives of children of divorce.

Mr. Chairman and members of the committee, thank you very much.

[Dr. Barbara Landau, Mediator, Arbitrator, Psychologist and Lawyer, Family Dispute Resolution Institute of Ontario]

That's okay. Thank you, Mr. Chairman.

It's a pleasure to welcome Bill C-78 with its many positive reforms. I represent the Family Dispute Resolution Institute of Ontario. I've submitted my bio. I will briefly note the items that we strongly support and then discuss issues that we think can be improved. I will refer to a few sections of the B.C. Family Law Act, which I've provided, that we think should be incorporated. I've also attached a sample parenting plan. I can answer questions about that.

We are strongly supportive of the following: the encouragement for co-operative out-of-court dispute resolution options, where appropriate; the requirement to screen for domestic violence, broadly defined, including physical, psychological and emotional abuse; the importance of looking at the impact of domestic violence on children when assessing parenting capacity; the replacement of outdated “custody and access” language with “parenting orders” and the encouragement to create parenting plans; the inclusion of an extensive list of criteria for determining the child's best interests; a clarification of how relocation cases will be approached, although with some changes that we will be recommending; and the implementation of an administrative process to update child and spousal support.

Those are the things we're strongly in favour of. We also have recommendations for clarification or additions. Our focus is how to improve the process of divorce and assist families, especially children, to make this difficult transition in a supportive, timely, less conflicted and less costly manner. This will require greater co-operation between the federal government and provincial partners.

The first thing we're recommending is that the definition of family dispute resolution process should be stated as follows: “means a consensual process outside of court agreed upon by the parties”. That would be the language we'd use. The list of consensual out-of-court processes is incomplete. It should include med-arb, arbitration and parenting coordination. I would ask you to look at appendix A for the B.C. definition. We recommend that family justice services be subsumed under family dispute resolution processes. Having two different categories is confusing.

Second is the duty to screen for domestic violence. We recommend that the duty apply to all professionals assisting separating families. That duty has been in our child welfare legislation for several decades. Separations raise the risk level for family violence—up to lethality—even when this has not previously been a concern. This is an important safeguard. Again, look at the B.C. Family Law Act in appendix B.

The third recommendation is around the duties of lawyers and legal advisers. The definition of “legal adviser” versus “lawyer” should be clarified. Lawyers are required under the new legislation to inform clients about family dispute resolution options. There should be no exemption for lawyers or other professionals on the basis that they're unaware of such services. That may have been the case 40 years ago. Today it's not the case.

If lawyers are unsure about safety, they should refer clients to a trained domestic violence professional to assess the risk and report on what might be appropriate. The lawyer's duty should arise from the time they're retained, not delayed until an action is commenced. There should be specific consequences for lawyers or other professionals who fail to fulfill this duty. In the past, this has been a duty under the Divorce Act. It has not been followed.

The next point concerns unified family courts. Unified family courts should be created in any province that wishes them. The advantages are that they reduce confusion, they're more efficient, they're less costly, and they can address all of the issues in one court. They ensure, where possible, that there's one judge, a family law specialist—I'll underline that—for each family. Ideally, that's for marriage breakdown, domestic violence and child welfare. This ensures that decisions can be monitored for compliance.

In many jurisdictions, assignments are based on the judge's availability, not their expertise. Imagine if one of you had a heart attack and the doctor assigned had expertise as an obstetrician. Each court appearance currently may have a different judge, and with no family expertise. Judges do not have sufficient time to read all of their new files, so adjournments and inconsistent decisions are frequent. However, UFCs cannot improve access to justice without adequate services. These are the services that we think should be there.

These would include funding for mandatory education programs, which are really important. They would include a description of dispute resolution options, safety advice, explanations of what parenting plans are, telling people about financial disclosure and so on, before couples make an application to court. This is already available in several provinces.

The other thing is funding for the screening of domestic violence for all family professionals, including judges. Triage should be available to help people get to the most appropriate dispute resolution process, either within or outside the court's mandate, or to a community service that would address issues such as mental health, addiction and so on, and determine which people should be fast-tracked to court.

This would require co-operation between the federal government and the provinces on funding, appointment of judges and service delivery. Currently, our family law system gets a failing grade from the 50% to 80% of family law litigants who are self-representatives.

Fifth is parenting plans. These are very important tools to help parents achieve what are the key objectives of Bill C-78. To help parents focus on caretaking responsibilities, reducing conflict and creating a practical child-centred road map, before they engage in an adversarial process.

I've attached an example of a short and a longer parenting plan. The longer one just explains the short one. We do not support a presumption of equal parenting, with all due respect to my friend, Gene, because this negates the assessment of parenting capacity. It overlooks issues of domestic violence, mental health, addiction and the encouragement for parents to work out a parenting plan that fits their unique circumstances and addresses their availability, the special needs of their children, the ages of the children and all of those things.

Also, equal time often results in pressure to reduce or eliminate child support and prevent relocation. The literature that he refers to is often quite biased. Much of the literature that supports equal parenting is based on people who have co-operatively decided to do that. I won't go into detail on it, but it also has small sample sizes and other things like that.

Parenting plans need to include the parents' responsibilities for the caretaking of their children and how significant decisions are made—not just what decisions but what process they're going to use and how they're going to handle disputes when they arise. There also needs to be a parenting schedule, which is not just the regular schedule but also includes school breaks, PD days, religious or other special days, and the process for changing a schedule when there are changes such as children getting older, changes in mobility or the presence of disputes.

Regarding views of the child, when trained professionals meet with children to hear their views, answer their questions and address their fears, parenting disputes are often resolved and children are more likely to accept the outcome. However, this is the one dispute I have with Nick Bala. I don't believe that judges are the best people to be interviewing children. Child specialists are more qualified and less costly, and they can meet with children in a supportive setting.

The next thing we are recommending is reinstating family court clinics. We recommend a co-operative funding arrangement between the federal Department of Justice and the provincial ministries of the attorneys general and ministries of health. These agencies should be located outside of the UFCs, as clients benefit from a less formal clinical environment. These clinics can offer triage, mediation, assessments and brief treatment for separating families, as well as child welfare issues. I was the chief psychologist at the family court clinic in Toronto. These are wonderful training grounds for mental health professionals, and they're publicly funded so they're affordable.

Relocation rules have been addressed, but they are too complex. There are too many parties. I think the criteria shouldn't be geographic distance. When a contemplated move will make the existing parenting schedule no longer feasible, there should be a graduated list of dispute resolution processes from informal to more formal. That would encourage people to indicate that they're going to move at the earliest possible time rather than waiting until the last minute.

[Gene Colman]

Thank you very much, Mr. Chairman.

My experience, first of all, is as a family law lawyer since 1979. As a law student, I founded the Canadian Journal of Family Law. I've published many family law articles, including one that was cited favourably by the Supreme Court of Canada. My practice is dedicated to finding the optimum solutions for kids. I appear before you as a founder of Lawyers for Shared Parenting and co-author, along with five others, of the brief that our organization submitted.

As a little bit of my personal history, I have one 47-year marriage. I have seven kids, with no divorces amongst the married ones, and 13 grandkids. I hope that demonstrates that I have no personal axe to grind here.

If my views with respect to rebuttable presumption of equal shared parenting are adopted, I will likely ultimately have less family law legal work to do, and I hope that happens.

There are two reasons that this committee should adopt rebuttable presumption for equal shared parenting. The social science literature is crystal clear, and the public overwhelmingly wants it, but many lawyers do not.

The social science literature overwhelmingly establishes the utility of ESP, which is short for equal shared parenting. You can find the footnoted sources at footnote 44 of our brief. If you need help to access them, just send me or my co-authors an email. At my website, complexfamilylaw.com, I have a number of quotations from the social science literature under the title “Equal Shared Parenting Thought of the Day”.

It really comes down to three simple points when we're dealing with the literature. One, the closer we get to 50% residential time, the better the outcomes are for children. Two, ESP gives better outcomes on many axes of measured child behaviour and child adjustment. Three, ESP outcomes are better, even independent of other factors.

Let me make three points there. One is on the quality of the parent-child relationship, and we've learned that even marginally fit parents are beneficial for kids. The second factor is parental incomes. Benefits of ESP are not tied to standards of living, as some have claimed. Third, whether it's a low-conflict or high-conflict level, they do not yield appreciably different results in terms of benefits to children, but I will concede that extremely high-conflict situations could negate equal shared parenting.

The arguments against ESP are responded to much better than I could do by Professors Nielsen and Kruk, and they are cited in our brief.

I want to talk about public opinion polls. Our brief, on pages 13-15, presents the public opinion polls. Public support for rebuttable presumption is very consistent and high. Opposition within the bar is very strong, and for that, please see Professor Nick Bala's brief and see the Canadian Bar Association brief.

Bill C-78 did not even mention anything approaching a rebuttable presumption for ESP, so I ask, why doth they so vehemently protest? If we adopt the L4SP position—that's Lawyers for Shared Parenting—you will make a lot of lawyers very unhappy, but you will make many Canadians very pleased indeed.

Do you choose the lawyers, or do you choose the public? I say, choose neither. Choose the children. Give the children of divorce the best chance to maintain and strengthen relationships with all of their parents and grandparents. Even with your much-applauded change in terminology, unless you take the very bold step that I am urging on you here today, the system will continue to pit parents against each other, each trying to prove that he or she was the primary parent, and each trying to prove that he or she is a better parent. It's time to implement a sea change. It's time to really make a difference in the lives of Canadian children.

I want to mention two briefs, the B'nai Brith Canada brief, authored by John Syrtash, who I see is in the room today, and my very good friend Professor Nick Bala's brief. With reference to Mr. Syrtash's brief, B'nai Brith Canada has expressed support in its brief for a rebuttable presumption for ESP.

While Lawyers for Shared Parenting welcomes that support, we do caution that the test its legal counsel, Mr. Syrtash, applies is overly stringent—namely, that the presumption is rebutted only in “unconscionable circumstances”. We maintain that there must be greater flexibility.

L4SP also commends John for his analysis of the family violence sections of the bill. We agree that the current wording will likely create [Technical difficulty—Editor].

[The Chair, Liberal, Anthony Housefather]

It's a great pleasure to reconvene our study on Bill C-78. We are joined by a very distinguished panel here today. Via video conference from Beersheba, we have Gene Colman, who is representing Lawyers for Shared Parenting.

Mr. Colman, can you hear us?

Accessible Canada Act

[John Barlow, Conservative, Foothills, AB]

Mr. Speaker, that is something we all have to take to heart. When we ask Canadians to come to Ottawa or to participate in a study because we want to consult with them and get their opinion and their input to help build legislation, and they come up with something that we then ignore, we lose their confidence. We start to lose the confidence of Canadians if we do not listen to what they tell us.

As I said in my presentation, this was not something that was divided along party lines. Conservatives, New Democrats and members of the Green Party put forward recommendations that were almost identical. Most of us agreed on the direction this bill had to take.

It was just extremely disappointing to us and our stakeholders to see the government's inability to take those extra couple of steps to really take Bill C-81, the accessibility act, to where it could have really made a definitive difference in the lives of Canadians with disabilities.

[Kim Hawkins, Executive Director, Rise Women's Legal Centre, West Coast LEAF]

Thank you. I will try to be brief.

As everyone here I'm sure is aware, in 2013 British Columbia updated its family law legislation and adopted the new Family Law Act, or FLA. The Family Law Act changed the law in B.C. by providing a consistent approach to the identification and assessment of family violence and created new duties for family dispute resolution professionals to assess for the presence of family violence. The reason I expect you're aware of this is that many of the ideas and the provisions in the FLA have influenced the amendments being proposed in Bill C-78, so that places those of us who work in B.C. in a unique position to comment on how these provisions are being interpreted and developed.

Unfortunately, our experience as family lawyers shows and research from B.C. confirms that, in many cases, despite the very positive legislative changes, judges are not, first of all, getting relevant information about family violence, which they're required by law to consider. Even where that information is available and judges find as a matter of fact that family violence has occurred, misinformation and stereotypes about family violence continue to influence outcomes of cases. While judges have been very receptive to applying an expanded definition of “family violence”, lawyers and judges continue to make a number of problematic assumptions about family violence.

For example, in some B.C. cases courts have continued to effectively read in a friendly parent rule and emphasize maximum contact, even though there was a deliberate decision in B.C. not to include those Divorce Act norms. This approach can and does end up privileging contact time at the expense of reviewing the best interests of the child and considering family violence, and in some cases, ends up ignoring the actual imperative in section 37 of the Family Law Act, which emphasizes that a child's safety is to be protected to the greatest extent possible.

We continue to see cases where judges assume that because a child was young when the family violence occurred, it will not affect them, despite the fact there is evidence that family violence can harm even infants and toddlers. We continue to see cases where it is assumed that abuse that is directed at one of the children's parents has little to do with overall parenting ability.

We continue to see an unwarranted optimism that violence ceases upon separation and that, in spite of a history of violence, it's appropriate to require victims of that violence to now work co-operatively with the abusive spouse, and that this can be done without risk. We continue to see myths about women's credibility, for example that credible women will disclose violence early, will report violence to the police, and will leave their relationship and not return, even though we know that it often takes women multiple attempts to leave abusive relationships.

The critical lesson to take from the B.C. experience is that to ensure the changes that are being made to the legislation have their intended effect, you must go further than simply directing courts to consider family violence.

First, we fully support the requirement that our colleague spoke about earlier, which is that family law professionals obtain mandatory training in the dynamics of family violence, including how to screen effectively for family violence.

I can promise you that understanding of and sensitivity to family violence did not crystalize in B.C. overnight when the Family Law Act came into effect. Lawyers do not, in my experience, have any special insight into the dynamics of family violence without some form of ongoing training. At our student clinic we regularly have women attend the clinic who tell us that their counsel didn't ask them about family violence and told them not to speak about family violence because it would be messy, would raise issues of credibility, and often they already have orders in place.

As you all know, to change a family law order often requires showing a material change in circumstance, so the decision not to disclose early can have very important implications on the ability to change that order later. Without mandatory education on family violence, the legal system will respond much more slowly, despite the best of intentions, including those provisions.

Second, we support the approach that was proposed by NAWL earlier tonight about including specific provisions in the family law act that would prohibit courts from making certain inferences about abused parents that are based on specific identifiable myths and stereotypes. You already have that brief. I'm not going to go through the various stereotypes and inferences they discussed. This approach does have a clear precedent in section 276 of the Criminal Code, which stipulates that evidence of prior sexual activity is not admissible to support the twin myths often found in sexual assault discourse. Those twin myths are that somebody who's had prior sexual relations is more likely to have consented and is less credible as a result. Those provisions have had a really important influence on the development of sexual assault law in Canada.

Like sexual assault, family violence is a practice of inequality and is one of the clearest expressions of discrimination against women in society. As in the Criminal Code, clear direction in family law acts and in amendments to the Divorce Act would have the effect of refocusing family law cases on evidence that is actually relevant to the material issues in the case and the outcomes, and supports equality of outcomes rather than allowing essentially misinformation and myths to distort the legal process. It would be incredibly helpful in ensuring that the provisions that everybody is working so hard to put in place are fully realized.

[Elba Bendo, Director of Law Reform, West Coast LEAF]

Good evening and thank you for inviting us to make submissions on Bill C-78.

My name is Elba Bendo and I'm the director of law reform at West Coast LEAF. West Coast LEAF is a B.C.-based feminist legal advocacy organization. Our mandate is to use the law to create an equal and just society for all women and people that experience gender-based discrimination.

Right now, I'd also like to introduce Kim Hawkins, who's the executive director of Rise Women's Legal Clinic. Rise is a student clinic that provides legal services to low-income women on family law and related issues and we've asked to share our time with Ms. Hawkins.

Like many before me, I would like to say that 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.

Earlier today, you heard from NAWL, who brought to your attention the fact that 31 organizations representing women in all their diversity share in the view that a robust framework around family violence is needed to collectively advance the four goals of this legislation, including that of promoting the best interests of the child.

The reason that I believe you are seeing such a strong and uniform showing on the issue of family violence is that, for decades now, there's been clear and well-documented evidence of the links between family violence, marriage, parenting and divorce. What this evidence has been clearly telling us is that, in some circumstances, increased communication and co-operation among spouses is not in the best interests of the child, and in fact can have dire consequences for women and children.

In our brief, we set out the provisions regarding communication and co-operation that are at the greatest risk of producing harmful outcomes in the context of family violence. In an effort not to duplicate our brief, I will focus my submissions on only two. First, the maximum parenting time provision and also what is commonly referred to as the “friendly spouse” provision, set out in proposed paragraphs 16(3)(c) and (i).

These provisions prioritize paternal rights over the best interests of the child. While these two interests often coincide, this is rarely the case in the context of family violence. In fact, research shows that contact with a violent parent is often not what is in the best interests of the child and can have dire and, at times, lethal implications for children. In practice, these provisions perpetuate problematic myths that suggest that women have malicious intentions to alienate fathers in divorce proceedings. Despite having been firmly debunked, these myths have been relied on to discredit women's legitimate claims of violence over the years, and are, sadly, alive and well in family law proceedings today.

Contrary to these myths, studies show that mothers overwhelmingly want fathers to spend time with their children. Studies also show that there are an increasing number of joint custody and shared parenting arrangements in Canada and that statistics that, at first glance, appear to indicate a bias in the system are really more reflective of the number of fathers that seek custody. In fact, fathers are awarded primary or joint physical custody a majority of the time, when they actively seek it. This is often the case, even when there are allegations of family violence.

These concerns were recognized in B.C., where the new Family Law Act not only excludes these presumptions about what is in the best interests of the child, but specifically directs the courts to not presume that shared parenting time is in the child's best interests. In turn, the act emphasizes that some of the circumstances that are relevant to what is in the best interests of the child include the nature and strength of the child's relationship with significant persons in the child's life, the history of the child's care and the impact of family violence on the child's safety.

We strongly believe that the objectives of the act will be better served with the incorporation of similar language and recommend the removal of the maximum parenting time and friendly parent provisions from this bill.

Due to time constraints, I will end it here and pass it over to Ms. Hawkins.

[Heidi Nabert, President, National Shared Parenting Association]

Thank you, Mr. Chair and committee members. We appreciate this opportunity.

First I'd like to address the areas of agreement. The National Shared Parenting Association applauds the adoption of new terminology to describe child custody, access and support relating to children and families post-separation and post-divorce. Although the terminology does not address some of the key issues that continue to face children of divorced families, the new terms “parenting order”, “contact order”, “parenting time” and “decision-making responsibility” better reflect that the Divorce Act and its enforcement are for families, and the new family-friendly language is more appropriate to describe Canadian families that are facing separation and divorce.

Our overview and analysis of Bill C-78 are based on the justice department's press release of May 22, 2018. The National Shared Parenting Association is going to address the four key objectives of the bill, namely, 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.

We begin with best interests of the child. Currently, the Divorce Act bases the best interests of the child on a series of questions that are open to interpretation by a family court judge. Although most often the family court judge will review the past and present parenting arrangements when a family separation occurs, it can often become a wake-up call or a signal for some parents to the importance of exercising the maximum contact rule with their child. Even though the parenting time history of that parent is not consistent with the rule, it should not penalize the child from benefiting from the maximum contact rule with that parent.

Under these circumstances, the court should not infer a negative view of the parent seeking to expand the parenting time with his or her child based solely on the history of the parent-child relationship prior to the family breakup. A child's needs are paramount under all circumstances, and if one parent who has not been involved prior to separation shows a genuine interest in expanding their parenting time post-separation, ultimately this is of great benefit to the child and should be considered to be such.

Children of divorced and separated families face difficulties stemming from the loss of consistent and predictable parenting time with both parents. Often, after a family separates, the child spends the majority of parenting time with one parent—usually the mother—and very limited parenting time with their father. Parents are the foundation of a child's well-being. Their feelings of security and safety stem from the consistent time they spend with each parent and the benefits of the parenting they receive from each parent.

Although the maximum contact rule is cited, it is most often not incorporated into final court orders for parenting time with the non-custodial or non-primary parent—usually the father. With flextime, many more professionals are able to work from home, allowing for working parents to care for their children with a shared parenting schedule. Assuming that family violence is not present or has not been an issue in the past, a shared parenting court order is what is best for our children.

According to the Public Health Agency of Canada, of all reported violent crime in 2016, approximately 26% resulted from family violence in which 67% of the victims were women and girls, and 33% were men and boys. While family violence can be very detrimental to children, thankfully it remains a relatively small percentage, but nonetheless needs to be taken seriously within the family court proceeding.

Of equal importance is when a false allegation of abuse has been made in order to gain the upper hand in family court proceedings. Criminal proceedings can take up to 18 months to resolve for the accused—usually the father—all while a status quo has been established with the children and the accuser—usually the mother. The children are the biggest losers in this scenario. The family courts have an obligation to help re-establish the parenting relationship between the children and their father, assuming he has been exonerated of all charges.

While the percentages imply that the violence is most often perpetrated by men, interestingly the statistics for those in same-sex partnerships, in particular women who self-identify as lesbian or bisexual, show significantly higher rates of violence by partners than did those for heterosexual women.

Next we will focus on reducing child poverty.

While child poverty is an ongoing concern, according to the Department of Justice, studies have identified that child support is a key factor in lifting families out of poverty following a separation or a divorce. There are no easy answers. However, the child support enforcement process appears to be working to help with that issue.

In regard to the objective of making Canada's family justice system more accessible and efficient, the current family court process is complex, slow and costly, which accounts for the increase in self-represented litigants in family court. According to Justice Canada, the number of self-represented litigants has increased over the last five years to between 50% to 85%, primarily because they are unable to afford legal counsel for family court proceedings.

Self-represented litigants are often identified as being the main source of clogging the family courts, as judges are faced with having to explain the process rather than preside and make decisions. It is of paramount importance for the justice department to simplify the family court process, allowing for the large number of self-represented litigants to better understand what is required and how to prepare.

For example, when it comes to a child support obligation, when a payer's income increases, it is a relatively simple process to amend the amount being paid. However, when a child support payer loses his or her job, the process to vary child support in a court order can take several months and up to a year to amend the court order. While the legal proceedings are going forward at a snail's pace, the child support collection agency begins the process of implementing punitive measures such as confiscating a driver's licence or passport, which ultimately makes it much more difficult for that payer to find a job.

From a logical standpoint, when a person does not have a regular income due to job loss, they are unable to afford a lawyer to help amend their child support obligation, all while they're struggling to pay the court-ordered support, which no longer reflects their current income level.

In closing, the process to vary a child support order when a payer faces a job loss should be as simple as when a payer's income increases. It is incumbent upon the justice department to implement measures that help make that possible so that the payer can focus on getting back into the workforce rather than dealing with the related stress of proceeding to family court for up to a year as a self-represented litigant.

The end result would be that the child support is paid based on the current income and reduces the number of self-represented litigants in family court, thereby speeding up the process for all Canadians in family court.

Thank you.

[Robert Samery, Chair of The Board, Canadian Centre for Men and Families]

Thank you very much, Mr. Chair and committee members, for having us here today.

I represent the Canadian Centre for Men and Families, which is associated with the Canadian Association for Equality. With me today is Professor Jess Haines from the University of Guelph.

The Canadian Centre for Men and Families was established in 2014. The centre has grown quickly, with physical hubs now in Toronto, Ottawa, London and Calgary. We offer services focused on the health and well-being of boys, men, fathers and families. The centres are open, inclusive and safe spaces providing therapy and counselling, peer support, a legal clinic, fathering programs, mentorship and support services for male victims of trauma and violence. We provide services, research, advocacy, outreach and public education on all aspects of men's issues. We also focus on children and families, not just on the one demographic we centre on.

It may be a surprise, but we have a lot of agreement with people who sometimes don't agree with us entirely. In this context, let me just say that we agree that removing an individual from a child destroys a relationship. I heard that comment today, and I couldn't agree with it more. Full parenting, equal parenting or maximal parenting is the best outcome for any child.

We also agree that, in cases of intimate partner violence, the definition should include coercive control and much else that our prior witnesses identified. We decidedly disagree that it should include anything to do with gender. Violence is not a gendered issue, and we would strongly advocate against that. We also agree that there is a distinction, which some of the prior witnesses have raised, between violence and high conflict. They shouldn't be conflated and shouldn't be dealt with in the same way. There are other points of agreement that we can find quite easily as well.

A very large percentage of our work deals with clients who have been embroiled in proceedings under the Divorce Act. Almost all of our separating or divorcing clients have children involved. They are, for the most part, traumatized by their children's experience of being confronted with a court process that is unfriendly towards children's needs to maintain a good relationship with both their loved parents. In short, the system needs repair. That's not news.

The announcement of Bill C-78 was widely praised by a large cross-section of individuals, organizations and stakeholders. We agree with a vast number of those stakeholders that the family law system is in desperate need of deep reform. With the announcement of the bill, the government has indicated a readiness to, at the very least, hear from the above interested parties about how each would suggest that this committee make positive advancements in the legislation governing couples' attempts to reconcile their own breakup while looking after the delicate needs of their children.

Legislation is pivotal in these parent-child relationships. It can grease the improvement of those relationships or help tear them apart. ln either case, the health and well-being of the child can be significantly affected.

We're advocating for an equal shared parenting presumption. Equal shared parenting, from our perspective, means that children have as close to an equal amount of both parents' time as well as being subject to both parents' judgment on long-term and important issues relating to the child.

I'd like to turn it over now to my colleague to talk about why equal shared parenting is most helpful to children.

[The Chair, Liberal, Anthony Housefather]

We will now reconvene with our second panel of the day on Bill C-78.

It gives me great pleasure to introduce, from the Canadian Centre for Men and Families, Mr. Robert Samery, chair of the board, and Ms. Jess Haines, associate professor at the University of Guelph. From the National Shared Parenting Association, we have Ms. Heidi Nabert, president, and Ms. Lynda Baracetti, director, LGBTQ Issues. From The Redwood, we have Ms. Abi Ajibolade. Abi is so nice. She said that if anybody has trouble with her last name, they can call her Abi. She is the executive director.

From West Coast LEAF, we have Ms. Elba Bendo, director of law reform, and Ms. Kim Hawkins, executive director, Rise Women's Legal Centre.

Welcome to all of you.

We'll go in the order on the agenda and start with the Canadian Centre for Men and Families.

[Suki Beavers]

Thank you for the question.

I think Bill C-78, with the inclusions that we've proposed, will go a long way to changing that culture if a couple of things happen.

The first is that the mandatory screening, using an accepted tool that we've talked about, takes place. Also, you'll see in our brief that we've called for mandatory education of all actors in the family law system, to understand what family violence looks like, to break down those myths, to ensure that even inadvertently there isn't reliance on some of those myths and stereotypes in the context of divorce and beyond. We think that Bill C-78 can make some tangible advances towards substantive equality for women and children, but there are some adjustments that need to be made.

The other thing we will say is that funding for legal aid for support is absolutely necessary, and the education piece for all the actors involved in the family law system is really critical, in order for there to be any kind of systemic change in the way in which the family law system now operates.

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

Thank you, Chair, and thank you to the witnesses.

I want to start off by clarifying. Ms. Beavers, you mentioned in your remarks that you are in support of family dispute resolution or alternative dispute resolution. Could you comment on Ms. O'Brien's views on the impact of ADR or FDR with respect to Bill C-78?

[Suki Beavers, Project Director, National Association of Women and the Law]

I'm going to hazard a guess that I may be more fascinating. Let's see. The gauntlet has been thrown down.

Good evening and thank you very much for this opportunity to speak on Bill C-78, on behalf of the National Association of Women and the Law. As I think most of you know, NAWL is an incorporated, not-for-profit, feminist organization that promotes women's equality in Canada through legal education, research and law reform advocacy. Advocating for the much-needed changes to family laws, including the Divorce Act, has been a focus of NAWL's work since the early 1980s, so it brings me great pleasure to begin this evening by congratulating the government for introducing C-78. There are many aspects of this bill that we fully support.

However, before I get into talking about the specifics, I want to reflect that NAWL worked jointly with Luke's Place in developing both a discussion paper and a brief on C-78, which I think you all now have. Our joint brief has been endorsed by 31 organizations from British Columbia, Saskatchewan, Manitoba, Ontario, Quebec and New Brunswick, as well as more than a dozen national feminist and equality-seeking groups, and is the fruit of consultations that we convened with feminist lawyers, academics, service providers and advocates. I mention this, not just because we're proud of our network and of our collaborative work—because we are—but also because it's important to emphasize the depth and the breadth of our shared feminist intersectional analysis of Bill C-78, particularly in relation to the issue of family violence in the context of divorce.

Now, let me turn to some specifics, beginning with the aspects of the bill that we fully support. We congratulate the government for putting the best interests of the child at the centre of this bill and for developing a much-needed set of criteria to help guide the determination of what will be in the best interests of each child, based on the recognition that every family and every child's needs are unique. NAWL fully supports the exclusion from this bill of any presumptions of shared parenting. Determining what's in the best interests of the child must be done on a case-by-case basis.

We also fully support the inclusion of family violence in this bill and a comprehensive definition of it that recognizes that family violence exists on a spectrum.

I now want to turn to some aspects of the bill that we think do not yet go far enough because, as we know, the impacts of family violence can continue long after a marriage ends.

Our first recommendation is that a preamble be added to this bill that acknowledges the gendered nature of family violence and confirms that addressing family violence is one of its aims. The evidence here is clear and unequivocal. As with other forms of gender-based violence, the majority of victim survivors of violence within marriage, and when it ends, are women. Men are overwhelmingly the perpetrators of this violence. A preamble is important because it can guide the interpretation of an act and is good practice. Just a few weeks ago, when it was used in Bill C-86 to frame the establishment of the new department of women and gender equality, which will replace Status of Women Canada, that bill included a preamble that recognized the government's obligations to advance women's rights and gender equality. A similar preamble should be added to C-78 that recognizes that women experience family violence, as a form of violence against women, and that women have diverse lived experiences of it. We've drafted a preamble that we hope this committee will recommend to be included in the act.

In addition, we also recommend that a definition of violence against women be added, which acknowledges that it is a form of gender-based discrimination that's experienced by women in multiple ways and shaped by other forms of discrimination and disadvantage. This intersects with race, indigenous identity, ethnicity, religion, gender identity or gender expression, sexual orientation, citizenship, immigration or refugee status, geographic location, social condition, age and disability. This would be consistent with the government's commitment to GBA+.

The appalling and ongoing situation of violence against indigenous women must be redressed immediately. We urge the federal government to consult with indigenous women's groups on the potential impacts of C-78 on indigenous women, their children, their communities and their families to ensure the cultural heritage, safety, security, autonomy and rights of indigenous women and their children are respected, protected and fulfilled, and not further endangered or violated by any direct or indirect impacts of any of the provisions of C-78.

We propose the addition of provisions to help ensure decision-makers do not rely on harmful myths or stereotypes about family violence, even inadvertently, when they're making decisions in the context of divorce. While I don't have time to read through the entire section that we have drafted—I hope you will, though—I will highlight some of them, including for example, that a court should not infer that because a relationship has ended or divorce proceedings have begun the family violence has ended.

A court should not infer that if claims of family violence are made late in the proceedings or were not made in previous proceedings they're false or exaggerated. A court should not infer that if a spouse continued to reside or maintain a financial, sexual or business relationship—or a relationship for immigration purposes—with a spouse, or has in the past left and returned to a spouse, family violence did not happen or the claims are exaggerated.

The court should not infer that leaving a violent household to reside in a shelter or other temporary housing is contrary to the best interests of the child. The court should not infer that fleeing a jurisdiction with children in order to escape family violence is contrary to the best interests of the child. Also, the court should not infer that the absence of observable physical injuries or the absence of external expressions of fear mean that the abuse did not happen.

I don't have time to adequately address this issue, but I also want to reflect some thoughts on changes to language included in Bill C-78.

We understand and commend the objective of reducing tensions and conflict in divorce proceedings. However, there is no evidence that removing the familiar language of custody and access will actually reduce conflict and benefit children. Further, there's a real risk that this change in terminology will create uncertainty that will be available to abusers to exploit and to perpetuate ongoing abuse through court proceedings and otherwise.

Indeed, we heard from feminists in other jurisdictions, including British Columbia, where similar language changes have been made, that they have not seen a reduction in conflict in family law proceedings after the terminology of custody and access was removed from the provincial Family Law Act. Therefore, we recommend that the language of custody and access be retained and inserted in Bill C-78.

In addition, we believe the proposed definitions of parenting orders and parenting responsibilities are too vague and ambiguous and also provide opportunities for abuse. We recommend, therefore, that a clearer set of responsibilities be set out for the parent with decision-making responsibility.

Because of time constraints, I'm going to end my comments here, but I'm of course eager to answer any questions that the committee might have. I want to simply confirm that NAWL supports the positions that Luke's Place will now present, which, like ours, are the product of our joint work together.

I thank the committee again for providing NAWL with the opportunity to appear this evening.

[Lawrence Pinsky, Taylor McCaffrey LLP and Past Chair, Family Law Section, Canadian Bar Association, As an Individual]

Thank you for inviting me to speak to you this evening.

I want to thank you, as well, for making me feel so comfortable by bringing January weather from my city of Winnipeg, here to Ottawa this evening.

I should acknowledge, as well, the Algonquin nation whose traditional territory we, as I understand it, are gathered upon.

Bill C-78 is clearly an advance in family law in Canada, and the government should be commended for bringing it forward. This should be a non-partisan issue. I worked closely with the then NDP government of Manitoba that brought in a bill that had very much the same underlying philosophies. I worked closely with the former minister from the Conservatives at the federal government. The same principles were agreed upon—best interests, relocation amendments and these types of things—and, of course, we see what's in Bill C-78.

When we look around the world and see the things going on elsewhere, we should thank all of you for the level of discourse and the civility we have in bringing forth these common ideas.

I want to spend the little time that I have talking about some amendments that, I would submit to you, would further the purposes of the bill. They would avoid unexpected consequences from, what I would suggest, are problems with the bill. I'd encourage you, most of all, as you consider the bill, to follow the social science in the area. Family law, as all law, has to change as society evolves, of course. You can't get too far ahead, but you can't lag behind, and I would submit to you that following the social science is key.

Let's look at what we can do with that in the limited time I have. I begin with the definition section. I'd suggest to you that when you look at decision-making responsibility, in terms of the words “significant” extracurricular activities, “significant” is included under decision-making responsibility.

Families fight about extracurricular decision-making. Who has the right when one parent puts the child in activities without consulting the other parent, especially on their time? You already have “significant” decisions in the preamble. I'd encourage you to take out “significant” extracurricular activities. We don't want to have battles on what is a significant versus an insignificant extracurricular activity. Just take it out. It's not necessary.

Family dispute resolution process is another area that's important. We haven't included mediation and arbitration. These are very common in B.C., Alberta and Ontario. It's coming to Manitoba. I'm working on that very hard, and so are some of my colleagues, to make it a reality in Manitoba. It's popular elsewhere. I realize it's an open set in there. It's not a closed set, but add that in. It's there.

Family violence needs some attention too, but some of my co-presenters are going to speak to that, so I'm not going to spend time on that. There are some issues there as well. It's also in my submissions.

I'm going to invite you to turn to duties. It's a great idea to add the duties of parties, of lawyers, which are expanded, and also of courts. I'd invite you to look at proposed section 7.6, in particular, where there's a certification required, and that certification is only when you commence proceedings. I want to see parties say they're committed to those principles every step of the way. Every motion, every application, every variation, they should be reminded of that.

When you turn to the duties of the court, they're supposed to know about information for other orders and proceedings elsewhere. Unless the government's going to fund a registry or some sort of database, there's no way to know that. Manitoba courts aren't going to know what's happening in Prince Edward Island if there's a child and family proceeding out there or a criminal proceeding out there. They don't even know what's happening between superior courts and provincial courts.

The fix is one of two things I would suggest. One is to also make that a duty on parents to disclose. They should have to disclose, and the courts will impose a consequence if they don't, if there was a child protection proceeding some place, a criminal proceeding or what have you. That's very important. Keep it in for the courts, but add it in there, and if you have a couple of extra bucks as you go through budgets, maybe you could create a database because that would be even more helpful.

I'm not going to talk about best interests factors. I suspect other people will. I will, though, tell you—and it's important to focus on best interests—not to have presumptions. I can talk at length about it. If you ask me questions, I'll talk about that, but it's very important. What the government did here is correct. It's supported, as I said, by the NDP in Manitoba in what it did when it was in government. It's supported by the previous minister of justice who was a Conservative, and of course, here. It is the correct approach.

Let me look, in the limited time that I have left, at relocation, because that's really so important. I'm just going to say that in a few areas there are some new, vague terms that aren't defined.

What do children need? I want to invite you to consider the legislation through the eyes of a child. What does a child need? We all agree—the men's groups, the women's groups, the lobbyists—everybody agrees that best interests is what you have to focus on. The problem is that people have different ideas of what that means or of how you get there, but the reality is that we all focus on that.

View it at every step of the legislation and think, does this work for a child? That's what I would suggest you ought to do. Where you have vagaries, that's a problem. Children need stability, consistency, predictability and close attachments to be fostered with as many people who love them as possible. That's what they need. To the extent that the bill doesn't do it, it's a problem.

I don't know how much time I have left. I'm speaking as fast as I can.

[The Chair, Liberal, Anthony Housefather]

Welcome to the Standing Committee on Justice and Human Rights as we resume our study of Bill C-78.

It is a pleasure to be joined by this distinguished panel of witnesses.

We have with us today, Lawrence Pinsky from Taylor McCaffrey LLP, past chair of the family law section of the Canadian Bar Association. From Luke's Place, a support and resource centre for women and children, we have Pamela Cross, who is the legal director. From the National Association of Women and the Law, we have Suki Beavers who's a project director. From the Women's Legal Education and Action Fund, we have Shaun O'Brien, the executive director and general counsel.

Welcome to all.

We're going to start with Mr. Pinsky.

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

Thank you, Mr. Chair.

My question goes to Ms. Christianson-Wood.

Bill C-78 stresses the need for a dispute resolution mechanism, a process that would happen out of court.

That seems like a wise option to make the process of divorce easier. But does the bill contain the provisions needed to prevent the insistence on those mechanisms from creating disparities in access to justice as a result of a family’s social economic background? It is the poorest families who are directed to out-of-court processes because they do not have access to legal services.

[Glenn Cheriton, President, Canadian Equal Parenting Council]

Good evening, everyone.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

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

Thank you very much, and good evening.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you very much.

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

Thanks for the chance to speak to the committee.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Liberal, Anthony Housefather]

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

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

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

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

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

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

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

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

Thank you, Mr. Chair.

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

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

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

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

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

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

[Colin Fraser, Liberal, West Nova, NS]

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

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

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

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

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

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

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

Thank you for that.

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

What's wrong with that?

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

Thank you, Mr. Chair.

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

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

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

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

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

Thank you very much.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you very much.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

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

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

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

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

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

Welcome to all.

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

[Silmy Abdullah]

Sure.

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

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you very much.

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Good afternoon.

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

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

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

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

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

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

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

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

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

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

Mr. Chair, committee members, good afternoon.

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

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

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

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

[The Chair, Liberal, Anthony Housefather]

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

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

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

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

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

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

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

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

[The Chair, Liberal, Anthony Housefather]

Thank you.

I call will the vote.

(Motion agreed to)

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

Thank you, gentlemen.

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

That for the study of Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, the Committee invite to appear the witnesses suggested by the parties, as well as the organizations that requested to appear

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

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

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

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

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

Is everyone okay with that recommendation?

(Motion agreed to)

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

Thank you very much.

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

[Proceedings continue in camera]

[The Chair, Liberal, Anthony Housefather]

Okay, perfect.

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

(Motion negatived)

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

[Proceedings continue in camera]

[Colin Fraser, Liberal, West Nova, NS]

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

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

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

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

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

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

Thank you.

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

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

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

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

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

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

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

[Tony Clement]

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

[Tony Clement]

I already connected it to Bill C-78.

[Tony Clement]

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

[Tony Clement]

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

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

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

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

I appreciate the question.

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

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

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

[Tony Clement]

Thank you.

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

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

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thank you, Minister, as always, for being here with us and answering our questions on the relevant bill to our study.

I'm glad to hear that the Conservatives don't seem to have any substantive questions to ask on Bill C-78. I'm assuming, then, that they'll be supporting the bill.

Getting to the substance of this bill, I would like to acknowledge and thank you for highlighting in your remarks the fact that the terminology often used in family court cases relating to custody and access is problematic. It does oftentimes pit the parties against one another in a win and loss sort of atmosphere. That is not in the best interests of the child.

I applaud you, Minister, for highlighting that in your remarks and in the bill. It ensures that parenting orders reflect it and the terminology is updated to ensure that the true, best interests of the child are at stake, and also that parents see that what's important in these tough decisions is what is best for the child.

In one of the items in the non-exhaustive list that can inform a court on what the best interests of the child are, you mentioned heritage and cultural considerations, including children of indigenous backgrounds. Can you expand a bit about why that would be important in ensuring those considerations are taken into account by a court to determine the best arrangement for a child?

[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.

[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.

[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.

The House resumed consideration of the motion 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.

Business of the House

[Bardish Chagger, Liberal, Leader 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.

Justice

[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.

[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.

[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.

[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.

[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—

[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.

[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.

[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.

[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.

[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?

[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.

[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?

[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.

[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?

[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.

[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?

[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.

[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.

[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.

[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.

[Arif Virani]

Mr. Speaker, I rise on a point of order. I believe that question is out of order. We are debating Bill C-78. The matter of Bill C-75 was raised in a response made by my friend opposite in the context of the back-and-forth interplay on the dialogue. However, this question is only referencing Bill C-75, not Bill C-78.

I would ask for a ruling as to whether that question is in order when we are discussing at second reading Bill C-78.

[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.

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

Mr. Speaker, Bill C-78 appears to contain a number of measures to, among other things, combat family violence, and we welcome improvements to address the very serious and systemic issue of family violence. We have always stood up for the safety and well-being of children and families as Conservatives. Again, I reiterate that I, along with all my colleagues, intend to work closely with the government to achieve some of those objectives, which are very important.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

The House resumed from September 26 consideration of the motion 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.

Bill C-78—Notice of time allocation motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Madam Speaker, while I am on my feet, an agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to the second reading stage of Bill C-78, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another act.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.

Business of the House

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, this afternoon, we will continue debate on the NDP opposition motion.

Tomorrow, we will start the second reading debate on Bill C-82, the multilateral instrument in respect of tax conventions act.

Monday, we will resume second reading debate of Bill C-77 on the Canadian Victims Bill of Rights and of Bill C-78, the family law act.

Next Tuesday, October 2, shall be an allotted day.

Finally, for the rest of the week, priority shall be given to report stage and third reading of Bill C-79, the CPTPP implementation act; and the Senate amendments on Bill C-65, the framework for the prevention of harassment.

Divorce Act

[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.

[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.

[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.

[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.

[Jody Wilson-Raybould, Liberal, Minister 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.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Coming back to the notwithstanding clause, I just wanted to intervene for a second, if I may, colleagues.

Being a member of a community that was impacted by the notwithstanding clause in 1989 as a teenager, seeing how it impacted the members of my community, and seeing how it made many people feel very uncomfortable that their language was banished from public view after a Supreme Court decision and after a promise in an election that bilingual signs would be permitted, I certainly understand the consternation of people when this clause is used. I certainly speak for myself and, I think, for most Liberal members of this committee when we say that we don't support the use of the notwithstanding clause. We certainly share your concerns, Mr. Rankin, about the indiscriminate use of the notwithstanding clause. That is a given.

I do believe that the urgency of the issue is somewhat abated by the decision of the Ontario Court of Appeal to stay the Toronto decision. I think that there probably needs to be some cooling-off period to make sure that when we talk about this issue dispassionately, we understand that it won't be related to one government in one part of the country on one specific decision.

Based on all that I've heard, we currently have a study on Bill C-75 that we're doing, and we're shortly going to get the divorce legislation, Bill C-78. We also have to conclude our study on human trafficking, and we have the study from Mr. Boissonneault on the decriminalization of HIV.

Because I think government members are willing to discuss this with you and see how we can work with you on this, my thought is that perhaps we don't need to vote today; we can bring this back at a later date. Should you wish to vote today, there's no problem. We can still try to find solutions in the future and bring this issue back if there isn't agreement. We always try to find agreement. I don't think today there is one, but maybe at some point in the future there will be.

Go ahead, Mr. Rankin.

Business of the House

[Bardish Chagger, Liberal, Waterloo, ON]

Mr. Speaker, we hope to begin 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, next week.

Next Tuesday and Thursday will be allotted days.

Lastly, Mr. Speaker, I would like to inform you that there have been discussions among the parties, and I believe you will find unanimous consent for the following motion: That, notwithstanding any Standing Order or usual practice of the House, when the House adjourns on Thursday, November 8, 2018, it shall stand adjourned until Monday, November 19, 2018, provided that, for the purposes of Standing Order 28, the House shall be deemed to have sat on Friday, November 9, 2018.

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, this afternoon we will continue third reading debate of Bill C-71, the firearms legislation. Tomorrow, we will have second reading debate of Bill C-77, the victims bill of rights.

On Monday, we will return to the second reading of Bill C-81, an act to ensure a barrier-free Canada. We also hope to start debating Bill C-78.

[Nicolas Le Grand Alary]

We mention this in the brief. In the past, we have taken part in hearings for the Plan d'action gouvernemental en matière de violence conjugale 2018-2023, which is a provincial initiative.

Spousal violence, or domestic violence in the broader sense, must be everyone’s business, both at provincial/territorial level and at federal level.

While respecting constitutional jurisdictions, each level of government should take measures to facilitate this. It can be either by funding groups or through more structural measures such as Bill C-78, which amends the Divorce Act and contains a whole section on domestic violence. That is a federal government measure in an area of law other than criminal law. But the fact remains that the federal level certainly has its place together with the provinces and territories.

[Colin Fraser, Liberal, West Nova, NS]

Minister, I agree with you that in implementing the unified family courts along with the implementation of Bill C-78, which is currently before Parliament, this will have a big effect on the efficiencies in the family law system in Canada. With Bill C-78 it's the first time in over 20 years there's been a major overhaul and update in our divorce laws. That will really help a lot of families in Canada who are going through those challenging circumstances.

I want to turn now to Bill C-46, which was touched on earlier, and the provision in the bill dealing with mandatory alcohol screening. Our committee studied Bill C-46, and one of the things stated over and over again to our committee was that to reduce the incidence of impaired driving, there needs to be a fear of getting caught. That's really what will be important in reducing the incidence of people being impaired on our roads.

We've heard that mandatory alcohol screening in other jurisdictions has worked. I know that there has been some discussion about whether it's constitutional, but there are constitutional experts who have weighed in who believe that the provision is justified under the charter. The main reason for this is that it is of compelling public interest to reduce the harm of impaired driving on our roads.

I know that this bill is currently in the other place. It's before the Senate right now. The House of Commons has already passed that. What do you say about the importance of getting Bill C-46 passed by both houses of Parliament and into law, along with the provision of mandatory alcohol screening, to reduce the incidence of drinking and driving on our roads and impaired driving overall?

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

Again, we were very pleased to see the support for unified family courts in budget 2018. We're working toward ensuring that we can meet the needs and identify the judges, the 39 judicial appointments that were in the budget, in the four provinces that expressed a very real desire to expand their programs or to actually set up programs, as I said earlier, in Alberta, in Ontario, in Nova Scotia, and in Newfoundland and Labrador.

In terms of family law and access to justice in family law, the unified family courts, as you know, having practised in Nova Scotia, will create a space where individuals can go. We'll have within those unified family courts the ability of the so-called one-stop shop. We'll have specialized judges in family law in those courts. We'll have simplified procedures within those courts. We'll also have community programs and support services to assist individuals who are going through this. For most people, the only time they interact with the justice system is in family law. We want to ensure that we do everything we can to assist those individuals in gaining the necessary access to justice in a timely way and as efficiently and cost-effectively as possible.

When we were going through all of our discussions and consultations with the provinces and with individuals, there was clearly a desire to ensure that in concert with unified family courts we're taking the necessary steps in terms of the reforms we've proposed in Bill C-78 around the Divorce Act and around two other pieces of federal legislation to also contribute to improving the family law situation in the country.

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

Thank you, Mr. Chair.

Thank you as usual to the members of the committee. I certainly appreciate the opportunity to be here before you to give some brief remarks, and then I will look to answer some questions.

As you indicated, I'm joined by Nathalie Drouin, deputy minister of justice and deputy attorney general of Canada; Johanne Bernard, assistant deputy minister, management sector, and chief financial officer; and Carole Morency. Joining us as well are François Daigle, associate deputy minister; and Elizabeth Hendy, director general, programs branch. I'm also joined by representatives of a number of the independent agencies and organizations that fall within my portfolio.

I would like to discuss how the Department of Justice intends to use the funds granted through the 2018-19 main estimates to promote and maintain a fair, transparent, and accessible justice system while providing high-quality legal services to the federal government. These include a wide range of legal advisory litigation and legislative services to government departments and agencies.

The Department of Justice has a total budgetary authority of $697.75 million through the 2018-19 main estimates, an increase of $42 million from the previous fiscal year. This additional funding is for major priorities, including federal support to the family justice system, immigration and refugee legal aid, and the indigenous justice program, among others.

Much of this year's authority will support the stewardship of the Canadian legal framework by directing funding to the provinces and territories with whom we share responsibility to administer justice.

The funding will help maintain and support a bilingual and bijural national legal framework. Funding through the main estimates will also support the department's ability to transform and modernize the justice system in keeping with the values of Canadians while protecting and maintaining the rights enshrined in the Constitution and in the Charter of Rights and Freedoms.

Our review of the criminal justice system is ongoing. It is intended to ensure that our criminal laws protect Canadians, hold offenders to account, meet the highest standards of fairness and equity, respect the charter, and demonstrate the utmost compassion to victims. These efforts will help strengthen public confidence in the justice system and judicial institutions. Our review, along with results of other consultations and government priorities, is already informing initiatives and reforms that we are introducing to modernize the criminal justice system.

In March, I introduced Bill C-75 to help reduce court delays and to address the overrepresentation of indigenous peoples and vulnerable populations as both victims and accused in the criminal justice system. We anticipate the bill will come to this committee shortly.

In Bill C-75 we are proposing amendments to the bail regime and to how breaches of administration of justice offences are handled. In particular, these changes will help eliminate the unnecessary detention of individuals pending trial, will help eliminate unnecessary bail conditions, and will ensure that fewer people are needlessly charged and convicted of minor administrative offences that do not impact public safety.

These measures will have a particularly positive impact on indigenous and marginalized Canadians who are disproportionately represented in our remand population, and who are disproportionately charged and convicted of administration of justice offences.

We are encouraging the selection of juries that better reflect the diversity of our communities, and we are bringing in stronger measures to address the problem of intimate partner violence. We are also proposing measures that will avoid re-traumatizing victims by reducing the number of inquiries and issues for which they have to testify.

In addition, Bill C-75 will reclassify many offences in the Criminal Code to give our prosecutors the discretion they need to choose the most efficient and appropriate procedure.

Our government has also launched measures to better support indigenous people and vulnerable persons as they navigate the criminal justice system. We continue to fund the indigenous court work program with $9.5 million annually. Integrating indigenous culture, language, and traditions, these court workers provide direct services before, during, and after court. They also provide courts with crucial information to guide sentencing and bail decisions while connecting victims, witnesses, and family members to culturally safe assistance. In 2016-17, over 75,000 indigenous men, women, and young people in over 435 communities received these services.

We have stabilized funding to the indigenous justice program, with over $11 million per year ongoing, to increase the use of restorative justice and reduce the rate of indigenous incarceration.

Since 2015-16, we have continually increased our funding to the department's legal aid program to fund provincial and territorial criminal legal aid programs. This helps economically disadvantaged persons at risk of incarceration, and youth facing prosecution under the Youth Criminal Justice Act.

The department's youth justice fund supports projects with alternatives to incarceration, and encourages a more effective youth justice system. That includes just over $6.5 million towards 16 multi-year projects that focus on culturally relevant programming for indigenous youth in the criminal justice system.

We have also increased funding to immigration and refugee legal aid by over $14 million, with an additional $3 million in contribution funding for legal aid systems and access to justice services.

Mr. Chair, our government is committed to ensuring that victims of sexual assault and gender-based violence are treated with the utmost respect and dignity. The Department of Justice victims fund provides $27.4 million in grants and contributions, supporting 476 projects across Canada. This funding supports research, innovative pilot projects, and front-line services for victims and survivors of crime across Canada.

In 2017-18, more than 100 victims of human trafficking received case management and related services, and more than 450 women and girls at risk received information about services and assistance.

In budget 2017, our government introduced its gender-based violence strategy and over $100 million over five years. Budget 2018 contributed an additional $86 million over five years, and $20 million annually thereafter, to expand on the strategy, with my department as a key contributor.

Budget 2018 proposed $50.4 million over five years to address sexual harassment in the workplace, $25.4 million for boosting legal support funding across the country to support legal action by victims, and $25 million for outreach.

We have continued our efforts to promote and maintain a more diverse judiciary. Since 2015, I have made 179 appointments and elevations. Of these appointees, over half are women, eight are indigenous, 15 are visible minorities, 11 identify as LGBTQ2, and three are persons with a disability. We continue to fund the necessary training for a more culturally sensitive and responsive bench, as well.

Finally, last month I introduced Bill C-78, the first changes to the Divorce Act in more than 20 years. The proposed reforms will ensure that our family law system is focused on the best interest of the child, better supports the safety and well-being of individuals and families, and is more efficient.

Our commitment to improving family justice includes budget 2018 funding of $77.2 million over four years and a further $20.8 million ongoing to expand the unified family courts across the country. This measure will create 39 new judicial positions across a number of provinces, while enhancing access to justice and improving outcomes for families and individuals.

Again, Mr. Chair, I would certainly like to thank the members of this committee for their ongoing work, and I look forward to our discussions today.

Justice

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

Mr. Speaker, this morning I was pleased to introduce Bill C-78 and the accompanying charter statement.

We know that separation and divorce impact the lives of millions of Canadians and can be challenging for families, particularly for children. That is why Bill C-78 focuses on the best interests of the child first, reducing conflict, addressing family violence, and encouraging parents and former spouses to meet their family support obligations.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, more Canadians are touched by family law than any other area of law.

Thanks to data from the 2015 census, we know that as many as two million Canadian children live in separated or divorced families, yet family laws in Canada have not been substantively amended for over 20 years.

Can the Minister of Justice please explain how Bill C-78 will strengthen and modernize the family justice system in Canada?

Divorce Act

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

moved for leave to introduce 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.

Mr. Speaker, I would like to table, in both official languages, a charter statement 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.

(Motions deemed adopted, bill read the first time and printed)