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.

Divorce Act

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

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 at first instance 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.

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

Mr. Speaker, I first want to congratulate the hon. minister on his recent appointment. As the vice-chair of the justice committee and justice critic for the official opposition, I look forward to working constructively with the minister.

I think there is a fair bit of consensus on many aspects of this bill. I have a question for the minister on the issue of relocation, in particular, the notice provisions.

Right now under the bill, a parent seeking to relocate must provide 60 days' notice. The non-relocating parent would only have 30 days to respond. That is problematic for people in remote and northern communities. It is also problematic perhaps for those who are vulnerable, who may not be familiar with the legal process or who might not be able to afford retaining a lawyer. Finally, it is inconsistent with an objective of this legislation, which is to remove matters out of the court process to the greatest extent possible. In the case of relocation, the only option a non-relocating parent would have would be to file an application in court.

I was wondering if the minister could address those concerns.

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

Mr. Speaker, I would first thank the hon. member for his complimentary comments. I share the same sentiment with respect to being willing to work with him and other members of the committee, as well as members on all sides of the House.

In the bill, we tried to balance the needs of the best interests of the child and the ability of parents to move where it is necessary. We also tried to balance the ability of the parent who is not moving to remain in contact with the child. We want to ensure there is a fair ability, as well as an efficient and smooth process, for all sides to have their opinions heard as a result of the potential relocation.

We are trying to achieve a certain number of balances in the bill. We think we have it. We know, when this was discussed at committee, members shared different opinions. However, we think we have the right balance.

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

Mr. Speaker, I want to take this opportunity to congratulate our new Minister of Justice.

When his predecessor presented the bill to our committee, she told us it would reduce child poverty. However, during the committee study, one question remained unanswered, namely, what happens if a parent cannot afford to pay child support? In particular, I am thinking of the representatives of the Barreau du Québec, who told us about the enforcement problems Quebec is having.

In his speech, the minister touched on how this bill can address poverty. What does he think we could do in situations where a parent cannot meet their child support obligations?

As reported this week, nearly half of Canadians are $200 away from not being able to pay their bills. Many Canadians cannot afford child support.

What can we do for families left in dire financial straits after a divorce?

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

Mr. Speaker, I thank my hon. colleague for her comments.

We did what we could with this bill. It is not always easy to determine the income of one of the parties and to ensure that the other parent pays child support. That is why we put in place what we believe to be the best system possible for ensuring that such transfers are efficient and transparent.

Obviously, we cannot do everything in one divorce bill; we will need to legislate in other areas to improve the lot of Canadians living in poverty. For example, we instituted the Canada child benefit, which helps children in such situations.

We are always willing to consider other ways of combatting poverty.

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

Mr. Speaker, it is an honour to speak today and to also add my congratulations to the Minister of Justice. I want to underscore and emphasize my thanks, as well, to the prodigious work of his predecessor, with whom I worked on so many bills in her time as minister of justice.

My question is very specific. Like a number of the commentators, I think it is universally accepted that this is important reform in the area of family law. As noted by Elba Bendo, the director of law reform at West Coast LEAF, which is a women's feminist legal organization, while the bill would make significant improvements, training is required for those throughout the justice system who work with issues particularly related to the gender imbalance for women who may fear violence in the family context as they go through this process, because if the courts get it wrong, if the family law workers get it wrong, the consequences of getting it wrong can be fatal.

I wonder if additional funding is being contemplated. A lot of this is provincial, but in the federal context, is more training being considered in how to assess cases where family violence may be at play?

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

Mr. Speaker, I thank the hon. member and leader of the Green Party for her comments as well. I have enjoyed working with her in the past on other files, and I certainly will enjoy working with her in the future on these files.

The problem the member identifies is a very real one. In this bill, we have tried to take measures that would address the situation of people, women in particular, who are facing violence. Yes, the encadrement that is provided within the system is very important.

The bill cannot do everything, but as a government, we will continue to look at and be open to suggestions, working with our provincial and territorial counterparts, which have a large role in the administration of justice, and working through, in many cases, a unified family court system, which will come online very soon in many of the provinces, to look at the kinds of training methods that will help this bill live up to its promise.

[Lloyd Longfield, Liberal, Guelph, ON]

Mr. Speaker, last year I held an all-party round table that looked at adverse childhood effects and the mental health of children. Something that came up in that round table was the indigenous cultural focus around children. If we can do things for children, the rest of our society benefits and benefits in future years.

Could the minister mention today, on Bell Let's Talk Day, when people are talking about mental health, how this legislation would help with the adverse effects of divorce on children and what it does to the mental health of children?

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

Mr. Speaker, I thank the hon. member for the work we have done together on the INDU committee and through our common interest in innovation.

Putting the primary focus on the best interests of the child and making that the lens through which we see how situations need to be resolved in cases of marital breakdown and divorce precisely helps us to improve the mental health of children, as well as everyone else around the system. By focusing on children, we put mental health as one of the factors that will be taken into account in assessing exactly what kinds of orders are necessary in any particular case. By putting the child first, we are necessarily putting the child's mental health first.

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

Mr. Speaker, as always, the hon. member displays a very in-depth knowledge of the bill and has a great deal to say. I shared some of the opinions and I am open to following the rest through the parliamentary process.

During the member's comments, he still used the terms “custody” and “access”. One of the points of the bill is to change that language to parenting language, “parenting order” and “contact order”. I would invite him to reflect on that change.

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

Mr. Speaker, the minister is quite right that the bill updates language to make it less adversarial, talking about “parenting” and “contact”. There are some who might say this is window dressing, but I would respectfully disagree. I believe that words matter, and to the degree that this might minimize the adversarial nature of a divorce and the impact it might have on children, so much the better. Indeed, there was a fair bit of support from the family law bar for those changes.

There was only one issue I would raise, which came up at committee. There was some concern from witnesses for, I believe, the South Asian Legal Clinic out of Toronto. They said, for example, that it might be problematic in an international context. They cited an example in which a father had abducted his child and taken that child to Pakistan. The mother sought to be reunited with her child in Canada, and they stated that the court in Pakistan was very specific in looking for the term “custody” and seeing that terminology used in the order. That is the only issue we may want to consider. However, that aside, I think it is a positive step.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I am glad to be here for the very first bill being brought forward by our new justice minister. I am sure he is extremely talented.

I have to admit that we share a mutual friend in Sandy Pearlman, the late producer of the Clash and Blue Oyster Cult, so I am going to ask that the minister lessen the cowbell when he is trying to get attention in the House.

I found my hon. colleague's discourse very interesting. In our office, the most difficult and saddest issues we deal with time and time again are those of family breakup, when people come in trying to find help. In particular, I am referring to the issues that arise when families are breaking up and whoever has custody is moving to another jurisdiction.

That is an extremely difficult, emotionally fraught situation. The courts never seem to be the healing institutions on this. These are deep, traumatic wounds for families, and some never recover.

From his experience, does my hon. colleague know ways that we can do this to make sure it is always child-centred, less adversarial, and more about trying to find some healing rather than a deeper rupture.

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

Mr. Speaker, the member for Timmins—James Bay is absolutely right that these are the most difficult of situations. When the breakdown of marriage involves children, emotions are high, often on all sides. Sometimes, because it is about access and the parents' relationship with some of the most, if not the most important people in their lives, it makes it all the more difficult.

For example, an acquaintance of mine is a judge. Although he had not practised family law, he said that upon being appointed to the bench, one of the most difficult things he found when making decisions was making a custody order or an access order, and having to hear the evidence without really being able to be there and understand in a true and profound way all the circumstances of what may be going on within a family.

The member is right. That is why, to the degree that we can encourage parties to mediate, negotiate and resort to means other than the court process, this will go a long way.

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Mr. Speaker, I would like to follow on my hon. colleague's comments and also offer congratulations to our new Minister of Justice. I would also like to underscore the importance of this bill, particularly the nature of the subject and the fact that it has not been updated since 1985.

With respect to the relocation aspect, my hon. colleague has made a recommendation on an amendment to change the time for the notice of relocation in the bill, which is 60 days for notice and 30 days for the response. The proposed amendment would take that to 90 days and 60 days, respectively. He mentioned that that was rejected at committee.

I wonder if he could expand on the arguments against making that amendment, and how he would respond to those arguments.