Justice Committee on Dec. 11th, 2006

[The Chair, Conservative, Art Hanger]

I'd like to call to order the meeting of the Standing Committee on Justice and Human Rights, December 11.

As one matter that's before us on the agenda, we are still finalizing our discussion on Bill C-252, an act to amend the Divorce Act for access for a spouse who is terminally ill or in critical condition.

One of my Conservative colleagues, Mr. Rick Casson, will be presenting, as this is a private member's bill. I would ask that Mr. Casson begin his statement.

[Rick Casson, Conservative, Lethbridge, AB]

Thank you very much, Mr. Chairman.

I have a brief statement to make and then I can answer questions, if necessary.

It's an honour for me to be here today speaking to you about my private member's Bill C-252, an act to amend the Divorce Act. I know how busy this committee has been with the volume of legislation, and I appreciate your taking the time to examine this important bill.

Since it was first read on May 4 of this year, this bill has been a work in progress. Bill C-252 received rigorous and constructive debate in the House of Commons during second reading, and I appreciate the thoughtful debate provided by members of all parties during the first and second hours of debate at second reading.

That input from all sides allowed this bill to proceed to this committee today with unanimous support from the House. From the Liberal Party, we heard from Mr. Shawn Murphy, Mr. Lee, Mr. Szabo; from the Bloc, Ms. Freeman and Mr. Ménard; from the NDP, Mr. Comartin and Mr. Siksay; and from the government, we heard from Mr. Goodyear, Mr. Shipley, Rob Moore, Lynne Yelich, and Mr. Van Kesteren. All made contributions. I really consider it to be a bill that has been shaped and moulded with the cooperation of my colleagues in the House of Commons.

I would like to say at the outset that this bill is and always has been about families. We all know divorce is an unfortunate yet common reality in our society today. This bill recognizes the importance of familial bonds in all families, especially those families where a divorce has occurred. Although families may be fractured by a divorce, the bonds and relationships between children and their parents continue to exist and deserve the support this bill seeks to establish.

I first considered undertaking a private member's bill to address this issue earlier this year after hearing about a very unfortunate situation in my riding involving a young family that had been split by divorce, and one of the parents had become terminally ill. As is the case with most divorces, there are two sides to the story. I did not undertake this bill because one person was right or one person was wrong. That was not and is not a decision for me to make. However, I did recognize that something was wrong, so I was faced not with the question of who is right, but rather of what is right.

I believe it is right that children be ensured a chance to say goodbye to a parent who is terminally ill or in critical condition, unless such contact between parent and child is not in the best interest of the child.

As you know, this bill seeks to establish that the terminal illness or critical condition of a divorced parent represents a change of circumstance of that child of the marriage, and that this change of circumstances ought to allow the child and parent to visit as long as it is consistent, as I said, with the best interests of the child.

As legislators, we need to produce and provide, where we can, ample and timely access between children and their divorced parents. Ample access is a principle provided for in subsection 16.(10) of the Divorce Act, which states that “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”.

Subsection 17.(9) reiterates the same support for ample access in the consideration of variation orders.

I have undertaken this bill because I believe it is necessary to take the Divorce Act a step ahead to provide not only ample access, but also timely access. Timely access is especially important for circumstances where a divorced parent is terminally ill or in critical condition and the child may not have the opportunity to say a last goodbye to his or her parent.

This is what I mean when I say “timely access”. The Divorce Act currently provides for maximum access, and this bill seeks to establish, or at least open the door for, timely access by affirming that a child who is on the verge of losing a parent is indeed a child in unusual circumstances, a child needing a chance to say goodbye.

Visitation rights in Canada are about the rights of the children, and this bill respects those very rights, while also seeking to expand them. During second reading debate, honourable colleagues voiced concern in relation to the rights and the best interests of children.

The original text of this bill stated that any access or custody order must be made subject to subsection 16.(8) of the Divorce Act, which clearly states that such orders must be made according to the best interests of the child.

During the second hour of debate at second reading, the bill was amended by all-party support so that the proposed subsection clearly states that such access to a child be granted only as long as it is consistent with the best interests of that child. This was an important amendment, because it provided the bill with its own provision upholding the best interests of the child.

Another important aspect of this amendment is that it preserves judicial discretion by maintaining that it is the courts who decide what embodies the best interests of the child. This bill does not dilute the ability of the courts to exercise their discretion when assessing the interests of a child and preserves the role of the courts in doing so.

This bill is meant to provide an important criterion to assist the judge's consideration, not to harness it. Terminal illness or a critical condition of a parent ought to be one factor amongst other factors that are collectively subject to the key issue, the best interests of the child. Likewise, I do not believe that terminal illness or critical condition is cause for automatic custody.

In short, although the terminal illness or critical condition of a parent is a significant factor that demands consideration, it is not the determining factor, and it cannot trump the biggest factor, which is the best interests of the child.

Another significant aspect of the amendment applied to this bill at second reading is that the bill now seeks to amend section 17 of the Divorce Act rather than section 16. This amendment is significant and appropriate because section 16 deals with custody orders, while section 17 deals with variation, rescission, or a suspension of orders. The condition of a parent who is terminally ill or in critical condition would be taken into consideration by a judge assessing the circumstances surrounding an initial custody order. This bill is aimed at situations in which the circumstances have changed due to the condition of a parent, and in which the consideration of custody or access needs to be revisited.

Mr. Chairman and members of the committee, in summary I would like to say I believe this bill is balanced as it seeks to support both familial bonds and the best interests of children. Any and every child faced with the possible loss of a parent deserves a chance to say that last goodbye unless it is decided by the court that such visitation is not in the child's best interests. This bill also respects the judicial discretion of our courts by allowing them to exercise that discretion in determining what decision ought to be rendered in the best interests of the child. This bill does not seek automatic custody for divorced parents who are terminally ill or in critical condition; rather, it seeks to establish the terminal illness or critical condition of a parent as one factor amid other factors that need to be considered when the courts are adjudicating such questions of custody.

I believe we have a responsibility to identify how we can create and fine-tune the laws to help our fellow Canadians and support them in both good and bad times. That is why I am here today speaking to you about Bill C-252. Mr. Chairman, thank you for this opportunity, and I look forward to your questions and input.

[The Chair, Conservative, Art Hanger]

Thank you very much, Mr. Casson. That was very well put.

Now I'll go to questions.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Mr. Chairman.

That was an excellent presentation. I'm not that familiar with this, but could you explain the technicality of what would be different from the situation now if this bill were implemented? You gave a good rationale for the philosophy of it, but I'm looking for the technical difference.

[Rick Casson, Conservative, Lethbridge, AB]

I will if I may, Mr. Chairman.

Thanks, Mr. Bagnell, for that. Section 17 of the Divorce Act deals with the variation or suspension of orders, anything that changes in a custody order that the court should consider when looking at any change. What we want to do is just add a section after section 5 that states what the bill says: “A former spouse's terminal illness or critical condition shall be considered a change of circumstances”. We just want to make sure that's in the bill, and that it is one of the considerations that the judge would face when looking at changing a custody order. Right now it's not there. It may be overlooked. So this is just an opportunity to have them look at one more situation that could exist in the life of a child.

[Larry Bagnell, Liberal, Yukon, YT]

So it's when they have an original custody order and then they come back for a change? This just adds one of the conditions that the judge would look at in making that determination?

[Rick Casson, Conservative, Lethbridge, AB]

That's what I believe, yes.

[Larry Bagnell, Liberal, Yukon, YT]

The critical or terminal illness would be determined by a doctor, I assume?

[Rick Casson, Conservative, Lethbridge, AB]

Yes, I believe that is the way it would have to be done. I'm sure that any judge would ask for a doctor's consideration in this, since that is the reason being presented to him to change the custody order. That's an assumption on my part. Maybe the department people can talk more on that.

[Larry Bagnell, Liberal, Yukon, YT]

Regarding the best interests of the child, who would determine that, again?

[Rick Casson, Conservative, Lethbridge, AB]

The courts.

If I can, Mr. Chairman, to help clarify, under subsection 17(9), it states:

In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

That gives it both ways.

[Larry Bagnell, Liberal, Yukon, YT]

If the custody was originally provided to a person who's terminally ill or who became terminally ill, this would also give the judge the ability to change that custody if that person were not able to care for the child, for instance?

[Rick Casson, Conservative, Lethbridge, AB]

If the person already had custody of the child? I think you'd better ask the officials that question. You're saying if they already have custody of the child...there'd be no need to....

[Larry Bagnell, Liberal, Yukon, YT]

I'm just asking if that's one of the objectives of your bill.

[Rick Casson, Conservative, Lethbridge, AB]

No, it's not. It's to allow a child who at present does not have access to that parent to have access when that parent is dying.

[Larry Bagnell, Liberal, Yukon, YT]

But then it would work the other way, if that person couldn't care for the child, and if they had custody--

[Rick Casson, Conservative, Lethbridge, AB]

That would be a consideration the courts would have to take, I'm sure.

[Larry Bagnell, Liberal, Yukon, YT]

Could you just outline the constituent's story that inspired this? Was it that one of the parents was ill and they were denied custody?

[Rick Casson, Conservative, Lethbridge, AB]

As I said, I'm not going to really get into that. As all divorces are, it was a somewhat messy situation. When this was first brought to my attention, that there wasn't anything in the law that would facilitate a judge to make this decision, I thought, well, regardless of what the personal or individual situation was, the law needed changing, so we moved forward to do that.

But yes, a mother was dying.

[Larry Bagnell, Liberal, Yukon, YT]

What kind of feedback have you had from constituents or anyone since this came into debate? Are people pretty happy with it?

[Rick Casson, Conservative, Lethbridge, AB]

To tell you the truth, there hasn't been an overwhelming amount of input, because as you know, it's not something that's on the top of mind for a lot of people. But people who have been faced with this issue are very thankful that it's come forward.

What it did do is that I had a lot of contact from people on the Divorce Act generally--not specifically this, but just the Divorce Act. There were a lot of custody issues, a lot of maintenance issues, which we all face, I think, in our offices, but on this there were a few from across the country.

[Larry Bagnell, Liberal, Yukon, YT]

In the House, in the debate, was there anyone who spoke against the bill?

[Rick Casson, Conservative, Lethbridge, AB]

Initially, yes. I must say that I felt the debate was quite remarkable, in that it was very constructive. Concerns were pointed out. Then when we came back for the second hour, there was an amendment created to change it from where it was to put it into this section of the bill, and that passed unanimously. I supported that amendment because I think it made it work better. Then the bill passed unanimously in the House.

I mentioned in my comments that I felt it was pretty collaborative. I think it just showed that in some instances in the House we can cooperate when people see the end result as being something they want.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Congratulations on your bill. I know it's always an important moment when you get to do your job as a legislator. I have often said to my whip and my leader that there should be two hours a day for private members' business. That's one way for us to do our job well and to represent people in the House of Commons. Unfortunately, the balance between government business and private members' bills has not yet been struck.

We, in the Bloc Québécois, are mostly supportive of your bill, although we are still concerned by the fact that family policy has to remain with the provinces, in our opinion. Quebec, in particular, has a civil law tradition, and we would like divorce to come under Quebec jurisdiction. If legal separation and marriage are part of Quebec civil law, it would be logical for divorce to be too.

That said, the courts currently take into account the rights of the child—that's fundamental—and unless there's any criminal record, history of poor parenting or deprivation of an attribute of parental authority, the courts generally tend to favour giving access to both parents.

Correct me if I'm wrong, but basically, the amendment you're suggesting potentially involves two cases. The first is where a court judgment denies one parent access to the child, and the second is on a review application because the parent is in the terminal stage, in the hope that a special arrangement can be made, for more frequent visits or visits at other times with the father or mother who has a degenerative disease.

Are those the two scenarios that a person unfortunately suffering from a degenerative disease could rely on under amended section 16?