Evidence of meeting #39 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was parent.
A recording is available from Parliament.
4:30 p.m.
Conservative
Rick Casson Conservative Lethbridge, AB
No, not really. I think all the comments we've heard here.... The ones that are in the real legal realm, hopefully, we'll get some answers to from the next folks. I'm not a lawyer. I hope we can come to some consensus so we can make this all work within the intent of the bill.
If that's the end of my time, Mr. Chairman, I appreciate very much this opportunity, as I did the discussion in the House. It was very helpful. I think all the issues raised are important, and I just hope we can move ahead in some way to address this specific aspect.
4:30 p.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Casson. Well done. We appreciate your presentation, and certainly there will be some discussion, first with the departmental officials, then among ourselves here to see where we can take your bill. Thank you.
Could I ask the departmental officials to step to the table?
Mr. Bagnell.
4:30 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Mr. Chair, while they're stepping to the table, could you explain the procedure from here on in on this bill?
4:30 p.m.
Conservative
The Chair Conservative Art Hanger
Well, there is going to be a vote on whether we accept it, or whatever the situation is, and then it will go to clause-by-clause and on and on and on, depending on what the committee decides here.
4:30 p.m.
Liberal
4:30 p.m.
Conservative
The Chair Conservative Art Hanger
We could, depending on how long that discussion is. If it doesn't take place today, it will take place on Wednesday.
Go ahead, Monsieur Ménard.
4:30 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
I just want to make sure we're going to have enough time to discuss the report on solicitation.
I don't know whether my colleagues would agree to doing just one round, with a limit of one speaker per party. Then we could begin considering the report. Otherwise, I'm afraid we'll run out of time.
Given that there appears to be consensus on the bill, we could unanimously agree to do just one five-minute round, just this once.
4:30 p.m.
Conservative
The Chair Conservative Art Hanger
I might ask colleagues to consider extending for a few minutes if we have to.
Let's get to the departmental officials. We'll do what we can to conclude a little bit early and go from there.
Ms. Farid, please.
4:30 p.m.
Claire Farid Counsel, Family Law Policy, Department of Justice
Members of the committee, we're pleased that you have invited us to participate in these committee hearings.
My name is Claire Farid. I'm counsel with the family law policy unit of the family, children, and youth section. With me is Lise Lafrenière-Henrie, senior counsel and coordinator of the family law policy unit.
We will provide you today with information about the technical aspects of the Divorce Act and Bill C-252. However, before turning to the specifics of the bill, we would like to discuss the general scheme of the Divorce Act with respect to custody and access issues.
As you're aware, the federal government is responsible for the Divorce Act and the custody and access issues that arise in that context. The provinces and territories are responsible for custody and access issues that arise in the non-divorce context--for example, for common-law couples.
Section 16 of the Divorce Act is the section that provides that a court may make an order for the custody of and/or access to a child. Subsection 16(8) provides that only the best interests of the child shall be considered by the court in making an order for custody or access. The child's best interests are to be determined in light of the condition, means, needs, and other circumstances of the child.
Therefore, when a court makes an order for custody of or access to a child, it is required to look at all of the circumstances of the child and make the order that is best for that particular child.
Some of the types of issues that a court will generally examine are: factors related to the child, such as his or her age and views and preferences about the custody and access arrangement, the relationship that the child has with each parent and other significant people in his or her life, and plans that the parents have for the upbringing of the child.
It is relevant to note subsection 16(10) of the Divorce Act, which provides that in making an order for custody or access, the court must give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child, and must take into consideration the willingness of the person who is applying for custody to facilitate contact with the other spouse.
The Divorce Act therefore emphasizes the importance of the child's relationship with both parents. The particular access arrangement that is ordered must, of course, always be in the best interests of the child. Section 16 deals with original orders, and therefore looks at the circumstances of the child at a particular point in time. Those circumstances sometimes change, however, in a way that makes this original order inappropriate; thus, there is a need to return to court for a variation of that order. It is subsection 17(5) of the act that currently sets out the conditions for the variation of an order for custody or access.
There are two aspects of the inquiry under subsection 17(5). First, before the court can make a variation order, it must be satisfied that there has been a change in the condition, means, needs, or other circumstances of the child since the making of the last order. While subsection 17(5) of the Divorce Act simply refers to a change in the circumstances of the child, the Supreme Court of Canada has clarified that it is not any change in the circumstances of the child that will be sufficient for a court to consider the merits of a variation application. There must be a material change in the situation of the child. This requirement that there be a material change is to prevent parties from indirectly attempting to appeal or re-try the case by pointing to some minimal or insignificant change in the situation of the child.
In order to be a material change, the change must have altered the child's needs or the ability of the parents to meet those needs in some fundamental way. The change must be such that the previous order may have been different had the new circumstances existed at the time the original order was made. It's significant to note here that an important change in the life of a parent that is relevant to the child could be considered a material change in the circumstances of the child.
For example, in the 2002 case of Kazdan v. Kazdan, a mother was terminally ill and she sought to vary a Divorce Act custody and access order to dispense with her former husband's consent for her to travel to Israel with the children. The court found that the former wife's terminal illness and her resulting emotional need to travel with the children to Israel to see her family was a change in the circumstances of the child within the meaning of subsection 17(5) of the Divorce Act. The order was varied to allow her to travel, since it was found to be in the best interests of the children.
So the first aspect of the analysis under subsection 17(5) is to establish that there has been a material change in circumstances, which would then allow the court to consider the merits of the situation. Once this threshold has been met, the court must then embark on the second aspect of the analysis, which is to determine what order would now be in the best interests of the child. In determining what is in the best interests of the child, like under section 16, the court must seriously consider the importance of the child's relationship with each former spouse. Because both subsections 16(8) and 17(5) require that original orders and variation orders related to custody and access be based on the best interests of the child, the court must look at all aspects of the child's life to determine what order would be appropriate. The court therefore has broad discretion to fashion an order to ensure that the child's best interests are met.
Bill C-252 would add proposed subsection 17(5.1) to the Divorce Act to assist with interpretation of subsection 17(5) in circumstances where a former spouse has a terminal illness or is in critical condition. There are two elements to proposed subsection 17(5.1).
First, proposed subsection 17(5.1) would provide that for the purposes of subsection 17(5), a former spouse's terminal illness or critical condition shall be considered a change in circumstances of the child of the marriage. This aspect of the provision would have the result of deeming the terminal illness or critical condition of a former spouse to be a material change in circumstances. As a result, in cases where a former spouse has such a terminal illness or is in critical condition, the threshold requirement of subsection 17(5) will have been met, and the focus would be on the issue of whether a variation of the original order is appropriate.
The second element of proposed subsection 17(5.1) is that it provides some direction for the court with respect to the potential variation of the order. The bill states that the court “shall...ensure that the former spouse is granted access to the child as long as it is consistent with the best interests of that child”. Therefore, access between the former spouse and the child is to be ordered, as long as it is in the best interests of the child.
Since the best interests of the child are a prerequisite for making a variation order for access, the court would be required to consider all the circumstances of the child to determine whether such an order would be appropriate. In the context of this analysis, the court would also consider what type of access arrangement would be appropriate--for example, in terms of the frequency and length of visits, and who would be present at these visits.
We hope this information is helpful to the committee, and we would be pleased to take any questions.
Thank you.
4:40 p.m.
Conservative
4:40 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Thank you, Mr. Chair.
At the outset, I would say that although Mr. Ménard is the friendliest député, I can't agree with him. I think every member should have a chance to speak. We have up to 5:30 on the agenda for this item, and I know both my colleagues have questions they'd like to ask.
You spoke about material changes in the situation of the child. Regarding the types of elements this bill addresses, are those material changes in the case of a child, or because there are material changes in the parents, former parents, or spouses?
4:40 p.m.
Lise Lafrenière-Henrie Senior Counsel, Family Law Policy, Department of Justice
The bill addresses what would be a material change in the circumstances of the family to determine whether a variation order can be made. If a custody order is in existence, the only way to vary it is to prove that there is a material change. This bill would facilitate that variation in cases where a parent is terminally ill, because the threshold of meeting the material change would be more clearly set out.
4:40 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Okay. I was just asking because she had said specifically in the situation of the child.
I think you can tell that the committee is very supportive of this bill, and so is the House of Commons, so that's not an issue. There were a number of technical questions; it went on for an hour, actually. I'm wondering if you remember some of those and could answer the ones that you remember.
4:40 p.m.
Counsel, Family Law Policy, Department of Justice
Do you want me to start with a specific one? There were so many.
4:40 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
The ones the committee members were interested in. I know you were writing down some of them. So if there were some you remember that had obvious answers....
4:45 p.m.
Counsel, Family Law Policy, Department of Justice
The first question that you had asked was what would be different technically with the addition of this provision to the Divorce Act. I guess the difference this particular provision would make is that currently under subsection 17(5), when you have someone applying for a variation of a custody order, they have to prove that there has been a material change in the circumstances of the child, and that's a fairly onerous task.
What this provision would do would be to say that if an individual has a terminal illness or is in critical condition, it has been proven that there's a material change in circumstances. In that sense, it would facilitate the application, so that the analysis by the court would be focused on whether a new order would be in the best interests of the child. So from a technical perspective, that's the change this provision would make.
4:45 p.m.
Counsel, Family Law Policy, Department of Justice
It would facilitate. There are two parts of the analysis. You would move directly to the second aspect, which is a new order in the best interests of the child.
4:45 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Mr. Szabo had a number of technical questions that he said you would answer.
While you're looking for that, can I ask if you have any problems with the bill?
4:45 p.m.
Counsel, Family Law Policy, Department of Justice
The one technical point I think we might bring to your attention is the word “ensure” that's used in the bill. I think that the word “ensure” is a little different from the type of wording that is currently used under the Divorce Act. For example, the Divorce Act now uses wording such as the court “may” make an order, or the court shall take something into consideration, whereas the word “ensure” gives the impression that the court would somehow be guaranteeing that the access would take place. So that might be an issue the committee wants to examine, in terms of looking at that wording.
4:45 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
As was mentioned, I think the committee is pretty much in favour of the bill. There may have to be some amendments, and I don't know if you yourselves are going to suggest wording we could use for that amendment.
Do you have a system for checking roughly how many people might be in the same situation as Mr. Casson's constituent? In other words, usually, when a bill is passed, there's a reason for it. If we make a change, it's to meet a need; in this case, it's the need of people in the terminal stage who are denied access to their children.
Are there any branches in your department that have a handle on the scope of this phenomenon?
4:45 p.m.
Senior Counsel, Family Law Policy, Department of Justice
We have a research branch at the Department of Justice that might be able to find the information, perhaps through Health Canada, on how many people are in the terminal stage. But as for the number of parents in that situation, that could be very difficult, as there may be no way of getting that data. I don't know if that would be available. If you want us to look into that and get back to you, we might be able to find out how many people in Canada are in that kind of situation.
4:45 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
I'd like to come back to the question of the previous speaker, Mr. Bagnell. Let's assume a bill is a bit like a pregnancy; one hopes the child is wanted. In terms of the desirability of this bill, I take it the Department of Justice feels free in recommending its passage to us, perhaps with an amendment. Feel free to make a suggestion. I think it could be helpful to everyone. If I understand correctly, Justice Canada does want to see this bill make it through.