Justice Committee on Dec. 11th, 2006

[Paul Szabo, Liberal, Mississauga South, ON]

While they're checking, Mr. Chair, my intent was to establish whether or not the member was consulted about his intent being reflected in what was being redrafted. I'm a little concerned that we're getting into some grey areas where there may be some problems with it. I'd hate to see it lose for....

[Rick Casson, Conservative, Lethbridge, AB]

I apologize; I'm just trying to confirm where it came from.

[Paul Szabo, Liberal, Mississauga South, ON]

There are justice witnesses to come yet. We could ask the question there.

[The Chair, Conservative, Art Hanger]

Yes.

[Rick Casson, Conservative, Lethbridge, AB]

It's probably one of them.

[Paul Szabo, Liberal, Mississauga South, ON]

Some time ago there was a standing joint Commons and Senate committee on custody and access, and I participated in that substantially. They did a report, For the Sake of the Children, and this issue came up marginally in the discussion of a concept called parental alienation syndrome, in which one parent pitted the child against the other parent, and there was an acrimonious split. This concerned me, and I'm here today because I know that when you have an acrimonious split, there are things that can happen through the judicial system that could frustrate the intent of the law, because people have rights on both sides.

If, for instance, death is imminent, and there is a terminally ill parent who does not have custody but would like to see the child, the other parent, who may in fact be still harbouring acrimony, may in fact be able to petition the court to deny and to delay it long enough so that this would be frustrated. My concern is that the amendment be drafted in such a way to include that consideration and that there somehow be a special case in which it would be granted, unless reasons could be given, within a certain period of time. The whole bill could be frustrated if someone could simply challenge the request, challenge the order for a variation.

I think in your case, death was imminent, and a decision had to be made quickly. Is that your wish for this bill?

[Rick Casson, Conservative, Lethbridge, AB]

It would have to be, in some cases, absolutely. Of course, due course of the law and all the appeals and things, as Mr. Lee indicated, can make things get pretty nitpicking and what not.

[Paul Szabo, Liberal, Mississauga South, ON]

Absolutely.

[Rick Casson, Conservative, Lethbridge, AB]

Can you put a timeline on a judge's decision in a court case? I'm not sure. I guess that would be a question for the officials.

[Paul Szabo, Liberal, Mississauga South, ON]

I think that maybe now that the officials have the questions, we're going to hear the answers.

[Rick Casson, Conservative, Lethbridge, AB]

Do I have to prepare them?

[Paul Szabo, Liberal, Mississauga South, ON]

You have raised the issue of a terminal illness, or a critical condition. A critical condition is a different situation, and, having seen the motion, I'm not sure whether or not it helps the bill. Someone can be in critical condition and be in hospital, but their death may not be imminent. All of a sudden the situation becomes a matter of judgment. It's kind of a wait-and-see thing.

Would you also envisage covering a situation in which someone was maybe in a terrible accident and was very disfigured or whatever? Would this be something you would accept a judge determining would not be in the best interests of the child to see? The psychological impact on the child may not be under the purview or under the definition of best interests of the child.

[Rick Casson, Conservative, Lethbridge, AB]

I think all aspects of the best interests would have to be taken into consideration, particularly whether it's psychological or not, I suppose. You certainly wouldn't want to be traumatizing the children. How a judge would get that information, whether through pictures or whatever, might be something one of the parties would want to present to the court.

[Paul Szabo, Liberal, Mississauga South, ON]

I'm not sure whether “critical condition” helps your bill. Maybe the officials....

Finally, I don't have a lot of expertise on the criteria for best interests of the child. What about the situation where a terminally ill parent would like to have access for one last visit, for one last time, even though it was against the order, and a child was under 18, but still of the age of reason, and didn't want to? This implies the court shall ensure that the former spouse is granted access. Now we have the rights of the other party here, being the child. Is this a problem? Again, maybe this is for the officials, but children have rights as well.

[Rick Casson, Conservative, Lethbridge, AB]

Certainly they do, and I think it has to be covered under the best interests of the child.

What is the age of reason to you, Paul? Is it a legal number?

[Paul Szabo, Liberal, Mississauga South, ON]

The courts would determine that. There are some people who are 18 years of age who are not lucid or coherent. I spent a couple of years on a hospital ethics committee, and I can tell you that a “No CPR” order is a really complicated sucker too, because you're talking about competence and an ability to reason or make decisions. Again, those are things that will have to be dealt with in the general case.

I'm a little concerned that what has been suggested as the amendment has maybe narrowed this or tried to carve out a very specific set of circumstances and assumptions when it may in fact inadvertently or otherwise affect other circumstances. I'm hoping the bill gets some help from the committee, if needed.

I think, Mr. Chairman, it would probably be the officials who may be able to answer some of these questions.

[The Chair, Conservative, Art Hanger]

I'm going to cut you off, Mr. Szabo.

I'm going to turn to Mr. Thompson. He may have a point to raise.

[Myron Thompson, Conservative, Wild Rose, AB]

It's really not a point, it's just a comment and then a question.

I want to thank you, Rick, for bringing this forward. It's a great bill as far as I'm concerned.

You're right when you say it's all about families. I never had any problem with the intent of this bill right from the very beginning. I think the intent was quite clear. It seems to me one piece of our vocabulary that gets lost nowadays is common sense. The bond between a child and a parent is always there. No matter what happens, there is a bond. I think that's what we need to remember. I've had an experience in my own family, and I can tell you it is extremely important. The possibility of children being able to visit with the one who is going to expire is so important.

It's nothing against lawyers, but it seems to me every time something comes up this nitpicking seems to be way bigger than it ought to be. It looks to me like the important thing here is that the intent is loud and clear, and I think everybody would say yes, it's good common sense to acknowledge this. We all know the provinces and the territories are the ones responsible for implementing the laws that we pass in this place.

When do you think this bill will be raised with the provincial and territorial authorities? I think their way of administering it is going to be the real key to the success of this bill.

[Rick Casson, Conservative, Lethbridge, AB]

Thank you, Myron, for the comments. I appreciate that.

How that moves forward into the provinces and territories I suppose would depend on how it proceeds here and how it proceeds further in getting into legislation.

I want to comment on the common sense issue. I think maybe one of my problems is that I'm a little too black and white, and the grey area confuses me. It's necessary, and I understand that. People have to think of all these different scenarios, but I hope we never get to the point in this country where we legislate the end of common sense. I think we still need it at some points in our lives.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Casson.

Mr. Ouellet, you have time for one quick question.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Congratulations, Mr. Casson, on the sensitivity you've shown to children through this bill. However, I have a question about one particular point.

As you know, these days there are a lot of family breakdowns. Often, the grandparents are responsible for raising young children for quite a long time. It even happens, in many cases, that one of the two parents comes back, takes the children living with the grandparents back and denies the grandparents access. And yet the grandparents were a source of emotional security for the young children.

Do you think that with this bill, grandparents might also be allowed to see the children again before dying, like parents?

[Rick Casson, Conservative, Lethbridge, AB]

Well, I'm not dealing with that aspect of it here. What we're trying to say is that it is a terminally ill parent. Now, if the grandparents are involved in the raising of the children, that's an issue of its own. Certainly I'm in that situation, personally. My son and his wife are divorced and we're helping them raise our grandkids. Mostly it's a little moral support, but it's the other kind of support as well, at times. But that's my duty in life.

Was it a terminally ill grandparent, is that what you're suggesting? I think the courts would have to be pretty careful on that. If one set of grandparents has access and another doesn't, then you're really getting into an area. For the purposes of what I'm trying to do, I'm looking here at parents. If we can deal with that at this point in time, I think that would be one big step.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Mr. Chairman, can I just make a very brief comment before concluding?

[The Chair, Conservative, Art Hanger]

Go very quickly, Mr. Ouellet.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

I was very sensitive to my Liberal colleague's question about people who are ill for a long time, for two years, for example.

Would it be possible in the bill to specify a period of time in which the child could visit the parent, without it necessarily being just before death or fully in the terminal stage? Provision could be made, for example, in the case of a parent with cancer, for the child to visit the parent over a period of two months. That would simplify things, for example, in the case of a person who, as was mentioned earlier, might have MS for the last 10 years of their life.