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.
4:45 p.m.
Senior Counsel, Family Law Policy, Department of Justice
As you know, the department takes no position. We make recommendations to the minister.
As for the wording, perhaps that could take the form of a legal opinion from us. We might have to speak to our minister to see what he would like us to propose as an option.
4:50 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Whatever you say to your minister, feel free to say it to us, because he is very friendly toward the committee. You already knew that. I won't ask what kind of recommendations you made to your minister, because you'll tell me that's confidential, but am I correct in assuming you don't recommend passage of the bill as it stands, as it's currently drafted?
4:50 p.m.
Senior Counsel, Family Law Policy, Department of Justice
As my colleague indicated, saying that the court shall ensure that the former spouse is granted access may be problematic because that's very strong language. As for possibly suggesting a different wording, what's difficult is suggesting something that wouldn't change Mr. Casson's intent, which we don't want to interfere with.
4:50 p.m.
Senior Counsel, Family Law Policy, Department of Justice
Exactly. That's where it gets trickier.
4:50 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
But if the committee wanted to suspend passage of the bill following clause-by-clause consideration, do you think someone could suggest different wording? Would you see that as coming within your mandate?
4:50 p.m.
Senior Counsel, Family Law Policy, Department of Justice
Maybe, if it went through the minister's office.
4:50 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
Thank you for being here. The point I had raised was that this amendment only covers section 17, so for a variation order, not an original order. Do you agree with that?
4:50 p.m.
Counsel, Family Law Policy, Department of Justice
It's correct that the provision only amends section 17 of the act. There's a difference between sections 16 and 17 in what they do. Section 16 deals with original orders. It is based on the best interests of the child. So the court, looking at whether an original order should be made, would look at all the circumstances of the child, and one of the circumstances the court would be required to consider would be whether there was a terminal illness, or whether the individual was in critical condition.
Under section 17, one difference is that this two-step analysis is required, so you have to prove a material change in circumstances. That is one distinction between the two sections.
4:50 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
To be clear, and I'm doing this for Mr. Casson's purpose, the court does not have to take into account the ill health of a parent in the sense of it being mandatory to take that into account. We're making it mandatory in section 17. But if it's not in section 16, they could choose to ignore the criteria.
4:50 p.m.
Counsel, Family Law Policy, Department of Justice
Any time the court is required to consider the best interests of the child, the court would be required to consider all the circumstances in the child's life and the parent's life that have an impact on the child. To the extent that a parent's terminal illness has an impact on the child, the court would be required to consider that factor in an analysis under section 16.
4:50 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
It would be the same under section 17, if we didn't have this amendment.
4:50 p.m.
Counsel, Family Law Policy, Department of Justice
That's right. So because it's the best interests of the child, they would always look at that factor.
4:50 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I see that Mr. Lee has gone out again. I want to raise this so that it is covered.
One of the other points that was raised by him and by Mr. Temelkovski was the issue of the wording of “critical condition”. Is it going to pose a particular problem for the court in applying that standard to this test?
4:50 p.m.
Counsel, Family Law Policy, Department of Justice
Neither “terminal illness” nor “critical condition” are defined. What would happen is the court would be required to apply those terms on a case-by-case basis.
4:50 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
They would again be relying on the medical evidence they had coming forward and Black's Law Dictionary.
4:50 p.m.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
I will ask the same question I asked earlier, but formulated differently. In the Kazdan v. Kazdan case you cited, Ms. Kazdan had to prove before the courts that she was in the final stages of her terminal illness and that she wanted to return to Israel.
The amendment would be such that the lawyer or one of the parties would only have to prove that the person concerned is in the final stages of a terminal illness or is in what is referred to as critical condition. This must be proven first. You broke the clause down into two parts. I want to get back to the term you mentioned earlier. You do not agree with the use of the word "veille", the French equivalent of the word "ensure".
I will explain to you how I see these things, because if ever I have to plead such a case before the courts, I want to make sure I will do so properly. If I've understood the clause correctly, once the condition is proven, once the terminal stage is proven, the courts will ensure that I hold the right to see the child, to avoid any possibility of a dispute, as Mr. Casson was saying.
If the courts do not do so and do not exercise their authority, very often, there is an alienation of affection. Let us suppose that both spouses are in conflict, that the child is taken as hostage, and that one of the two parents is in the final stages of a terminal illness. The terminal illness is proven, the mother "loses it" and attacks my client. My client will not be able to see the child and may even die before seeing the child again. So, it is almost as though you are giving the court the power to issue an injunction order, but the court must ensure that a spouse is truly in the final stages of a terminal illness.
Suppose that the person is in the hospital and must appear before the court. The person is terminally ill and wishes to see his or her child. Imagine how difficult this would be. The court would have to go to the hospital, and the lawyer would have to provide medical reports. The person is already under enormous stress, is about to die, and is being asked to appear in court. Imagine this! Even during normal circumstances, this is a very long and difficult process.
This is why I believe in the use of the word "veille" or "ensure". Once it is proven that a person is in critical condition, or hospitalized, a judge must ensure that the person may see his or her child. That is how I interpret it.
Why do you disagree with the use of the word "ensure"? If we take out this word, a woman who does not want contact between her child and the ex-spouse will go to the Superior Court of Quebec, and the father will lose the right to see the child and die without ever seeing the child.
To my mind, the word "ensure" contains an element of authority; it is like an injunction. Why are you saying that the word "ensure" should not be used?
4:55 p.m.
Senior Counsel, Family Law Policy, Department of Justice
Let us take for example how the word ensure is used in the following expression: "shall ensure that the former spouse is granted access". It is even more strongly worded in the English version, which reads:
“shall then ensure that the former spouse is granted access”.
The impression that is given is that the court will not only issue an order, but will do a follow-up to make sure that the former spouse has the right to access, and that he or she is able to see the child. We're talking about the execution of an order.
The courts cannot execute orders. This is done by the provinces. Therefore, the court does not have this power. This goes above and beyond the court's purview. In the Divorce Act, this type of wording is not used when talking about the courts. Often, there is mention of the courts being able to order something. That is the type of thing we should really be leaning towards.
4:55 p.m.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
In the case of custody orders, when a judge wants to make sure that his orders are applied, his decision will also indicate "notwithstanding appeal" to prevent the department from appealing within the 10 days that follow. Therefore, I don't see why the same thing couldn't be done. The judge can say: "I order that..." and at the end of the ruling write "notwithstanding appeal" to make sure that during the 10-day period that follows—and an applicant might well pass away in that 10-dayperiod—an appeal cannot be made and that the ruling must be complied with once handed down. Courts often do this. When the courts do not want the decision to be appealed, they write "notwithstanding appeal" to prevent this. After that, the department must begin an entirely different procedure.
5 p.m.
Conservative
The Chair Conservative Art Hanger
Do you have a short answer to that? Would you make it short, please?