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.
Senior Counsel, Family Law Policy, Department of Justice
Yes, it will be very short.
Basically, the court has the right to put any terms or conditions in an order, and they could put in that order a limit on how much time the people have to exercise the access. If it's not done, they can still require that.
Conservative
Liberal
Lui Temelkovski Liberal Oak Ridges—Markham, ON
Thank you very much, Mr. Chair.
I think we've outlined that in section 16 and section 17, the best interests of the child is found in both sections, and it will apply. Right? Okay.
How does the current act deal with such situations of terminal illness and critical illness if either parent is...?
Counsel, Family Law Policy, Department of Justice
How does the current act deal with that?
Counsel, Family Law Policy, Department of Justice
When an individual provides evidence that there is a terminal illness or a critical condition, and that factor is brought before the court, that would be a factor the court would have to consider in determining what is in the best interests of the child.
So under section 16, it would be one of the factors the court would have to consider. Then under section 17, in undertaking its analysis, if the reason the request for a change to the access provisions was being brought forward was a terminal illness, the individual would have to show that the terminal illness constituted a material change in the circumstances of the child. And then the court would consider that terminal illness or critical condition as one of the factors in determining overall what order would be in the best interests of the child.
Liberal
Lui Temelkovski Liberal Oak Ridges—Markham, ON
So in terms of it being challenged to give a variance on the original order, there wouldn't be much difference from what we're proposing here. Other than in the second section, which is proposed paragraph 17(5)(a), it would be deemed that there is a terminal illness or a critical illness and that therefore only one, the second factor, would be necessary to deal with.
Counsel, Family Law Policy, Department of Justice
I think what the bill does, as I said, is deem the terminal illness or critical condition to be a material change, so you would go straight to the second part of the analysis. And then the bill does give some direction. It says, as we have discussed, “the court shall then ensure that the former spouse is granted access”, subject to the best interests of the child. So it does give some direction to the courts, but ultimately the test is the best interests of the child.
Liberal
Lui Temelkovski Liberal Oak Ridges—Markham, ON
Let's move over to the reality side of this. When situations like this take place, how often or how quickly can a judgment be received if there is an application?
Counsel, Family Law Policy, Department of Justice
I don't think I'm able to give a specific time as to how long.
Liberal
Lui Temelkovski Liberal Oak Ridges—Markham, ON
There must be some current data. For anybody who has a challenge to a court order right now, how long would it take them to have it reviewed and dealt with?
Senior Counsel, Family Law Policy, Department of Justice
That really is an issue that I would say is just province by province. Of course the provinces administer justice, and there are different rules in each province on how long a motion can take before it can get to court. Even within the provinces, there are jurisdictional issues. Things may move more quickly in one city as opposed to another for various reasons, depending on the court caseload. So it's really hard to say how long it could take. There can be urgent motions made, but—
Liberal
Lui Temelkovski Liberal Oak Ridges—Markham, ON
What I'm getting to is the urgency of this. We understand that the urgency Mr. Casson has brought forward is rather quick, and that we need something done yesterday in some of these terminally ill or critical illness situations. It could be that we need the child to be present with the parent yesterday. How real is this change to the act? How quickly can the courts react to this amendment? Can you maybe suggest something that we could put in here to trigger something in these specific situations where an urgency factor is placed on this and a judge appears the next day and deals with the situation? These situations are not going to be everlasting. They may get a court case two years after the person passed away, or after they understand that they can see their child, even though they may be there.
Counsel, Family Law Policy, Department of Justice
It's important to point out that the provinces and territories are responsible for the administration of justice, so that's access to the courts. We can certainly bring to their attention the fact that you have raised this issue of how quickly someone is able to get into court.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thanks, Mr. Chair.
One of the things I like about this bill is that it may be bringing some clarity to what is evolving case law. I noticed the case that you cited in your submission. It has already been referred to. If we got down the road a couple of years, could the common law in fact evolve to the point where it does exactly what Mr. Casson is proposing in his bill? In this case where a terminally ill mother was granted a variance, if it became a de facto, regular occurrence in different jurisdictions throughout Canada that terminal illness did result in a consideration of a variance—of course, based on the best interests of the children—is Mr. Casson's bill not just a codification or maybe a speeding up of a process or a trajectory that the courts may already be heading in?
Counsel, Family Law Policy, Department of Justice
If you had a number of cases that established that a terminal illness or critical condition was a material change of circumstances, certainly that body of case law would be something the courts would look to. In that sense, it would be helpful in terms of establishing what the principles of law are.
There's a slight difference in what this bill does, in that it says the terminal illness or critical condition shall be considered a change of circumstances. It establishes a principle of law.
Conservative
Rob Moore Conservative Fundy Royal, NB
My point is that we could be heading in that direction anyway. It's possible if court cases continue to evolve in this way. I wanted to see if there was any difference in how the court handled this case and how it would have been handled under Mr. Casson's law. In fact, in both cases the terminal illness will be found to be a factor that should be looked at. In both cases the best interest of the child is the overriding factor. In this particular case, if this bill had been law, the result may in fact have been the exact same outcome.
Counsel, Family Law Policy, Department of Justice
Certainly, but it's difficult to say in the abstract, of course, because everything is determined on a case-by-case basis.
Conservative
Rob Moore Conservative Fundy Royal, NB
Every case is different—and correct me if I'm wrong in anything I say—but Mr. Casson's bill continues to carry through that same theme that we have in family law by providing that overriding factor of the best interests of the child. If a judge finds or if a court finds that in spite of that terminal illness, the best interests of the child would not be served by allowing that dying spouse visitation rights, then the child will not have to visit that spouse, under the bill.
Counsel, Family Law Policy, Department of Justice
That's correct. The best interests of the child is the test.
December 11th, 2006 / 5:05 p.m.
Liberal
Gary Merasty Liberal Desnethé—Missinippi—Churchill River, SK
Thanks.
Those were great presentations from both witnesses.
With respect to the bill itself, thinking a bit about those who are economically or socially marginalized, and looking at the word “ensure” and giving effect to that word, if we were in a situation where, whether it was contested or not by the healthy spouse, if they're a great distance apart—let's say they're in northern Saskatchewan or northern Manitoba, in a fly-in community, and the ill spouse is in Winnipeg or Saskatoon—with no financial means to support, how far do you think a judge would go to “ensure”, meaning financial aid at the end of the day? Are there any precedents of that?
Senior Counsel, Family Law Policy, Department of Justice
Just to clarify, do you mean in terms of ordering one of the parents to pay for the costs of the exercise of access?
