Justice Committee on Dec. 11th, 2006

[Rick Casson, Conservative, Lethbridge, AB]

Yes, one issue is that we feel that if one of the parents becomes terminally ill, this changes the circumstances. So that should offer the opportunity to go back to the courts and say that things have changed, that this parent has a very short period of time to live so they'd like to have access if none is granted, or, as you say, maybe even give more.

On the other issue, if for some reason that access has been denied, if for some reason the court felt strongly enough to say that one parent should not see this child, that has to be considered. This doesn't outweigh anything. This is just part of the total package. I am comfortable with that. If for some reason, whatever it was--we can speculate--if there was abuse or whatever, there is no way a court could force that child to go to see that parent. I don't think they would. But this is just another consideration for them to have when they're dealing with this.

[Réal Ménard, Bloc, Hochelaga, QC]

That's fine. A little later, we'll be hearing from the departmental officials, but if I understand correctly, the government supports your bill, because the bill is apparently going to pass unanimously. If the government supports it, I guess there were guarantees that there were no problems with jurisdiction, the Constitution or the best interests of the child. Have you had the opportunity to discuss your bill with the friendly Minister of Justice?

[Rick Casson, Conservative, Lethbridge, AB]

Yes, I have. I've talked to the minister's office and to him personally and really received some help.

When the idea first comes up for a private member's bill, you seek support from the legislative people in the House of Commons. You talk to your colleagues. The suggestion for the amendment came forward from various places. The wording and where it should go in the bill was offered in a friendly manner by many people.

The issue of jurisdiction I will not go into today. That will be something you will have to discuss with others.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

We'll go to Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, Mr. Casson, for being here.

I have to admit that I didn't catch this until very recently, and I had it confirmed again today. I don't know if you appreciate this, but there are several different types of scenarios where this issue could arise in terms of a terminal illness. Let me quickly go through those.

One is a scenario where the parties have separated, the parents have separated, and there's no court order. One of the individuals who doesn't have physical custody of the children becomes terminally ill and applies to the court. Section 16 of the act would apply, not section 17. The test or the criteria in section 17 would not be something the court would have to take into account.

The second scenario, which also applies to section 16, would be where you have an application for custody or even a disputed application for custody by both the parents, but there's no order yet. You have de facto custody residing with one of the parents, and again the non-custodial parent becomes terminally ill and wants to have access. Section 16 would apply there, and this criterion would again not apply.

This criterion only applies in the third scenario, where a court order has already been made and you're moving to vary it.

I'm raising this with you, and I'm apologizing to some degree, because when you talked about the amendment, I didn't appreciate that it was only going to apply to the third scenario. It doesn't apply to the first two. It only applies to the variation.

I have to say to you that from my experience in family law, which is quite extensive, the third scenario is going to be the most common one, where you'd actually have a court order and custody would be granted to one parent or access would be denied or left blank. The most common situation is where the parent has perhaps dropped out of the child's life but is now terminally ill and wants to have access before death.

You're probably going to catch most of the cases or the majority of the cases, but I think there are a significant number that you're not going to catch. I have no idea what the percentage is, but I would think it's less than half. There are a number of cases that you're not going to catch through this amendment.

I'm only raising this so you can appreciate it. We may want to hear more when we hear from the officials, but it's a problem.

Let me finish my question, after all of this.

I'm assuming you wanted to catch all three of those scenarios, where a person faced with a terminal illness or a very serious illness would want the opportunity to say to the court this is really important and take it into account, which is what your amendment does in the third scenario.

[Rick Casson, Conservative, Lethbridge, AB]

Maybe you can help me, through your experience, Mr. Comartin.

For the first two scenarios you talked about, where there is no court order or there's one in development and something happens, does section 16 not allow that consideration to come before the judge?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

No, it would not.

[Rick Casson, Conservative, Lethbridge, AB]

Would it not be considered at all, as far as the terminally ill person?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm sorry. It would, inasmuch as it would be under existing law, but they would not look to section 17. They would only look to section 16, which has some criteria in there. As you've already set out, the primary one is the best interests of the child.

Having as much contact with a parent is another section, but the specific proposed subsection that you're putting into section 17 would not be taken into account. Our courts assume that we know what we're doing here, but it's sometimes a false assumption. They're assuming that if we only put it into section 17, we mean for it to be used only in section 17.

[Rick Casson, Conservative, Lethbridge, AB]

Well, I look forward to the response from the officials on that as well. I appreciate your pointing it out.

I thought that if we put it into section 17 to deal with present orders, then anything else would be dealt with in section 16, but you're saying that's not the case.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

It's not my understanding.

That's all, Mr. Chair. Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Good afternoon, Mr. Casson.

First, I'd like to congratulate you. Your amendment, which would amend the Divorce Act, is a really good one. The act was proclaimed in 1968, under Trudeau and the Liberals. For nearly 40 years, this act has been causing us problems, in families and in society. As you say, we have to try to protect children with this legislation so that their interests take precedence. At least that's the way I see it.

In Quebec, there tends to be an imbalance in terms of custody orders. In many cases, the woman gets custody of children under five.

Very often, what happens is what's called an alienation of affection, that is to say, the custodial parent has so much control over the mind of the child that the child ends up rejecting the other parent. This type of behaviour is of course not allowed, but it's very hard to prove or even deal with legally.

In Quebec, under the Legal Aid Act, young children, though minors, can apply for legal aid given their lack of financial means. They can ask to see their father or mother in the terminal stage. That's great. That didn't use to be an option.

I think this is a very significant step forward, and it's to your credit. Take, for example, a 7-, 8-, 9- or 10-year-old child who has had an alienation of affection and stopped seeing their father five or six years ago. Let's just assume it's a father. At some point, the child learns from uncles and aunts that the father is not doing very well. The mother, who has alienated the child, wants to keep the child to herself. I'm not faulting her; she's only human. In that case, the child could go to legal aid and ask, through a lawyer, to see the father. In other cases, it could be the mother. It's a delicate situation. The child is going against the wishes of the custodial parent.

This bill would enable a parent in ill health, who might be unable to go to court in the terminal stage, to see the child if the child has requested it.

Do you see it the same way I do, as a new opportunity for children, an opportunity to visit a parent with the help of legal aid, as is done in Quebec?

[Rick Casson, Conservative, Lethbridge, AB]

To tell you the truth, I wasn't aware that the situation existed in your province. Certainly, as I relate to the situation I'm familiar with and which stirred me to move on this private member's bill, the one parent was very, very ill and the family got involved as well. So there are all kinds of aspects, as you say, of aunts and uncles. If the child isn't aware the other parent is ill, then there are ways to make that happen.

I would think it would be a tool that would help in most situations to deal with terminally ill parents to put this into Bill C-17—and I'd be interested to see what the officials say about section 16 as well—to just make it part of the criteria the judge looks at when he makes these decisions.

Thanks for your comments. I appreciate them.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Casson, there's probably nothing worse for a member of Parliament than to be thrown with his or her bill before a committee, many of whom are lawyers, who will nitpick until the cows come home. So I don't doubt for a moment the good intentions behind this legislation, which has been adopted by the House at second reading. And I think we can see its intention from the wording. But I do have a few questions just to rough out some concerns. They probably aren't major concerns. Mr. Comartin has addressed one of them.

Another one that I have is that the wording in the statute appears to place a burden on a judge. It says that a judge “shall...ensure”. Was it your intent in drafting this that the burden actually be on a judge, that irrespective of the positions of either of the parties or any of the applicants, a judge on his or her own initiative would have to take the steps to either impose or ensure access?

[Rick Casson, Conservative, Lethbridge, AB]

No, Mr. Lee, not really. I think that word might possibly be something to be considered, if the committee wishes to have a little further look at that, as to what onus it puts on different parties, particularly the judge. I think there has been some talk about that particular word, “ensure”.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Yes, and because of that word “ensure” and the relatively robust wording, you could have an access scenario created in a revision order, which neither of the parties wanted and the child didn't want, and where a medical doctor had said that there's no way this person who is dying is going to have the ability to encounter what could be a 10-year-old child. That may seem odd to you, but the wording does seem to push for and create access without reference to what either of the parties would want—although it comes in the context of a revision in the statute.

Have you thought about this medical issue at all in this, since it does involve a critically ill or terminally ill patient?

[Rick Casson, Conservative, Lethbridge, AB]

A medical issue in what way?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Incapacity.

[Rick Casson, Conservative, Lethbridge, AB]

So if the parent is so ill that they can't...? But then what would stop the judge from making that decision for the child to go to visit?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Okay, I suppose you've covered it off with the amendment, where the best interests of the child are. But you wouldn't want to have a scenario where the adults and the judge said okay, little one, go and watch your father die. I realize that's not what you envisaged.

I'm nitpicking the wording here and trying to figure out what the Department of Justice will have to say about this wording as it would be applied to thousands or hundreds of cases across the country over a period of time. I wonder if other medical conditions would not.... You have referred to terminally ill or “critical”, but there are actually a number of other conditions pertaining to people who are in hospital, who might be pretty badly off, but who wouldn't be terminally or critically ill. I can think of the term “guarded”; I've seen that used. I don't know whether it has a medical application or not.

Here I'm inviting your comment—

[Rick Casson, Conservative, Lethbridge, AB]

No, I understand.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

—about the possibility of altering the wording for the medical conditions to provide a broader spectrum of what would be very poor condition.

[Rick Casson, Conservative, Lethbridge, AB]

Our intent is that it is a terminal illness or a terminal condition. I guess it would be the doctor's role to decide if that were indeed the case. Once that is established, I don't know where these other medical things would come in. You could be terminally ill from a lot of things, but if that is the determination of the doctor, then that would be what the judge would have to base his ruling on, I would suppose.