Evidence of meeting #41 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 child.
A recording is available from Parliament.
Conservative
The Chair Conservative Art Hanger
I'd like to call to order the Standing Committee on Justice and Human Rights. Our agenda, as noted, will be a clause-by-clause consideration of Bill C-252.
Conservative
Bloc
Réal Ménard Bloc Hochelaga, QC
I'm sorry, Mr. Chairman.
Does the government have an amendment? We will have to see the amendment.
Bloc
Réal Ménard Bloc Hochelaga, QC
We will have to see the amendment. We don't have the amendment.
Do you have the amendment?
Conservative
Rob Moore Conservative Fundy Royal, NB
I did. I have it here. We can make copies.
I'll tell you what it does. We had some individuals here yesterday from the department who recommended that we change “ensure” to “shall order”, the idea being that “ensure” was placing a fairly heavy onus on the judge to follow.... It brings the language into line with what's currently in the Divorce Act.
Conservative
Liberal
Sue Barnes Liberal London West, ON
May I ask a question on that? Are you giving this as a government—?
Conservative
Rob Moore Conservative Fundy Royal, NB
This is a government amendment to change, “the court shall then ensure” to “the court shall make a variation order”.
Liberal
Conservative
The Chair Conservative Art Hanger
Would the department representatives sit at the table, please?
Ms. Barnes, what was your question?
Liberal
Sue Barnes Liberal London West, ON
Thank you very much. Forgive me if you've already answered this; I haven't had a chance to read the Hansard yet.
When we do this, by having in this bill “as long as it is consistent with the best interests of that child”, essentially that would not change the status quo before the courts, because the courts always have to consider the best interests of that child. So even though we're holding this up as one thing that the judge shall consider, in reality, if this bill didn't exist, it wouldn't make one heck of a difference, because any advocate can still ask that that be considered in the best interest of a child upon application to the courts.
Am I gathering the essence of the law?
Lise Lafrenière-Henrie Senior Counsel, Family Law Policy, Department of Justice
That's correct. In determining the best interests of the child, the court can certainly consider the terminal illness of a parent and whether that's relevant to the interest of the child.
Liberal
Sue Barnes Liberal London West, ON
What I'm trying to really get at is this. I can say it in one of two ways. One way would be to say that this is extra wording but not required in order to come to the same outcome; in other words, it's an addition to the act that really is not necessary. The other way I could say it is that in all respects, nothing would change in family law with the addition of this. In other words, it can do no harm, but it's not doing any good either.
Senior Counsel, Family Law Policy, Department of Justice
Can I just clarify? Are you talking about the whole provision?
Senior Counsel, Family Law Policy, Department of Justice
In terms of the impact it's going to have on the law, I think that's to be determined. There is certainly a policy consideration for the committee in terms of whether this is necessary. But as I said, coming back to the impact legally, as we said before, the court already has the discretion to do this, but I think the committee has considered other factors.
The first part of this provision says, for example--and this is something that goes a little further than just clarifying the discretion of the court--that the former spouse's terminal illness is considered a material change. That directs the law in a certain direction that leaves it non-discretionary. This is something that is more substantive in nature.
The second part of the provision, about how the court shall make the order once that change has been determined, is again very discretionary, and it's consistent with the current law.
Liberal
Sue Barnes Liberal London West, ON
Did Justice find any area that it felt would negatively affect family law, as we see it in Canada, by the addition of this bill?
Senior Counsel, Family Law Policy, Department of Justice
Unfortunately, I can't comment on any advice we have given to our minister.
We haven't seen any constitutional issues.
