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.
Liberal
Sue Barnes Liberal London West, ON
I'm not asking about constitutional issues. I'm asking about practical issues, of the costs of going into litigation for thousands and thousands of people who have access orders.
Senior Counsel, Family Law Policy, Department of Justice
It's very difficult to predict any impact that legislative change will have on litigation. We know that many good pieces of legislation lead to litigation because you need to interpret new terminology that is in a statute. In some cases, clarifying certain things may lead to less litigation. For example, a deemed change may make it easier for somebody to make a point of going back to court and getting a variation of an access order. But in terms of what impact it will have, it's very difficult to predict.
Liberal
Sue Barnes Liberal London West, ON
I'm going to try to make this easier for you.
I know you would have given advice to your minister. You would have canvassed the existing situation; you would have had statistics on access orders and litigation.
Are we creating, in our seeming will to provide a humanitarian access point, more problems for the system of justice or costs to the court than would happen without this bill?
That's not a policy question.
Senior Counsel, Family Law Policy, Department of Justice
As I said, it's very hard to predict the impact. I think it clarifies what a deemed change in circumstance is, and the second part simply confirms the discretion of the court to make the best decision in the child's best interests.
Liberal
Sue Barnes Liberal London West, ON
I'll try another way.
If you had an access-seeking parent right now—without the benefit of this piece of legislation—in a terminal situation, would any court in Canada consider that a non-material change in circumstance, in your opinion?
Senior Counsel, Family Law Policy, Department of Justice
Can you repeat the first part of the question, please?
Liberal
Sue Barnes Liberal London West, ON
The law as it currently stands allows anybody to go before the court on a material change in circumstance, in cases of access applications. Is there any court in Canada today that would not consider the major illness—terminal illness or critical condition—of a former spouse a material change in circumstance, in your opinion?
Senior Counsel, Family Law Policy, Department of Justice
Unfortunately, I cannot speak to what the court would do.
We presented evidence on Monday that there has been case law where the courts have considered a terminal illness to be a change in circumstance.
Liberal
Senior Counsel, Family Law Policy, Department of Justice
But the question was whether any court might not, and unfortunately, I can't answer that.
Liberal
Sue Barnes Liberal London West, ON
I'm not asking you to look into the mind of the court. The answer I was seeking is whether the courts have found this to be a material change in circumstance.
Senior Counsel, Family Law Policy, Department of Justice
Yes, they definitely have.
Liberal
Sue Barnes Liberal London West, ON
Has there been any case that you're aware of where they haven't found it to be a material change in circumstance?
Senior Counsel, Family Law Policy, Department of Justice
Not that we're aware of.
Liberal
Senior Counsel, Family Law Policy, Department of Justice
It will not, necessarily, with respect to how the court makes an order and its exercise of discretion. It can provide more direction with respect to what a change in circumstance is.
Senior Counsel, Family Law Policy, Department of Justice
The case law hasn't deemed it to be a change in circumstance in all cases, and this is what it would do here.
Liberal
Liberal
Larry Bagnell Liberal Yukon, YT
I only have one question.
Is there any indication by anyone that people who didn't get custody might try to say, I just have to go to my doctor and get a certificate, and now I can have custody?
Claire Farid Counsel, Family Law Policy, Department of Justice
Certainly, it's always open to people to put evidence before the court that there has been a material change. There would have to be sufficient evidence before the court for it to make an order that there has been a material change in circumstances or that it would be in the best interests of the child now to make a new order.
Certainly there would have to be sufficient evidence before the court. I don't think that—
Liberal
Larry Bagnell Liberal Yukon, YT
Let me ask it in a different way.
Was there any indication that a person who didn't have custody but who wanted custody might, any time they get critically sick in a way that falls within the definition, try to use this as an excuse to get custody?
Counsel, Family Law Policy, Department of Justice
There are no definitions in the provision.
