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.
Counsel, Family Law Policy, Department of Justice
The first part of the provision states that any time there was a terminal illness or critical condition, there would be a change in circumstances. Once that individual has shown that they have a critical illness, they would be able to then get to the second part of the analysis.
What I mean to say is that once they've gotten to that first part of the analysis, the court would be able to analyze the whole issue.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, and thank you to our witnesses.
This is specifically on the amendment. I know we spoke about this yesterday, but the overriding feature of the best interests of the child is still fully intact with this amendment.
We spoke about and Ms. Barnes raised the issue of other case law. There has been case law that found that a terminal illness was a factor that could result in a variance, but this requires the court to consider that terminal illness in every case. Whether they issue a variance or not, always the overriding factor is the best interests of the child.
Is that in fact the case, as we perceive it is?
Liberal
Sue Barnes Liberal London West, ON
Is there any concern within the department about frivolous or vexatious issues? That would be my only concern around this bill, that somebody who had just lost access for very good reasons of best interests....
Let's say, for instance, it was a convicted pedophile father who lost access to his kids. Now, all of a sudden, he has a terminal cancer, and bingo, we have the expensive litigation all over again, and the uncertainty and trauma that goes with it. Anybody who has practised family law knows there are incredible stresses not only on the court system, but in the family situations.
What do you have to say about that area?
Senior Counsel, Family Law Policy, Department of Justice
In such a situation, what the provision would do is get to the second part, which is what kind of order the court will make more quickly. So instead of having to reach the threshold of a material change in circumstance that requires evidence before the court, and before the court can then make a variation order, with this provision you would basically have that deemed to be a material change in circumstance. You would immediately go to the second part of the test, which is what kinds of orders should the court make in the best interests of the child.
So the best interests of the child remains the test, and it would be on a case-by-case basis. In the case you described, we would hope that the court would consider past conduct and the ability of that parent to be a parent as an important factor.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Thank you.
Good morning, ladies.
I believe that we have already met once, on Monday or Tuesday, I believe.
I would like to know something. You are proposing a change to the document that was given to me. I will read you the French version, as it concerns me somewhat. In the second last line of the paragraph, this is what is written:
the court makes a variation order related to access to the child that is in the interest of the child.
Naturally, the interest of the child is protected in the sentence. What concerns me, is that you are talking about a variation order. That assumes that there has already been a decision, meaning an order. When you say " variation ", that means that there has already been a decision.
So, in many cases, a problem of this nature will not arise. One goes before the court, and engages in what we call in Quebec summary proceedings. We have a problem. The right to custody of the child becomes a priority. The judge sets a date as soon as possible because he must make an important decision. So, in less than 10 days - on average, it's 10 to 15 days in the district of Quebec - the judge sees us.
Let's say that I am terminally ill. I am told quite clearly: I knew nothing yesterday, but today the doctor tellis me that I have terminal cancer.
So, you are going to block the whole system. In fact, a variation order, that would mean that the judge had already heard the parties. Is that really what I am to understand?
The sentence in paragraph (5.1) proposed from Bill C-252 says this:
(5.1) [...] and the court then ensures that the spouse obtains right of access[...]
Therefore, that could be a variation or the first decision. For your part, you limited yourself to what we call the variation order, meaning that there was an order already made. That is not the case currently.
I want to make sure that we understand each other.
Senior Counsel, Family Law Policy, Department of Justice
There are two elements. First, I just want to clarify the fact that it is not the department that proposed this. We proposed different options to be considered. Above all, we took into account the current wording of the act. It is important to see how, in section 17 of the Divorce Act, orders are handled.
It is important to talk about a variation order in this case because it is a provision of section 17, which deals with variations to orders. Pursuant to section 17, no other order can be made other than a variation order. Therefore, it is important to qualify it as such.
A first order would be made pursuant to section 16. We explained on Monday why that had been changed.
December 13th, 2006 / 3:55 p.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I want to clarify the use of the verb in the proposed amendment “and the court shall make a variation order”. A lot of the time, I'm more used to seeing the words “may make a variation order”. In this case, the way I read it, the court would have to make a variation order, even if it didn't want to vary anything. That was my only question.
Counsel, Family Law Policy, Department of Justice
Could you please repeat that?
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I'm wondering if the proposed wording would require a court to actually make a variance order, even in cases where it didn't really see a need to vary.
I'm wondering whether the verb in “may make a variation order” might be more appropriate?
Senior Counsel, Family Law Policy, Department of Justice
The divorce side usually does say that the court “may” make an order. We agree with that.
Again, this is what we had to work with. I think there were some discussions.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I understand.
There was a sense that the statute should be forcing the court to either make a variance or an order that took the material change into account.
I'm a little uncomfortable with it, in the sense that if the court didn't really want to make a change, but was still forced under the wording of the statute to make an order, the court would be going through this unnecessary exercise of a judge saying, well, I have to make an order, but I'm only going to vary one word, like varying a note in a piece of music.
If we were to change the proposed change to say “may make”, do you feel that would detract from the intent of the mover of the bill?
Senior Counsel, Family Law Policy, Department of Justice
As I said, the Divorce Act usually says the court “may” make an order. It would be problematic to change “shall” to “may“ here, because there could be an issue as to whether the court may make an order that is in the best interest. We would have to clarify that the court may make an order respecting access. Then it would have to be clarified, if it does make such an order, that it would have to be in the best interest.
It wouldn't be a simple change from the word “shall” to “may”; it would require bit more work.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I'm going to leave this mulligatawny soup the way it is.
Thank you.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Lee, for doing that.
Let's get back to the amendment.
(Amendment agreed to [See Minutes of Proceedings])
(Clause 1 as amended agreed to on division)