Justice Committee on Nov. 19th, 2018

[Valérie Laberge]

We share our colleague's opinion. Courts do not always consider it in their decisions. Courts will tackle the question anyway, often obliquely or indirectly. In my opinion, which I feel is also the opinion of the Barreau du Québec, it is preferable to say that the circumstances will be considered.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Understood. Thank you for that.

Now, going back to Ms. Bourke, you also made reference to the burden. You suggested that the parent who is making the application for relocation should bear a burden. Again, that's a departure from Gordon v. Goertz, and the legislation itself is a departure from Gordon v. Goertz in the sense that the court said that it's the burden of the applicant to demonstrate a material change of circumstances in relation to the child, but once that's established, there is no burden. The court looks at any number of factors to ultimately determine whether the relocation is, in fact, in the best interests of the child.

Again, just comment on that distinction or that difference.

[Gillian Bourke]

Certainly.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Why not just have an analysis strictly based upon what is in the best interests of the child, having regard for any number of factors that might come into play in each individual case?

[Gillian Bourke]

I think part of this comes down to the court process itself. In our opinion, when an application is made to the court for the relocation of a child, the parent who is seeking to relocate the child should have the onus of proving why that change, which is a significant change for the child, is in the child's best interests.

In terms of the onuses that are outlined in the legislation, I think we see these more as complicating the litigation process. The vast majority of the time, the difference between substantially equal time is going to lead to situations where establishing the breakdown of the time that the child spends with each parent would become another issue within the litigation, when really the focus should be on what is in their best interests.

In our group's experience and opinions, the status quo is often in the best interests of the child. For that to be disrupted, especially when it is going to be a significant impact on the parenting time, as relocation is defined in this bill, then the person who is seeking to have a significant impact on the parenting time and disrupt the status quo of the child should have the burden of proving why this is in the child's best interests.

If the application is made by the parent who is seeking to change the status quo, it just makes it a little easier for the respondent—which is the natural litigation process—to reply as to why it's not in the child's best interests and to advocate why the status quo shouldn't change.

[The Chair, Liberal, Anthony Housefather]

Mr. Boissonnault, go ahead.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much, Mr. Chair.

I would like to start.

by thanking you, Shalini, for being here. Thank you for the work you're doing with the LGBTQ2 community.

Unfortunately, when we got equal marriage, we also got equal divorce. We also know that there are many microaggressions inside the community and that it can be particularly divisive. Thank you for the work you're doing on behalf of two-spirit and trans people and LGBTQ2 in general. I really appreciate it.

[Shalini Konanur]

Thank you.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Boivin, thank you for being here and for the work that you do. I am very familiar with the work of your organization. I also know the president of the Association des juristes d'expression française de l'Alberta, the AJEFA, in Alberta. Justin Kingston was one of my political science students on the Campus Saint-Jean, in Edmonton.

You mentioned that, in some provinces, it is simply not possible to speak French during a trial. In which provinces is it not possible to have a trial in French in family court?

[Daniel Boivin]

British Columbia and Newfoundland and Labrador are the two provinces where absolutely nothing is provided in French. In Nova Scotia, Prince Edward Island and Alberta, when you know someone, you can possibly get an order in French, but no one has yet tried to have a complete trial in the language. People who live in those provinces tell us that the court's good will in granting a divorce by consent in the language of the parties would crumble a good deal if the whole trial had to be held in French.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Unfortunately, it also changes with the political climate, with the government and with the judicial independence. You do not need to comment on that; as a politician, I am doing that myself.

Is there any data about the millions of francophones and francophiles all over the country who want to make their case in family court in French or in both official languages?

[Daniel Boivin]

That is a very difficult subject to study. There have been studies on parties requesting access to justice in both official languages. The last complete study on it was actually done by the Commissioner of Official Languages.

Figures are difficult to obtain because it is a chicken and egg situation. People are not going to ask for something they know is not available. If you don’t know the number of requests or refusals when it comes to hearing a case in French, it is not possible to quantify the problem.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

So it is important for there to be an active offer, I would say.

[Daniel Boivin]

Absolutely, and sections 530 and 530.1 of the Criminal Code specifically require courts to make an active offer, by telling parties that it is their right to have access to justice in the official language of their choice.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

While I was parliamentary secretary to the Minister of Canadian Heritage, I sat on the Standing Committee on Official Languages. During that time, the committee conducted a study on francophones’ access to Canada’s justice system. After that, the government invested another million dollars to improve francophones’ access to justice across the country.

In your opinion, what should change in this bill? What provisions do we have to add so that the active offer is better?

[Daniel Boivin]

We have to use sections 530 and 530.1 of the Criminal Code as a model. They set out the right of the parties to use one or both of the official languages, as well as the duty of the court to understand the language used by the parties and, thereafter, to provide the results, such as the rulings and the transcripts, in the language used by the parties.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

This is a very interesting question. It is a gray area in terms of legal responsibilities for the administration of justice, at both federal and provincial levels. Who pays, and why and how? There is a good model in New Brunswick and Quebec. Let’s see how things unfold in Alberta. I know that there are more Franco-Albertan judges who can hear cases like this.

What mechanisms can encourage provinces to act along those lines?

[Daniel Boivin]

A lot of work has been done, especially in terms of the Criminal Code. Because of the requirements imposed on the provinces anywhere in the country under sections 530 and 530.1, they have had to appoint judges able to hear cases in French. So that has already been accomplished.

Work has also been done so that the staff as a whole can speak French to the parties, not just the judges in the court and the hearing rooms, but also the clerks and reception people. In addition, some mechanisms allow provincial and municipal governments to exercise the powers they have under the federal government’s Contraventions Act. There has been a transfer between the federal government and other levels of government in order to provide access to the legal system.

Finally, the funding provided by the federal government to organizations like the Centre canadien de français juridique inc. means that court staff can use French in the legal system. This program, funded by the federal government, is hugely successful because it provides people with genuine skills that they can immediately use on the front lines.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Given what happened this week here in Ontario, we take careful note of your comments. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

The floor now goes to Ms. Sansoucy.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you very much, Mr. Chair.

My thanks to all the witnesses for their contributions to our committee's work.

My question goes to the representatives of the Barreau du Québec. I must react to your conclusion by emphasizing that your work has been very useful for our committee. I particularly appreciated your very comprehensive analysis of the bill and your remarks on the need to reconcile and avoid conflicts between the act and the Civil Code of Québec.

I also appreciated your very concrete recommendations to replace, for example, “ordonnance de contact” with “ordonnance de communication” and to replace “transfert” with “modalités de transition”. I feel that you have well understood the contribution you are making to our work as legislators. We are of one mind about the principle of the best interests of the child, but in one of your recommendations, you mentioned an order of priority in the factors to be considered.

Could you give us some more details about that? You said that care is needed with clause 16. What during your analysis led you to issue that caution?

[Valérie Laberge]

There are two parts to that question. First, in subsection 16(3), the factors to be considered are listed. Paragraph 16(3)(a) specifically refers to: “the child’s needs, given the child’s age and stage of development, such as the child’s need for stability.” In our opinion, that should be a general evaluation parameter, which should perhaps even be moved to the previous paragraph, so that it establishes that the analysis is, in every case, guided by “the child’s needs, given the child’s age and stage of development, such as the child’s need for stability.”

Second, we agree that the factors listed are all very appropriate. However, we want to avoid any confusion where people may think that the factors must be applied in the order in which they are written. For example, paragraph (d), which lists “the history of care of the child” comes after paragraph (b), which says: “the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life.” Now, subsection (3) says “all factors related to the circumstances of the child, including:…” I feel that there is a need to mention that no priority is given to one factor over another, and that it genuinely is the child's overall situation that must be considered.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you.

Let me ask you a question on one factor that you did not deal with at all, but I am sure that the work you have done with the Comité consultatif sur le droit de la famille will make it possible for you to answer.

The Minister of Justice has stated that reducing child poverty is one of the four main objectives of the bill. One of the proposed measures is to make child support orders easier to execute. Child support orders can greatly help to reduce the impact of divorce on the custodial parent, but, as we prepared for this meeting, some people have pointed out that such orders have their limitations, especially in the case of families with a lower socioeconomic status.

In your experience, how can the Divorce Act Help to reduce child poverty by making child support orders easier to execute, especially in cases where the debtor parent does not have the economic resources needed?

[Nicolas Le Grand Alary]

First, I have to remind you that we did not study that question in particular. In Quebec, there is a plan for determining support payments and a plan for executing orders. Clearly, it will always be difficult to have orders carried out when the debtor has no money. I don't think there is a miracle solution. We found none in our study of this bill, unfortunately. Nor did we find a parallel to be drawn with the Quebec plan that could be useful here.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Can the Quebec plan shed any light on this for us? Is there a similar plan in other provinces? Are there parts of the plan that we could use as a model? How long has it been in place?