Good afternoon.
Another aspect that seems problematic to us is that several of the provisions, including clauses 16.1 and 16.2, are considerably unclear in our opinion. For example, subclause (9) of clause 16.1, which deals with parenting orders, prohibits the removal of a child from a specified geographic area. In our opinion, “geographic area” needs to be clarified. Does it mean a change of city, neighbourhood, country or province? “Removal of child” should also be clarified. Does this mean a trip or move? In our opinion, this part is a little unclear.
Paragraph (1)(b) of clause 16.1 is also problematic because it is not clear to whom the legislator is referring when it states that a person, other than a spouse, who intends to stand in the place of a parent to the child, would be entitled to parenting time or decision-making responsibility in respect of the child. As the legislation currently stands, the person who intends to stand in the place of a parent cannot be a person acting in loco parentis within the meaning of the decision rendered by the Supreme Court of Canada in the Chartier case. In order to be qualified in this way, the person must have already acted as the parent and this must be apparent from his or her interactions with the child. In addition, under the Chartier decision, this person must be one of the spouses, but this is specifically excluded by subclause 16.1(1) of the bill. So, who is covered under this provision? In our view, this should be clarified by the legislator in light of the principles set out in the Chartier decision.
On another note, the Barreau du Québec is very supportive of the changes in terminology. Indeed, the use of the terms “contact order”, “parenting order” or “parenting time” as proposed in Bill C-78 could limit conflicts between the parties. In addition, the previous lexicon, which used terms such as “custody” and “custody order”, may have had the effect of considering the child more as an object. However, in our opinion, other terms need to be reviewed by the legislator, such as the word “contact”. Instead, we might prefer “communication”, or “transfer” and “remove” which, in pertaining to the child, could be replaced by “transition modality” and “move” or “displacement”.
In addition, we reiterate that we are very much in favour of restoring the cardinal principle of the best interests of the child to clause 16 of the bill. We also welcome the list of factors to be considered that has been added to it, which could certainly allow individuals to better define this concept, which is sometimes considered vague.
However, we believe that it should be made clear in subsection (3), which lists the factors that the court must consider in determining the best interests of the child, that no one factor should have priority over another. We believe this addition is necessary to ensure that the analysis of factors is personalized and adapted to the child's needs.
On the other hand, we believe that the first factor set out in paragraph 16(3)(a), namely, “the child's needs, given the child's age and stage of development, such as the child's need for stability”, should not be one of the factors on the list, but rather underlie the best interests of the child analysis under clause 16. We therefore suggest that the wording of this paragraph be incorporated into the conditions set out in subclause 16(2).
I will now turn things over to Mr. Le Grand Alary, who will present you with the rest of our thoughts.