Mr. Speaker, I am pleased to speak on Bill C-41, a bill which addresses various aspects of child support payments. Its objective is a praiseworthy one: to improve the situation of the children of divorced parents.
On top of the emotional and psychological effects of divorce, the vast majority of these children have to deal with another kind of effect, which has an unfortunate impact on their daily lives. As you may have guessed, I am referring to the sometimes drastic drop in their standard of living.
A brief presented two years ago by the now defunct Canadian Advisory Council on the Status of Women described the situation of mothers with custody, and how despair, emotional exhaustion and other family problems, such as custody arrangements, spousal abuse and child abuse, impact on the negotiation of child support. Sometimes these women accept lower amounts just to see the end of it, just to avoid continual confrontations, and this of course results in lower financial resources for them and their children.
If there is one area in which governments can, and must, act directly, it is the area of children's and parents' living conditions. In introducing last March's budget, the government unveiled its action plan for child support.
This plan had four components: removing child support from the tax system, creating and approving federal guidelines, implementing measures to ensure that support is paid in full and on time, and increasing the Working Income Supplement under the Child Tax Benefit.
This announcement followed on the Minister of Justice's announcement in November 1994 that his guideline project would enable the government to save $1.5 billion yearly in social assistance payments, if 80 per cent of parents in arrears with child support were to start paying. It can be seen, then, that the federal government had two things in mind: improving the children's situation and saving itself considerable amounts of money.
This government intervention is one of a set of actions taken by all levels of government in order to try to solve one of the most endemic of the problems experienced in our society, whether in Canada or in Quebec: the impoverishment of women and children.
Last year, Quebec passed legislation to ensure that, as soon as child support is awarded, a mechanism is put in place by which court orders for child support are automatically recorded by the clerk of the superior court in which the case is heard. Under the system, those not earning a regular salary are required to deposit as security the equivalent of three months' support payments. In the case of wage earners, payments are deducted at source.
These measures are aimed at simplifying the payment of support for children and the custodial parent. Similar measures have been adopted in other Canadian provinces. For instance, a universal and compulsory system for the automatic deduction of support payments also exists in Manitoba, Ontario and New Brunswick. In other words, the provincial governments have already taken certain steps within their own jurisdictions to improve the financial situation of women and children.
The bill tabled by the federal government today is intended to complement action taken by other governments in the fight against poverty. Divorce is obviously a fact of life in Quebec and Canadian society. In Quebec, however, the phenomenon has become more widespread than anywhere else, with nearly 50 per cent of marriages ending in divorce.
In 1990, there were 78,152 divorce judgments in Canada, leading to 48,525 judgments on child custody, while about 44 per cent of judgments on family matters involved an order for support payments. In 1989 alone, 83 per cent of all these judgments were the result of an agreement between the spouses. We all know what the situation is like when such agreements are made, so it is clear how the existence of a grid would have a considerable impact on the negotiating process.
It is also true that in Quebec, the vast majority of those who receive child support payments-98 per cent in 1988 and 77 per cent in 1990-are women. This is to explain why, in my speech, I refer to the custodial parent in the feminine. I hope my colleagues understand I certainly have no intention of downplaying the fact that the remaining 20 per cent of custodial parents are men.
The statistics are very clear: two thirds of divorced women with three children live below the poverty line. When the mother is poor, her children are poor, since, as I just said, 80 per cent of the children live with the mother. This comes as no surprise. We are all familiar with this fact.
I would like to point out that the decision is made with the consent of both spouses. And I would also like to remind this House of the impact of single parenthood on women and children. A link has been established between poverty among women, especially those with children, and marital breakdown. As I mentioned earlier, single parent families headed by women are, as a group, most exposed to poverty in Canada.
According to research done by the staff of the Library of Parliament, authors of studies on child support payments in Canada have found that on average, such payments do not cover even half of the actual expenditures involved and usually the custodial parent has to absorb the difference. And people wonder why women are poor, especially when we know that, on average, their income is only two thirds of the man's income. The wage gap between the sexes is particularly significant here. My point is that women who have to raise their children alone are carrying an unfair share of the burden.
For further insight, here are more figures. As we know, after a separation, the standard of living of women and their children drops by 27 per cent to 37 per cent according to statistics, while the standard of living of men invariably increases between 4 per cent and 30 per cent. But the issue must also be analyzed in light of the fact that women see their standard of living drop by 27 per cent to 37 per cent.
This situation brought the former Canadian Advisory Council on the Status of Women to write, in March 1994, and to repeat until its untimely abolition, which I deplore, that: "Taking into account the greater responsibilities assumed by the mother receiving child support, the difference in men's and women's ability to pay because of the difference in their earning power and the limits that raising children imposes on the earning power of the mother who assumes custody, the tax policy should first of all take into consideration the situation of the mother".
The Canadian Advisory Council on the Status of Women was not the only one to come to that conclusion. If I may, I would like to quote from an article written in 1994 by the Honourable Claire L'Heureux-Dubé, Supreme Court justice, in the magazine Femmes et Droit . This article was about the myths society and the courts face when dealing with child support.
It showed that, according to a study done by the Department of Justice in 1990, the standard of living of 59 per cent of the women and children in the study dropped, after divorce, below the poverty line, while the percentage was 46 per cent if child support was included in the calculation of their income.
Therefore, when child support is paid, 50 per cent of women still live below the poverty line. It is absolutely terrible. Yet, this is
supposedly an improvement, since the data for 1988 showed that the income of two-thirds of divorced women was under the poverty level. If we exclude the support payments, this proportion came to 74 percent.
Further on, the judge wrote: "The popular belief that men are generally overburdened by unreasonable support payments orders to women who use them to buy themselves luxuries and small incidentals is false, for two reasons. It stems from the false premise that women, in particular those who stayed at home when they lived with their husband, always, or at least easily, become economically independent after divorce. [-]This belief ignores a number of facts, both real and inescapable. Following a divorce, child custody is almost always given to the mother, and this by mutual agreement in 80 per cent of cases."
Furthermore, according to the judge, the belief that the ex-spouses find themselves in similar situations after the divorce does not take into account the every day realities to which the custodial parent is confronted. Yet, the economic difficulties are worsened by the responsibilities inherent to child custody.
I read on: "For the great majority of custodial parents, this responsibility leads to a proportional reduction in economic choices after divorce. Thus, the ex-wife will have more difficulty in overcoming her limited ability to make a living when entering the job market after years of not working at all, or very little. Unlike her husband, she will be restricted in her economic choices because she will have to choose a home close to schools, she will not be able to work late at night because of her family responsibilities and she will have to stay home if a child is sick. She also must choose a safe neighbourhood for children, not too close to a busy street and having green spaces where children have at least a place to play safely. The other parent, on the other hand, does not have these restraints. He is free to live wherever he wishes and to work the hours he wants. He has more disposable income. For these reasons, the real cost of child care is rarely if ever accurately reflected in the amount of money allocated as support payments."
Madam Justice Dubé also says, in her article on the myths society and the courts must face: "Despite the facts surrounding the custody of a child, there is a popular and persistent myth that raising a child is not expensive. In consequence, some think that the amounts sought as support payments are extravagant, if not totally beyond reason. This is not true, of course, since the parent having the custody of the child is most of the time neglecting personal needs in favour of the child. These beliefs also influence those who make support payments. It will be easier for him to make excuses for not paying if he does not believe this money is really needed. Such assumptions and beliefs have really tragic consequences, considering that the number of Canadian children living under the poverty line is ever increasing".
Therefore we will be analyzing Bill C-41, or at least its most important features, in terms of its impact on women and children.
The bill deals with two of the four elements in the federal government's planned child support initiative: the establishment of a framework to develop and apply child support guidelines, and the strengthening of ways to collect child support payments.
To start with, I will mention the aspects of the bill I find positive. First, the establishment of a framework for the use of child support guidelines: the Bloc Quebecois agrees with this concept. However such a framework raises a few questions I will deal with later.
Then, the bill differentiates between child support and spousal support. In my view, this is beneficial as it will help dispel the kind of myths Madam Justice L'Heureux-Dubé mentioned. Moreover, this differentiation will put the child-who should be the main focus of any protection or help measure-at the centre of court decisions.
With regard to proposed provisions to enhance enforcement measures, adding Revenue Canada to the list of federal departments whose data banks can be searched to locate defaulters is a step in the right direction, as is the creation of a scheme for the denial of certain documents, such as passports, driver licences, and the like. Access to federal civil servants' pension benefits and seafarers' wages will be made easier to ensure payment of child support arrears.
Naturally, any measure giving back to children the money required for their support deserves our endorsement. I would also like to mention the broadening of the definition of the word "child" to include young persons 16 to 18 years old and students. I think this measure better depicts the reality of modern families and that it will help many children and young adults to start their life on the right foot.
Finally, again in the best interest of children, I agree that priority should be given to the needs of children when both child support and spousal support are requested. I think children's needs must have preeminence at all times and in all legislation. That is necessary for our collective future.
Those are the elements of the bill that we should support. However, other elements raise questions or prompt less positive reactions. I will mention only one that seems the most important to me. Afterwards, I will propose other amendments as the bill evolves and I am sure my colleagues will refer this morning to other aspects of the bill I will not have time to address.
As far as negative aspects are concerned, the discretionary power is the most unacceptable one in my opinion; it could even turn the
enforcement of guidelines into a nightmare. I will quote clause 4 of the bill, which deals with the discretionary power accorded cabinet. It states clearly, and I quote:
(5) The Governor in Council may, by order, designate a province for the purposes of the definition "applicable guidelines"-
I think there is a problem here and not a minor one.
How can a government encourage provincial governments to develop and adopt their own guidelines and, at the same time, give itself the unfettered discretionary power to decide if the guidelines adopted by a province will replace its own federal guidelines in that province? It is like saying: "I am telling you to pass your own legislation, but I warn you that it is I who will ultimately decide whether or not I will impose my own legislation because I do not like yours". There is a rather ambiguous message there.
This behaviour leads us to wonder about the real intentions of this government. Will it really let the provinces decide for themselves what is good for their people or will it, once again, interfere insidiously and impose its standards and its policies? I wonder.
I invite the government to reflect on the words of its Minister of Intergovernmental Affairs, who was speaking highly, only yesterday, of the virtues of decentralization and who was comparing centralization to something to be fought at all cost. For once I can tell you I agree with the minister.
To those who could think the issue is trivial, I would say it is nothing of the sort. This issue is crucial because, in practice, parents and children could find themselves very much with two systems of rules that would be applied in the same court of justice, by the same judges, to the same people, according to whether they choose to divorce or to separate. That is crazy.
Thus, if the government decided not to recognize the guidelines adopted by the provinces for cases of separation or for common law spouses no longer living together, federal guidelines would apply in the case of a divorce, because divorce comes under federal jurisdiction. Let us imagine the scenario. There is a whole distinction to make there.
Mr. Justice X, in a divorce cause, awards Mrs. A support payments of $1,000 a month for her children. The same judge, 30 minutes later, in the same hearing room, awards Mrs. B, in a separation cause, a $1,500 support payment for her children. The two women and their children could be neighbours, could be in the same financial situation and would find themselves with totally different judgments because the same grid was not used.
This is totally wrong, and I would invite the government to reflect on this and to take some concrete action. If it says to the provinces: "We give you the choice", it should not come along with its own standards.
I should point out that this scenario is quite plausible precisely because of clause 4 in the bill.
It would give the federal government a fine opportunity to once and for all show off its highly touted flexibility, which exists only in the minds of some of our Liberal colleagues.
We ask that the discretionary power provided for in clause 4 be eliminated and that, as soon as a province meets the criteria set out in the new clause 26.1, its own divorce guidelines apply within its territory, as dictated by common sense and respect.
This issue was considered by a federal-provincial-territorial committee whose report proposed three alternatives to the very concrete problem raised by the distribution of powers, whereby one formula could be used for divorces and another one for private cases. The government opted for a single formula within a single territory, and we totally agree. Now we just have to make sure it does not undo with one hand what it is proposing to do with the other.
I would now like to move on to the guidelines section in the bill. For some years now, lawyers and legal experts have agreed on the lack of uniformity and the arbitrary way support payments are determined.
We know that the decisions relating to child support orders are left to the judges' discretion and vulnerable to all kinds of manipulations by one or both spouses in assessing their ability to pay. There is now a total lack of uniformity in the amounts granted.
According to one study, child support payments are already inadequate when they are set, and the situation gets worse with inflation and as the children grow up and their financial needs increase. In fact, many people working in the judicial system are calling for the standardization of child support payments.
This bill proposes the adoption of a grid, which is a step in the right direction. The federal-provincial-territorial family law committee on child support came to the same conclusion in its report, saying:
"The committee believes that adopting a child support setting formula will help parents, lawyers and judges negotiate and set fair and consistent support payments and bring parents to take responsibility more readily for their children. By eliminating a major source of conflict when families break up, this formula may also foster a positive relationship between family members, and particularly between the child and the non-custodial parent. It may also reduce not only the legal costs to the parents but also the legal aid costs, court costs and costs to execute orders, which are borne by the government".
The Conseil du statut de la femme agrees. In a notification filed merely a month ago as part of the Quebec government consultation process, the council pointed out other benefits a support setting formula may have, including: the value to parents of an objective tool by which agreements better tailored to their needs can more
easily be reached; the sense of security this tool will give women in their negotiations with their former spouses; the use by the court of an objective tool, making the decision making process easier to foresee; and, finally, the educational value of such a tool for non-custodial parents regarding the adequacy of support payments and their use by the custodial parent.
It seems that the majority of stakeholders agree with the recommendations made by the committee and so do we.
Some lawyers have concerns however about how these rules will be used by the courts. In Prince Edward Island, where the guidelines adopted by the government are more generous than those proposed by the federal government, there are complaints about judges regarding the guidelines as a ceiling. In American states where similar guidelines were adopted, judicial discretion has all but disappeared.
But this judicial discretion seems to cut both ways, and its pitfalls were revealed under the deduction-taxation system.
In its presentation to the task force on the tax treatment of child support, in July 1994, the Canadian Advisory Council on the Status of Women wrote about the impact of taxation of child support:
We have contradictory evidence concerning the increase in and the extent of child support payments, and there is very little information to indicate that what is not paid out in taxes is being used for child support. Some family law practitioners say they always allow for the taxes to be paid, but there is a basic difference between emphasizing tax consequences and ensuring that child support payments fully reflect the increase. Other family law practitioners point out that, even after considering all the tax consequences, the amount finally awarded does not reflect the increase because, suddenly, the sky is seen to be the limit. The judge acts instinctively and declares that "in fact, things do not cost that much-or amounts awarded are not usually so high", and he ends up reducing the child support payment.
However, a standard grid of payment levels would solve the problem to a great extent.
Another issue raised by lawyers is the concern that, if the amount of child support increases, more and more fathers will ask for custody of their children, which will mean legal expenses for the mothers. Finally, some judges fear that the number of deadbeat fathers will rise.
In short, even if the principle of a single grid of payment levels appears to be a possible solution, we will have to be watchful and closely monitor its use by the courts.
This view is shared by the chair of the family law division of the Canadian Bar Association, who believes that, in order to be effective, the guidelines must be flexible enough to take into account variations in the cost of living from province to province and from city to city, as well as the specific needs of certain children.
A lawyer who has his own private practice summarized this view quite well in an article published in the Law Times . The lawyer concluded that the benefits were greater than the drawbacks. The main benefit, according to the lawyer, was consistency. Consistency means that the outcome is predictable and, when we have that, there is no need to go before the court. The lawyer noted that, in the United States, lawyers practising in states where there are guidelines find that fewer couples ask for temporary measures, which saves them thousands of dollars while also reducing the workload of the courts.
Therefore, we support the principle of guidelines that would apply to the majority of cases. However, we have some concerns about the draft version of the grid of payment levels released in June.
Based on the information available to us, the federal grid is based on the notion of equality. This means that someone with an income of X dollars will pay Y dollars, regardless of the income of the custodial parent. Therefore, the parent liable for financial support will know what contribution will be sought by simply looking at the line corresponding to his income on the grid, regardless of the income of the parent who will get the payment, since it does not come into play. Moreover, the federal and provincial taxes are taken into account in this grid, but all government transfers specific to a province are excluded.
Quebec is about to introduce this fall a bill that includes guidelines of its own. Last August, a parliamentary committee met for three days to hear witnesses' comments on the grid the provincial government is suggesting to determine the support payments. More studies are being made to make the proposal under consideration even better.
The Quebec grid was drawn up by taking into account the rights and responsibilities of parents under Quebec civil law. First of all, both parents' revenues are added up in order to set the contribution level, and then, the percentage to be paid by each parent is figured out according to the needs of the child. The Quebec grid is also based on the whole Quebec system, including taxation and government transfers.
Obviously, the basis of payment determination is fundamentally different, and an in-depth study would improve it in order to maximise the positive impact on the financial situation of children.
Since the Quebec policy is based on a much more extensive set of data and takes into account all family and social policies in the province, this is all the more reason for the federal government to recognize the guidelines provinces have worked out for their population. Let us hope that, this time, the federal government will listen to and respect the will of the provinces.
Before I conclude these remarks, I would like to raise a problem that is fairly common in border areas. The problem involves former spouses living in different provinces who might be tempted, in order to save money, to move into the province whose rules are most advantageous to them.
The proposed regulations provide, in section 3(4) a ), that the grid to be applied would be that of the paying parent's usual place of residence.
I call on the justice minister to review this provision and amend it so that the criterion is the child's place of residence, as requested by Quebec. We feel that direction would be more beneficial to a vast majority of children.
I see that my time is almost up; I will therefore conclude by stressing that the official opposition supports the principles set out in Bill C-41, but that it has strong reservations about the appropriateness of the discretionary power the government is reserving for itself and about certain enforcement provisions.
Meanwhile, we reiterate our invitation to the government to show some flexibility for once and to leave to provinces an important role in an area, the family, that, in the final analysis, is within their jurisdiction, except for divorce.
We also call on the justice minister to introduce immediately legislation to implement the two other parts of the reform, so that the citizens know exactly in what direction the government is leading them and, most of all, at what cost to them and to the state.
