House of Commons Hansard #78 of the 35th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was children.


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11:35 a.m.

An hon. member


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11:35 a.m.


Mary Clancy Liberal Halifax, NS

The source is Statistics Canada. If the hon. member wants to get into sources he may be a little sorry.

One of the things I want to say with regard to the hon. member's comments is that we have to be very careful in attempting to draw a correlation between the children of divorce and participation in the criminal justice system. If the hon. member has sources for that kind of allegation we would be very interested to hear them on this side of the House. Given the fact that divorce rates are high, I believe we would be seeing an increase in the crime rate, as opposed to a decrease, which is what we are in fact seeing.

However, for all the goodwill that came from that speech and which comes from the hon. member opposite with respect to this matter, there is a naivety which needs to be corrected.

As I said before, the post-divorce world is not the best of all possible worlds. People get divorced because, in general, they have come to the end of their tether in a relationship which is the most personal and intimate relationship people have on this earth. When the emotional response turns from one pole to another, the reaction and the fallout can be horrifying, not just for the husband and wife who are going through the divorce, but clearly, as the hon. member has noted, for the children.

Every piece of legislation in this country that relates to children in any way, whether it is the Divorce Act or provincial legislation on maintenance, custody, or whatever, has in it somewhere the phrase "the best interests of the child are paramount". One of the tragedies of our country is that we have still not learned, whether as legislators, as lawyers or as jurists, how to truly implement that phrase. If the parents, the people most directly concerned and the people who allegedly should care the most for the best interests of the child cannot do it, it becomes insane to suspect that anyone else can do it.

In the post-divorce world children are going to be traumatized. As legislators we have to bring in legislation which will minimize the trauma and maximize the benefit. No one has ever suggested, nor should anyone suggest, that solutions which come from the legislature will be a panacea. It is not possible.

When I started to practise law in 1978 the rate of child support and maintenance payments which were not enforced was over 90 per cent. Eighteen years ago over 90 per cent of support payments in this country were unenforceable. Since that time we have

improved. I do not know the statistics today, but I believe we are fluctuating in the area of 60 per cent. That is still unacceptable.

One of the things which I saw time and again as a family lawyer, acting for women who were attempting to enforce child support payments, was what I would refer to as the brow-beaten syndrome. They had come to the point where it was not worth it. The child support payments would be late, if they came at all. The process in the family court or even, from time to time, under a divorce decree in the Supreme Court, meant that those women took time off work. They worked themselves up into an emotional state. For most people, appearing as a witness in court, particularly in an area as sensitive as one which involves both the financial state of the individual and the state of their personal relationships, causes great stress.

Time and again a client would call to say that the support payment had not come in again and I would say we will go to family court and we will do this. Then she would say: "No, to hell with it. I cannot be bothered anymore, it is not worth it, I would rather do without than put up with all of this".

This legislation, which relates to settlement agreements, is being brought forward in an attempt to alleviate that kind of problem. It is also being brought forward because whether hon. members opposite like it or not, on divorce the woman's standard of living falls considerably and the man's rises. Do you want statistics on this? Just check. I will bet that you could even check with some of the hon. members opposite who might know about it. There is no question that women across the board do not have the same access to money, to jobs, to promotion, et cetera, as men. It is a fact of life.

Second, if the woman is paying tax on top of this money and is in a lower category to begin with, she is going to get hit with a bigger bite. This is another thing that this legislation is here to do something about.

The whole thing, however, comes down to the recommendations that are being given to judges and those who are going to hammer out the settlements either in the courts or in mediation ahead of time. Spot news for the third party, mediation has been in place for quite a long time and it works. That is probably the reason we are down to around 60 per cent on enforcement of maintenance orders. However, that is still not good enough.

This problem will not be solved by saying that fathers who do not pay or parents who do not pay are just misguided. They are not just misguided, some of them do not want to pay. They just absolutely do not want to sign that cheque. Enforcement is and continues to be a problem. Again, this legislation is aimed at addressing some of those problems and alleviating them.

This is not a world where mothers and fathers are going to reunite after they have broken up. That kind of thing happens in the odd movie that is released at Christmas time and tragically in the minds of many children of divorce, but it does not happen in reality. Let us not go on talking about how we can heal the personal relationship and wasting our energies there, which is no place for the legislator at any rate, and talk about how we can ensure that the financial burdens and the financial problems are at least taken care of in such a way that children and single parents have some small chance of making their lives a little bit better than they have been.

I am sure there are other areas in our society and other professionals and other people who can work on the emotional reconstruction that may be possible in a limited number of cases. That is not our job just as it is not our job in this legislation to deal with the question of access. Our job is to deal with the question of amendments that will handle corollary relief under the Divorce Act. That is what we do.

A number of questions were brought up by the hon. member opposite that relate purely and simply to matters within provincial jurisdiction. It is all very well for people to question jurisdiction. Jurisdiction matters. Certain things fall within the provincial purview and other things fall within the federal purview. This is something that falls within the federal purview. It is something that we can do. It is something that we are doing.

It is something that has been long overdue. It was given its impetus by the Federal Court's decision in the Thibaudeau case. It was given its impetus by the hon. member for Nepean who came forward and championed this cause from the beginning. It is something that I am proud to stand here today and support.

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11:45 a.m.


Christiane Gagnon Bloc Québec, QC

Mr. Speaker, I listened carefully to the speech made by the hon. member opposite and I must say that she used some very noteworthy examples. The principle of the bill in itself is acceptable because its first priority is the welfare of the child.

However, I would like the hon. member to answer a question I have about the principle of the divorce guidelines set by the federal government, which contradict the guidelines on separations set by some provinces, including Quebec.

We know that, by order in council, the government could decide not to authorize-

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11:45 a.m.


Mary Clancy Liberal Halifax, NS

In separation cases.

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11:45 a.m.


Christiane Gagnon Bloc Québec, QC

Yes, in the guidelines.

I would like the hon. member to tell us why the government in such cases does not allow the provinces to set the appropriate guidelines. This is a another telling example of non-decentralization. A Liberal member said centralizing federalism is like an irresistible urge.

I would ask the hon. member to tell us how, through an order in council, the federal government can, in some cases, choose to ignore provincial guidelines. This goes to show, once again, how inefficient the government is. There is no willingness to decentralize and let the provinces deal with their own areas of jurisdiction. How is it that the hon. member does not see this negative side of the bill?

I acknowledge that the government has come up with some good provisions to improve the standard of living for children and women. I think we agree on that, but I disagree again on the guidelines issue, because the government will not let the provincial governments set their own guidelines. It is a bit like having a court make one decision about a divorce case in one room and, thirty minutes later, on a separation case this time, make a completely different decision, because the federal government does one thing and the provinces another.

The provinces should be able to set their own guidelines. I am worried that we might be granting something not within our giving, as members of this House.

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11:45 a.m.


Mary Clancy Liberal Halifax, NS

Mr. Speaker, I want to thank the hon. member for Quebec for her intervention and for her comments. In this particular case I really do not want to sound patronizing. Let me begin by making an obvious statement. I am not familiar with the specific laws within the province of Quebec to which she refers. I am however very familiar with the juxtaposition, if you will, of federal and provincial law in this area.

The fact is it relates to some degree to what I said in my closing remarks about jurisdiction and this may have been the translation because I was listening to the translation. The translator used the word allow. The hon. member, although not a lawyer, knows it is not a question of the federal government allowing the provincial government. These are clearly defined areas of jurisdiction, one within the provincial area and one within the federal area.

The Divorce Act is within the federal jurisdiction and is really the only area per se whereby the federal government gets involved in the legal ramifications of marriage breakdown. There are other areas in which marriages are terminated not by divorce which are provincial.

I can only again say to the hon. member it is not at all a question of decentralization. Indeed I remember some years ago at a constitutional conference with federal and provincial members, including at the time the late Premier Lévesque, who was willing to agree to throw all family law to the provinces. This engendered a huge and negative reaction from bar societies and lawyers right across the country, including lawyers from the province of Quebec, some of whom may even be members of the Bloc or the PQ.

To be quite serious, the guidelines, and as I said, I am not familiar with the Quebec guidelines per se but I imagine they cannot be all that different from what may not be solid guidelines in other provinces, but the traditions, those habits or areas that define mediation and pretrial settlements in divorce and marriage breakdown. Most judges in Quebec and in the other provinces of Canada attempt to get as best a handle on the matter and they also attempt-and this is the phrase I brought up before-to consider the best interests of the child.

I do not think there is anything in the federal guidelines that will unduly hamper anything in the provincial guidelines. The federal guidelines are good guidelines. They reflect, in my estimation and in my knowledge of what is happening in other provinces, much the same ideas, much the same theories, much the same goals and aims.

If there is something under the civil code in Quebec that is utterly at war with the guidelines at the federal level, I would personally be very surprised and I would imagine that the Parliamentary Secretary to the Minister of Justice would be interested in knowing what those were and perhaps looking at them. But it is most unlikely that these would in actuality conflict.

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11:50 a.m.


Leon Benoit Reform Vegreville, AB

Mr. Speaker, in her presentation the hon. member referred to the best interests of the child and the fact that this legislation in her opinion would fulfil the best interests or look out for the concerns of the child.

The most important thing a child can have is two loving parents. Could she comment on the fact that this legislation does nothing to deal with the access of the non-custodial parent? Could this be a huge gap in the legislation?

The Divorce Act is rarely opened. It should be dealt with in a much more thorough way than this. Could the hon. member comment?

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11:50 a.m.


Mary Clancy Liberal Halifax, NS

Mr. Speaker, I am delighted to have been asked this question. I know my hon. friend asks it in the best of faith and I will answer very seriously.

Of course the optimum, the ideal for a child is to have two loving parents. I look at my own experience. The first seven years of my life were as idyllic as any child could have, and then my father died. It was a tragedy no one could have foreseen. My mother carried on in an admirable way. I was very lucky and grew up in a

very loving home. The wonderful creature you see before you is a product of that.

One of the things my mother used to say to me at times when the loss of my father became a great burden was: "You know Mary, there are many worse things that could happen to you than having your father die". That is very true. I think the hon. member knows that as well.

It would be wonderful if we could legislate two loving parents for every child. It would be possibly the greatest thing we could do, but we know we cannot do that. We know there are parents who neglect their children; there are parents who abuse their children; there are parents who behave in the most ghastly and horrible ways to their children, betraying the love and the trust in ways that make legislators like us, all Canadians and all people of goodwill on this earth cry out for justice.

I said earlier in my comments that there are things legislators can do and there are things we cannot do. We cannot legislate two loving parents for every child. We can only attempt to make the situation as good as possible.

To get to the technical question of access, it is in the Divorce Act. I am not sure what the hon. member wants to do with it. If he is referring to those who have standing to apply for access, that is another question, but access is dealt with in the Divorce Act. If he is referring to the private members' bill of the hon. member for Mission-Coquitlam, I already said that I support her spirit and the intent. I do not happen to support the particular mode she took to implement it.

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11:55 a.m.


Michel Bellehumeur Bloc Berthier—Montcalm, QC

Mr. Speaker, Bill C-41, which is before us, is a good illustration of the fact that policies do not necessarily respond to people's demands as quickly as one could wish.

Bill C-41 is intended to solve a problem known to many a single-parent family. Members know that, in most cases, women-in perhaps as much as 99 per cent of the cases-and ultimately children-in every single case-have to live with it. There has been a lot of unfairness.

Women's and community groups as well as many individual men and women have long been asking first the Conservative government, and then the Liberal government since 1993, to amend support legislation. There was clearly a consensus although some non-custodial fathers, naturally, viewed this unfavourably. But as the objective was to improve the children's lot, I think everybody recognized that there was a problem.

It took a legendary court case to bring the government to really do something. It took a courageous woman to confront the government on this important issue. I am referring to the Thibaudeau case, which is known to everybody.

Mrs. Thibaudeau had the support of a lot of people, including, although I do not want to brag, the support of the official opposition from the very beginning. A Liberal member said earlier that his party had supported from the beginning the amendments proposed in Bill C-41 but, from the moment we became the official opposition, we were the ones who, clearly, asked the government questions on this particular issue.

Members will recall how often, in the House, the Bloc member for Québec asked the justice minister to introduce legislation to split the cost of raising children between both parents. Or the hon. member for Temiscamingue who said this in May 1995: "Thus, it is imperative that the government act right now to answer women's expectations".

I take this opportunity to congratulate the hon. member for Québec, among others, for her persistence and perseverance in this difficult matter. In spite of all the different preconceptions and factors to be taken into account, she did an excellent job. This is why the opposition parties joined forces to have the rules changed.

I would also like to thank the member for Témiscamingue, who was our critic for National Revenue at the time. He explained very clearly the financial implications. Because of his explanations, all the members of the Bloc agreed on this issue.

However, almost a year late, the government and the minister have at last introduced the reform the Bloc Quebecois has been calling for for so long.

In the 1996 Budget, for the first time, the federal government finally unveiled the new child support payments system. As members will recall, there were four sections. The first established that child support payments will no longer be deductible for the custodial parent, but for the non-custodial parent. Second, the maximum working income supplement included in the federal tax benefits for children will be doubled. Third, guidelines will be drawn up for calculating support payments. Fourth, new measures enhancing the enforcement of child support will also be announced.

If Bill C-41, which amends the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, some provisions of the Garnishment, Attachment and Pension Diversion Act as well as other related acts, is adopted, it will implement two of the four elements I mentioned earlier. I will cover these elements in greater detail later.

According to the bill before us, the Divorce Act will be amended to create a framework for the use of the child support payment determination guidelines. Such guidelines would replace the discretionary power of the courts and would be adopted through regulations.

The other aspect changed by Bill C-41 concerns enforcement. Specifically, the bill would amend the Family Orders and Agreements Enforcement Assistance Act to add Revenue Canada to the list of federal departments whose data banks could be searched to find individuals who have been delinquent in paying child or spousal support.

The changes create a new mechanism to deny certain licences or benefits to individuals who regularly neglect to pay support. The rest of the new legislation will be put in place through a budget implementation act which will probably be introduced in the fall.

When we examine those two aspects of Bill C-41, we realize that the first one, that is to say the guidelines, is the most important. I have heard all kinds of things in this House, and it is worth taking a few minutes to talk about the guidelines and to explain to members who might not know what is going on in other provinces regarding these guidelines, because the province of Quebec does have such guidelines.

Bill C-41 will establish guidelines that will prevail even though some provinces have already adopted their own guidelines. To respond more specifically to the member for Halifax, who said she did not know what the guidelines were in Quebec, I think it is worth taking a few minutes to examine these provincial guidelines as well as the federal ones.

Here are some details about the criteria used to establish the guidelines. I invite the members opposite to listen very carefully, especially the member for Halifax. She must listen to understand what is going on.

The Quebec model is based on the actual cost of the child. An estimation is made of what the child needs. It could not be more accurate. However, the federal model is based on a partial equalization of living standards. According to that model, a five-year old child generally needs so much. But one child may need more than another child depending on his or her family's standard of living. Therefore, we can see right from the first criterion that it is not completely true to reality.

A second element concerning the Quebec model is that it is based on the ability to pay of both parents. Is that not perfectly normal? The financial responsibility for the children is shared between both parents on a pro rata basis depending on their resources. Again, it could not be more accurate. How has the federal government, which thinks it knows everything there is to know on the subject, gone about it? The federal model is based on the premise that both parents have the same income. Nothing could be further from reality.

In some cases, both parents do have the same income. It is possible. However, in some fields, women earn 30 per cent less than men. The premise used by the federal government may be based on the ideal situation, but, again, it is not true to reality. According to what my colleague said, even for work of equal value, women earn 30 per cent less than men. Therefore, if you take two engineers, there is a difference right off the bat, so the federal government is wrong on all counts.

Third, the Quebec model does not include, either implicitly or explicitly, an amount for the custodial parent. The federal government takes the opposite approach. Its model implicitly includes an amount for the custodial parent.

A fourth element of the Quebec model is harmonization with Quebec income security and taxation programs. Is this the right approach? The federal government does not seem to think so, because its model is not harmonized with Quebec programs.

Another point is that, in Quebec, the proportion of child expenses decreases with income. In the federal approach, child expenses remain constant. Finally, in Quebec, the non-custodial parent receiving income security payments is not required to pay support. Under the federal model, the non-custodial parent receiving income security could be called on to pay support.

I have just provided the member for Halifax, who said she doubted that there were large differences between the Quebec and federal models, with all the proof necessary to show that there indeed are. She can take that to her caucus and try to convince the Minister of Justice that he is on the wrong track in wishing to impose certain federal standards, the same system for all the provinces.

This is yet another example of how in Quebec-because I am an MP from Quebec, not because I am a Quebecer-we do things differently. This is proof again that we are a distinct society. Even in a bill that, all in all, has nothing to do with the Constitution, we see that Quebecers do things differently.

I think this would perhaps have been a good opportunity for the federal government to have a clause specifically recognizing the distinct character of Quebec with regard to the family and giving it full jurisdiction in this area. It was time to do so. The Prime Minister of Canada boasts that he recognizes the distinct character of Quebec. It was time to prove it in a bill that, in my view, is extremely important for the family, which is, after all, at the very basis of Quebec society.

That being said, although the Bloc Quebecois initially applauded the minister's reform concerning guidelines to determine the amount of support payments, we voiced several reservations with respect to the implementation of these federal guidelines in the province.

Upon reading Bill C-41 and after comparing the Quebec model and the federal model concerning these guidelines, it is clear our fears have been confirmed, since thanks to Bill C-41, we will have two entirely different systems.

I think the points I just made for the benefit of the hon. member for Halifax could be used by other Liberal members to contend with the demon of centralization, as the Minister of Intergovernmental Affairs said so eloquently. I think they have enough facts to prevent the minister's demon of centralization from becoming active and to backtrack, face the facts and decentralize as we hope they will.

The first part of Bill C-41 deals with quite a few items, and I will run through them very quickly. What I am going to say is very legalistic but I think we should spend some time on these items, considering that legislators must mean what they say. This is a rule of law that has been cited quite often. I think that when Parliament adopts a bill of this kind, the meaning of every word is extremely important.

If a provincial government decides to set certain guidelines for its province, such guidelines will take precedence over the federal guidelines, provided the governor in council designates, by order, the provincial guidelines as the applicable guidelines. Here I am referring to subclause 1(4) which reads as follows:

The Governor in Council may, by order, designate a province for the purposes of the definition "applicable guidelines" in subsection (1)-

"May", Mr. Speaker. And right away, you will understand that the Bloc Quebecois cannot go along with this "may". Obviously, this should read "shall", "the Governor in Council shall, by order-". We do not to leave the governor in council any choice, any discretion to decide whether or not the guidelines of a province must take precedence over the federal guidelines.

If the province takes the initiative, if a province bothers to establish guidelines in an area as important as this one, I think the governor in council has no choice and shall, by order, designate that province as the province whose guidelines will apply.

According to the bill, provinces must therefore meet the criteria set out by the federal government in clause 26.1 if their guidelines are to be accepted as applicable. Thus, the federal government reserves absolute discretionary power to accept, or not to accept, the order according to sub-section (4).

Once again, we can see the usual federal paternalism at work here, always wanting to have power over provincial governments' social policies. Every time, the federal Big Brother places the provinces in a situation of guardianship, insisting on imposing its views on the provinces, without any concern for adapting to specific situations in various regions of Canada.

As well, rejection of a province's guidelines would lead to the absurd situation of having the provincial payment grid apply when the parents separate, while the federal one would kick in when they divorce, since the federal level has precedence in matters of divorce.

We would see people legislation shopping with the blessings of the Minister of Justice in Ottawa. If we adopt the bill as it stands, it will enable lawyers and those involved in a family case to ask: which is better for me, separation or divorce? The only consideration I have is the following-even though I am a man myself, I think I can say that men often see certain things from the financial point of view, which may not be the case of women caught in a very emotional situation and the lawyers will be involved in this. If the lawyer is on the ball at all, and can influence or try to influence his client, and he or she succeeds in influencing the opposing lawyer-who may well be a woman, as women often choose other women to represent them, which is their choice and there is nothing wrong with that-well then, after negotiation, after the lawyers sort out the various points that may influence their choice, the client may opt for divorce rather than separation, because the federal guidelines are perhaps less generous than the provincial.

We will really start to see legislation shopping, and I believe that, if there is one area in which that must be prevented, it is in family law, for the objective is, as I have stated at the start of my speech, the protection and welfare of the children involved.

Finally, the federal government uses the place of residence of the debtor, the person paying the support, to determine which guidelines are applicable. I have another difference for the hon. member for Halifax: the Quebec government considers the child's residence, a criterion that is much more consistent with the principles outlined in several court orders that the child's interest must prevail over everything else.

The rules applied by one province may be much more in line with the child's situation than those of the debtor province. This goes without saying. Does the Minister of Justice not think that all children have the same value, whatever their parents' status may be, whether it is a separation or a divorce case?

I do not know what the minister's answer is, but I can tell you right now that, in the eyes of the Bloc Quebecois, whatever their parents' status is, all children have the same value, and we should ensure that child support payments are as generous as possible so that the children are as comfortable as possible in this rather difficult situation.

Let me give you another example. According to the current federal and provincial regulations, if the amounts set by federal regulations are lower, after everything is taken into account, Quebecers would pay less in child support if they lived in Ontario. What is preventing Quebecers paying child support who are starting to feel the heat from moving to Ontario, thus reducing their

payments under section 1(3)( a )? What is preventing someone like that from moving to avoid his financial obligations or to pay as little as possible? Nothing. Even if we look at the minister's notes, the draft guidelines clearly allow this way of getting around one's financial obligations.

This lack of uniformity between provinces, combined with the number of courts issuing child support orders, the many overlapping federal and provincial laws, and the regional disparities in the cost of living, results in financial instability for separated and divorced families. We will not reach our goal unless we make the necessary amendments to this bill.

Obviously, it would make much more sense to let each province choose the model for determining support payments that suits its needs and let each decide terms of implementing the rules governing their determination in keeping with provincial social security, tax and family policy.

The area of the family is not something that can be pulled out of a hat and dealt with like that. It is more intricate. The area of the family is an extremely important area, and with the examples I gave, with the Quebec model, the federal model, I am sure that the House of Commons has understood that the province-Quebec in the example I gave, but I am sure that other provinces also have terms already established-is closer to the people, knows about such family-related problems as income and allowances of all sorts. The provincial government is in a better position to recognize family needs. The federal government should therefore withdraw from this area and give full jurisdiction to the provinces.

Since you are signalling to me that my time is running out, I will say briefly that the opposition supports the second part of Bill C-41.

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12:15 p.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I have a brief comment and a question for the member. The issue of the family has come up often in the debate. It is an issue that interests me a great deal in the work I do in this place.

Members know very well that when the family is strong, good things happen. We are talking about legislation that deals with the situation when the family breaks down.

The Thibaudeau case has been raised. The member knows that the change vis-à-vis the Thibaudeau case actually put parents who separate on the same footing as families have always been. The change represents fairness and equity. I am glad the member and all speakers always begin their comments with the statement that the child's interests should come first. I heartily agree.

My question has to do with scheduling. The member, in making the statement that the child's interests should come first, commented on the situation in Quebec where the schedules are not based on both parents being deemed equal. A formula is used to determine the amount to be paid. He describes the federal proposal for scheduling as somehow showing both parents are equal.

If the member would look at it carefully he would find that the chart treats the determination of benefits payable with regard to child support on the basis of what the needs of the child are and meets the criteria which he himself lined up.

Could the member please explain how the Quebec schedule provides a different or a better approach to support benefits?

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12:20 p.m.


Michel Bellehumeur Bloc Berthier—Montcalm, QC

Mr. Speaker, I wish I were wrong, but when I read Bill C-41 and the draft guidelines on child support, prepared in June 1996 by the Department of Justice, I am forced to conclude that, unfortunately, I am right. Having to say this in the House is no fun, but I am right.

The federal model is based on the assumption that both parents have the same income. It is of course not always the case. Why presume that both parents have the same income? The judges dealing with divorce proceedings will base their decision on this assumption. If these guidelines are passed as they stand, judges will have no discretion to decide whether the children are entitled to support and, if so, to determine the amount of such support.

I mentioned that, in Quebec, the National Assembly is about to pass guidelines that will be based on the ability to pay of both parents. If one parent earns $200,000 while the other one has never worked, or earns only $25,000 or $30,000 a year, a judge should not rule that the children will receive X dollars in support and that each parent will contribute half of the amount. It goes without saying that the father who earns $200,000 will have to pay more than the mother who earns $20,000 or $25,000 per year.

I wish I were wrong. Perhaps the hon. member is aware of some discussions within the Liberal caucus that lead him to believe that the minister will make some changes to the guidelines, and that he will lean toward the Quebec approach rather than the one he is currently advocating. In the meantime, when I read Bill C-41 and the draft guidelines of the justice minister, I come to the conclusion that the federal model is unfortunately disconnected from reality.

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12:20 p.m.


Beryl Gaffney Liberal Nepean, ON

Mr. Speaker, I am very pleased to speak in the House on the second reading of Bill C-41, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, Attachment and Pension Diversion Act and the Canada Shipping Act. My comments will outline the key elements of the federal government's child support strategy encompassed by the amendments to these acts.

At the heart of these reforms is the principle that children should be a prime consideration in the unhappy circumstances of marriage breakdown. Child support is the first obligation of parents and it also of prime importance to us as legislators in the House, at least on this side of the House. The approach and changes announced in May are designed so that Canadian children will definitely benefit.

The government is changing the way child support payments are taxed. I am pleased to see the government fulfil its commitment to do this.

It was in 1994 in the House that I put forward a motion which read:

That in the opinion of this House, the government should amend the Income Tax Act so that the child support payments are no longer considered taxable income for their recipients.

That motion was passed unanimously by the House. This served as an indicator to the government that it was time to rethink a taxation policy that was introduced in 1942 and which no longer reflected the reality of single parents, primarily working mothers in the 1990s.

Canada will be moving to a system known as no deduction, no inclusion. The new rules will apply to orders or agreements made on or after May 1, 1997. Child support paid under a court order made before May 1997 will continue to be deductible to the payer and included as taxable income to the recipient until the support payment is varied by the court or the parties agree in writing, or the payer and recipient jointly sign and produce a form with Revenue Canada indicating that the new tax treatment should apply to the face value of their existing support order.

The government is introducing child support guidelines to make child support awards fairer and more consistent and to reduce the degree of conflict between separating parents. The guidelines will be used across Canada by the courts and by lawyers, judges and parents to establish appropriate support payments.

The guidelines have three main parts. First, payment schedules are presented in tables like tax tables that show the basic amount of support from a non-custodial parent according to the number of children or the income of the support paying parent.

Custodial parents also contribute a similar share of his or her income to the needs of the children by virtue of the fact that the children will share in the resources of the parent with whom they live because their standards of living are inseparable. As the income of both parents increase or decrease so will their individual contributions to the needs of their children.

Second, the scheduled amounts can be adjusted to recognize individual family circumstances. There are four categories of special expenses that can be added to the scheduled amount, if they are reasonable and necessary, in light of the needs of the children and the means of the parents, including child care costs for preschool children and uninsured medical costs.

The guidelines also allow a court to alter the award in the rare circumstance that it would cause undue hardship to either parent or to the child.

Third, the government is enhancing federal and provincial enforcement measures. The enforcement of child support is mainly a provincial and territorial responsibility. The measures the government is proposing complement provincial and territorial enforcement efforts already in place. The government is targeting, in particular, persistent defaulters. Some of the enforcement measures include a national public awareness campaign, a federal licence suspension initiative, more aggressive collection of out of province orders, improved federal tracing services, improved federal pension diversions, improvements to computer systems connecting federal, provincial and territorial enforcement services, and a new federal support enforcement director.

Research will continue into developing new strategies for enforcement of child support debts and into identifying why so many non-custodial parents default.

Fourth, as the purpose of these reforms is to help children, the federal government will reinvest its anticipated revenue gains from the new tax rules in measures to benefit children. The government will fund a doubling of the working income supplement of the federal child tax benefit from a maximum of $500 per year to $1,000 per year. The working income supplement provides a non-taxable benefit to supplement the employment earnings of families with earnings of at least $3,750 and net incomes below $25,921.

In conclusion, I believe the reforms that I have presented meet the long overdue need for reform in the way Canada ensures support for children following family breakdown. The reforms will put children first. They will put responsibility fairly on the shoulders of the parents and will move Canada's child support system into the nineties.

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12:30 p.m.


Sharon Hayes Reform Port Moody—Coquitlam, BC

Mr. Speaker, I am very pleased to speak to Bill C-41 today, an act to

amend the Divorce Act, the Famil Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act.

In contrast to what the hon. member for Halifax said earlier, she made the statement that governments cannot legislate loving families. I would like to put to this place today that in fact governments can legislate things that will destroy loving families through the very policies they put forward.

Government and the laws that are made can and do have a profound effect on those institutions that are the bedrock strength of our society. Integrity for instance, the most important single quality for any individual or nation, is born and thrives in the bosom of the examples and the conversations in the homes of this nation.

A healthy family is a place of nurture and growth for those qualities most essential for the success of individuals and nations. Within the walls of our nation's homes we learn to find our security and the acceptance and the unmasked behaviour of our family. We learn about ourselves through the interaction and sometimes blunt appraisals of those who know us best. We learn to wait and to compromise. We may hone our debating skills or even our self-defence techniques on our siblings, or we may find the value of that same brother or sister as a loyal ally on the far side of the school yard or on the mean street corner.

We answer to one another. We share responsibility in small and larger tasks. We see the value of shared love and caring, of complementary but equally valuable tasks as mother, father and children working together. We acknowledge the growing potential of family members. With greater freedom comes the greater acceptance of accountability to family, to society and to ourselves.

We face the consequences of undone tasks. We learn right from wrong. We share the benefit of a common purse. We grow in the knowledge of the stories of the past, the guidelines of custom and culture and carry those gifts forward to share with our children.

Sadly, the picture of the nurturing caring family is becoming less and less of a reality in Canada. It in fact has become the chief victim of our unfolding times and defective government policy. Divorce rates have increased 15-fold since the 1950s. It is projected that more than half of our young people will spend at least part of their growing up years in a single parent family.

Family break-up is a recipe for trouble for our youth. Many seek community outside their own homes with between 100,000 and 200,000 Canadian youth now homeless by choice. According to a UNICEF 1995 report, Canada has one of the highest teen suicide rates in the world. Since 1960 the rate has quadrupled to where almost 12 out of 100,000 of our young people, mostly boys, choose to put an end to their own future. "There is a mountain of scientific evidence showing that when families disintegrate children often end up with intellectual, physical and emotional scars that persist for life", points out social scientist Karl Zinmeister.

The failure of the justice system under the Liberals is also a threat to families. Canadian families are victims of a justice system that is more concerned about the rights of the criminals including violent offenders than about law-abiding citizens.

As part of the criminal justice system but within the walls of our homes is the issue of domestic violence. Domestic violence needs desperately to be addressed but not simply through a gender biased lens that prevents an accurate assessment and real solutions to the problems that exist. The Young Offenders Act does not take child crime seriously and, coupled with other legislation that weakens the role of parents in their children's lives, prevents parents from effectively tackling some of the criminal influences in their children.

What effects are there on the economic front? A Fraser Institute study demonstrated that the average family of four pays 46 per cent of its income on taxes. The same study found that taxes on the average Canadian family have risen 1,167 per cent since 1961. That number takes on greater significance when we find that real family income has actually decreased since 1988. Real income has actually been eroded by successive Conservative and Liberal government tax and spend policies.

A recent StatsCan report stated that since 1989, after tax family income has fallen 6.5 per cent, bringing it to the same level as at the end of the recession of the early 1980s. That income to maintain a household, it should be noted, now takes almost twice the number of paid hours it did 20 years ago.

This runaway economic policy has remoulded the neighbourhoods of our nation. In 1986 only 12 per cent of Canadian households were made up of one person in the workforce and a spouse full time at home.

The stresses are multiplied many times over for the single parent family. The precious commodity of time for communication or simple renewal is rare indeed, and the natural ally of a caring and understanding alternate adult is missing. Also of crucial importance is that money most often is too scarce. More than half of Canadians living in poverty are single parents and the overwhelming majority of these are women. However, because of debt levels and continuing government spending and the flawed appreciation of the importance of family, these patterns will continue to be the raw truth for our children and, unless something is done, for our children's children.

The Liberals like to talk about wanting to put the best interests of the child first in their legislation. It has become a common refrain from that side of the House. Yet as usual, the actions of the

government do not bear up under scrutiny when compared to its claims to be considering the child's best interests.

One would think that addressing an issue such as child support and marriage dissolution would be one of the best places to help a person focus most accurately on the issues of children and their best interests. However, again the Liberals are mired in their misguided concepts of the role of governments. They refuse to realize that the best interest of the child is a family that is supported and encouraged as the most important institution in society. Let me ask the Liberals some questions about their version of the best interest of the child.

Is the best interest of children shown in policy that passively sits back assuming that the present nature and rates of divorce are there without attempting to discover why and then attempt to do something substantive about it?

Is the best interest of children served in making institutional day care facilities more prevalent at a price that puts further economic burdens on families leading then to a greater use of those facilities as a second parent goes out to work just to make ends meet?

Is the best interest of children served by universal social programs that the government cannot afford instead of targeting those programs to those, particularly children, who are in legitimate need?

Is the best interest of the child served by stripping authority from parents so that they cannot effectively raise their own children?

Put simply, the most profound destructive force on families today is tax and spend, intrusive and divisive family policies that emanate from Liberal policy makers today.

The Divorce Act which we are talking about today which originally granted federal jurisdiction over matters relating to divorce has been re-opened twice before, once in 1968 when no fault divorce was established and in 1982 to institute further changes. For the sake of speed through courts and presumably less acrimony for the sake of children, all accountability for actions of either side was removed except in decisions relating to child custody.

It is significant that it is the very matters relating to children which still remain the most divisive and sadly, with this legislation that will not change. The full ramifications of the changes to the Divorce Act in the past or those which are before us today will probably never be quantified.

Opening the act up as we are again today however, with the records of social devastation that are before us, must demand that the government look seriously at its responsibility and all the realities of our present situation. The kind of tinkering and ideologically based approach that is being suggested in Bill C-41 reflects a bankruptcy of thought and conscience.

The bill addresses the issue of enforcement of support payments. I applaud both the recognition of that need and the attempt to look at real enforcement procedures. Legally binding decisions should have that force of law for the sake of all those who are involved. It would be nice if this mindset of enforcement would extend more generally to the protection of law-abiding citizens in a wider criminal justice system but we will leave that debate for another day.

Custodial parents do need protection in law for the rights that are granted to them in law. However, the government is using a one sided, gender biased approach which increases the commitment to enforce support payments but says absolutely nothing about the importance or the enforcement of child access agreements, something which is of equal importance to the child involved.

There are two parents in any divorce involving children. There is usually the custodial and the non-custodial parent, yet the proposed changes do not show the same respect for non-custodial parents. Both parents have responsibilities and both parents have rights.

The courts overwhelmingly make men the non-custodial parent. Sixty per cent of families living in poverty today are headed by men. Financial pressures, including high levels of taxation, have a powerful and destructive impact on the cohesiveness of those families. Men are involved. So are women. Yet the present system makes recourse difficult for the men who want to dispute a judge's support or access ruling.

Personally, there have been men in my office who have gone bankrupt. Some of them have told me they are contemplating suicide because their lives have been ruined by endless court battles launched to gain access to their children without avail. How does Bill C-41 address their concerns?

There is no commitment in the bill to enforce child access. Neither is there equality in the system in other areas. For example, Bill C-41 proposes to give the custodial parent access to the income information of their former spouse for three years. That is a radical departure from accepted principles of privacy. If consideration of those kinds of exceptions are being put into place, the same provisions should be there for both parents, for both sides of the divorce equation.

Divorce hurts children. The pain experienced by children of divorce takes many forms. In addition to the many costs to society, there are of course the economic stresses which I mentioned earlier. One of the significant reasons for the financial problems is the

simple fact that it costs much more to maintain two households than it does to maintain one.

I find it strange. The government claims to be concerned about child poverty. That has been a dominant theme which we have seen in this government. However, the government cannot be taken seriously if it ignores the much greater risk of poverty that exists as a natural result of divorce.

The economic difficulty comes a distant second in importance to the emotional trauma of divorce for children. Divorce is a very difficult experience for older children let alone the younger ones. The pain is dramatically multiplied by acrimonious legal proceedings which are further complicated by lawyers trained in adversarial methods which pit one spouse against the other.

In 1970 the Law Reform Commission of Canada released a major study on family law which argued that adversarial proceedings in divorce actions should be eliminated. The primary reason for this change is the detrimental effect it had on children.

Here we are 26 years later, and what have successive Liberal and PC governments done during this time? We have a win-lose approach to divorce settlements that involves legal wrangling from beginning to end both in the courts and in lawyers' offices.

We have an adversarial system that constantly succeeds in only one thing, destroying the relationship between the two combatants. It is designed to hinder the possibility of maintaining an ongoing relationship subsequent to the divorce that would be of benefit to the children. And what does the Liberal government, the government that claims to be family friendly and child centred, propose to remedy this situation? Absolutely nothing.

Here in Bill C-41 the government has its best opportunity yet to initiate substantive and constructive change. What is it offering as a solution? Absolutely nothing.

The Liberals are content to pursue their half measure, one sided, pat answer approach for an opportunity for real substantive change to this critical legislation. The government has dismissed completely the importance of the overall process. To the government the answer is simply enforcement and an inflexible payment schedule.

Recently a marriage counsellor was in my office. As one who is on the frontlines of dealing with marriage difficulties, he expressed serious concern over the present situation. He confirmed that there is no prevention component in the present process dealing with partners concerning divorce.

We have a government that advocates crime prevention, that pushes for greater health. Why in the world is there no interest in reforming the divorce process with a preventive component? Does the government ignore and discourage counsellors in the present situation? There is a determined lack of recognition of their value as front end prevention people to this crushing social problem. In addition, the government even charges the famous GST on their services.

So who does the government victimize? Family breakups hit poor families the hardest, and that makes situations that are already difficult worse by divorce.

I was talking to a local family lawyer in Coquitlam not long ago. He has spent 25 years in the practice of law. In his experience within family law he remembers only a handful of cases that actually avoided going through with full divorce after coming through his office.

The present system feeds conflict. The present system adds fuel to the fire. The present system breeds anger and suspicion between the partners, and the victim is the child.

However, there is an alternative, one that will help the legislative process and thus help the families involved. Presently the process of separation, spousal and child support, divorce and property division crosses provincial and federal jurisdictions.

The child support decision is decided in a federal court, whereas the enforcement is generally a provincial matter. For the sake of those involved, this issue must be addressed. First, I would propose the concept of a unified family court, a place where all matters related to family breakup can be addressed under one roof. Accordingly, the many facets of decision making can be brought together in a fairer, broader context so that equity and enforcement can be better applied.

Such a concept was introduced in B.C. with excellent results. It is time the federal government recognized the need for such a system and also showed leadership in making that happen.

The second issue was advanced not only by the Reform Party of Canada but recently by the Canadian Bar Association: the necessity of the process of mediation. Mandatory mediation through a unified family court is a cornerstone of an effective process for addressing divorce.

An effective system would make mediation mandatory in situations involving children. It would demonstrate itself as a process that facilitates solutions, not as the present system does, facilitating destruction.

The goal of mediation is to arrive at a solution that is mutually acceptable and mutually respected. This process has the potential to dramatically reduce the number of win-lose situations that leave at least one party victimized by the process.

This individual personalized approach to divorce proceedings is impossible in the present adversarial, one size fits all type of approach the federal government is putting forward.

In conclusion, we need to think of the best interests of the child. Children come into this world with two parents. The decision that goes toward that child must embody more than simple numbers, values and dollar figures.

A child is more than the money that the parents bring in. It is composed of the genes, the extended family history, the ancestry and values of that family.

The government, with this legislation, owes an apology to the whole population because we are all stronger if families are valued and nurtured.

I cannot support the bill which is totally blind to the real opportunity we have before us for strengthening the foundation of society and rather would simply look at a small slice of the total picture.

The value of families and children needs recognition in government policy. I challenge the government respectfully to recognize that this is but a small beginning that it has proposed and that the crisis of family disintegration is far too great to let wait any longer.

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12:50 p.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I have a brief comment and question to the member. The question is about the access issue.

The member mentioned a couple of themes. She has been very consistent in the House. There is the issue of domestic violence. As the member will know, the latest report of the Canadian Centre on Substance Abuse in 1995 attributed 50 per cent of domestic violence to misuse of alcohol.

Second, the Canada-U.S. forum on women's health that was held in Ottawa in June 1996 also identified a cost associated with domestic violence at $4.2 billion a year. The member is quite right. There are some initiatives that probably are beyond the scope and purview of this legislation in terms of dealing in a preventive way rather than a reactive way to the problem after it is there.

At the Mississauga Crime Prevention Association annual meeting I met a delegation of people. There were men who came who had access orders. They did not have custody. They had a big problem.

I would ask the member whether her experience is that the problem is not with this legislation. The access orders are in place and are fairly granted. It is the enforcement of the access orders that is the real problem, which is under provincial jurisdiction.

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12:50 p.m.


Sharon Hayes Reform Port Moody—Coquitlam, BC

Mr. Speaker, I appreciate the member's intervention. On his comments about domestic violence, I would agree that if we do not look at prevention at the root causes of these things, we do not do justice to the solutions we find.

I certainly feel that not only do we need a more sure and effective criminal justice system, we need to look at the root causes. I would agree that the issue of alcohol is very intertwined with what is happening in society in those cases. That does need to be looked at. I challenge the member to go forward with his initiatives and the government in recognizing his initiatives in that area.

Second, the question was on the issue of access. It is interesting that the member brought this up. Again, I was in discussion with a lawyer. Because this issue is so important to me, I tried to get input from various sources.

I am not sure if every province is the same. In my province of British Columbia there is implemented quite an effective technique of child support enforcement. It has created a whole section of personnel to put that enforcement into place.

A comment was made to me by this knowledgeable friend, a lawyer, that the same structure, in fact the same offices, could be used to make sure there is enforcement for access. The same individuals who make enforcement happen for support could make enforcement happen for access and could check the compliance to the court order. Both are court ordered. Both are legal requirements.

As I mentioned in my speech, both parents have rights. Both parents have responsibilities. The present situation only enforces the right of one parent and the responsibilities of the other. Surely if the federal government can intrude or take the initiative to have guidelines that in fact overtake a provincial enforcement-as our Bloc friend has suggested, the guidelines for support are in their case and in most cases provincial jurisdiction-if the federal government because of its interest in this can take initiatives in that direction, initiatives in the enforcement of support, why can it not take initiatives in the enforcement of access and direction to the provinces?

Certainly if one is up for discussion, the rest should be as well. We have two parents, we have rights and responsibilities of each. To be fair, to be just, governments should act for all citizens in this country.

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12:55 p.m.


François Langlois Bloc Bellechasse, QC

Mr. Speaker, from here on, official opposition members will be sharing their time.

I am pleased to speak to Bill C-41 now before us. It has two faces: the hon. member for Prince Albert-Churchill River sees it as a panacea, the answer to all ills, while our colleague, the member for Port Moody-Coquitlam, who just spoke, views it as a step backward, not forward.

The reality probably lies somewhere in between. There are some improvements, undoubtedly, but there are also serious shortcomings. It all depends on how you look at the bill.

Members will recall that the first federal Divorce Act only goes back to 1968. For our younger colleagues, 1968 is a generation ago, it is almost another century. For me, it was the year I was still at the court house and I remember the first times this act was applied.

Before 1968, the provinces had jurisdiction in matters of divorce and only two provinces had no divorce legislation: Newfoundland and Quebec. The legislation was made uniform in 1968. The act was amended in 1985 and we are now living with the 1985 Divorce Act, which, as these things go in Canada, took effect from June 1, 1986. There is always a time lag between the passage of legislation and the date it takes effect.

The wish to now set parameters for determining the amount of support payments, is, in my view, a positive feature in the idea of how things should work presented by the member for Prince Albert-Churchill River. It would be much simpler to have a judge determine the amount to be awarded for a child's needs than to continue with the method that has been in use since 1968 of producing the well known lists of children's needs.

My hon. friend and colleague, the member for Beauport-Montmorency-Orléans, who is himself a lawyer, has probably on a number of occasions in his career submitted lists of children's needs in court. When the lists submitted by the respondents are compared, you find that they add up to almost 238 per cent of the child's real needs.

The language used in the proceedings is inflammatory, something we must try to get away from. We must reduce the involvement of the courts, and this is one of the positive ways we can achieve this, by setting parameters, developing grids, from which we can undoubtedly deviate in exceptional circumstances, but which will at least serve as basic guides. So much the better if we can keep all or some of these problems from reaching court. It is not the ideal place to resolve them.

Those who spoke before me mentioned that the child must be at the center of all decisions made in a divorce. That is a principle on which everyone agrees, except perhaps for those who go before the courts, in many cases, and use the child not as a person to be protected but as a bargaining chip in the divorce if not an instrument of blackmail. One parent says: "If my support payments were not so high, perhaps I could afford to take the child more often" or "I will see her less often in other circumstances", whatever.

It is dramatic when a little boy or a little girl becomes a bargaining tool in court, when they should be protected. In that sense, it was a good thing to establish payment grids, parameters to determine how much should be paid in support.

It is also an improvement over previous legislation, the act of 1968 and the act of 1985, in that those who must pay support can now be located and forced to pay. Society should not have to pay for those who default on their support payments.

It is great that defaulters can be located and forced to pay, that there will be better access to information that can be searched to identify and locate these individuals or their employers and that, in other cases, instalments will have to be paid in guarantee. I do not think that we can disagree with such improvements over the 1968 and the 1985 legislation.

But these acts all have a basic deficiency. This basic deficiency about the Divorce Act, 1968 and the Divorce Act, 1985 was the fact that divorce become commonplace. As divorce became trivial, so did family policy. Under our Divorce Act, solicitors are only required to inform their clients that a mediation system exists. The parties are under no obligation to submit to any form of conciliation or mediation which, in many cases, would preclude the adversarial process and the adrenaline rush it causes on both sides of the barricade, and this is an appropriate word to describe the situation in this case.

If, like in some American states such as California and Michigan for instance, before divorce procedures can proceed further, appointments with social workers and psychologists were mandatory, I think this would be another step in the right direction.

It is clear that we miss the point every time we amend the Divorce Act without taking onto account the fact that there is, first and foremost, a family reality, a family unit to that needs to be protected, and parents find themselves without options.

Help comes their way after the fact, when it is too late to do any good. People seldom reconcile after battling against one another in court in an adversarial process. Experience shows that the doorstep of the court house is not the place where reconciliation takes place.

For all intents and purposes, the divorce decree does not put an end to the marriage. It merely testifies that the marriage is dead, stating that nothing is working between the spouses. Something should be done at a much earlier stage.

In this regard, we are poorly equipped because-it always come back to this-our famous 1867 Constitution, the British North America Act, divided powers between the federal government and the provinces. Thus, under subsection 91(26) of the British North America Act, marriage and divorce matters come under federal jurisdiction while, under subsection 92(12), the solemnization of

marriage and, under subsection 92(13), property and civil rights all come under provincial jurisdiction.

How can we have a standard policy when we have legislators setting their policies in different places? Quebec has long demanded a standard family policy to be set by a single jurisdiction. And it had done so.

Bill 89 passed by the Quebec National Assembly in 1981 even contained divorce provisions, an integrated policy they have never been able to implement because they never got the powers back. The famous 1982 patriation of the Constitution has made it impossible to amend the Canadian Constitution.

Quebec's civil code being one of the criteria for recognizing Quebec as a distinct society, according to the minister, Bill C-110 passed by this House supposedly recognized Quebec as a distinct society and thus it should have recognized Quebec's primacy or its exclusive jurisdiction over marriage and divorce matters whatever the solemnization and background may be. But all these considerations are not mentioned when this bill was introduced, just as they were not mentioned in Bill C-110, which is not worth much more than the paper it is printed on.

This is unfortunate if not regrettable because, under Bill C-41 as it now stands, some provinces will end up with provincial payment grids that will have to be approved by the governor in council, while other provinces will not set their own grids so that the federal grids will rightfully apply. There is no real standard policy. Why should the payment grids now being finalized by Quebec not be recognized?

I simply suggest that the bill should be amended in committee in light of the fact that some provinces already have their own payment grids. In the eyes of the federal legislator, these grids may not be sufficient, but it is not up to the federal legislator to judge what provincial legislators are doing. It is up to the voters in each province.

If the voters in New Brunswick are not happy with what their provincial politicians are doing with regard to family law, they only have to vote for a new government; the same goes for every other province and for us as federal legislators.

Since we are now sharing our time, let me close by saying that we will support Bill C-41 in principle for the reasons listed by my colleagues, the hon. member for Québec and the hon. member for Berthier-Montcalm. We will work on improving this bill in committee.

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1:05 p.m.


Paul Forseth Reform New Westminster—Burnaby, BC

Mr. Speaker, there was one comment that perked up my ears with regard to recovering those powers related to divorce. When did Quebec ever have those powers under Confederation?

Second, the hon. member should be telling Quebecers that the Reform Party, if it were the government, could deliver those kinds of things to Quebecers in a looser and more flexible Confederation, and that separation is not the answer for Quebecers to achieve their aspirations in social policy. There are other ways to negotiate, to opt in to a better arrangement.

I wanted to comment on those two points. The hon. member is talking about looking back to another day when Quebec had those powers. When did Quebec in Confederation have those powers of divorce? As an alternative for looking at future social policy the hon. member ought to be telling Quebecers that there is a way besides separation.

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1:05 p.m.


François Langlois Bloc Bellechasse, QC

Mr. Speaker, I wish to reply to the comment made by the hon. member for New Westminster-Burnaby, who asked the right question. However the problem goes back to 1867, when it was decided to have a horse with two heads. It was decided then that some powers, such as the solemnization of marriage, would come under the jurisdiction of the provinces, while others, such as divorce proceedings, would be federal matters.

Couples living in Canada are subject to specific rules. When things go bad between them, should they have to deal with two different sets of laws? Should they have to deal with different courts? The whole system would be a lot simpler if only one level heard all the issues relating to family law, instead of having judges from various courts intervening in the process.

This would be one way of streamlining the process. Even if we take into account the assumptions made by the hon. member and assume that the current federal system will not change and that the issue of sovereignty will be set aside, letting the provinces look after the administration of local justice would still be an improvement.

Who is in a better position than the provinces to implement the policies relating to family law? I submit that this power should be given back to the provinces or, to be more accurate, that it should have been left to the provinces in 1867 and never have become a federal matter.

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1:10 p.m.


Paul Forseth Reform New Westminster—Burnaby, BC

Mr. Speaker, often it is posed that if we get back to it, separation is really the answer. If the member is talking about one house dealing with matrimonial matters and family law, we have the opportunity now.

All the provinces have to do is simply establish a unified family court. I have had assurances from the justice minister's department that it is prepared to appoint judges who could fit into a unified situation so that the provinces would have all their appropriate support workers to emphasize mediation under one house. One might call this a one-stop shop where both the provincial powers and the federal jurisdiction of a provincially appointed judge and a judge appointed by the federal government who has inherent jurisdiction could also be in this one building.

That experiment has been going on now for some 20 years in various jurisdictions within Canada. There is real opportunity to make Confederation work and deliver exactly what he is talking about. We do have those situations in Canada. It is only up to the province to just simply assign the money and get on with it.

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1:10 p.m.


François Langlois Bloc Bellechasse, QC

Mr. Speaker, we do not need the delegation of federal powers to the provinces, we do not need the federal government to have its programs administered by the provinces. What we need is a vesting of power. This means that a government gives up a field of jurisdiction to another one, and that such process is enshrined in the Constitution.

There is a major difference between the hon. member's vision, which I respect even though I do not share it, and that of the Bloc Quebecois, to the effect that these powers must be recovered by the provinces.

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1:10 p.m.


Ian McClelland Reform Edmonton Southwest, AB

Mr. Speaker, I was listening to the debate. My wife and I will be attending a couple of weddings in the next couple of weeks. We attended weddings over the summer, as I am sure many members present and many Canadians watching did. As we are talking about amendments to the Divorce Act, running through everyone's mind are weddings that they have recently attended or perhaps a wedding of their children or of a niece or a nephew. Many of us at our stage in life are going through this. It seems they come in batches.

I was struck by the fact that maybe we are closing the barn door after the horse has already escaped. Perhaps we should be discussing a new marriage act. Perhaps, as many of us have said to others or to ourselves in admonition, it should be a whole heck of a lot harder to get married. Perhaps we are putting our emphasis in the wrong place.

As we look at our society, as other speakers before me have very rightly pointed out, the foundation of our society is built around family. If we look at families or at particular societies such as religious or ethnic societies which place a very strong value on family, on commitment and on the responsibility to comes from that, we find that the divorce rate is substantially lower than it is among the general population.

I am not standing before the House and Canadians pontificating from a holier than thou perspective. I stand here as a person with considerable experience in these matters, having been twice divorced. My mother was divorced. Carrying on a long line of family history, my grandmother was divorced in 1932 in Alberta. That was not a small feat in those days.

I have said many times than it is better to be from a broken home than in one. However, I do not in any way diminish or denigrate the importance of family and how much better it is for children to be raised within a strong and supportive family. There is nothing more important in a child's life. Having said that, we know statistically a good percentage, perhaps even a majority, of marriages are going to end unhappily in divorce. The product of that unhappy circumstance will be children who will suffer in varying degrees from the effects of the divorce. Some children, depending on the maturity, wisdom and good faith of their parents, will suffer significantly less and, in fact, may benefit.

From time to time as members of Parliament we deal with constituents who come to us because there is nowhere else to go. Many of these people are single parents who are struggling to support a family. Some are non-custodial parents who feel grievously wronged because although they have lived up to every aspect of their agreement, they find themselves not able to be with their children. This legislation does not address that. In my opinion, that is a grievous error.

When we delve into the reasons for which families break up or why we have such acrimony over visitation, very often that is driven by retribution. Very often it is the chicken or the egg. If the non-custodial parent pays support regularly, he or she will get visitation rights regularly. In my experience, the amount of money that is awarded to the custodial parent is perhaps not as important as the consistency of receiving that money. It is important, but it is not nearly as important as the custodial parent being able to depend religiously on receiving that money every month.

That brings me to my perspective on this particular debate. I come to this perspective from the position of having paid maintenance payments virtually all of my adult life. There has not been a month that I have not made maintenance payments for as long as I can remember. Having made those payments, I was able to subtract from my income, which was generally speaking higher than my ex-spouse's income, the amount that I paid in support and my ex-wife paid the tax on it. This created a fairly big problem for her at the end of the year. She did not pay tax on it when she received it and the net result was that at the end of the year she had a tax bill she had to pay.

I discussed the matter with her and asked what she thought was the best way to handle it. Should it be taxable for her, should it be taxable for me or should we split it in the middle? We decided the best way to do it was to arrive at whatever the payment was going to be and I would pay tax on half and she would pay tax on half.

That is not what is going to happen with this bill. The non-custodial parent will be paying the tax and the receiving parent will not be paying the tax. It will not affect maintenance agreements that are already in effect. I am sure that the courts will take into account who will be paying the tax when they make their judgments.

This legislation envisions a grid. The grid is a schedule of the amount of maintenance payments per child that will be paid to the custodial parent, usually the wife, based on the income of the non-custodial parent or generally speaking the husband. That is not necessarily a bad idea. However, it does not allow for judicial discretion. In my experience, very often family break-ups come as a direct result of financial pressures. When the family breaks up there is not a whole lot of money to go around anyway. Very often the father pays support to a family where the custodial parent, the wife, has remarried and has a standard of living far beyond anything that the ex-husband has.

These things are not black and white. We tend to make these laws based on our experience with the extremes. Very often the extremes are horrid. The fact is that if a husband is not going to make support payments, no amount of legislation in the world is going to force him to do it. He has to do it because he accepts the responsibility and it is the right thing to do.

I guess this is where our society has kind of become unglued. When a couple makes the decision to get a divorce, when did it become their right to absolve themselves of the responsibilities that were incurred in the marriage and they brought children into the world? When, because I decided to be divorced, did it become someone else's responsibility to be financially responsible for my children? If I am divorced, for whatever reason, and I cannot afford to look after the financial responsibilities that I incurred of my own free will in my first marriage, it does not give me the right to take on new responsibilities in a subsequent marriage and then claim poverty and say: "I can't afford to look after my first responsibilities because I have taken on a second batch of responsibilities".

When we make decisions we have to be big enough to accept the responsibilities that come with those decisions. We are not saying not to do it but are saying: "Having made the decision, for goodness sake, be big enough to live up to the responsibilities that you have".

I would suggest that because the receiving spouse is depending on the maintenance payments, it is entirely appropriate that the government, representing all of the people, take whatever steps are prudent to enforce maintenance payments. We understand that maintenance payments are legislated federally and are enforced provincially. It has to be done with a foundation of fairness. If someone is going to have his or her wages garnisheed, certainly notice should be given. I do not know about other folks, but as an employer when I saw a garnishee notice coming for anyone who worked for me, it raised an eyebrow.

What happens if the person who is on the receiving end of the garnishee is living up to the obligations but is involved in some sort of a messy dispute?

Not all lawyers get up in the morning and ask, "how can we do the right thing?" It is possible that some of them do not have a clue because they did not do their homework. Some of them might decide they are going to make life miserable for someone and do not use due diligence before they issue a garnishee notice. The notion of being able to garnishee without notice is wrong.

Similarly, I have real difficulty with the ability to go back into tax records subsequent to a divorce. In my view the only reason for this could be in order to try to have the amount of maintenance payment increased.

When people decide to divorce, it seems to me that should be that. Each spouse should know the income of both spouses to determine what fair support should be. After that has been concluded, why should either party have the right to open the closed files five years down the road? It does not make sense to me.

Some of the criticisms of this bill, both constructive and positive and negative criticism, are that it takes the judicial discretion out of the awarding of payments. It does not necessarily consider the ability of the non-custodial parent to make the payments that have been determined, nor does it take into consideration the financial circumstances of the custodial parent.

Although the vast majority of divorces end with the female being the custodial parent, it is possible that the husband is the injured party in the case. It is possible that the female who ends up with custody is also the one who initiates the divorce. There are circumstances where in such situations the female goes from one marriage almost directly into another. I know of some that have resulted in the wives not having any negative financial consequences whatsoever. However, the ex-husband has been out of house, home and hearth in order to support the new marriage.

I am really nervous about setting arbitrary rules that do not allow for judicial discretion. That is why we have divorces that go before judges.

Another concern about the guidelines is this. Are they to be a ceiling or a floor? What about the situation where a parent is capable of paying a lot more?

Third is the notion of reopening cases which have already been closed.

In 1977 Betty Jane Wylie, author of Beginnings: a book for widows , wrote that in the dim dark dark days before antiseptics women often died in childbirth and it was not uncommon for a man to outlive two or three wives. A man can still have two or three wives today but it is because of a thing called divorce. It is a lot more messy and a lot more expensive. There is absolutely no question it is far more expensive to get a divorce than it is to tough it out.

I will conclude my comments in the debate with the notion that it is perhaps much more important for us as a society to put our emphasis on the marriage and making it more difficult to get married rather than making it easier to get a divorce. Sometimes, and I speak from personal experience, the tougher thing to do is to work through the problems and tough it out. Therefore, the notion of a unified family court, the notion of arbitration and mediation and a proactive effort would be a very worthwhile exercise for Parliament to consider.

As the great Canadian Charlie Farquharson said, statistically two out of five marriages end in divorce; the rest of us stick it out until the bitter end. Therein might be a pearl of wisdom all of us might learn from. As we discuss the ramifications of divorce and family law on children, there is absolutely no question that those Canadians who are able to tough it out to the bitter end are probably going to find that what they have done for their family will pay great rewards in the long run.

Divorce ActGovernment Orders

1:30 p.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, the member referred to a joke which with all due respect I do not share. Toughing out a marriage unfortunately is an attitude which has become far too prevalent in our society. The member well knows that when a couple splits up one thing is true, and that is that a second residence will be necessary. In the absence of any changes, the income levels of those two people, in terms of their accumulated revenues and the costs going out, are going to deteriorate. In fact, as a result of divorce many families live in poverty.

My question has to do with squaring the member's statement. I thought I detected some contradiction in his statements. He described his own unfortunate circumstance and I am sorry to hear that he has been divorced twice, but he said that we have to be big enough to accept our responsibilities and tough it out. I did not hear the member comment on the impact on the children and whether or not there were circumstances where even if the relationship had deteriorated that it was important enough, especially during the early years of a child's life, that the member should have been big enough to live up to his responsibilities which he undertook in his marriage vows.

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1:35 p.m.


Ian McClelland Reform Edmonton Southwest, AB

Mr. Speaker, it is a very fair statement. When I made the comment about living up to responsibilities, I was talking about living up to the financial responsibilities. It is absolutely essential that once we have accepted our responsibility for making maintenance payments for our children, it is our responsibility.

The member opposite did not point out that I said often it is better for a child to be from a broken home than in one. That is exactly the case. I do not think there is any question there are families that are able to stick through it. Obviously, had I been able to for whatever reason, but because I did not do it does not make it right.

Statistically, the point I made was that when we look at the consequences of divorce, when we look at the consequences of family breakdown and single parenting as a direct consequence of divorce, it is fairly evident that families that do not suffer the consequences of that, for whatever reason whether it is alcohol or some other reason, are probably going to stand a better chance than families that do. It is self-evident.

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1:35 p.m.


Dan McTeague Liberal Ontario, ON

Mr. Speaker, I certainly appreciate the candidness with which the member for Edmonton Southwest expressed his comments. It is an issue most of us will deal with. I too would like to reflect a little on a personal note. A very personal friend of mine and his spouse are going through the trials and tribulations of a possible breakdown.

Given what the member has said in terms of suggesting that this bill might expedite the possibility of bringing about divorce or not providing an adequate remedy, I seem to get the impression at least from my constituents and many others who solicit all members of this House of Commons that the judicial system tends to lean more toward the interests of the female custodial parent as opposed to the male custodial parent.

Could the member clarify for me and for this House what his real objections are? There seems to be a contradiction in his statement in terms of suggesting that the legislation would not allow the judicial process.

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1:35 p.m.


Ian McClelland Reform Edmonton Southwest, AB

Mr. Speaker, this legislation and the application of a grid for suggested payment guidelines was, as I said earlier in the budget debate, a fairly responsible and good step. The reason is that it sets out an amount whereby the custodial parent can expect to receive approximately that amount for each child.

Where I said that in my opinion it was perhaps weak was that we still must have judicial discretion. This has to be part of any payment that is made. It is very likely that while judicial discretion

is allowed in the bill, in other jurisdictions where a grid is in place, the grid has taken precedence over judicial discretion.