Debates of Nov. 4th, 1996

Divorce Act

[The Deputy Speaker]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker]

The question is on Motion No. 1. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Deputy Speaker]

All those in favour will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

And more than five members having risen:

[The Deputy Speaker]

Pursuant to Standing Order 76(8), the recorded division on the motion stands deferred. The recorded division will also apply to Motions Nos. 2, 3 and 12.

[Jay Hill, Reform, Prince George—Peace River, BC]

moved:

Motion No. 4

That Bill C-41, in Clause 2, be amended by replacing lines 17 and 18 on page 4 with the following:

"(2) shall do so in accordance with a ) the needs of every child in respect of whom the order is being made and the ability of the spouse against whom the order is being made to pay the amount set out in the order; and b ) the applicable guidelines.''

Motion No. 5

That Bill C-41, in Clause 2, be amended a ) by replacing line 29 on page 4 with the following:

"dance with subsection (3) if the" b ) by replacing lines 38 and 39 on page 4 with the following: b ) that determining an amount in accordance with subsection (3) would result in an amount of''

[Christiane Gagnon, Bloc, Québec, QC]

moved:

Motion No. 6

That Bill C-41, in Clause 2, be amended by deleting lines 7 to 24 on page 5.

[Jay Hill, Reform, Prince George—Peace River, BC]

moved:

Motion No. 7

That Bill C-41, in Clause 5, be amended by replacing line 5 on page 8 with the following:

"in accordance with a ) the needs of every child in respect of whom the order is being made and the ability of the spouse against whom the order is being made to pay the amount set out in the order; and b ) the applicable guidelines.''

Motion No. 8

That Bill C-41, in Clause 5, be amended a ) by replacing lines 10 and 11 on page 8 with the following:

"determined in accordance with subsection (6.1) if the court is satisfied" b ) by replacing lines 21 and 22 on page 8 with the following: b ) that determining an amount in accordance with subsection (6.1) would result in an amount of''

[Christiane Gagnon, Bloc, Québec, QC]

moved:

Motion No. 9

That Bill C-41, in Clause 5, be amended by deleting lines 31 to 44 on page 8, and lines 1 to 4 on page 9.

[Jay Hill, Reform, Prince George—Peace River, BC]

moved:

Motion No. 10

That Bill C-41, in Clause 11, be amended a ) by replacing line 16 on page 13 with the following:

"26.1 (1) Subject to paragraph 15.1(3)(a), the Governor in Council may" b ) by replacing lines 41 and 42 on page 13 with the following:

"for the purposes of making a support order in accordance with subsection 15.1(3);" c ) by replacing lines 44 and 45 on page 13 with the following:

"the purposes of making a support order in accordance with subsection 15.1(3); and"

Motion No. 11

That Bill C-41, in Clause 11, be amended a ) by replacing line 16 on page 13 with the following:

"26.1 (1) Subject to paragraph 17(6.1)(a), the Governor in Council may" b ) by replacing lines 41 and 42 on page 13 with the following:

"for the purposes of making a variation order in accordance with subsection 17(6.1);" c ) by replacing lines 44 and 45 on page 13 with the following:

"the purposes of making a variation order in accordance with subsection 17(6.1); and"

Mr. Speaker, I rise to address the amendments put forward by the opposition parties to Bill C-41.

My comments are confined to the amendments in group No. 2 put forward by the Reform Party. I note that of the eight amendments that have been grouped together in Group 2, six of the eight have been put forward by the Reform and two by the Bloc.

Motion No. 4 establishes an order of priority so that the court will look first at the needs of the child and the ability of the non-custodial parent to pay and then at the applicable guidelines for child support.

During remarks made at second reading on Bill C-41 by my hon. colleague for Mission-Coquitlam, she elaborated on why we view this as so important. We feel there is a need to look at the best interests of the child or children involved rather than just make arbitrary decisions based on the guidelines.

In speaking to this bill, as a number of us have already, we have clearly endeavoured to be advocates for the children. We are not trying to pick sides, either on the side of the custodial parents, or non-custodial parents, or mothers versus fathers. Heaven knows enough of that already exists in the present system of dealing with divorce.

The real purpose of putting forward these amendments to try to better the bill is to see that the interests of the child or children are paramount.

While we recognize the need to have guidelines to direct and to guide the judgments levied in these types of cases, it does not make a whole lot of sense if we do not look at the ability of the non-custodial parent to pay. It really does not matter what the support level is set at if the father, who it is in a predominant amount of time, is unable to meet that commitment.

Motion No. 5 is consequential to Motion No. 4. It is a means for us to amend the bill to allow for Motion No. 4 if it was to be passed.

I will move on to Motions Nos. 7 and 8. The bill was written when looking at awarding child support. The court is supposed to take into consideration and apply the guideline when awarding spousal support. The Reform Party believes that the court should look first at the abilities of the parties to pay for the welfare of the child and if it needs to look elsewhere, then go to the guidelines. Basically Motion No. 7 follows along the same lines as Motions Nos. 4 and 5. Again, dealing with child support, we want the court to look first at the party's ability to pay and the needs of the child.

The government should be legislating in the best interests of people. If the court needs further evidence after looking at ability to pay and the welfare of the child, then the court could look to the guidelines and apply them if necessary.

That basically deals with Motions Nos. 7 and 8. Motion No. 8 is consequential to Motion No. 7, similar to the way in which Motion No. 5 is to Motion No. 4.

I will move on to the other two amendments put forward by Reform in this grouping, that is, Motion No. 10 and Motion No. 11. I know this gets quite complicated. Motion No. 10 is consequential to Motion No. 4. It refers back to that subsection.

The governor in council establishes the guidelines, which are the main focus of the bill. In establishing these guidelines, the governor in council is to take into consideration a number of matters. Most important in the list of matters that must be taken into consideration in the eyes of the Reform Party is the ability to pay and the needs of the child. This amendment, therefore, restricts the governor in council in that in making guidelines, the paramount interests should be the needs of the child and ability to pay.

I know I am repeating myself in referring to all these motions. It really comes down to the central focus to which we are trying to direct the government, rather than just bring down these arbitrary guidelines. We want the courts to look at other considerations, to have that as part and parcel of the bill rather than exclude them.

Motion No. 11 refers to the same section found on page 13 of the bill. It refers back to a different section, section 17(6.1) which deals with variation order. The governor in council under this bill does establish the guidelines for spousal support as well as child support. Therefore we want to ensure that were Motion No. 7 to pass the courts address all the concerns that would be presented at the time of the case rather than, as I said earlier, to arbitrarily bring forth the guidelines.

Motion No. 11 is consequential to Motion No. 7 in the same way in which Motion No. 10 is to our Motion No. 4.

Perhaps to summarize why there is this need to bring forward these numbers of amendments that we have brought forward that are grouped into Group No. 2, I would like to make a couple of points. If one were to compare the Notice Paper or the Order Paper from Friday with today's, one would note that there were two amendments brought forward by the Bloc Quebecois obviously at the eleventh hour. One would have to question how that is when we already understood all the orders and the motion numbers, trying to understand exactly how they are all going to fit together, were they to pass, and change the bill. We have to wonder how serious the Bloc is about putting forward amendments to this piece of legislation.

In dealing with Bill C-41, the government has once again taken the easy route of dealing with the support payments. We have tried to make the point during debate on this bill already that we are concerned this simply is not a comprehensive look at the whole issue surrounding divorce.

The justice minister has promised for some time now that he would be bringing forward comprehensive legislation. We are not suggesting that it would have to be included in one omnibus bill. Heaven knows there have been times in the past when we have been quite critical of the government for trying to lump too much into one bill. But we have not seen any indication from the government other than vague promises by the justice minister that he will indeed be bringing forward legislation to address the other side of the equation which is dealing with perhaps mandatory mediation prior to the disputing couple's ending up in court and a bigger issue of access and custody.

I have brought forward a private member's bill, Bill C-242, which would endeavour to bring into effect joint custody being the rule instead of the exception. Very clearly we can look at statistics and we can see that the whole business of the ability and the willingness of non-custodial parents to pay their child support payments is contingent on access to their children.

As access increases and shared custody increases for the non-custodial parent, then equally so statistics show that willingness to pay that support also increases.

The hon. member for Mission-Coquitlam, when she brought forward a private member's bill dealing with grandparents' rights and the need to have grandparents have access to the courts during divorce proceedings, once again she was looking at what is in the best interest of the children. That is what we are dealing with here.

At that time she was told by the justice minister that the reason that the government voted that down was the government would be bringing in more comprehensive legislation.

Despite our best efforts to amend the bill by bringing in a number of amendments which are in all five of the groups, what we perceive is a general unwillingness on the part of the government to look at the other side. It seems to be totally focused on something which is a quick fix, something which would be the easiest to address, to get tough with fathers who are unwilling to meet their obligations and who in many cases are unable to make their payments.

As we have pointed out in our speeches, the simple fact of the matter is in many cases when the non-custodial parent, usually the father, withholds support payments it is simply because it is the only to get back at the fact that they do not have access to their children. I believe that the government is really missing the boat by not addressing the whole issue by not bringing forward companion legislation so that the opposition parties and Canadians can view the entire package rather than just piecemeal, which is easier.

[Ian McClelland, Reform, Edmonton Southwest, AB]

Mr. Speaker, for the benefit of Canadians who are watching this debate on television, we are dealing with amendment at report stage of deliberations. That means the bill has gone to committee and was returned to the House with recommendations. We are now debating the recommendations from the various parties to alter the bill. These changes are grouped in blocks for ease of voting and also to ensure that in our speeches we address the topic at hand.

The group of amendments we are speaking to now has to do with maintenance and a grid which was established by the federal government. For instance, someone who is living in Alberta and has an income of $35,000, with one child, would be paying $314 per month; $520 for two children; $685 for three; $820 for four children, and so on. It established a guideline, which begs the question that if that is the minimum payment, what is the maximum. There are no maximums; there are merely minimum payment guidelines.

The guidelines vary from province to province. They do not vary a great deal, but they do vary. Some of these amendments speak to the variance.

However, I would like to speak in general terms to the notion of a guideline and what is likely going to happen in the case of the strict application of guidelines. I would like to ask whether the guidelines are going to have the initial beneficial intent.

When the guidelines were first introduced I thought they were a good idea. Many members know through previous debates that I have some experience in these matters. It is not something I am proud of but I have some considerable experience. It has been my

experience that no amount of legislation will ever replace common sense. If parents are divorcing, are bitter and fighting, no amount of legislation will impose common sense on them.

We cannot accomplish through legislation what cannot be done through goodwill on the part of both parents and extended families.

I thought the notion of guidelines was not a bad idea. I was quite surprised when I investigated this further, particularly in my constituency when I held a town hall meeting attended by approximately 200 people. The new Divorce Act was a central part of that meeting. After having conducted a third party independent poll by tele-research I was amazed to find that although I thought it was a good idea, the establishment of guidelines was not widely appreciated by people as being a good idea. As I reflected on it I realized that our court system and the judges involved in the court system are there for good reason. We have trust and we have respect for our court system.

Judges in cases of family disputes are able to weigh all of the factors having anything to do with custody or with maintenance payments. Using the wisdom of Solomon, judges are able to look at every situation as a distinct situation and not apply a common rule or a broad brush which will affect everyone in the same way. It is this removal of informed advice that upsets most people. It results in the suggestion that perhaps a guideline is not a particularly good thing.

In the constituency of Edmonton Southwest members would be interested to know that fully 75 per cent of the people polled feel judges should retain some discretion over the terms of child support. Only 9 per cent disagree and the remainder are undecided. Eighty-seven per cent say that the financial resources of the custodial parent should be considered when setting the level of child support. The guidelines make no mention whatsoever of the financial condition of custodial parents. What happens is that the custodial parent could end up being in a vastly superior financial position as a result of the divorce, for whatever reason, and yet the non-custodial parent is forced to pay a disproportionate amount of his or her income based solely on the condition that they are no longer married.

It is the removal of the judicial discretion which concerns most Canadians.

The town hall meeting brought up a particularly poignant and interesting consideration. Why is it in this legislation that we are forcing divorced parents to have a legal responsibility to children that they do not have before they are divorced? Think about that. This legislation will force non-custodial parents to continue to pay after the age of majority for such things as schooling. I am sure the vast majority of people would do it anyway, but we do not force intact families to pay for anything, let alone pay for anything after the age of majority.

Why should there be one set of rules for children of divorced parents and another set of rules for children of non-divorced parents?

A group in Edmonton, the Equitable Child Maintenance and Access Society, has put together a number of particularly good papers concerning rearing children when their parents have divorced. The central argument that the group brings to the case is just because parents divorce does not mean they divorce themselves from their children. It is the litigation system which creates and causes more problems than were there in the first place.

We should have a default position not of custody one way or the other but joint custody and co-parenting responsibilities. Responsibilities for nurturing children do not end at divorce; the responsibility for nurturing children remains constant. It also remains a responsibility, an obligation and an opportunity for the extended family.

The question of fair access and maintenance support are not mutually exclusive. They are inextricably bound to each other. People who do not have fair access to their children do not feel a moral justification for paying maintenance. We cannot unlink the two and say that if people are not being afforded access to their children why should they feel the obligation in one direction only to make maintenance payments. Regardless of the problems people have in their domestic relationship, their obligation to their children continues and should not be part of it. The reality however is as human beings, it is part of it so it must be considered.

As companion legislation to the responsibility to pay and as companion legislation to the fact that we would deny people passports or garnishee their wages, we must also have legislation that would enforce judgments of the court regarding access. At this time it is entirely in one direction.

We must as a society understand the absolutely critical role of nurturing children. This critical role extends beyond marriage and divorce; it extends beyond the mother and father.

I will read from The Economist dated September 28, a short paragraph which describes the reason for nurturing: ``Men tend to commit most crimes. In America they commit 81 per cent of all crimes and 87 per cent of violent crimes. Adolescent boys are the most volatile and violent of all. Those under 24 are responsible for half of America's violent crimes. Those under 18 commit one-quarter''.

[The Deputy Speaker]

I am sorry, the hon. member's time has expired.

[Christiane Gagnon, Bloc, Québec, QC]

Mr. Speaker, I want to address Motions Nos. 6 and 9 put forward by the Bloc Quebecois.

These motions would strike out the provisions allowing a court, when there is agreement by the spouses, to award an amount that is different from the amount set out in the guidelines. Now, since provisions already exist in the legislation allowing a court to award a different amount, when there is proof that the child already has an advantage in relation to the amounts set out in the guidelines, meaning that the child already gets more than what the guidelines provide for, it has to be inferred that these provisions deal with cases where the parents have negotiated and reached an agreement whereby the child would get less that what is set out in the guidelines.

Therefore this motion, as the text indicates, would strike out new subclauses (7) and (8) of new clause 15.1 of the Divorce Act. Indeed, these new subclauses show an intent to allow the court to set aside the application of the guidelines when two conditions are met: first, when there is agreement between the spouses and, second, when the court feels that the amount proposed for child support is reasonable.

We cannot accept these provisions. The main reason we supported the bill, even though we proposed amendments to improve it, is that we felt that the principle of guidelines is desirable for a vast majority of families, be it for spousal support or for child support.

Almost all of those who have examined the issues of corollary relief, visiting rights, custody, and alimony support the implementation of guidelines. Let me give a few examples.

The now defunct Canadian Advisory Council on the Status of Women wrote in March 1994: "As participants in consultation hearings have indicated, parents and children who are involved in litigation over custody and visiting rights experience a great deal of emotional, physical and financial stress that is costly for the publicly financed judicial system, social programs and education."

A lawyer in private practice, who sat on the Canadian bar committee, has emphasized also that the interesting thing with guidelines is their coherence, and coherence makes for predictability, and predictability avoids going to court.

Mrs. Lavigne, then president of the CACSW, wrote this: "The setting of the level of support is also a source of conflict and resentment. Some think it is too little, and others think it is too much."

As a matter of fact, courts, lawyers and parents themselves find it hard to make a fair assessment of costs incurred for children, and they lack benchmarks to set a fair and just level of support.

If binding rules do not seem desirable, guidelines are nonetheless to be made available to parties in order to make the process easier.

So, the guidelines will contribute first to standardizing the amounts awarded, which should reduce the incidence of poverty for women and children. Another benefit, however, and a major one at that, is that this new way of doing things will greatly reduce negotiations between parents on the amount of child support.

This amendment is quite significant, since we know that although a woman is represented by her lawyer, she can still fall victim to threats, blackmail and physical or moral weariness, and tell her lawyer to accept an otherwise unacceptable proposal.

The only way to reduce tensions and unsuccessful negotiations, which penalize children in the end, is for the guidelines to be as widely applied as possible. That is why subclauses (7) and (8) are unacceptable and contrary to the principles underlying the guidelines.

Indeed, this would take us back to the current situation where one parent, usually the father, is in a strong bargaining position, since he is usually better off, and can negotiate a settlement that is to his own advantage, but only to his own advantage. In the interests of all concerned, the amount of child support must not be determined in the context of preliminary negotiations.

Finally, we must not forget that women have been demanding guidelines for a long time now precisely to avoid the pressure, threats, and blackmail that often come with the negotiation of corollary relief provisions in divorce proceedings.

In enacting guidelines, governments are trying to set out a more neutral process for former spouses and their children. Thus, it is not recommended to favour provisions that go counter to these guidelines and, unfortunately in too many cases, force women to accept settlements that are unfair for them and their children.

So, this is the purpose of the motion I brought forward. I want to have struck out the provisions allowing a judge, with the consent of both spouses, to make a child support order different from what is set out in the guidelines. We find these provisions somewhat risky. On the one hand, in the proposed child support guidelines to be used as the draft regulations, clause 5 provides for a court, on application by one of the spouses, to award an amount different from what is set out in the guidelines, if the order causes excessive hardship to the spouse making the application or to the child in respect of whom the order was made.

Therefore, Parliament is allowing the guidelines to be set aside in some special cases. We in the Bloc Quebecois would like the government to support our amendment.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, I listened to the remarks made by the members who have taken part in this debate so far, and the only conclusion that can be drawn is that the system in which we live is very complex.

Let us take as an example people who live in Quebec. They get married in Quebec and they have children in Quebec. If the marriage does not work, they separate in Quebec. But if they want a divorce, then they fall under Ottawa's jurisdiction.

You will understand that, as a member of the Bloc, I would be inclined to tell you without any hesitation that the federal government should completely withdraw from this area. However, as we have said many times before, as long as we are part of this system, we will try to improve it as best we can under the Constitution.

And unfortunately, under the Constitution as it is now, the Divorce Act is a federal statute. Therefore, as good members of Parliament and as responsible people, since the Bloc Quebecois is the official opposition, we must try to improve this legislation to respond to the concerns I personally heard when I sat on the Standing Committee on Justice and Legal Affairs, concerns expressed by women's groups and also by the provinces, because this bill has indeed several major flaws. That is why the Bloc Quebecois, as a responsible party and as the official opposition, is trying to improve this legislation.

However, it seems that the members opposite do not understand what we want even though it is simple. Our goal, which should also be the goal of the government, is to protect the children. I heard the minister of Justice himself say that Bill C-41 aimed at correcting injustices against children.

I believe that all motions introduced by the Bloc Quebecois aim precisely in that direction and are in response to requests made by people, women and interest groups heard by the committee.

This government does not seem to listen much to what we say. Yet, it is crystal clear that we want is for the good of children. The government should understand that. We introduced a motion proposing that the place of residence for guideline purposes be the child's residence. It must be clear that support payments are to be paid to women or men who are taking care of their children, whatever province they come from, including Quebec. They must know in advance, whatever may happen, that the place of residence will be the place where the children are living.

We have introduced a motion but I am pretty sure the government will oppose it. Why? Because it is proposed by the Bloc Quebecois. Yet, it is precisely within the same line and goal. We have also introduced an amendment to take all discretionary powers away from the federal government, because we want Quebec and the National Assembly to decide on guidelines. If the National Assembly presents guidelines, we want the federal government to have no other choice but to accept them.

How will the government react to this motion? It will reject it. Why? Probably because it was proposed by the Bloc and not by it. Yet, this proposal follows along the lines of other proposals heard before. I know that this is what the National Assembly very much wants. We want government to have no choice.

We also moved a motion regarding vested rights. We do not want the federal government to change the rules on us. We do not want things to go one way under the Liberals and another way under the Conservatives. We want to reassure people and we only have one purpose in mind, protecting children. What is the government going to do about it? It is going to vote against it, I am quite sure of it.

Furthermore, we moved a motion to delete the infamous "or other cause" in one clause. What does "or other cause" mean? This means that any given day the government might decide, by order in council, to add to the eligibility criteria. Or, depending on its mood, it might just as well decide to eliminate some of them. All we want is to protect the children. We want to know exactly where we are going, how the courts are going to apply the applicable guidelines to all concerned.

Finally, we moved two of the motions in this group, Motions Nos 6 and 9, which are aimed at protecting children. Is it right-I see the member for Québec is nodding in agreement, I believe she agrees with me-to set guidelines and to provide, as does Bill C-41, that with the parents' consent the amount of support might be below that set in the guidelines? Is it right? Does it protect children? No, it does not.

Suppose that, according to the guidelines, the children of a divorced couple are entitled to $150 a week in support payment, is it right for the judge to award the children, with the spouses' consent, $75 a week? Is it right to go to the trouble of developing guidelines, and then, after negotiations in the court's back rooms, sometimes under pressure or even duress, to have a ruling which does not respect them?

I have witnessed women being threatened. It is mostly women and children we want to protect. On occasion, I saw women coming to court in the morning, their mind made up. They had come there that day determined to get so much in support payments, fully intending to fight for their children's sake.

Following negotiations and after extremely long delays, sometimes you get to the court house in the morning and you cannot tell when you will leave because of emotions and all sorts of considerations; sometimes the lawyers and the spouses agree and the amount finally granted is considerably lower than what the party seeking alimony had decided to ask for in the morning. Those are the rules.

Also, it is often the squeaky wheel, the most forceful lawyer who will win. As you know, all sorts of things happen in the court house. Is it usual to approve all that? This is what the government is proposing with Bill C-41 and the clauses we want to delete. We want to remedy that situation with Motions Nos. 6 and 9. Is it usual, as I have just said, to condone the actions of lawyers?

What I want to say is, is it usual to perpetuate that way of doing things? This is what the government is doing. If the spouses agree, the court can determine an amount different from the one which would apply according to pertinent guidelines. We know quite well that the bill already says there will be no problem if the amount is higher than what would be determined with the guidelines. The goal is simple: to help the children.

The guidelines say $150 a week; the husband and wife agree on $200 a week. Who will benefit? The children. Then the goal is reached. The judge has no say. He can only go along with the agreement. But, the reverse is also true. These clauses we want to delete would allow the judge to make a ruling along the lines of an agreement whereby children would receive less than what the guidelines provide. That is unacceptable.

I see the justice minister is listening. I think he realizes there is a flaw in this bill. I hope that when the time comes to vote on Bill C-41, and on Motions Nos 6 and 9 presented by my colleague the member for Quebec, the government will change its mind and decide to support these motions whose ultimate purpose is to protect children.

[Margaret Bridgman, Reform, Surrey North, BC]

Mr. Speaker, I would like to add a few comments to the debate on Bill C-41 and the motions in Group No. 2.

Bill C-41 in itself has some strong points and some weak areas. Viewing the overall bill we certainly feel there are some amendments necessary. In Group No. 2 there are eight motions specifically addressing the ability to pay or the grid payment aspect of a divorce. Of the eight motions there are two that we have some difficulty with, Motions Nos. 6 and 9.

Part of that reason is that if we go with Motions Nos. 6 and 9 there does not seem to be sort of a starting base, an expectation that people can have as to what may happen if they choose to divorce.

With the grid aspect at least they know before they go into the courtroom that there is a certain area that they are going to have to look at; they are going to have to pay this or they are going to have to pay that depending on what happens on their day in court.

What we argue is they have that grid, that guideline and then we look at their ability to pay and of course the needs of the child or children. At that point if they do not meet basic essentials of the grid, then they go into mediation or these kinds of things that would be applicable to the individual situation of the family involved.

The point is we must have somewhere to start. We must give the citizens some direction as to what it would mean or could mean if they went into the divorce court. The first priority of course is the needs of the child based on the ability to pay.

It has been mentioned in previous debate that within a family structure that is not divorcing we do not expect the same type of financial commitment. I would tend to suggest that we do in a different sort of way. I am sure that when people decide to have a family they obviously look at their present family income situation and whether they can support the family in the manner in which they choose, i.e. their lifestyle. The courts can do the same kind of thing when that partnership breaks up, that they would look at that family according to their lifestyle and assess the needs of the children according to the ability to pay. There must be a certain level that one who has to raise those children can expect from a financial point of view.

That is what we are talking about with having the guidelines for the judge and for the people involved in the divorce to at least start somewhere and then from there bring it into their own individual circumstances.

We tend to think when we say ability to pay of the lower income person and whether they can actually meet that basic standard. Of course, if they cannot we get into all these different penalties we are going to impose on somebody who cannot pay. Obviously we have to look at the ability to pay.

Also there is the other end of this scale where the money is not necessarily the problem from the point of view of having to support children. Then we get into value systems and lifestyles, which is another debate.

A previous speaker from the Bloc made reference to negotiating benefits different from the rules. I am assuming the rules would be the payment grid. I suggest this could be very precedent setting. When there are no parameters from which to work in we open a Pandora's box. If we had some parameters to work within and then allow the judges to assess the individual situation and go outside those parameters if necessary through a mediation of ability to pay and the needs of the child, I could see nothing wrong with that.

However, to start there puts a great onus on the judge with respect to the value system. There are no applicable guidelines. It would open up ongoing cases. We would probably get into the situation of judge shopping. If a person did not get a good deal with one judge, they might want to try again. This may not necessarily happen if the person is satisfied with the end result, but it could happen.

I am suggesting we should have the payment grid available but it should be flexible based on the ability to pay, the needs of the child and the individual situation.

In addressing these motions, the lack of flexibility in two of the motions with respect to the grid payment is our main concern. We would like to see that flexibility. The other six motions we have no particular difficulty with because we proposed them.

That is all I have to add at this point on Group No. 2.

[Francine Lalonde, Bloc, Mercier, QC]

Mr. Speaker, it is with great pleasure and with the sense of some responsibility that I speak to Bill C-41 this morning.

At the outset, it is important to say, and it cannot be said often enough, it will be said and repeated until everyone knows, especially in Quebec. With divorce being under federal jurisdiction, while marriage is, as we know-the civil code in general is different in Quebec-under provincial jurisdiction, in the area of child support, there is a risk of finding ourselves in a situation where the Quebec and the Canadian models as expressed by the federal guidelines risk running into each other.

It is important to note that about 40 per cent of child support cases do not depend, because of the factor that I just mentioned, that is, that divorce is under federal jurisdiction. So, there would be about 40 per cent of child support cases that would elude the federal guidelines. That is undoubtedly one of the reasons why it is proposed in the bill that the application of the definition of guidelines be given to the provinces.

However, we do not want to take any chance that federal arbitrariness applies. The hon. member for Québec, who worked particularly hard on this issue, has proposed a series of amendments, including an amendment asking that the province be designated if it meets-and it is required to do so because, once again, of the federal jurisdiction-the requirements provided by the act at section 26.1 in order to meet the requirements provided in this bill by the federal government.

The federal government would have no choice but to designate Quebec, if Quebec so wanted, and we know that this is the case. Some provinces may want to, but others may not. We in the Bloc Quebecois have noted that even in other areas of federal jurisdiction, some provinces that do not fear for their identity in putting themselves in the hands of the central government may not want these provisions. This is not the case in Quebec, with its different civil code which it cares about as much as it does about language and which explains the kind of different, not to say distinct, society Quebec has set up. It is therefore essential that the central government understand the need to exclude any possibility of arbitrary decisions.

It must also be pointed out that other provinces may wish to define their own guidelines, for example because of the differences in the labour market and average income levels among the various provinces.

I should remind the House that the federal government has just introduced in this House a bill aligning the federal minimum wage rate with that in effect in each province. Well, in some provinces the minimum wage is $4.75, compared to $7 in others. This says a lot about the differences in the labour market and income levels among Canada's provinces. If a province takes the trouble of fulfilling all its obligations and wants to define and implement its own guidelines, it should be able to do so.

This demand for guidelines, which comes through all the amendments tabled by the Bloc, and in a way by the Reform Party, was put forward by women a long time ago. Why?

Although some divorces are amicable, others are not, unfortunately, in this society where love is not eternal. The child's interests should be paramount, but some parents may not be able to reach an agreement in this regard. Unfortunately, legal intervention becomes necessary when the relationship between the people involved prevents them from striking a balance and giving priority to the children.

When divorces are not amicable, women-because they are generally the ones affected-must be able to count on some real support. These guidelines are designed so that women will not have to face undue pressure. As we know, this undue pressure can be brought to bear in a trial. A trial does not guarantee there will be no pressure, far from it.

So it is quite disturbing to see in this bill two clauses that seem to contradict each other. One stipulates that the judge may recognize agreements or orders giving one or more children more than provided for in the guidelines. That is okay, except that, according to another clause, the judge may agree that an agreement outside the guidelines is not unreasonable.

Of course, if we put these two clauses side by side, the second one means an agreement was reached for less than what is specified in the guidelines. This would go against the repeated demand for clear, universal guidelines, because it could be assumed from the outset that some judges may not feel bound by the guidelines. If the child is to get more, we can understand that such an agreement can be recognized. However, if the child is to get less, then we

cannot understand because this provision brings back into play all the pressures that women can be subjected to during a trial.

Despite what my colleague said, I hope members opposite will soon realize that they are destroying what they have just accomplished belatedly after so many women experienced so many problems.

I would also like to mention how important it is to base the decision as to which guidelines will apply on the child's place of residence. Here again we feel that the amendment we have brought forward should be accepted to avoid problems that would cause excessive and inexcusable delays.

We think it is absolutely essential that decisions be made without delay so that women who have custody of their children can have access to the money to which they are entitled for the happiness and the standard of living of the children.

In closing, I would like to mention that the central government must make moderate use of its power in this area. Family policies, as shown by Quebec last week, must be modelled on society. In the case of Quebec, it is extremely clear that the guidelines regarding family support obligations in case of divorce or separation must be modelled on our society's values and way of living.

The amendments brought forward by my colleague make sense, and the government would be well advised to accept them.

[Gilbert Fillion, Bloc, Chicoutimi, QC]

Mr. Speaker, following on my colleague, I am pleased to rise today and give my opinion on Bill C-41, and particularly on all the motions tabled this morning. It is clear, from the number of motions and amendments now on the table that this bill must be overhauled.

If it had been drafted in such a way as to meet with unanimous approval, we would not be faced with so many amendments and motions. This points up the federal government's vision on child support payments. When I say vision, unfortunately the federal government has once again forgotten that this is a vast country. Regardless of what members across the way think, we are not all alike.

[Jean Augustine, Liberal, Etobicoke—Lakeshore, ON]

Very good.

[Gilbert Fillion, Bloc, Chicoutimi, QC]

As I said, this is a vast country. I did not say it was the best country in which to live. I said that it covered a wide area.

We are completely distinct. We are not alike. What works in British Columbia does not work in Quebec. What works in Toronto does not necessarily work in Montreal. There are therefore distinctions to be made.

Members will recall that the discussions concerning child support payments arose from the Thibaudeau case. This case forced the government to throw together a bill that, as we see today, is in need of amendment. The bill before us, with all its amendments, includes a number of measures to ensure that children's interests are respected. However, most of these measures are unsatisfactory.

The guidelines respecting the determination and amount of child support orders make no sense at all to me. This part alone should be completely overhauled. I do not think it meets the expectations of the people concerned. In reality, judges will now have guidelines to follow in determining the amount of child support. They will no longer be able to exercise discretion. They will no longer be called upon to make a decision, but merely to approve what the government wishes to enforce. This, in my view, is very different from allowing them to exercise discretion, and so on.

Where is the happy medium that will respect the rights of children? With these guidelines, the government is on the wrong track. I will not be revealing any great secret when I say that the federal model before us is inconsistent with the Quebec model.

Furthermore, the criteria governing the guidelines are very different. In order to see this difference, perhaps we could take the concrete example of a non-custodial parent who is an income security recipient. In Quebec, this person does not have to pay support. It is very easy to understand why. He or she barely has enough to live on as it is. Yet, in what is being proposed to us, this individual might have to pay child support.

Is this really realistic? When that question is asked, even if the individual has the best of intentions, he or she will not be able to meet obligations. This bill also assumes that the parents' incomes are equal for purposes of paying child support. Only the income of the non-custodial parent will be taken into account.

This loses sight of whom the support payments are for. They are for the children. In Quebec, support payments are based on both parents' ability to pay, which, as you will agree, means shared responsibility for the children. There is, therefore, a world of difference, a vital difference between what they want to apply here and what is done in Quebec.

Moreover, this system has been tested, and the latest measures adopted in Quebec are satisfactory to everyone, at this point. With this bill, the federal government can, with a sweep of its hand, completely do away with everything that is being done in one province, compared to another.

Moreover, it is also stated that the Governor in Council may, by order, designate a province for purposes of the definition of "applicable guidelines".

The verb "may" is used just about everywhere. This has just been discussed. It means that, if a province issues guidelines, it absolutely must obtain the blessings of the federal government for these to be applicable.

The same federal paternalism as always. The federal government is, therefore, imposing its view on the provinces, but it is a view that does not always take reality into consideration. Let me tell you, I personally can do without this centralizing paternalism, which is the trademark of this government, moreover. If a province finds the guidelines it has set being refused, this could lead to absurd situations.

The most striking example is one where a separation is governed by the grid of a province, while the divorce would be under the federal guideline. A mother of two who separates could be awarded $1,500 under the provincial grid, while another who divorces could get $1,000 under the federal one. Where does the problem lie?

Let us identify this problem. Such a rule must be done away with. This is why we must take away all the discretionary power that this bill gives the federal government and, therefore, the amendment proposed by my colleague from Quebec must be seriously taken into consideration.

This amendment provides that once a province has satisfied federal criteria, its own guidelines will automatically be recognized in replacement of federal guidelines. This would eliminate the possibility of facing situations out of control like the one I referred to earlier.

Another aspect of the bill which concerns me a lot is the provision which takes into consideration the place of residence of the payer instead of that of the child for purposes of the award. Once again, they forget that this legislation must serve children exclusively, yet it tends to forget them too easily.

However, children should be at the core of this measure. This bill must be improved for the protection of those children. We hope and I eagerly hope that the members opposite will take into consideration each of the amendments proposed by the Bloc Quebecois in order to improve the protection for our children, and I stress the word protection.