moved:
Motion No. 1
That Bill C-41, in Clause 1, be amended by replacing line 33 on page 2 with the following:
"the order, a .1) where both spouses or former spouses are not ordinarily resident in the same province at the time an application for a child support order or a variation order in respect of a child support order is made, or the amount of a child support order is to be recalculated pursuant to section 25.1, and the province in which the child in respect of whom the application is made and is ordinarily resident has been designated by an order made under subsection (5), the laws of the province specified in the order, a .2) where an application described in paragraph ( a ) is made in respect of more than one child and the children are not ordinarily resident in the same province, the Federal Child Support Guidelines, and,''
Motion No. 2
That Bill C-41, in Clause 1, be amended by replacing line 10 on page 3 with the following:
"(5) The Governor in Council shall, by order,"
Motion No. 3
That Bill C-41, in Clause 1, be amended by adding after line 18 on page 3 the following:
"(5.1) Notwithstanding any provision in any Act of Parliament including this Act, the Governor in Council may not amend or repeal an order made under subsection (5) and may not establish guidelines under section 26.1 applicable to a province that has, under subsection (5), been designated a province for the purposes of the definition "applicable guidelines" in subsection (1)."
Motion No. 12
That Bill C-41, in Clause 11, be amended by replacing lines 18 to 20 on page 13 with the following:
"orders for child support, including guidelines"
Mr. Speaker, the amendment proposed by the Bloc Quebecois has in mind the very specific context where the parents who are divorcing no longer live in the same province at the time an application for a child support order is made to the court.
Why did we present this motion? We did so because the solution put forward by the Minister of Justice for determining which grid will apply in these cases does not strike us as the best one. The minister is proposing that the court use the federal grid in such a case.
In our opinion, however, the federal grid is inadequate because it makes no allowance for provincial transfer payments to families. The Quebec grid, on the other hand, was developed by the level of government closest to families, the one that sets family and social policy, the one that determines tax policy, the one that looks after day care, income security programs, family assistance programs, health programs, and I could go on.
In Quebec, as in other provinces, government policies result in transfer payments to individuals and families. However, since the government approach reflects a certain vision of society, transfer payments made by the Quebec government differ from those made by other provinces.
Accordingly, since the federal grid takes income tax alone into account, the amounts set out in its grid of payment levels will undoubtedly differ from those in a provincial grid. Therefore, if the federal grid is applied to parents of children living in Quebec, for example, the whole process is distorted.
In addition to skewing the child support system, the imposition of the federal grid in cases where parents are not living in the same province will lead to an unfair situation within a province. What justification can there be for the fact that all children within a province will not be entitled to the same treatment, simply because the non-custodial parent is living in another province?
Perhaps the minister thinks the other provinces in Canada will go along with the proposed grid. We have no intention of doing so. However, the minister must keep his word and respect the spirit of his bill. If, as he says, he really means to recognize provincial grids at some future point, he must therefore agree to uniformity within the provinces first. He must not impose his grid on a parent paying support who does not reside in the same province as his child.
I would also like to emphasize that the custodial parent, usually the mother, generally changes place of residence less often than the father.
Thus, in order to respect provincial autonomy, and to ensure that children in the same territory are treated uniformly and their economic stability respected, it is very important that the grid to be applied be the one drawn up by the province in which the child resides, regardless of the place of residence of the paying parent. This is a matter of justice.
Moving on immediately to Motion no. 2, I will try to explain it to our audience. This is a very important motion, because it reveals the specific intentions of the federal government concerning the possibility of recognizing the guidelines drawn up by the provinces.
The word "may" confers upon the government virtually absolute discretionary power. I say "virtually absolute" because, as Professor Garant has stated, "the courts have invariably decided that discretionary power is never absolute". The Canada Interpretation Act, which applies to all legislation passed by the Canadian Parliament, stipulates in section 11 the difference between "shall" and "may". I quote: "The expression shall' is to be construed as imperative and the expressionmay' as permissive".
I would point out that, in this case, the verb used in clause 1(4) of the bill is "may". The clarification of the Minister of Justice's intentions, which he offered during testimony before the committee is most revealing: "The creation of guidelines for child support is something new for the Government of Canada. This is the first time we have done this. It is difficult to predict all of the questions that will arise in future. We have, therefore, used the words that were in the clauses before the Committee, in order to allow the government some degree of flexibility".
It is obvious, furthermore, that, despite the fact that it says it will recognize the provincial guidelines, the government is not too keen on the idea, and I again quote the Minister of Justice: "It is the government's objective to have a national system, a uniform system. The trouble with the present system is that it is unpredictable. So generally speaking, we want the system for determining child support payments to be predictable, uniform and national. The government acknowledges that individual provinces may wish to establish the amounts and the guidelines, but it is important for the national objective to have some degree of uniformity".
Clear and specific. To avoid upsetting the provinces by invading the jurisdiction they have over family matters, the government says: "If have your own guidelines, we will respect them". However, at the same time the government says in the legislation that it will decide whether and when it will recognize provincial guidelines. I believe there is some contradiction here.
We do not go along with this proposal. We want the minister to recognize clearly the expertise of the provinces in this area and to
leave it all up to those provinces who take the initiative to develop their own guidelines. You cannot have both, that is impossible.
The problem with all this is that the government knows perfectly well that the guidelines it is about to adopt will also be used unofficially in cases that come under the jurisdiction of the provinces, which is somewhat embarrassing for a government that keeps talking about the flexibility of the federal system and its intention to decentralize. There is only one honest and acceptable solution to this problem: let the government accept our amendment and promise to recognize the guidelines that are adopted by the provinces. That is what we want to see happen.
On Motion No. 12: the words "but without limiting the generality of the foregoing" should be deleted in clause 11 of the bill. This clause creates a new section in the Divorce Act, a section that lists the criteria to be met by the provinces if they want the federal government to recognize their own guidelines.
Why do we want this deletion? The answer is quite simple. Here again, the federal government is trying to establish discretionary powers. In fact, it is telling the provinces that it may recognize their guidelines, provided they meet the criteria set in section 26.1, but it also says, with the words we want deleted, that these criteria may change without prior notice and, above all, that there may be other requirements that are not specifically provided in the legislation.
This is unacceptable. Why should a province rely on some future recognition of its guidelines if at the same time the government reserves the right to change at any time the criteria for such recognition? How can a provincial government do any proper planning when it does not know what the federal government is going to do? This is a cat and mouse game.
The rule of thumb for legislation should be clarity: the terms, the objectives and the consequences of non-compliance should all be crystal clear. Clause 26.1 the government is proposing is not clear, anything but.
To show its good faith, the government should clearly set the rules of the game. Obviously, the words "but without limiting the generality of the foregoing" must be deleted from the text of the final version of the bill. I hope my government colleagues will accept my amendment.
There is still Motion No. 3. The purpose of this motion is to protect provinces that adopt their own guidelines, once these guidelines have been recognized by the government.
This motion specifies that once they have been recognized by order in council, the guidelines of a province cannot be revoked by an act of Parliament or by any provision of this legislation.
It was also quite clear from the minister's testimony that the minister was somewhat uncomfortable with the idea that provincial
rates might differ from the federal rates. He did not like this idea at all, to say the least.
Bearing this in mind, we ask that the bill include a clause that would guarantee the continued recognition of a province's guidelines, once those guidelines have been recognized for the first time.
Quebec is about to adopt its own guidelines. The process leading up to this legislation has been a long one. The Quebec government held extensive consultations with stakeholders. It also had to align this new legislation with its policies in the works and its vision of where it should be going in terms of family policy.
What we are asking the government is to respect the will of the provinces, and this bill is a case in point. Since the Quebec government has just reviewed its own guidelines, I see no other choice for the federal government but to accept and respect the work done by the provinces, including Quebec in this case.
As you know, we must be careful to avoid overlap and duplication in this area.