Debates of Nov. 6th, 1996
House of Commons Hansard #98 of the 35th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was guidelines.
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Motions For Papers
The Acting Speaker (Mrs. Ringuette-Maltais)
Is that agreed?
Motions For Papers
Some hon. members
The House resumed from November 5 consideration of the motion that Bill C-61, an act to implement the Canada-Israel free trade agreement, be read the third time and passed.
Canada-Israel Free Trade Agreement Implementation Act
The Acting Speaker (Mrs. Ringuette-Maltais)
Is the House ready for the question?
Canada-Israel Free Trade Agreement Implementation Act
Some hon. members
Canada-Israel Free Trade Agreement Implementation Act
The Acting Speaker (Mrs. Ringuette-Maltais)
Is it the pleasure of the House to adopt the motion?
Canada-Israel Free Trade Agreement Implementation Act
Some hon. members
Canada-Israel Free Trade Agreement Implementation Act
Some hon. members
(Motion agreed to, bill read the third time and passed.)
Canada-Israel Free Trade Agreement Implementation Act
Marlene Catterall Ottawa West, ON
Madam Speaker, I rise on a point of order. I might prevail on the Speaker and on the House to inquire as to whether there is unanimous consent to return to Routine Proceedings for a committee report.
Canada-Israel Free Trade Agreement Implementation Act
Some hon. members
Committees Of The House
Marlene Catterall Ottawa West, ON
Madam Speaker, if the House gives its consent, I move that the 44th report of the Standing Committee on Procedure and House Affairs, presented to the House earlier this day, be concurred in.
(Motion agreed to.)
Committees Of The House
Marlene Catterall Ottawa West, ON
Madam Speaker, again, if there is unanimous consent I move:
That the membership of the Standing Committee on Procedure and House Affairs be modified as follows:
Substitute Bonnie Hickey for Peter Milliken.
(Motion agreed to.)
November 6th, 1996 / 3:35 p.m.
Allan Rock Minister of Justice and Attorney General of Canada
moved that Bill C-41, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act, be read the third time and passed.
Madam Speaker, I am pleased to speak today on third reading debate of Bill C-41, which is intended to amend a number of statutes to provide a comprehensive approach to improving the
system in Canada for determining the amounts and making more certain the payment of child support for parents who separate.
The objective, first and foremost, is to ensure that the interests of the children are put first in terms of financial support when families separate.
The House will know from the measures already announced that the initiative rests on four principle grounds. First is the creation through regulations to the Divorce Act of guidelines governing the determination of standard, uniform amounts for child support depending on the income of the parents.
Second is a change to the way child support payments are taxed to make things simpler and fairer.
Third is an improvement to the process by which the federal government assists in the enforcement of child support orders once made.
Last is a measure that will double within the next two years the amount of the working income supplement which is a tax free component of the child tax benefit available to working families with children whose total income is less than $26,000 per year.
First of all, I must say that we have introduced the child support guidelines as a way of determining what constitutes a proper amount of support according to the financial capabilities of the payer.
They involve numerical calculations which take into account amounts that families at similar income levels would spend on their children. These amounts are easy enough to ascertain. They are presented in a table format, similar to an income tax table.
In this way, child support awards can be consistent, fair and predictable. Yet at the same time, the objective of consistency always has to be balanced with the need to have sufficient flexibility to deal with individual circumstances.
Consequently, application of the table amounts is not completely rigid. The table award can be adjusted either upwards or downwards to account for special expenses or for any undue hardship suffered by either parent or the child as a result of awarding the amount of child support proposed by the guidelines.
In addition, there is a provision in the bill which allows the court to adjust the award if it causes unfairness because of special provisions made in a pre-existing agreement between the parties.
For example, if the couple agreed that the custodial parent would maintain ownership of the family home but that in return the amounts of child support would be lower than they might otherwise be, a court could consider departing from the guideline amounts, taking into consideration the unequal division of property. This allows parties to negotiate agreements that may be suitable to their own particular situations.
Also in recognition of the reality that many children's parents are not fortunate enough to be represented by legal counsel, the guidelines will help ensure that they too benefit from an adequate award by providing for a standard amount depending on income.
During the hearings on Bill C-41, the Standing Committee on Justice and Legal Affairs heard from a wide variety of witnesses, many of them representing separated and divorced parents. One of the issues they addressed was the challenge we face in working toward a greater consistency in awards while allowing for some flexibility to adjust to individual circumstances. Some witnesses thought that a greater discretion should rest in the court while others preferred the greater predictability and consistency that the guidelines provide.
However, the major legal organizations appearing before the committee, such as the Canadian Bar Association, the Barreau du Québec and the National Association of Women and the Law, all welcomed the guidelines as an initiative which provided a better balance of predictability and response to individual circumstances. They considered the guidelines to be a positive step.
And I am confident that canadian families will share this conclusion once the guidelines are operational next May.
There are no doubt those-as there were among the witnesses before the committee-who considered the actual amounts in the guidelines to be either too high or too low. Opinion will be divided forever on whether we have captured just the right amounts in the relevant income categories. However, we believe that as a matter of policy, standard guideline amounts are a vast improvement for children of separated families and we have to start somewhere.
The first draft of proposed guideline amounts were published in 1992 and there were many who commented and reacted. The federal-provincial-territorial committee that designed these proposals went back to the drawing board with those comments in mind and published a second proposed guideline table in 1995. Once again reactions and comments were received, changes were made. In the income levels of $40,000 and below there was a 15 per cent across the board increase in the proposed amounts.
We believe the amounts now proposed are realistic, fair and appropriate. However, I want to assure the House that Bill C-41 contemplates continuous review and monitoring of these amounts,
and of the guideline system as a whole, to ensure the process can be changed and improved to meet and overcome difficulties as they arise.
Bill C-41 provides for a review process that contemplates a report to Parliament on the operation of the guidelines to be tabled no later than the fifth year following the implementation. If the right balance has not been struck, there will be an opportunity to change the guidelines.
The Department of Justice is committed to ongoing monitoring. If gaps arise early on, before the end of the five-year review, they can be addressed quickly through amendments to the regulations. The guidelines are primarily found through subordinate legislation. That will allow us to respond more quickly and effectively when changes are needed.
This is a process that has been followed in other countries which have adopted guidelines, including Australia, New Zealand, England and each state of the United States of America. The guidelines will be refined and improved as experience is amassed in dealing with them. It is extremely significant that in none of those countries where guidelines have been adopted, has it been concluded that it would be appropriate to return to the old system of judicial discretion from which we are now departing with the adoption of a similar approach.
I am confident that in bringing forward this legislation we are taking a significant and a positive step for the children of separated and divorced families in Canada and we are doing so in a way that is flexible and capable of responding to the need for adjustment as time goes on.
Adequate and consistent awards are of little comfort to children if they are not paid. That is why more than half of the bill is devoted to measures which will strengthen the existing means of enforcement available to the federal government, introducing new ways of securing payment of support for children.
The federal licence denial mechanism set out in part III of Bill C-41 is a new measure designed to deal with those support payers who persistently breach their payment obligations.
We know that many parents make their child support payments in full and on time, notwithstanding the fact that they often do so with great difficulty. They take their responsibilities seriously. It is out of respect for those people who make their payments in full and in the interests of the children who would otherwise suffer that we must do everything possible to ensure that those who can pay but wilfully refuse to do so are pursued by every means within our disposal. Part II of Bill C-41 is designed to do just that.
While many of the options relating to enforcement fall within provincial jurisdiction, the new licence denial measures in Bill C-41 will provide concrete action at the federal level to address chronic and wilful default by those who can pay but do not. It will provide provincial and territorial governments with programs and new enforcement mechanisms to go after delinquent debtors and send a strong message that they must address and not avoid their support obligations.
Refusing to support one's children is a serious breach of the law with consequences that can affect children throughout their lives. It is not simply a matter of providing the necessities and furnishing financial support. The record shows that a child who is in a situation where payments are not made by an absent parent bears emotional scars for life and takes the message that the absent parent has abandoned or rejected them and left them behind.
The legislation we are urging on the House is intended through its specific requirements to ensure that licence denial at the federal level is available to the provinces which seek it as a last resort against support defaulters who have persistently breached their obligations. Since our goal is to see that children are supported, particular emphasis is placed on making sure that the defaulter is given an opportunity to avoid licence denial actions by making arrangements for payment with a provincial enforcement agency.
In addition, we are taking steps to strengthen the effectiveness of our existing enforcement services by ensuring that support recipients obtain monies owing more quickly.
While the major role of enforcing support orders is carried out by provincial and territorial enforcement programs, the federal government is the largest collector, on their behalf, of delinquent payments.
Through garnishment of income tax refunds and unemployment insurance monies, among others, the federal government collected $53 million last year. And it is estimated that at least this amount or more will be collected again this year.
The salaries and pensions of federal employees can also be garnished for support enforcement purposes.
Through Bill C-41, the government will collect more, and more efficiently, on behalf of children owed child support in this country.
It is often difficult to locate a defaulting parent who is in arrears. So as well as garnisheeing money owed to the children the federal government helps provincial governments find payers whose whereabouts are unknown. Accurate information to locate persons who have breached family support orders is a key first step to collection.
One of the most significant and practical improvements provided in part II of Bill C-41 is the addition of the data banks of Revenue Canada to the list of those sources already searched to provide address information for locating defaulting payers. The confidentiality of the information held by Revenue Canada will be safeguarded to ensure that it is used solely for the purpose of locating support defaulters and securing support payments.
Finally, I should not leave the subject without noting that many of the witnesses who appeared before the committee expressed the wish that we would have gone further into a different but related area of custody and access enforcement in dealing generally with the subject of child support.
There is no question that difficulties with custody and access are the single most significant and difficult source of emotional pain for separating parents. Among all the problems that are presented when parents divided and must share the responsibility of children in those difficult circumstances, deciding on and honouring the terms of custody and access present the most complex and challenging of the problems.
The Divorce Act already provides that when access and custody are being determined or enforced, the court must be governed by the best interests of children. As a result of amendments introduced in the House 10 years ago, the Divorce Act also provides that in determining which parent is to have custody, the willingness of the intended custodial parent to provide maximum access to the other parent is to be taken into account, reflecting the underlying value that we must place on the child seeing as much of both parents as possible, all other things being equal.
But the disputes between parents on terms of custody and enforcing access are such that more than merely legislative change is required in order to meet them. We can use all the words we want to express the desire we all feel that in appropriate cases, all things being equal, both parents should see as much as possible of the children when the parents separate.
In the last analysis it is up to the two individuals in their own circumstances, in their own good conscience and acting in the best interests of their own children to resolve the problems that arise.
Some three or four years ago the Department of Justice started a broad public consultation on the subject of custody and access. After spending those years discussing with judges, family law lawyers, family counsellors, custodial and non-custodial parents, children, medical experts all of the issues arising from custody and access paradigm, we concluded that no consensus was out there in terms of specific legislative changes to be made to help improve the situation.
There are so many facets to this difficult problem of human relations that there was no consensus about how a legislature could
help beyond what is already there as tools in the Divorce Act. And so this bill does not propose legislative change to deal with custody and access. It deals rather with child support. It is careful not to link child support and access because in our judgment that would be a terrible mistake.
To suggest or to provide that money could be withheld if access is denied would leave the child or the children hostage to the emotional dealings between the parties. It would deny the child necessities based on the ability or willingness of the parents to iron out their difficulties in terms of access. That is simply bad public policy and is unacceptable.
We recognize that the issues of custody and access remain unaddressed at least in terms of the federal legislation. It is our intention, once Bill C-41 is adopted, to renew and complete our work on custody and access to determine whether there is any way in which we can, through legislative change or other policy initiatives, improve the present situation in Canada in terms of custody and access.
For the present those are the reasons this bill does not deal with that subject. Rather, it deals with the four elements which I described at the outset:
First, it has guidelines to help introduce an element of consistency and practicability in establishing uniform amounts geared to income for children. It takes the guesswork out of fixing child support amounts. It provides guidance to parents as to what their obligations are. It reduces the costs of litigating this issue and perhaps facilitates the settlement of issues between parties by taking at least one issue off the table and providing a legislated response.
Second, it changes the tax system. It eliminates the deduction to the payer and no longer requires the recipient to take child support into income for tax purposes. It sweeps away a rule that was put in place in the early forties so that the tax system can more fairly reflect the social values of the current age and overcome the unfairness of the custodial parent having to pay income tax on what is not usually money for that person but is support for the child. It relieves the custodial parent of the burden of administering the tax system with all of the complexities that involves.
Third, it strengthens the provisions for enforcement, as I have described them today.
Fourth and last, it takes all of the revenue the federal government will derive from ending the deduction for the payer and devotes that revenue dollar for dollar and then some to a doubling of the working income supplement. This provides tax free dollars for
those who need it most: working families with children and incomes below $26,000.
I should say in closing that the measure of doubling to $1,000 per family the working income supplement in July 1998 will result over the next five years in our putting more than a billion dollars of additional revenue into the hands of over 700,000 families in this country, fully one-third of whom are single parent families. That is going to be a real improvement to the lives of those children.
I commend Bill C-41 to the House as an important part of an integrated strategy to improve the system for child support payment and enforcement in this country. It represents sound public policy and a genuine improvement for children of separated parents. I ask the House to support it.
Christiane Gagnon Québec, QC
Madam Speaker, the passing of Bill C-41, which seeks to modify the system for determining support payments is, in our view, another indication of this government's unwillingness to listen to the provinces, in this case Quebec. It is still the same old game of cat and mouse, as we see again with this bill on support payments.
The current government is once again imposing legislation that we think is flawed, and is rejecting out of hand amendments from any party other than its own. This is a sad state of affairs and I deplore it, particularly as the purpose of this bill is to improve the living conditions of children.
I know that the minister is just as anxious to attain this goal as I am. However, the route chosen does not seem to be the same as the one favoured by Quebec. When we compare the guidelines being proposed by Quebec and those being proposed by the federal government, it is clear that we are at cross purposes. I will come back to this a bit later.
Right now, I would like to remind the government that too often its words are unfortunately at odds with its actions. As always, the government claims to have fine principles. It proclaims its wish to work toward decentralization of power, but it does absolutely nothing concrete to move in this direction when the opportunity arises.
I think that this bill was a good opportunity for the government to show that it was open to including the small changes needed to recognize Quebec's distinct character. I will, if I may, repeat what the Prime Minister said less than a year ago, on November 29, 1995, during the debate on the much discussed distinct society motion. Members will recall, I hope, that it is this motion the Prime Minister is relying on today in his attempt to trick Quebecers into believing that he has kept his pre-referendum promises.
Back to what the Prime Minister said. He said, here in this House: "I made three commitments during the Quebec referendum campaign: first, to recognize that Quebec forms a distinct society within Canada; second, not to make any constitutional change that affects Quebec without Quebecers' consent; and third, to undertake changes to bring services and the decision making process closer to citizens". This is where I would question the minister. In this bill, I would like to see him respect the guidelines proposed by the government of Quebec.
Members on the government side will have noted, I hope, that Quebec forms a distinct society, or so their leader claims. They will also have noted that he spoke of bringing services and the decision making process closer to citizens.
Regarding the recognition of Quebec as a distinct society, the Prime Minister said a bit later on: "Once it is passed, this resolution will have an impact on how legislation is passed in the House of Commons. I remind Canadians that the legislative branch will be bound by this resolution, as will the executive branch". "This is a real, dynamic recognition, recorded in the very heart of our country's government". That is what the Prime Minister said. I am not inventing anything, I have taken it word for word from what he said.
I will repeat it again, for I am a person who has doubts if somebody tells me one thing and does the opposite. "Once it is passed, this resolution will have an impact on how legislation is passed in the House of Commons. I remind Canadians that the legislative branch will be bound by this resolution, as will the executive branch. This is a real, dynamic recognition, recorded in the very heart of our country's government". When I say that the words spoken in this House by this government are not in keeping with its actions, this is the proof.
On Bill C-41, we had proposed modifications, amendments, and I would liked to have seen some of them passed. I could perhaps have thought there was come connection between these words and the actions being prepared. I have to say that this is lip service only.
The motion on the distinct society is supposed to have a real impact on the way the wording of bills is passed. What impact did this motion have on Bill C-41? Barely two days ago, the Bloc Quebecois presented motions to amend the bill, to improve it, to bring it more in line with the aspirations of Quebecers.
Two days ago, we proposed that a province's guidelines be automatically recognized if they met the standards set out in the bill, the criteria imposed by the federal government. It seems to me that this is not so difficult, when they claim to wish to recognize
different ways of doing things, and acknowledge in a bill that Quebec is a distinct society.
I will tell you why we think it is distinct. In my opinion, this position was perfectly reasonable and desirable. First, as I have said, we accepted, albeit a bit reluctantly, it is true, the federal jurisdiction over divorce. I say a bit reluctantly, because Quebec has long desired to regain jurisdiction over divorce. Why? Because this is one more aberration in the division of powers. We cannot, of course, rewrite history, but it is still a fact that Quebec has been extremely patient in constitutional matters.
Divorce renders the end of a marriage official, as everyone knows. That is a self-evident truth. Since unions between individuals fall under civil law, and therefore under provincial jurisdiction, it became evident to Quebecers long ago that dissolution of marriage ought to also be a provincial jurisdiction. Such is not the case. however.
Despite this historical aberration and despite Quebec's desire to regulate this area, we acknowledge, still being part of the federal regime, that divorce does fall under federal jurisdiction.
Now we find the federal government wanting to modify the Divorce Act. Is this not a good opportunity to make some space for Quebec and the other provinces?
The government has made sure not to do so, and this is what we find regrettable. We propose to respect the standards imposed by the federal government, and that is acceptable, but what we are demanding is that, once this condition is met, they give way in favour of the provincial rules.
Why is it so important for Quebec and eventually for the other provinces? Because the Quebec government is closest to its citizens. As we said repeatedly only two days ago, this is the government that administers all aspects of life in our society. It is the government that is responsible for education, for providing assistance with housing, food, clothing, entertainment, health care, transportation, and so forth. In fact, the list is much longer.
The Quebec government and other provincial governments are there to redistribute wealth and ensure that citizens who are less well off or not as well equipped to make their way through life have the minimum they need.
The provincial government looks after family life, day care and the problems in this respect. So obviously, as we said before, it is in the best position to know how to organize a child support payment system in terms of the choices this society has made.
The Quebec government, as we all know, is about to adopt its own guidelines. We explained at length that before drafting a final policy, it considered all provincial transfer payments to its citizens. It had to bring this new legislation into line with all its existing and draft policies and also in terms of the government's review of its approach to family policy.
The Quebec government, for the benefit of Quebec society and especially that of its children, is preparing to adopt a policy on child support payments, a policy that will complement steps that have already been taken with respect to the collection of support payments and their tax treatment.
We are talking about a concrete aspect of the specific identity of Quebec society. That is why we asked the federal government for a commitment to recognize the guidelines established by a province for child support payments.
What did we get as an answer? A resounding no. We voted yesterday, and it was no all the time. All the amendments we proposed got no for an answer from all government members. I find that deplorable. And do not tell us they are sensitive to Quebec's demands. We have made those demands clear in this House ever since we were elected. Was an amendment ever really accepted? The list is very short, even in that case. And we deplore that.
The response we got smacked of the usual paternalism. We were told that the federal government alone, without any debate in the House, will decide if it feels like recognizing provincial regulations. Period.
The Liberals are now in power. What would happen if they lost the next election? No one knows. That is what we deplore. We would have liked this bill to be sent back to committee so we could talk about this. It is up to the people's elected representatives to discuss general policy matters. This should not be done in small, restricted committees.
This is rather inconsistent with the Prime Minister's comments, which, I think, is unfortunate. It is totally inconsistent with the fine promise to respect Quebec's distinct society. It is totally inconsistent with the promise to bring services and decisions closer to the people.
As far as I know, the provincial governments are closer to their people than the federal government. That is what I am told every day. When I tell the people in my riding that I come back every weekend, they feel-and it is true, given their interest in provincial legislation and in their government, not only in Quebec but in the other provinces as well-that their provincial government is closer to them.
I also deplore the federal government's spending powers that have grown over the years. That is why we have an enormous
deficit. There is overlap and duplication. Even our friends in power never had the nerve to pretend that the federal government was closer to its people than the provincial governments. It think it would have been too much, even for them.
This is the first proof that the Prime Minister's promises were not kept and that his government has no intention of keeping them. Allow me to be sceptical. Even in a neutral bill like this one, the Liberals found a way of sweeping Quebec's demands, however modest, under the carpet.
I will now move on to the second motion we proposed in order to improve Bill C-41. Its purpose is to limit the list of criteria listed in new clause 26.1.
The minister did not say anything about it earlier. That is another problem. As we know, this section lists subjects that federal or provincial authorities may legislate guidelines on. Basically, these are all the foreseeable issues that may arise in relation to child support. These are the criteria I referred to in the first part of my speech.
The problem with section 26.1 is that not only does it list requirements, but it leaves the list open. Why is this a problem? The problem arises from the fact that these requirements represent an absolute prerequisite to the recognition of provincial guidelines by the federal government, while the word "including" leaves the door open to a redefinition of these requirements. Additions could be made whenever someone feels like it without the hon. members having any say in the matter.
The bill explicitly provides that, before any province may implement its own guidelines in divorce cases, these guidelines must have been approved by the federal government. In order to be approved by the federal government, the guidelines must meet the requirements set out in section 26.1. But in section 26.1, the requirements are listed under the phrase "including".
This word is explicit. It means that what follows are examples, indicating that the list is not restrictive or exhaustive. So, should the government change tomorrow, they could take a look at the act and decide to apply it completely differently. How can a province make sure to meet the federal requirements when it knows only about part of them? How can a province make sure to meet the federal requirements if the federal government can change these requirements as it pleases?
Let us imagine for a moment that a similar procedure applied to tenders regularly issued by the government. There could be, for instance, an invitation to tender for the provision of building materials. The contract would state: "The tenderer shall provide the materials required to build a museum. He may also be required to provide materials to build another type of building".
The fact is no one in the business would venture to bid on something like that. We can easily understand why. How is the required materials cost supposed to be estimated without knowing how much will be needed?
Let me give you another example: the provision of services. No one would respond to an invitation to tender for janitorial building maintenance services stating that other work may be involved, but not specifying what. How are people supposed to know if they can meet the requirements for a given job when they do not know the specifics? While simplistic, these examples are good illustrations of the arbitrary nature of a clause that uses the term "including", particularly when it applies to a regulatory process, something about which I have doubts.
How could a province believe in an eventual recognition of its guidelines, if the criteria relating to this recognition can be changed at any time, at the federal government's discretion? How will a provincial government be able to set its work objectives if it does not know the expectations of the federal government, or if these expectations are likely to change? It is like playing cat and mouse. The federal government puts out a piece of cheese, watches the provinces run for it and then puts the piece out of reach. This is more or less what will happen with this bill.
Clarity must be the basic rule regarding legislation. The theme, the objectives and also the consequences for non-compliance must be clear. However, the proposed clause 26.1 is not clear, far from it.
In order to show its goodwill, the government must clearly set the rules. The word "including" should have disappeared from the final version of the bill, as was my wish and that of Bloc members and Quebecers. Once again, the Liberal team did not deem it appropriate to take into account its commitment to respect the jurisdiction of the provinces.
Far from facilitating the taking over of responsibilities by the provinces, the federal government passes legislation that could put off some provinces, including Quebec, and deter them from taking any initiative regarding the issue of child support. We do not want this to happen and nor does the minister, because, as you know, the objective is to improve the living conditions of children. We are all working toward this goal. However, Quebec wants a little more flexibility, and should have it. The government is working on guidelines which will not be based on the same criteria as those that will be proposed by Quebec.
However, I do not think Quebec will let the federal government put it on the sideline. The issue will turn into another battle. As we said, Quebec will proceed very soon. What will happen then? I do not know. The situation is quite simple: Quebec is once again in the great position of having to totally depend on the federal government's goodwill regarding whether or not these guidelines will apply in the case of a divorce. Is this the respect shown to Quebec society? Is this the respect shown by governments that are close to
their citizens? This government shows its respect by keeping things in a precarious position, and this is what we deplore. This is why we are fighting in this House; this is what we were elected for. This government shows its respect by keeping the provinces in the dark. Its rule is might is right. Some respect!
This kind of respect is also displayed by the Liberal government's attitude toward our request that the child's place of residence-and this is important-be the factor determining whether federal or provincial rules will apply when the parents do not live in the same province. There is disagreement on this issue. Quebec wants the place of residence to be that of the child, while the federal government says it should be the domicile of the parent paying support.
This may seem inconsequential to a member who does not really pay attention to this issue and who simply votes as instructed by his whip. However, this unjustified refusal by the Liberal team will have a negative impact on many children, and I will tell you why.
I will repeat the explanation given by my colleagues and myself barely two days ago. Perhaps certain members across the way did not hear, or perhaps they were absent. I will repeat it. The bill states that, when parents do not reside in the same province, the federal guidelines will apply. We in the Bloc Quebecois say that the guidelines of the province in which the child lives should apply.
I will attempt to explain why. Setting aside the fact that the federal grid does not, in our opinion, take into account all pertinent information and is therefore flawed, and setting aside the fact that, as I explained earlier, the provinces are in the best position to develop their own grid, this rule will skew the support payments regime and will create unfairness within a province, because children in the same province will not all be entitled to the same treatment for the sole reason that their non-custodial parent lives in another province.
Furthermore, as I mentioned two days ago, since the stability of the custodial parent is usually greater than that of the parent paying support, it follows that the economic stability of the child demands that his place of residence be the criterion used, to prevent grid shopping by the parent paying support.
It is difficult to justify this government's rejection of our proposal, all the more so in light of the Prime Minister's fine words, his fine promises to respect Quebec society and to respect the provinces. They were empty words, and nothing more.
When we know that families come under the exclusive jurisdiction of the provinces, and rightly so, we are entitled to wonder why the Minister of Justice is unwilling to budge, unless what he has in mind is the provinces leaving it to the federal government to resolve all support payment cases, regardless of their legal foundation. Unless that is what the minister wants.
Someone across the way should have reminded the justice minister that he must keep his word and respect the spirit of his bill. If it had truly been his intention, as he says, to recognize grids adopted by the provinces at some future date, he should have recognized that the principle of uniformity applies first of all within the provinces. He ought to have given up on imposing his grid for paying parents living in a different province than the child. He has not done so. Like his Liberal colleagues, the minister has perpetuated the closed-minded attitude Quebecers are so accustomed to.
One other proposal by the Bloc Quebecois was cavalierly rejected yesterday. It was intended to protect the provinces. The purpose of the proposal was to confer a grandfather clause on provinces which had already adopted their own guidelines, and which had succeeded in having them recognized by the federal government. Why such a clause?
First of all, my fellow citizens will have understood that there is not exactly an atmosphere of total confidence reigning at present. When, as it has clearly done in its bill, the government keeps all of the doors wide open, when it does not yield even one inch of a virtually absolute discretionary power, there are grounds for wondering where it is headed, and how it plans to exercise its powers. If the past is any indication of the future, Quebecers will have to brace themselves for more federal government imperialism, especially from the present government.
What is more, even in a context that is relatively more harmonious, in most areas the parties often deem it more prudent to have a "grandfather clause" in order to ensure stability, whether for a business contract, a collective agreement, or an agreement between governments.
Considering the huge efforts invested by a government in drafting and passing total legislation on support payments, it can be readily concluded that there are grounds for preserving acquired rights for some time to come. That is what the official opposition tried to do on Monday. That is what the government refused to do on Monday, on purely partisan grounds, if I dare say so.
If we look at this rebuff in the context of the fine promises of November 29, 1995, it is patently obvious that the Liberal government has no intention of modifying one iota of the legislative process in recognition of the distinct society and to show respect for the governments closest to the people.
The members of the Bloc Quebecois did not need this further evidence of the hollow statements and promises made by the Prime Minister and his team. However, Quebecers have now seen once again that they have nothing more to expect from the federal government.
In concluding, I would like to point out that the official opposition will vote for this bill only because members of the Bloc Quebecois believe in the value and importance of guidelines for child support payments.
We will vote for this bill because we support the principle, because we believe that guidelines will improve the quality of life of women and children, of Quebecers and Canadians. We will vote for this bill because we believe in a more just society, a society where poverty will no longer be the fate of a large part of the population.
We will vote for this bill because we set a priority on principle and the well being of our fellow citizens. Certainly not because we believe the bill is adequate in its final form. That is what I wanted to say this afternoon. Certainly not because we appreciate the overly paternalistic attitude of the present government. That is what I wanted to deplore this afternoon.
Sharon Hayes Port Moody—Coquitlam, BC
Madam Speaker, I rise today to speak to Bill C-41. This bill establishes a framework for the use of child support guidelines and measures to tighten enforcement of support orders, to be effective May 1, 1997. It amends the Divorce Act, Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act.
It is my understanding that it does not apply to unmarried or separated persons but it is expected that the provinces will enact similar legislation and that the provisions will be applied unilaterally in the provinces.
It is assumed following the passage of Bill C-41 we can expect changes to the Income Tax Act to make child support payments taxable in the hands of the non-custodial spouse, or ex-spouse in this case.
This bill follows a federal-provincial territorial task force report which did encompass the areas of custody, access and maintenance. It is interesting to note that this bill virtually ignored two-thirds of that report and simply went to the issues of child support guidelines and enforcement.
This bill passed report stage on November 5 and the Reform Party did express concerns and amendments at that time. First was the consideration of the appropriateness of the process of guideline review. Those guidelines are out of sight of public scrutiny and are not as flexible as we felt would be necessary.
Second was the consideration of the payment and the ability to pay and who it was that would be taken into consideration in the payment of the child support.
Third was the lack of direction in the root causes and the damage done through divorce proceedings and substantive measures to address those root causes. That involves the issues of access and the process of the divorce itself. I will be addressing these topics today.
It is not often that the Divorce Act is opened up and when it is, it is an important enough topic that Reform feels that surely the government should take the time and the effort to do what is necessary, to do what is best in this area. Today I ask this government what indeed are the best interests of the child. Certainly that is an issue that surrounds this whole issue of divorce, one that needs to be answered in relation to the issue of divorce.
To whom do our children belong? Do our children belong to one parent, both parents or do our children belong to the state? How best do we address the needs of these children through what we all know is the painful and often destructive process of divorce?
These questions I fear are not well addressed in this bill and today I would like to speak to that. Divorce indeed is a tug of war between parents and perhaps the interests of government and how it then proceeds to oversee that tug of war.
On the issue of the differences, I can see three principles where the Reform Party would differ from the Liberal Party, and certainly in my discussion today I would like to bring these out. These are principles, not the specifics of the bill. I will mention them now so that these can be considered as we look at the elements of the bill.
The first principle is the importance of families in our society and the importance of government to support those families. I am afraid in so much of what I see in what this government does. It has forgotten that basic fact. Here we have a government wedded to the idea of big government that would like to tax families into oblivion with the stresses that come with the taxes that they give, families that have to work half a year simply for the government and then in light of that earn less and less each year as they work harder and harder.
This government has forgotten the value of parenting and perhaps even it has forgotten that within the family context divorce hurts. Divorce hurts the families. The family breakdown now is epidemic, going up 400 per cent in the last 30 years.
The root causes of many of our social dilemmas and the stresses that we see I believe can be found in this very epidemic that we see, whether it be youth crime, whether it be suicide among our youth, whether it be the welfare rolls or poverty itself that concerns each
of us in this country and in this place. What are the root causes? Much of it can be traced back to this very institution we talk about today.
Divorce hurts families. It hurts parents, it hurts the grandparents and those around and, I would put to the House today, most of all it hurts the children that watch it all go by.
The second principle is we have a government that is seized with its own importance, a government that thinks that government can solve all the problems, a government that thinks coming to a bill such as this in an easy, fast manner, that wants to put a legislative, legalistic quick fix to a problem that is much too major. It shows a mindset of a government that is set on itself, a government that believes in lawyers rather than people, a government that would make decisions behind the closed doors of an order in council rather than bringing them to a public place where they can be discussed.
That is the kind of government that we see at work, a government that would spend millions of taxpayer dollars on poverty programs but forget to solve the underlying issues, thinking that government can solve these things and forgetting that it is people and the families in which they live who solve the problems that are causing these very stresses; a government quite frankly that is stuck on itself.
The third principle is true equality, the equality in the processes that this government oversees, the equality of men and women, of two parents coming into a situation such as divorce, both senior partners treated with dignity and equality in the process the government puts forward.
These three issues, the importance of family, the overriding intervention of government and equality of people in the processes, are the three principles that go through the discussion that I want to bring to this place today.
I would put to the House that the government's solution, as proposed in Bill C-41, is really no solution at all. What it does is create greater inequity within our families. It creates greater insecurity within our families, greater potential rancour within the divorce process and greater potential economic loss to the parties involved with the potential need for greater litigation.
There are several concerns that I want to bring forward today which are specific to the bill. First is the guidelines, their control and application.
These guidelines will not be developed within the House of Commons. As the justice minister mentioned, there will be a review in five years and I do commend the government for putting in place a specific review process. But in the meantime these guidelines can be adjusted and changed. Again, I agree with the adjustment factor for the guidelines. However, I disagree that the adjustment be made behind closed doors, without accountability to the Canadian public. This is much too important.
The principle of order in council, behind closed doors government decision, I remind members on the other side, is something they spoke out against when they sat on this side of the House. Again in this legislation, as in other legislation, there are regulations, orders in council determining the direction of things that affect Canadians in a very real and important way.
The process of the review of the guidelines must come back to Parliament, back to the committees of this place. The process must be accountable to Canadians. The pattern of the government is all too common. It shows that the government again thinks too much of itself and too little of the Canadian people.
How would the guidelines be applied? How would they actually work in the lives of Canadians who are already in distress, in a situation which is causing them and their children much pain?
I feel that the principle of the guidelines is well intentioned. Largely guidelines can bring about a fairer process. They give parameters wherein perhaps we could have a system that would treat those involved in a fair and equitable way.
The system that existed before these guidelines were put in place was criticized for producing different awards for individuals in similar situations. It was felt that it allowed too much judicial discretion. Therefore people who were in identical support situations but with different judges and in different provinces would receive vastly different awards. The new system will produce similar awards but for very different scenarios or circumstances. In effect, we have taken the danger from one side and actually overcompensated. The solution suggested by the government could be just as dangerous and just as unfair for the Canadians who will be using the system.
The system for which the guidelines are proposed is constructed on the assumption that the non-custodial parent is basically a source of funds and that the custodial parent has the exclusive care of the child or children involved in the divorce. This is a simplistic approach to the issue. It could be a detrimental approach to the families that go through this painful procedure.
The first thing I would like to do is put forward our concerns about the guidelines. The process that is put to the guidelines withdraws the joint financial responsibility from the parents; it is one parent's single responsibility for the support of the children. The non-custodial parent is exclusively considered the source of the funds for the support of the children.
One part of the bill calls for the removal of section 17(8) of the original Divorce Act which states:
A variation order varying a support order that provides for the support of a child of a marriage should
(a) recognize that the former spouses have a joint financial obligation to maintain the child; and
(b) apportion that obligation between the former spouses according to their relative abilities to contribute to the performance of the obligation.
I repeat that this section has been removed. Reference to joint financial obligation or relative abilities of both former spouses is removed. Perhaps this is the most apparent place where the underlying function of the guidelines is clarified. Within the guidelines and the setting up of the guidelines and as I said with the removal of this section it becomes very apparent there is no longer joint financial responsibility for the support of the children.
A child is the product of two parents. Until a divorce is encountered, there is a shared responsibility for the support of that child. It is worked out between the parents and in no way does society dictate that one should support and one should not. The choice is there and should be there for both parents. That child then walks into a court with the two parents and within a few minutes, on a variation of an order, when that child walks out of the court the financial responsibility for the support of that child rests solely on the non-custodial parent. The guidelines are based on one income only and the ability to pay of that one income only.
Given the situation of a professional custodial parent and a non-custodial parent who perhaps works on commission or works seasonally or whatever it might be, it seems to me to be unfair to say that one is sole owner of the responsibility for support of the child when indeed both could work that out together.
Presently in order to change that or to revise it, perhaps at the time the decision is made the non-custodial parent is able and will be determined to be able to make that support, but the only review of that situation would be based on undue hardship. Again it would still fall back to the non-custodial parent. In the meantime, the custodial parent could have resources far beyond those of the non-custodial parent and be willing to use those resources.
This system suggests an unequal value to the ability and the desire of parents to put their resources toward their children. The way this system is put forward, it is not the ability to support the child that determines who supports the child but simply who does not get custody of the child.
If we think of that, the very rancour in the divorce proceedings centres around the custody battle. The changes to the Divorce Act the last two times it was opened-the only two times it was opened-with no fault divorce were to make the litigation process quicker, easier and less rancorous. However, battles are fought on custody considerations. Now something has been added to that battle.
Not only does the battle concern custody but the battle for custody will dictate a winner and a loser. I would suggest that the winner takes all. The winner takes the child, the winner takes what is given within the custody order. The loser loses the child and instead becomes the payer and is completely responsible for the support of the child. The ante increases in the custody battle. There is a winner and there is a loser. Not only is there a loser in the decision of who will be the non-custodial parent, but within this extended battle the loser is the child who sees the rancour involved.
The guidelines ignore the non-custodial parenting process outside the support payment responsibility. As we have said, the non-custodial parent is fully responsible for the support payment, which is based solely on the non-custodial parent's gross income. The parent in this process is defined simply by the dollars and cents they will be giving to the child, the dollars and cents that will be ordered for payment within the child support decision.
There is no allowance in the process for any expenses, direct or indirect, no matter how significant they may be, which the non-custodial parent may put toward the child they will be supporting. The guidelines completely ignore any other support in the form of expenses. The guidelines cannot be challenged without proof of a condition of undue hardship.
What about a non-custodial parent's costs for housing, transportation and food, or costs in their activities with the children? These are not even considered, nor can they be within the guidelines. This results in a very great inequity in the value of parenting between the custodial and non-custodial parents. Perhaps worse, it may be a disincentive for a non-custodial parent to put resources toward the child.
They will pay the same award regardless of how they interact with the children after divorce. The non-custodial parent who spends one day a week with their child will have the same order as one who spends three hours with their child, or perhaps one who spends every other month with their child. The actual child support guidelines will give each an identical award.
I see this as the government's lack of recognition of the value of parenting. A non-custodial parent is a parent, as is a custodial parent. Both have valued input to the child. That is not recognized and there may be a disincentive for that activity. This will lead directly to greater custody battles. If payment is all that counts, once someone becomes a non-custodial parent perhaps the custody becomes all that much more valuable. Perhaps this too gives a greater chance of payment delinquency.
In my riding and in meetings, non-custodial parents already feel abandoned by the system. Anger and betrayal are felt by non-custodial parents. They care about the children of the families that have been broken up. They have been affected in very real ways by the break-up of the marriage. It has been shown that children are affected in very real ways by the removal of one parent. They are affected by the rancour of a divorce proceeding. There is already enough anger in the court decisions and in the access problems. We need no greater anger or greater potential for anger.
The government claims that the guidelines will ease tensions and expedite the process. As I have said, the main area where acrimony arises within divorce is within the custody proceedings. By putting these guidelines forward and the way that these guidelines work, the government has upped the ante on the battle that will go on in the custody courtrooms of this nation.
This legislation means there will be more to lose in the process for the loser and there will be more to win for the winner. There will be more rancour in the process and unfortunately, the children of divorce will be caught in the middle.
Outside the guidelines, the second major portion of the bill would be the enforcement considerations that have been proposed. The Reform Party strongly supports compliance with court orders. It supports justice being done. It supports people obeying the law.
The Reform amendment that was put forward suggested that more notice be given for federal activities such as the withdrawal of passports or federal licences for the fairness of all concerned. We also recognize that the present statistics of non-compliance are indeed shocking. We want more investigation done about the reasons for this non-compliance and the sources for this data. The reasons are incredibly important. Unfortunately, because investigation has not been done on why or how the information has been gathered, we must speculate on what the reasons are for the non-compliance.
An interesting study was done in 1992 in the United States by the general accounting officer. Typically when people are investigating non-compliance, they ask the custodial parent what the situation is. In the study 66 per cent of custodial parents reported not receiving child support because the non-custodial parent was unable to pay.
Part of this legislation is the ability to pay. I would hope that indeed the guideline is met by the judges and the guidelines that are put forward. It would seem that most people feel the guidelines are a good start in that direction.
The three best predictors of compliance are the fairness of the original order, the non-custodial access to the child and the work stability of the non-custodial parent.
The fairness of the original order depends on the reasonableness of the guidelines. As I have already mentioned, the guidelines which have been put forward ignore the value of parenting and certainly the value of co-parenting. The fairness of the order must be flexible. The guidelines must allow flexibility. They should include flexibility beyond simply a condition of undue hardship. The fairness of the original order depends on a workable review of the circumstances and an equitable review of the situations of the two parents and their ability to pay support.
One of the predictors I mentioned was the work stability of the non-custodial parent. Part of that depends, of course, on employment opportunities. The unemployment rate stands at 10 per cent. That is affecting non-custodial parents who want to support their children and comply with court orders. The 10 per cent unemployment rate is very much a part of the problem which non-custodial parents face.
The final predictor which I mentioned was non-custodial access to the child. This is a determining factor of compliance. While it cannot be linked directly, however, one does affect the other. Access goes to the heart of the matter when it concerns non-custodial parents. Access and the issues surrounding it underlie the value of parenting.
In the report of the provincial-territorial task force, access, custody and support were interwoven. Divorce, access, custody and support issues cross federal and provincial jurisdictions and take us into territory which is confusing to both judges and the people going through divorce proceedings.
In B.C. in the 1980s an experiment was carried out in a family court. Federal and provincial jurisdictions were combined under one roof.
Another experiment was carried out in Manitoba in 1989. It investigated legislation that would enforce court awards that granted access of the children to non-custodial parents. It was a pilot project. It was different in that it provided access assistance. It did not enforce access. Rather than necessitating a court proceeding, it offered assessments, counselling, supervision, conciliation and arbitration. Going to court in this process was a last resort. Even then if the parties found that court was necessary for an access determination they had help available through this pilot program of assessment counselling and supervision.
As I looked at what was brought to me by different individuals in terms of access, there are three kinds of access available. The first is called reasonable access awarded. In perhaps two-thirds of cases this would be the norm. It assumes communication between the parents and that access is negotiated through that communication but sole custody would generally be allotted to one parent. It is less flexible than it sounds in that it tends to be specific but not specific through a court order or a court agreement. Reasonable access is then left up to the parents to determine the details.
It is this very process of reasonable access awarded by the courts that seems to be open over time to changes, in some cases abuse by one spouse or the other. It can lead both partners back to repeated court visits, demanding perhaps court orders to make it work.
The new system proposed would not be helpful in this type of situation. About one-seventh of orders are specified access and that is when non-custodial visitation rights are given within certain time limits. This is specified in the court agreement or in the court order. This might be a second step for a couple from reasonable access to specified access. However, couples find that within the process there is little or no enforcement of access orders provided within the court, within the system that gives them.
Within this legislation there are no enforcement measures proposed for this important area. It has been suggested to me that the provincial enforcement agencies that are proposed to enforce the child support orders could also enforce the access orders, but this has been totally ignored by the proposed government legislation.
We have reasonable access or specified access but from what I have seen the most reasonable and positive is the award of joint custody. Perhaps 20 per cent of divorce cases go toward joint custody. Sometimes it is de facto and sometimes it is de jure situations but mostly through court ordered situations. That is where parents agree to share the custody and the decisions, including access to their children. In most cases it is extremely flexible. With joint custody it can be equal or it can be that the children are mostly with one parent, but it is a custody and access decision that has flexibility without the winner and without the loser implications that we have discussed.
It does not regard children as property to be bartered over but as something valued by both parents and can be taken care of and parented by both parents. It is interesting to note in terms of enforcement and the compliance to a child support order that the best case scenario is found in joint custody arrangements.
The member for Prince George-Peace River has put forward a private member's bill, Bill C-242, that would make this type of arrangement, joint custody, the rule instead of the exception in divorce proceedings. This indeed would address the enforcement of child support and the whole issue of child support in a far more positive way than what we see within the present bill.
The government version that we see today is actually a disincentive to this type of arrangement which allows both parents to parent and both parents to dialogue. According to the government version if this joint custody is what is decided, then the guidelines must minimize the differences in the standard of living in the two households. This is a unique situation and applies to the joint custody arrangements. This implicitly then includes the entire households involved with the two parents. It includes spouses, it includes children, it includes changes in circumstance and it is very difficult. It is very hard to imagine how this will work, with changing circumstances, new families and ongoing circumstance provisions.
Someone deciding how they will have access and custody orders made would see joint custody arrangements as having a greater potential for invasion into the privacy of their home, greater potential for acrimony in the decisions and unpredictable obligations of child support in future years.
It would be less likely for spouses to take a chance on joint custody because of the unpredictability of what their obligations might be.
As I mentioned, this is the best approach. Yet this legislation would penalize those who would potentially want to take this best approach of joint custody. It would penalize those who would look at their responsibilities of shared parenting with the greatest importance. Those who want to contribute most in the co-parenting process would actually be discouraged from doing so.
What is the purpose of the Divorce Act? I would like to say that it is to protect the best interests of the child in difficult circumstances. It is to protect strong family ties and try to keep a connection with those ties and with those family members both in the process and after the process of divorce.
This takes me to my final point, rethinking the whole divorce process. A recommendation of the law society would remove the adversarial approach. I say that the process needs change. The process should go to a unified family court. The process, to be optimum, should go to compulsory mediation that would force communication rather than adversarial approaches. It would protect the best interests of the child by putting connection between the members who are going through divorce.
The Liberal version is big government, unbalanced responsibilities and rights and a blindness to the child's best interests. We need a balance to the roles of parents, equal treatment of the spouses, valuing the role of parents and making government accountable for its actions and motivations.