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.