House of Commons Hansard #28 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was children.
Nelson Riis NDP Kamloops, BC
Mr. Speaker, this is a request by petitioners to dedicate the federal excise tax on gasoline, or at least a part of it, to rehabilitate Canada's crumbling highway system, again a dedicated tax for highway construction.
Howard Hilstrom Reform Selkirk—Interlake, MB
Mr. Speaker, I have a petition from concerned Manitobans with regard to the non-proliferation of nuclear weapons.
Canada and all state parties to the 1968 United Nations treaty on the non-proliferation of nuclear weapons reaffirmed their commitment in May 1995 to undertake to pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date.
The petitioners simply would like the House and the government to enter into a binding timetable for the abolition of all nuclear weapons.
Allan Rock LiberalMinister of Health
Mr. Speaker, I wish to table in the House copies of two letters to which I referred during oral question period.
Peter Adams LiberalParliamentary Secretary to Leader of the Government in the House of Commons
Mr. Speaker, I suggest that all questions be allowed to stand.
Questions On The Order PaperRoutine Proceedings
The Acting Speaker (Mr. McClelland)
Is that agreed?
Peter Adams LiberalParliamentary Secretary to Leader of the Government in the House of Commons
Mr. Speaker, I suggest that all notices of motion for the production of papers be allowed to stand.
Peter Adams LiberalParliamentary Secretary to Leader of the Government in the House of Commons
Mr. Speaker, I think you will find unanimous consent for the following motion. I move:
That 10 members of the Standing Committee on Fisheries and Oceans be authorized to travel to St. John's, Witless Bay, Harbour Breton, Marystown, Burgeo, Deer Lake, La Scie, Blanc Sablon, îles-de-la-Madeleine, Miramichi, Shelburne and Sambro for the week of November 23 to 30, 1997; and
That the necessary staff do accompany the members of the committee.
(Motion agreed to)
Anne McLellan LiberalMinister of Justice and Attorney General of Canada
moved:
That a Special Joint Committee of the Senate and the House of Commons be appointed to examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests;
That seven Members of the Senate and sixteen Members of the House of Commons be members of the Committee with two Joint Chairpersons;
That changes in the membership, on the part of the House of Commons of the Committee, be effective immediately after a notification signed by the member acting as the chief Whip of any recognized party has been filed with the clerk of the Committee;
That the Committee be directed to consult broadly, examine relevant research studies and literature and review models being used or developed in other jurisdictions;
That the Committee have the power to sit during sittings and adjournments of the Senate;
That the Committee have the power to report from time to time, to send for persons, papers and records, and to print such papers and evidence as may be ordered by the Committee;
That the Committee have the power to retain the services of expert, professional, technical and clerical staff, including legal counsel;
That a quorum of the Committee be twelve members whenever a vote, resolution or other decision is taken, so long as both Houses are represented, and that the Joint Chairpersons be authorized to hold meetings, to receive evidence and authorize the printing thereof, whenever six members are present, so long as both Houses are represented;
That the Committee be empowered to appoint, from among its members, such sub-committees as may be deemed advisable, and to delegate to such sub-committees, all or any of its power, except the power to report to the Senate and House of Commons;
That the Committee be empowered to adjourn from place to place within and outside Canada;
That the Committee be empowered to authorize television and radio broadcasting of any or all of its proceedings;
That the Committee present its final report no later than November 30, 1998; and
That a Message be sent to the Senate to acquaint that House accordingly.
Mr. Speaker, it is a great pleasure for me today to rise and speak on the motion to establish a special joint Senate and House of Commons committee to examine child custody and access issues.
Before I do, since this is my first opportunity to rise in the House while you have been in the chair, Mr. Speaker, I want to say what a great pleasure it is. You are a fellow Edmontonian. We have contiguous ridings. On behalf of my constituents in Edmonton West I want to say what a great pleasure and honour it was for all of us when you were appointed Assistant Deputy Speaker in the House. I look forward to working with you in the months and years ahead.
The motion calls for a special committee to examine and analyse issues relating to custody and access arrangements after separation and divorce and, in particular, to assess the need for a more child centred approach to family law policies and practices that would emphasize joint parental responsibilities and child focused parenting arrangements based on children's needs and best interests.
I know there is a great deal of interest and concern about these very important issues. When a marriage breaks down, arrangements have to be made for the care, upbringing and maintenance of the children.
Some parents, many parents, are able to work together to decide what these arrangements should be. They are able to focus on the interests of their children and can agree on where the children will live and how decisions will be made about the children's schooling, religious upbringing, medical care and participation in extracurricular activities.
For other parents, however, this is a difficult task. Divorce is a complex and emotional time in people's lives. As parents, most will want to try to do what is best for the children, but they may be confused, hurt or angry. They may be unable to agree about what arrangements are best for their children. They may vie for the loyalty of their children.
There can also be genuinely complex issues that need to be resolved. In these contested cases is the family law system that governs custody and access determinations. I know that many criticisms have been raised about the current family law system. Courts that address family matters are the forums for deciding parenting disputes and there are many complaints about the high costs and delays associated with the legal process.
There are also concerns that parents who cannot agree about parenting issues involving their children must often resort to an adversarial system that tends to promote the anger and hurt associated with separation and divorce. Many believe that the very terminology of custody and access in family law legislation reflects a winner and loser approach that encourages the parties to compete with each other for the status of real or best parent. Too often the legal process contributes to the conflict between the parents and results in outcomes that do not resolve matters but in fact further promotes ongoing difficulties and pain.
Recent experience with child support reforms suggests that these issues to be dealt with by the committee will promote vigorous debate, dare I say at times probably contentious debate.
There are many different views about what problems should be emphasized and about what reforms are required. The difficult and controversial nature of the issue should not dissuade us from beginning the process of reform.
The many transitions and reorganizations that accompany family breakdown greatly affect the children involved. While the long term effects of divorce should not be exaggerated by any of us, there is no doubt that divorce is a painful experience for children. There is a real need to look at custody and access issues and attempt to reform the family law system to minimize the negative impacts of divorce on children.
The motion asks that the committee specifically look at the need for a more child centred approach to family law policies and practices. I believe this is very important. The goal must be to identify the legal rules, principles and processes that will emphasize what is best for the children. This can be done if the committee is steadfast in focusing on children. I believe there is an obligation to examine this issue through the lens of the needs and rights of children. All concerned Canadians, ourselves included, must reject the temptation to cast this debate as one between the interests of mothers versus fathers. If we are to move forward in dealing with the challenge of parenting after divorce, both individually and in our public policy, we must be vigilant in making the needs and rights of children our primary source of inspiration.
To help in this task the committee can review the professional literature about the developmental needs of children and examine models being used in other jurisdictions that have attempted to alleviate the negative impact of divorce on children. The committee can also meet with and listen to the many individuals and groups that care about the quality of life for our children. I know there is a great deal of interest, concern and insight that Canadians will bring to these issues.
I urge all members of the House to support the motion. It is time to find ways to help parents better resolve their differences and focus on what is in the best interests of their children.
Unfortunately, because of prior engagements, I have to leave the House in a few minutes. But I want everyone to know that I am going to follow and review with interest the speeches that follow in this debate because I do believe this is an opportunity for all of us, in the Senate and the House of Commons, all parties, to work together to do something that is not only right but very important to ensure a better quality of life for all our children and families as we approach the millennium.
Bob Kilger Liberal Stormont—Dundas, ON
Mr. Speaker, I rise on a point of order. I am also pleased that the Minister of Justice is still with us. There is another matter before that department, Bill C-16. There have been deliberations among all the parties about this subject matter.
I believe I have the consent of the House for the following motion:
That, notwithstanding any standing order, if Bill C-16 has been reported from committee no later than November 6, 1997, the House may consider the said bill at the report stage and at the third reading stage on November 7, 1997.
Parenting ArrangementsGovernment Orders
The Acting Speaker (Mr. McClelland)
The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?
Paul Forseth Reform New Westminster—Coquitlam—Burnaby, BC
Mr. Speaker, I rise to speak to the motion to establish a joint committee of the House of Commons and the Senate.
Last February a rather historic and public discussion ensued across the country on Bill C-41, an act to amend the Divorce Act. By the time the bill got to the Senate, alarm bells began to be heard in the community.
The groundswell was enormous and powerful. Public support for the Senate's actions to slow down and review Bill C-41 was profound and unprecedented. Public concern for fairness in the divorce law was strongly expressed.
We only have the motion today because the government was forced into a situation in order to get Bill C-41 passed in the last Parliament.
The government ignored the pleas of Canadians last time. Now that we have a committee we hope to make it work.
The government, in rushing the bill to passage, rushed the committee's work. In fact, public support for the position taken by the Senate surprised the government.
The dominant public wish and the one which most frequently and repeatedly was articulated was the wish that we in Parliament would return balance, fairness and equilibrium to the Divorce Act, to the practice of family law, to the courts and to the administration of justice.
I quote one letter written by Toronto lawyer Bruce Haines, Queen's counsel. He wrote in part:
For over thirty years I have practised family law in Ontario and during that time I have watched the development of the law and the dramatically changed social conditions which have not only seen a very high percentage of married women move into the work force in most every area but have also seen a significant narrowing of the income differentials between men and women. During that same period I have watched spousal social expectations change in that husbands have embraced a full participation in all aspects of family functions, particularly in the nurturing and raising of their children.
Changes to the divorce law have rarely kept pace with changing attitudes and, despite the gender neutral language of the Divorce Act, its actual implementation in the areas of child custody and child support has continued to be marked by an entrenched systemic gender bias that “mother knows best and father pays best”. The administration of justice does not treat spouses equally when it comes to assigning child custody. By and large, custody is almost always assigned to mothers and the most fathers can hope for is a generous access order. Where fathers interfere with custody orders they will ordinarily bear the full weight of the law while mothers who flaunt access orders will, by and large, receive judicial admonitions with usually little other consequence.
Section 16(10) of the Divorce Act requires courts to take into consideration the willingness of the person for whom custody is sought to facilitate contact of the child with each spouse. Practising family lawyers know that this section is almost never invoked.
—you have an opportunity to correct at least some of the mischief inherent in this deeply flawed legislation.
I urge—to reject Bill C-41 in its present form and to approach all of the issues on a remedial basis. In considering custody and child support, there is a need to restore greater balance between the rights of mothers and fathers. I have not ventured into other areas of family law where the similarly entrenched systemic gender biases seems to exist.
This was one of the many letters of the view that divorce legislation must be balanced and fair. That was widely held across the country by most Canadians, men and women.
Senators amended Bill C-41 and passed the amended bill on February 13, 1997. The House of Commons concurred with the amendments the next day. As part of the passage of Bill C-41, the government, in response to the concerns of senators and non-custodial parents, committed itself to studying the issues of custody and access. The Minister of Justice and Attorney General of Canada said:
—this government will take the steps necessary to introduce a motion in this session to establish a joint Senate-House of Commons committee to study issues related to custody and access under the Divorce Act. The government is offering this commitment in response to concerns raised by some senators on behalf of non-custodial parents, who believe that this issue should be re-examined.
Family issues are fundamental to our society. In the last election our party made a commitment to make families a priority. We said among other things that we made a commitment to the country to make families a priority and ensure that government policies and regulations are family friendly. We said that we would extend the $3,000 to $5,000 child care deduction to all parents including those who care for their children at home. We would increase the spousal amount from $5,380 to $7,900, levelling the field for parents who chose to stay at home to look after young children and help families to meet the needs of a more demanding economy.
We would help provinces and local governments ensure that deadbeat parents live up to their responsibility to support their children when families break down. We would ensure that agreements concerning access to children are respected an enforced. A zero tolerance policy would be enacted on family violence and we would crack down on child prostitution and child pornography.
We also said that we would make families a priority. I quote from our literature:
While the federal government has been catering to special interest groups, the voice of Canadian families in the policy debate has grown weaker and weaker. This has resulted in social and economic policies that undermine the security of Canadian families, causing unnecessary levels of stress, burnout, and financial hardship.
Family time is not a luxury. It is absolutely essential if we are to preserve health and happiness in our homes. It's time to make families a priority again.
For too long these issues of custody and access have been begging Parliamentary committee study. Witnesses related to the numerous and extensive problems in the areas of custody and access and the problems facing non-custodial parents. They also described many problems including parental alienation syndrome, commonly known as PAS, and false sexual abuse allegations in divorce and custody disputes.
The new payment guidelines of Bill C-41 sound good, but I have a letter from one parent who claims that the change has brought a loss to the children, a loss of relationship. He says in part:
As you may have gathered I am one of the so called non-custodial parents. I have paid my share of my children's expenses through child support payments for the past eleven years. Now the government has decided that I am really just a wallet for my kids—It seems to me that pressures have swung the pendulum all the way to the other side.
I am now having to pay so much to my ex and Revenue Canada that I will no longer be able to visit with my children or have them come to stay with me.
I think that when the law was enacted too much consideration was given to the custodial parents—and not enough to the non-custodial parents.
Again I tell you that this law has now made it so that this will be the last summer that I will be spending with my children and I don't anticipate visiting as often as I live 600 kilometres away. I just cannot afford the luxury and that is what the new law has made it.
I hope you understand what is happening and can do something about the law to make it fair.
Parental alienation syndrome is an effort by one parent, the custodial parent, to eliminate access between the children of divorce and their non-custodial parent. Elimination of access is often a significant indicator in an effort to alienate the non-custodial parent, eliminating access on a permanent basis.
Dr. Richard Gardner coined the term parental alienation syndrome to describe the process whereby one parent initiates the systematic vilification of the other parent by manipulation of the child with the intent of alienating the child from the other parent. The manipulation of time becomes the prime weapon in the hands of the alienator.
Parent alienation syndrome occurs when one parent is engaged in an attempt not merely to destroy the other parent and the other parent's relationship with the child but also to cause the child to join in the process. The child enters the dynamic becoming a weapon, a spokesperson, a co-combatant in the process.
Another problem is the use of false sexual abuse allegations in divorce and custody proceedings. The use of false allegations in divorce and custody proceedings has become epidemic in this country and it has been described as the weapon of choice in custodial disputes.
Of particular note is that these peculiar false allegations arise in the context of divorce and custody disputes. False allegations, as in the case Plesh v. Plesh, the trial judge, Mr. Justice Carr of the Manitoba Court of Queen's Bench in his 1992 judgment stated about an applicant “I conclude she never believed that their son had been abused, not when she reported the abuse and not now”.
These are only some of the many problems in the operation and application of the law with respect to custody and access.
In the last Parliament, former member of Parliament Daphne Jennings championed a grandparents' right private member's bill to extend better legal standing for grandparents in court contested custody cases.
On the issue of access, the 1995 Supreme Court of Canada decision in Gordon v. Goertz was significant. The issues for adjudication were custody access and contact between the child and non-custodial parent. In her reasons for judgment Madam Justice Beverley McLachlin wrote “Important as contact with the non-custodial parent may be, it should be noted that not all experts agree on the weight to be given to such contact in assessing the best interests of children”. That statement and judgment caused a lot of anxiety and anguish to non-custodial parents across this land and caused many to ask Parliament to study the issues of custody and access.
As Mr. Haines pointed out earlier in the letter that I quoted “Marriage and society in general have moved toward joint parenting and joint responsibility for children. You may divorce your spouse, you don't divorce your kids”.
So too in many jurisdictions has divorce law moved toward joint or shared parenting. Some jurisdictions have even abandoned the antiquated term “custody” in favour of the modern term “parenting”. As a former divorce mediator, I have special awareness of these kinds of problems.
However, in 1991 the justice minister, then professor of law, wrote a discussion paper for the Alberta Advisory Council on Women's Issues entitled “Women and the Process of Constitutional Reform”. In this paper she argued that constitutional devolution of federal government powers to the provinces would give provincial governments control over the family, such as that certain proceedings in separation and divorce would fall under provincial jurisdiction by virtue of the provinces' power over property and civil rights. Such devolution, she believes, would result in joint custody after a divorce.
She apparently was not in support of it. She stated “If through constitutional reform, divorce became a matter of exclusive provincial jurisdiction, provinces could legislate comprehensively in the area of the family. Some provincial legislatures may choose to impose a presumption of joint custody and require mandatory mediation in the resolution of family disputes”.
The minister also said “An increasing number of commentators now suggest that joint custody may simply perpetuate the influence and domination of men over the lives of women”. What an incredible statement.
The public's rejection of ideology in family law drove the public support for a second look at Bill C-41. Therefore I support the terms of the committee. The terms have been read out by the Speaker.
In general the courts typically deal somewhat acceptably with money, but they deal very poorly and handle with great difficulty custody, access and guardianship. The federal Divorce Act and similar provincial family court acts leave a messy jurisdictional problem within the area of family law. Therefore, the renewed parliamentary attention to outstanding issues on family law is welcome. Reformers recognize the fundamental importance of family to society and Reformers agree that changes to family law need to be addressed to ensure the rules are more family friendly.
We will certainly emphasize the need for such an issue to be raised in Parliament in order to raise the profile of the family and family issues as it clearly is a priority topic in the community. Consequently we will fully participate and will work to ensure reasonable cost in the conduct of the committee while we also ensure we have balanced deliberations.
Michel Bellehumeur Bloc Berthier—Montcalm, QC
Mr. Speaker, this is a rather odd motion we have before us today. When I first looked at it, I was not all that surprised at the government's approach, because as justice critic I have had to look at a number of bills and am becoming increasingly aware that the federal government is, under the guise of the preponderance it claims to have under the Constitution, under the guise of peace, order and good government, or under the guise of criminal law, encroaching more and more on areas under provincial jurisdiction.
This week we had another striking example, Bill C-14 on drinking water. Is there any area more provincial than water? No, yet the federal government is interfering.
Things are getting more and more complicated with the government over there. A while ago, we found it somewhat amusing to watch the matter of which jurisdiction the St. Lawrence River came under. You will see that there is a parallel in this. What they said was “The bottom of the St. Lawrence is federal. The water is provincial. The fish swimming in the St. Lawrence are provincial. As soon as they are caught, taken out of the water, and put into the boat, they are provincial fish in a federally registered boat, constructed under provincial regulations, and governed by federal safety regulations”. So there you are, what a fine great country Canada is.
Finally, we address a subject similar to this motion. When a couple separates in Canada—this is referred to directly in the motion—this is provincial legislation. But when they divorce, this is federal legislation. And if that were not sufficiently complex, the federal government has decided in its wisdom as a centralizer, of course, to table a motion and mandate some of the dear senators. I hope they will find enough of them awake to fill the positions. There will be 7 senators and 16 MPs with the two co-chairs, making up a nice little committee to examine child custody, visiting rights, parenting and so on.
This motion is worded so broadly that it encompasses large areas directly under provincial jurisdiction. I will give you a few examples of this. In Quebec, the mechanisms for implementing custody and visiting rights when there is a separation come under the Civil Code. The federal government has nothing to do with it. Parenting of children comes under parental authority, a jurisdiction of the Quebec National Assembly. The federal government has nothing to do with this. As regards the school system, which is under provincial jurisdiction, the federal government has no business intervening.
Then there is the federal government's unwarranted intrusion in the lives of individuals. The motion talks about “practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests”. What is the federal government doing in this area? Tell me. It is provocation, pure and simple. It has no business in this area of jurisdiction.
I wondered how the people opposite, who are supposed to be intelligent, can be guilty of such provocation?
Michel Bellehumeur Bloc Berthier—Montcalm, QC
Yes, they are supposed to be, as one of my colleagues said. But, perhaps we should look at the background to this motion.
We have to go back to the 35th Parliament, where little deals were made here in the House, not with the duly elected members sitting here, but with the two or three senators who were not sleeping in the other place. Deals were made with the federal government and they were told “Let Bill C-41 on child support pass, and we will find you a little something to do. We will arrange it so you can look at the issues of custody and access after divorce”. That was the deal made at the time to get C-41 through.
What is this motion about? It concerns both divorce and separation. It is much broader. However, the many members opposite who support the minister's motion should open their ears to what a member of the Bloc Quebecois has to say on the matter rather than watching what is happening above. Our comments are important, and perhaps if they paid a little more attention to Quebec's historical demands, we would not be here discussing the distribution of powers or anything else. The problem between Canada and Quebec would have been settled 35 years ago.
That having been said, I understand that the topic, which has to do with child custody from a financial or parenting point of view after separation, is a serious one. We are not saying that it is not serious or important. On the contrary, it is very much so, but it is up to the provinces, not the federal government, to legislate in this area.
As far as Quebec is concerned, I am well placed to address this issue, first because I am an MP from Quebec, and second because I am a lawyer. I argued matrimonial cases before I was elected to office. Since that time, things have even improved in Quebec with the recent reforms introduced by the PQ government, some of which took effect on May 1, 1997, and others of which took effect recently on September 1, 1997.
We in Quebec have a model for setting support payments that reflects the importance Quebec places on its children. This model takes into account the income of both parents and the length of custody. In addition, a form and a guide for determining amounts are made available to parents, mediators, counsel and judges. The model is so good that the federal government has agreed to apply it in cases of divorce, while we naturally applied it in cases of separation, since separation comes under provincial jurisdiction. And all this has been in effect since May 1, 1997.
They are talking about family mediation as though it were the discovery of the century. Family mediation was already around in Quebec when I was practising law, between 1986 and 1995, but since September 1, we have improved our approach, making it much more structured. This family mediation, which we have Minister Serge Ménard to thank for, is free for the first six sessions and may be conducted by lawyers, notaries, guidance counsellors, psychologists, social workers and so on. In 1996, there were 459 mediators in Quebec; today there are 735. There is therefore a market, and this service is used in Quebec.
The legislation provides for a process of registering decisions with a special clerk in order to speed matters up, because there is also an important issue at stake: there is no stalling around when it comes to children's rights, parents' visiting rights, salary, family income; decisions must be taken quickly. A follow-up committee will submit a report on the process to the Minister of Justice, in the fall of 1998. Serious work is being done; measures are being applied and a follow-up will take place.
As you can see, whether it is child support setting, mediation, children's rights, the right to attend school, alimony, etc., Quebec has already adopted major legislation on all these issues. Today, if the federal government really wanted to show its good will in this regard, it could withdraw without any problem from family law and even divorce matters.
It could immediately decide to get out of these areas. A whole section of the Quebec civil code has been passed but is not being applied, because it is beyond our jurisdiction. The National Assembly could immediately and without any problems start dealing with divorces, which would improve harmonization and better reflect what really goes on in Quebec, with a very comprehensive civil code. Our code deals with the appropriate issues and truly meets the needs of Quebec families.
We can dream, but we know the federal government will not do it. In the last 30 years, it has been increasingly interfering in areas under provincial jurisdiction, including those of Quebec.
The motion shows that, when it comes to parenting, the federal government does not hesitate to get involved in this area, which comes under provincial jurisdiction. As I said earlier about the federal government interfering in people's lives, I think that too is not its jurisdiction.
All this to say that my initial reaction to this motion was to say “We in the Bloc Quebecois must not take any part in this charade. We in the Bloc Quebecois must not be a party to this centralizing approach, an approach that does not in any way reflect Quebec's demands”.
However, after talking the matter over with the hon. member for Longueuil in particular—she is very sensitive to the needs of women's groups in Quebec and has met with many groups involved in this matter—I realized that these groups also agree that the federal government is stepping in areas that are none of its concern. They nevertheless wanted us to be involved. They wanted us to be there to voice our opposition to this extremely centralizing bill. And that is what we shall do.
The hon. member for Longueuil, whose professionalism is well known, will take part in this committee to represent Quebec's point of view. She will also make the point that, in Quebec, we are at the forefront in several areas, and family issues in particular.
If at all possible, because I am a perpetual optimist, we in the Bloc Quebecois will try to bring the government and those senators who are not asleep round to our opinion. We will try to convince them that they should not interfere in this area but rather give it over to each province's legislative assembly.
But if we are unable to change their minds on a matter as important as this one, I am confident that the hon. member for Longueuil will let our caucus know and, if the government does not yield to the Bloc's arguments, in her wisdom, she will table a minority report.
That having been said, you will understand that, yes, we will take part in the work of this committee if it is struck. We will pay close attention and very strongly insist that Quebec's demands in this area of jurisdiction be met.
I have been hearing all sorts of comments coming from the other side since I rose to take part in this debate. There is one thing I would like to say: if it is true that the members opposite are so committed to the interests of children, why then have they not yet endorsed the Quebec-France agreement on child support? This agreement directly concerns the children of Quebec, and yet the government opposite is wrangling over procedures, scrutinizing every comma and preventing thousands of Quebec families from receiving child support from overseas.
If the government is truly committed to the interests of children, it should endorse the agreement that has been signed between Quebec and France, and maybe then we will be able to believe them when they say they are committed to families, to sound management in this area of responsibility that does not belong to them.
We will be showing openness by attending the hearings to be held by this committee, although we find it useless and a waste of time, and I hope that the government opposite will at least be smart enough to listen to our demands and to take them into account in any future legislation.
Claude Drouin Liberal Beauce, QC
Mr. Speaker, I was listening to my colleague opposite speaking about his experiences and his background in the legal profession. I was once a policy advisor at the provincial level and I can tell you that I have seen more than one woman having difficulties with provincial laws. I don't think there is much to be proud of in this respect. Either he is out of touch, or he was being selective in his choice of cases.
He often makes reference to the senators. I can introduce him to some of them and he will realize that they are people with a lot of experience and knowledge and that, even if a few were caught with their eyes closed, that does not mean they are all sleeping. It is important that he realize this.
I have a question for the hon. member. If a couple separates and one of the partners moves to another province, would national standards not make it easier to settle matters?
That was my comment and my question.
Michel Bellehumeur Bloc Berthier—Montcalm, QC
Mr. Speaker, I would ever so politely say to the hon. member that he ought to have remained a political adviser, because as a politician, at least as an MP representing a Quebec riding—unless I am mistaken—he ought to know that the remarks he has made are totally inaccurate, totally coloured by very negative stereotypes on Quebeckers, who have passed family legislation that is superior to what there is in many other provinces.
There are many MPs who speak in this House but are rarely seen in committee. I invite the hon. member to the justice committee, among others, where subjects like this will be discussed. I hope that the hon. member will, at the very least, be appointed to the joint committee which will examine this matter and which will hear qualified witnesses in this area, from Quebec and elsewhere. Very often, people from outside Quebec are the ones who quote Quebec legislation. I often heard, during the 35th Parliament, people from Vancouver, from Alberta, from the maritimes, quoting legislation, citing Quebec's various social measures as examples. I think that the hon. member across the way is completely unaware of this.
For that reason, I repeat that he might have been better off remaining a politicial adviser. I can understand that perhaps giving opinions like that to the MP he worked for before may be what put an end to his career as a political adviser.
As for the rest, I do not understand the hon. member's question on how divorces in Ontario, in Quebec, in some other province, can be handled if it is not the same law that applies. What happens with separations? The same law does not apply, it depends on whether it is in Quebec, Ontario, British Columbia or the maritimes. But do some people end up worse off as a result? No. Because the provinces have passed legislation which reflects what they are.
We in Quebec do things differently than they can in Ontario, for example, or in western Canada. The men of the 1990s in Quebec are not the same as those of the 1970s. Nor are the women involved in cases of divorce and separation in the 1990s the same as the women of the 1970s.
Our experience in Quebec is not necessarily the same as that of Ontario or western Canada. This is why it is absolutely essential that the government opposite understand that it must not interfere in the family law sector, that it must back off and leave the provinces to deal with parenting, support payments, separation and divorce. It must understand that, for the well-being of the public and in the best interests of Quebec families, among others—I will argue for my parish and for Quebec—it must cease to meddle in matters that do not concern it.
Peter Mancini NDP Sydney—Victoria, NS
Mr. Speaker, it is with pleasure that I rise to speak to the issue before the House today. It is one that I have some particular interest in.
Hon. members indicated in their earlier comments the experience they have had. My own experience in this area goes back as a legal aid lawyer for some 12 years, dealing with people in society who do not perhaps have the financial ability in many cases to afford social workers or counsellors and who find themselves locked into litigation of the courts and litigating over the custody of and access to their children.
It is no argument that family law lawyers who deal with these problems deal with one of the most difficult and fractious areas of law in the country. It is no argument that social workers who deal in this area of the law find themselves confronted on a daily basis with very difficult decisions. It is no exaggeration to say law enforcement agencies that are forced in some cases to enforce court orders dealing with custody and access find themselves in very difficult situations.
I know because I have seen the children put in police cars when one parent demands to exercise access. I have also seen children tortured and torn between two parents saying on one hand “I want to be with this parent” to please the custodial parent and on the other hand “I want to be with this parent” to please the access parent.
It is clear in the area of divorce and family law that we are not dealing in a very sensible and certainly not in a very effective way with the needs of the children who find themselves caught in that arrangement.
At the end of the day there has to be a better way to deal with family breakup. I am pleased to support the structuring of this committee. I welcome its views. It can perform a very real service for all the people I have mentioned who work in family law services and in the family courts by helping us come to grips with what should not be an adversarial process but a conciliation process dealing with children.
Before I was a member of Parliament, as a lawyer and a private citizen I submitted a report to the then minister of justice in the last parliament which sought to reform the Divorce Act. I dealt with the very issues this committee will be examining, whether or not there ought to be a presumption of joint custody, whether or not there ought to be other presumptions in terms of determining which parent has custody.
When we look at the Divorce Act as it currently stands, unfortunately in many ways it encourages litigation and takes us away from a reconciliation process or a mediation process. The framers of the act did not intend this but once we take the family and put it before the courts in a litigious manner, in an adversarial manner, then right off the bat we find ourselves acting in ways that might be in the best interests of clients or might be in the spirit of the legislation, but are not in the spirit of the family.
Just as an example, section 16 of the Divorce Act allows for an interim order for custody. As every family lawyer knows, the courts have developed over the years many tests to determine which parent ought to be the custodial parent. I can go back to the parents patria jurisdiction of the court, the tender years doctrine, which was used by the courts for many years to determine in most cases that the mother ought to be the custodial parent of children who were of tender years. The courts then revised that and dealt with the status quo doctrine.
Of course the overriding principle is always the best interests of the child but it is the difficulty in determining that which the courts have to grapple with. It is with that difficulty that these tests have been developed.
One of the predominant tests is of course the status quo doctrine, which is that the parent who has custody of the children and provides a good environment for them immediately after the separation ought to be the parent who has custody. It is not good for the children to have constant upheaval.
As sensible as that test may be, when we put it into the litigation context, it encourages family law lawyers to make an application for interim custody right off the bat. They know that in many cases the first one at the bar takes all. If the lawyer is successful on the interim application, with the courts being overburdened as they are, the actual litigation of the divorce process and the custody hearing may take four, five, six or eight months, which automatically gives one parent the advantage. However the child does not necessarily have the advantage.
When we look at it in that adversarial context, that is the kind of thing which the act encourages.
For families that have sufficient means, and the justice minister alluded to some families who are able in many situations to work out their own custody and access arrangements, many parents can. Many poor parents can because they put the needs of the children first and allow themselves to work within that framework. However there may be more success among wealthier people because of course they can avail themselves of mediation services which in many provinces are currently privately run and run for profit.
Obviously there is a need to take this out of the litigation process and move it into a more conciliatory process. As I have indicated, that is one section of the Divorce Act which encourages litigation.
While there is a presumption of joint custody or access, the act itself looks at other factors. It says that the court ought not to look at the past conduct of a parent in determining which parent ought to have custody or access. Yet we know that many judges in the litigation process are influenced by many things. While the court says we ought not to look at past conduct unless it is in relation to the children, if we are in a win or lose situation, it is not unusual for litigation lawyers in a family law practice to bring up events from the past which have no impact on raising the children but which may appeal to a particular judge's sense of what is morally correct and what is not.
The act itself in its current form may encourage litigation which is not always in the best interests of the child and certainly does not go the distance in helping to determine a better mode of dealing with the children who are the subject of divorce proceedings.
The tests that I have indicated filter down into provincial legislation. My hon. colleague in the Bloc talked about the jurisdictional problems. Those jurisdictional problems are there. There is no question that upon separation, the family finds itself in family court. Upon divorce, they find themselves in the federal or supreme courts. Therefore what has been determined by a lower court is not necessarily binding in the federal court.
It is extremely difficult. Those of us who have practised family law will know the absolute incredulity of our clients when we tell them “I know we have litigated all of this in family court. Now you are proceeding to divorce and yes you have a custody order but it is not binding and it reopens the door”. So the jurisdictional problem is one I think this committee could look at in a very real way.
It would be remiss if I did not say, coming from a legal aid background, that unless we look at resources in the legal aid system which deals with the vast majority of family law cases in this country, unless we look at ensuring there is a solid legal aid system in place in each of the provinces, all of the rhetoric about the best interests of the children and all of the conclusions this committee can come to will be nothing more than a report placed on a shelf to be dusted off occasionally. Unless we are committed to putting in place mediation services, legal aid services, family court services, then it may well be a waste of time.
I respect the comments made by the hon. member, my colleague from the Reform Party, when he talked about the presumption of joint custody. I think most parents would agree on that until such time as there is a breakup. At that time families need someone to discuss with them the interests of their children separate and apart from maintenance payments and support payments in a way that they can understand the joint obligations as well as the joint rights that parents have.
There has been some indication that this committee will look at all of those questions. It may well lead to guidelines in the Divorce Act that can then be applied to provincial acts. I look forward to hearing and examining the situation in Quebec that has been referred to by my hon. colleague. I would support the committee and the creation of the committee. It can only benefit the children and the families of this country as they struggle in what is obviously a difficult situation.
Parenting ArrangementsGovernment Orders
The Acting Speaker (Mr. McClelland)
It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Winnipeg Centre, Labour; the hon. member for Lévis, Railway Transportation; the hon. member for Kamouraska—Rivière-du-Loup—Témiscouata—Les Basques, Tip Employees.
The hon. Parliamentary Secretary to the Leader of the Government in the House of Commons on a point of order.
Peter Adams LiberalParliamentary Secretary to Leader of the Government in the House of Commons
Mr. Speaker, I believe you will find consent for the following order:
That at the conclusion of today's debate on government business No. 7, the Speaker shall put all questions necessary to dispose of the said government order, a recorded division shall be deemed requested and deferred until the expiry of government orders, Tuesday, November 18, 1997.
Parenting ArrangementsGovernment Orders
The Acting Speaker (Mr. McClelland)
Does the hon. parliamentary secretary have unanimous consent to move this motion?