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.