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.