Madam Speaker, I am pleased to speak in this House on Bill C-218, an Act to amend the Divorce Act. The purpose of this bill is to introduce a requirement for marriage counselling before a divorce is granted, for the purpose of exploring the possibility of reconciliation.
I must admit that I find it hard to speak out against virtue, but I shall come back to that in greater detail in a few moments.
Let us start with a historical overview of the Divorce Act. It is not all that long ago that women could get a divorce if they could prove their husbands had committed incestuous adultery, rape, sodomy, bestiality, bigamy or adultery combined with cruelty or abandonment of the marital home.
Only in 1968, with the coming of the Divorce Act, were men and women both enabled to cite these reasons for divorce. The act still had its shortcomings, however. It was therefore improved in 1985 in order to reflect the recommendations of the Law Reform Commission of Canada's 1976 report on family law. The 1985 Divorce Act changed the recognized grounds to include breakdown of a marriage. This new measure made the procedure simpler by reducing the hostility with which the traditional adversarial procedure was charged. It also made it easier to find more constructive solutions to the differences that arise at the time of a divorce.
As one can see, the Divorce Act has not stopped adjusting to the new realities of society, but there is always room for improvement or, better still, for transfer of powers to the provinces. Nevertheless, a divorce is never an easy thing on the human level. When people separate, a part of their lives goes up in smoke. So, legal proceedings must be as effective as possible.
Each of us knows someone who is divorced, and the difference between someone who has gone through a bitter divorce and someone who has reached an amicable settlement is palpable. Then there are the effects on the immediate family, especially on the children, who are the main victims of a difficult divorce.
After a spectacular leap in the 1980s, the divorce rate has become relatively stable in the 1990s. The changes in 1985 permitting the failure of the marriage to be the sole grounds for divorce prompted the spectacular leap, which led, in turn, to an increase in the number of remarriages.
The latest report by Statistics Canada indicates that the divorce rate has remained relatively stable in the 1990s. Some find reassurance in the fact that, even though the risk of divorce is higher since the 1970s, two marriages out of three continue until the death of one of the spouses. This is reassuring nevertheless.
In 1987, 96,200 divorces were granted. In 1995, there were only 77,636. According to Statistics Canada, one marriage in 100 ended in 1995. It expects that 31 per cent of couples married in 1991 will divorce. If marriage counselling is really to be introduced, there is no point waiting for divorce proceedings to do something. Data indicate that the risk of divorce rises quickly in the first years of the marriage reaching its peak in the fifth year. In 1990, nearly four couples in ten divorced shortly after their fifth anniversary.
With figures like these, our concern should be to have good divorce legislation. In this respect, according to Professor Julien Payne, good divorce legislation must achieve three main goals: first, to facilitate the dissolution of marriages irredeemably doomed to failure by reducing to a minimum the pain, humiliation and hardship; second, to promote a fair distribution of the financial consequences of marriage breakdown; and finally, to ensure that reasonable provisions are made for the education of the children of the divorcing parents.
Family law is a jurisdiction that is shared between the provinces and the federal government. Under the Constitution Act, 1867, while the federal Parliament is responsible for divorce matters, legislative powers regarding property and civil rights are assigned to the provinces.
Clearly put, this means that the separation of non-married couples is a matter of provincial legislation, and divorce a matter of federal legislation. How ridiculous. Why accept such overlap of jurisdictions when the entire divorce procedure could be transferred to the provinces? The truth is that the federal government simply has no place in that area of responsibility. One could argue that, under subsection 92(13) concerning property and civil rights, the provinces are the ones that should have jurisdiction in the area of divorce.
In fact, Quebec is already prepared to take on this responsibility. An entire section of the Civil Code is devoted to this subject but it has not been implemented simply because we do not yet have jurisdiction. But I am an optimist and I hope that the day will come when we do and when the federal government will finally withdraw from this area.
The bill brings me to the whole issue of family law and, more particularly, family mediation.
Quebec has a comprehensive policy on free family mediation, and I think the sponsor of this bill was inspired by it. However, our province provides for much more than mere marriage counselling. In fact, members of this House must recognize that Quebec has become an expert on family issues.
If Canada wants to rely on our expertise, fine. It can only benefit the rest of the country if the federal government adopts some of our policies. I simply want to point out that, if the federal government is going to adopt Quebec's ideas on separation and apply them to divorce, it should instead transfer the responsibility for divorce to the provinces and make it an area of provincial jurisdiction.
In conclusion, it is high time Ottawa recognized Quebec's expertise in family law and changed its approach accordingly.