House of Commons Hansard #140 of the 35th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was children.


Unified Family CourtPrivate Members' Business

2 p.m.


Michel Bellehumeur Bloc Berthier—Montcalm, QC

Mr. Speaker, I listened to the hon. member's motion on the creation of a unified family court. After reading her motion and listening to her speech, I am convinced the hon. member's intentions are good.

The Reform member surely has valid amendments to propose in order to deal with family breakups, the increasing number of divorces, and the problems experienced by children following their parents' divorce. However, creating a unified family court would not solve these problems.

In fact, it would create another problem. Whenever a change is made to a system, particularly the judicial system, the objective must be to improve that system. I do not believe that creating a court which would overlap existing tribunals would improve the system.

It must be understood that, in the current system, as the Liberal member pointed out, the majority of provinces already have their own family court. In Quebec, the Superior Court's family division deals with all family related issues.

So, establishing a unified court over the structure already in place in some provinces would be interfering in areas over which the federal has no jurisdiction. My main objection to the motion is that, once again, it ignores the respective jurisdictions in this country called Canada. The government is deliberately imposing national standards, or a very federal view, on anything that moves in this country.

I am sure the member means well, but I think she should have examined this issue more closely. There is no reason at this time to create such a court, which would merely duplicate what already exists.

I will give you an example to show how it would create more problems than it would solve. I am thinking of the famous trial and appeal divisions of the federal court. This is a court specifically for cases involving the federal government, when each of the provinces is equipped to settle these differences.

But no, the federal government felt the need to have a court with trial and appeal divisions in order to complicate Canada's judicial system. It would be exactly the same thing if it were to institute a federal unified family court.

I think that if we look at what is being done in the provinces, and I will refer to Quebec because I practised there for at least eight years, I know that in the case of family law, which is handled by the Superior Court, there are weaknesses, but there are also some things that work very well.

I think that, if we want to help soften the blow of a separation or a divorce on families, we should perhaps try to find a way of actually helping affected family members. In Quebec, one of the methods we have adopted is compulsory mediation.

The hon. member says that the unified court would be able to do mediation, but here again, this is already being done in a number of provinces, including Quebec, which has compulsory mediation services. This means that individuals involved in a divorce or separation are invited to meet with professionals in this field to try and reach an amicable arrangement. We do not need the unified court to do this. I think we should let the provincial legislatures try to find the right way to deal with the problem of divorce.

At the present time, there is no evidence that the system is not effective, so I suggest we let the system be and try and find ways to improve it. Let me give you another example to show why Quebec cannot consider having a unified family court, and I am referring to Bill C-41, a bill that was discussed by the two members who spoke earlier.

According to this bill, and I may remind you that the Bloc Quebecois was against this kind of legislation since in Quebec we already had a support payment tax rate structure that could be either federal or provincial. The criteria were not the same, the amount was not the same, and some aspects were perhaps important to people in English Canada, while others were more important to Quebec, so that the party making the payments could negotiate on which basis support payments would be paid. He would opt for the tax rate that suited his particular case, and it could be either federal or provincial.

Still on the same subject, if a unified family court is established in Canada, this will open the door to various interpretations, to decisions that might be at odds with a family policy developed in Quebec, for instance, by the National Assembly.

Clearly such a motion exposes the real cost of centralizing federalism. Everything possible is to be directed toward Ottawa. The aim is to take over provincial jurisdictions as much as possible in order to reduce the power of provincial legislatures as much as possible.

In Quebec City, they want as much of that as they can get. As regards the family, if Quebec wants a structured view of the 2000s, it will first have to recover all its powers in family matters, including divorce. The Quebec Civil Code contains a part that provides for recovering all facets of divorce proceedings, and we are waiting for the federal government to decide to withdraw from this area.

You will understand that, with Quebec claiming more and more powers in this area, we cannot support the motion by the Reform member.

I repeat, I am sure her intentions were good in moving this motion, but they will not take her to the objective she set with such a motion. The result would be duplication, overlap and higher administrative costs in an area of jurisdiction that is exclusively provincial.

Unified Family CourtPrivate Members' Business

2:10 p.m.


Jay Hill Reform Prince George—Peace River, BC

Mr. Speaker, despite a severe cold it is a pleasure for me to rise today to speak to Motion No. 147 brought forward by my colleague from Port Moody-Coquitlam.

This motion calls on the government to work together with the provinces to actively promote and implement unified family courts and to emphasize mediation of family law matters.

It is a sad reality that in 1990 about 30 per cent of all marriages in Canada ended in divorce. In 1990 the average length of marriage was shorter than ever before.

Out of all divorced and separated Canadians, 350,000 are parents. We know about the emotional toll that divorce and separation takes on adults, but the impact of family law battles on children is even more traumatic. It should be of great concern to everyone in this House.

The system, as it stands now, does little to alleviate children's pain. The administration of family law is a mess. This country seems to have forgotten the value of parenting and the importance of preserving the child-parent relationship in the context of family break-up. Instead, we have an adversarial system that creates winners and losers. Inevitably those who have the most to lose are the children.

The administration of family law in Canada as it exists today can be summed up in three words, inconvenience, confusion and frustration. We know that family conflicts are seldom cut and dry. They involve many different issues. The break-up of a marriage that involves children can lead to issues of child support, spousal support, custody and property division.

In most provinces, people who are separating are forced to go to different courts for different issues that come up. Divorce, custody, access and support issues cross over federal and provincial jurisdictions and create a tangled web of red tape that inconveniences, confuses and frustrates.

For example, in most provinces if a couple decides to split up but not divorce and they want to deal with custody, access or support issues, they must go to one court. Then, if they later decide to divorce, they must go to another court. Then there is enforcement, which is generally a provincial matter. The list goes on and on.

When will the confusion end? Is the whole process not stressful enough without aggravating matters by this sort of nonsense? What kind of impact is this having on our children?

I can say what kind of impact it is having. There are studies out there telling us that the emotional toll that long, protracted family law litigation has on our children is simply devastating.

This psychological damage is the root of many of the social problems we are seeing today, youth crime, suicide and poverty. This raises serious concerns about the future social health of our country.

Anyone who has ever been involved in any kind of lawsuit will say that litigation should be the last resort. It is not as though this is news to anyone either.

In 1974 the Law Reform Commission of Canada reported that the main goals of government should be to encourage resolution of family matters without resorting to litigation and to lessen the confusion by vesting jurisdiction over all family law matters in single, unified family courts.

Here we are 23 years later. The Liberal government has spent a good part of its mandate reviewing family law issues. Yet it still does not have it right. This government has done nothing to address this sad state of affairs.

We are still left with an adversarial system that destroys any chance of ongoing healthy relationships after the smoke clears in the courtroom.

While there are presently unified family courts in Saskatchewan, Manitoba, Ontario and Newfoundland, not all are province-wide and the matters they deal with vary from one province to another. Some provinces do not even have unified family courts. We heard earlier from the hon. member for Windsor-St. Clair as she took us through the history of the present unified family court system, that it is working in some provinces and that we have made substantive progress.

However, the question that must be asked and which has failed to be answered is why is it so slow to get this process in place across the country. Why is it taking so long? It is because it is a very low priority for this government.

Equally troubling is the fact that nowhere in Canada is mediation mandated as the preferred method for resolving family law conflicts. When relationships end it is only natural for people to blame each other and feel a sense of hostility. But if these people can be assisted and encouraged to respect each other as loving caring parents, this can only be good for the children involved. This government owes the children at least that much.

The advantages of mediation are undeniable. The financial cost is much less than litigation. Most family law conflicts can be resolved in five to ten one-hour mediation sessions. Mediation costs an average of $100 to $150 per hour. Compare this with the

millions of dollars pumped out to family lawyers each year to battle it out in court.

Mediation can allow parents to work out amiable solutions to parenting and support issues without being forced to use their children as pawns. This is better for everyone involved. It has been shown that compromises that tie access and support issues together will not only be emotionally better for children but also financially better.

Several studies have linked non-payment of support with the non-custodial parents' frustration at being deprived of participation in their children's lives. For example, a study in 1995 showed that 79 per cent of non-custodial parents with access paid their support, while only 59 per cent of those without access paid.

It makes good sense that people are more willing to go along with decisions they have made themselves than with decisions that have been imposed on them. But the Divorce Act takes a weak approach to this issue. All it does is require lawyers to inform their clients that mediation is available, hardly an encouragement. The Bill C-41 disaster does nothing to address these procedural failures or to help families on an emotional level either. It is just a piecemeal approach which does more for lawyers and judges than it does for average Canadians.

The list of problems with Bill C-41 is endless but what concerns me most as a parent is the fact that this government has not even dealt with the suffering of children, children who are denied the right to enjoy relationships with both parents, not just the custodial parent. Divorce is meant to end the marriage bond, not the child-parent bond. It is disturbing to realize that in 1992 Canadian courts awarded sole custody to mothers approximately 72 per cent of the time, and yet joint custody was only awarded 16 per cent of the time.

I do not know if the government understands the impact of this, but in the words of the Canadian Council for Co-parenting, there's no hurt like it. Kids need both parents and both parents need their kids.

I offered a solution to this problem. In March 1996, I tabled Bill C-242 which would make joint custody automatic unless not in the child's best interests, as in cases of abuse. Psychologists have also offered a solution called joint custody mediation which has been used with success in some American states. I call on this government to look closely at these options because so far this government has missed the boat on this issue.

Bill C-41 misses the boat by only dealing with outcomes, not with actual process, a process that is leaving deep emotional scars on anyone who has the misfortune of being involved in it. If this government were more concerned with the process and especially with what it is doing to this country's children, the social cost of divorce would not be what it is today.

Canadians are looking for some real procedural reform here, reform that addresses the current jumble in the administration of family, reform that lets Canadians actively participate in the resolution of problems in a way that is best for all involved. That is why I urge all members to support this motion. It is time the House demanded some action from this government. It is time we called on this government to work together with the provinces to encourage and implement reforms to the administration of family law in Canada.

Unified Family CourtPrivate Members' Business

2:15 p.m.

The Acting Speaker (Mr. Milliken)

There being no further members rising for debate and the motion not being designated as a votable item, the time provided for the consideration of Private Members' Business is now expired and the order is dropped from the Order Paper.

It being 2.20 p.m., this House stands adjourned until next Monday at 11 a.m., pursuant to Standing Order 24(1).

(The House adjourned at 2.19 p.m.)