moved:
That, in the opinion of this House, the government should consider, in conjunction with the provinces, the active promotion and implementation of the Unified Family Court in order to emphasize mediation in family law issues, and to improve the administration of the interjurisdictional aspects of family law.
Mr. Speaker, for the record to be complete, I am pleased to speak to this motion and I will repeat the motion now:
That, in the opinion of this House, the government should consider, in conjunction with the provinces, the active promotion and implementation of the Unified Family Court in order to emphasize mediation in family law issues, and to improve the administration of the interjurisdictional aspects of family law.
I brought this motion forward because the landscape of family life in Canada is changing dramatically and radically. Many factors are involved in this change.
Those factors range from changes in technology to the mobility of persons, changing expectations even within society. But I would put to this House that perhaps the most notable change of all has been the change in marital breakdown within society.
Divorce in Canada is too important to be ignored. It is too important for government to step aside and let what is happening happen. The patchwork legislation such as Bill C-41 is simply not enough, so I am pleased again to bring forward some suggestions that are in the process and relate to this very important item of divorce.
Divorce is under federal jurisdiction and was made so in the British North America Act in 1867. At that time divorce was granted only if it could be proven that one spouse committed adultery. The jurisdiction was shared between the federal Parliament that enacted the law and provincial legislatures that gave courts the authority to grant divorce.
In 1968 the grounds for divorce were expanded to include marital breakdown and marital offences where breakdown was defined as such things as desertion, imprisonment and separation for at least three years. Marital offence was defined as physical or mental cruelty. It was quite a span of time from 1867 to 1968 before any changes were made at all to the law.
In 1985 the Divorce Act was opened again. It was amended so that marital breakdown was deemed the only ground for divorce. That was defined as separation of at least one year, adultery and/or physical or mental cruelty.
It is interesting to note that the no fault provision, that is separation for at least one year, was used in 91 per cent of the divorces in the first year after the passage of that bill in 1985.
Between 1965 and 1988, before the first change to the bill and after the second, Canada has the record of going from one of the lowest rates of divorce to one of the highest in the industrial countries. The latest statistics state that approximately one in every two marriages today ends in divorce, showing another increase.
This eight fold increase in divorce since the changes in 1968 underlines a fundamental shift in our understanding of the basic concepts of marriage, children, relationships and others. They reflect a change in things like social mobility, lower birth rates, equality rights and entry of women into the labour force.
Even though divorce is rampant, it is true that seven out of ten Canadians remarry. Marriage is not forgotten. However, the process of divorce takes its toll.
As a society our concern is the major effect of this process on children and, therefore, the social and economic effects that result from that.
Children are our country's most valuable resource. Scientists have said that there are certain developmental and cognitive predictors we can look at to see how successful they will be and how they will contribute to society.
Scientists have noted life changes that affect children and have listed and quantified them. Some of the life changes that have dramatic effects on children are negative economic circumstances, particularly of women after divorce; erratic or no contact with the non-custodial parent; ongoing parental conflict or less availability of the residential parent because that parent may have to work.
In contrast, the top factors that work toward positive consequences in the event of divorce would be the extent to which parents resolve the conflict surrounding the divorce, the quality of the custodial relationship and the extent of not feeling rejected by the non-custodial parent. These all have positive effects on children.
As the government looks at legislation relating to divorce it has a responsibility in these areas, not in just one or two of them because they all affect children, the products of the marriage, and all too often the victims of the divorce.
The signs of stress from this epidemic are everywhere. Youth suicides are escalating, teen pregnancies are escalating, youth violent crimes doubled in the last few years. Even such things as academic achievement, which has been shown to relate specifically to the security of the child and the feeling of belonging, in recent days has shown to be lacking in Canadian standards.
When I think back to what the government did in Bill C-41, I see it as a dismal failure. Bill C-41 will create renewed legal wrangling between custodial and non-custodial parents and that will work directly against the best interests of children.
The Liberal government is out of touch with the realities faced by Canadian families in their homes and in the process of divorce. Bill C-41 essentially relegates the non-custodial parent to the role of a money machine. The guidelines lack any recognition or encouragement of special circumstances or commitments of time or resources unless it is above a 40 per cent access threshold. It encourages an all or nothing mindset as to whether someone is a custodial or non-custodial parent. The justice minister has claimed that this legislation is designed to reduce conflict. Because of this legislation, the battle lines will be drawn earlier and the battle will go on longer.
Other factors are that access to the non-custodial parent are ignored and the non-adversarial atmosphere that is recommended is ignored. The government is blind to the real needs of Canadians and has refused to consider support and access together, despite the testimony of many Canadians and experts.
One thing the government can do is move in the direction of a valuable change to promote more aggressively something that came through in 1974 from the Law Reform Commission of Canada. This was a suggestion to establish a unified family court system across the country.
Federal officials say that the government has supported the idea of a unified family court ever since the law commission issued this report. Yet 27 years later we have very little to show for it. In 1974, the Law Reform Commission said: "In some provinces, as many as five different courts may handle family problems. Overlapping and fragmentation occurs in the areas of custody, wardship, adoption, maintenance and divorce. This not only leads to multiplication of effort, but can produce irreconcilable decisions". Twenty-seven years later, this is still the case.
The commission also said: "The most distressing effect of the present state of affairs is the despair, confusion and frustration it causes to the participants". I would add, to the children of the participants. Divorce and separation are traumatic enough without being made more difficult by the court system. Yet little has been done to remedy the situation.
Shortly after the commission report in 1977, Ontario implemented a unified family court pilot project in Hamilton. In 1978, Saskatchewan set up a unified family court. Today, Saskatchewan has a family court in three urban centres and Ontario has it in five. Also, Manitoba and Newfoundland provide province wide access to a unified family court. Previous debate in B.C. and Alberta about the implementation of a unified family court has collapsed.
Twenty-three years after a commission report, we have a convoluted variety of family court systems with no visible national commitment to establish a nation wide family court. Meanwhile, those who are suffering from the lack of action are families, especially the children.
Stronger leadership is needed from the federal government to encourage all the provinces to establish unified family courts for the sake of children.
A unified family court, according to the Law Reform Commission, should have the authority over most family matters, including the formation of marriage, divorce, judicial separation and separation orders, alimony and maintenance, custody, access, adoption and child neglect. The commission recognized differences of opinion over such matters as interspousal or interfamilial torts and contracts, guardianship of the property of minors in interspousal or
interfamilial offences of a criminal nature including, of course, family violence.
A unified family court offers several clear advantages for litigants over the present system. First, it will eliminate the problem of overlapping and fragmentation in many present rulings along with the confusion and frustration litigants face with this state of affairs. It can also save time and money.
As the Law Reform Commission said: "Present systems cause duplication of effort by judges, lawyers, witnesses, court administrators and the parties themselves". This naturally leads to increased costs.
Consolidation of family law jurisdiction in a single court would reduce the cost of legal services to the litigants. Not only are initial costs lowered but future costs can be as well.
A spokesman for the Hamilton unified family court said:
If you come back to the court, say, five years later to seek a variance on a ruling, you can apply for it in the unified family court through a motion, which is simpler and less costly than the usual application that is required in other courts.
The Hamilton unified family court has also implemented case management, a more efficient way of processing court cases. A case is assigned to one judge who is responsible for seeing it through to completion. He can deal with the various aspects of the case and while doing so develop a familiarity with the litigants and their problems which will help him to guide them through the process as quickly as is helpful to them.
Further to these benefits is the commitment in unified family courts to consider the dynamics of family conflicts. Judges in a unified family court specialize in family disputes and therefore can more effectively work with them on a personal and individual basis. A judge having developed a familiarity with a case can often offer advice. Also the litigants are saved the confusion of having various judges involved in different aspects of their situation offering contradictory advice.
Family court judges also look differently at situations than criminal court judges. For example, they are responsible to take into consideration the best interests of the child. In the case of a wayward child, if the judge knows the child is involved with social workers from within the same court he may well treat the case differently from one in which the provision of help for the child is less clearly defined.
Unified family court can also facilitate more effectively the use of mediation, an alternative to the adversarial and more destructive litigation process. Mediation is becoming increasingly popular as people experience the benefits of this approach to conflict resolution.
I will speak specifically to mediation. Last year the civil justice task force report by the Canadian Bar Association made strong recommendations for increased use of alternative dispute resolution instead of litigation to resolve civil cases. Noting the increased use of dispute resolution methods such as mediation in place of litigation that is already taking place, the Canadian Bar Association urged even more dedicated commitment to pursue that such methods be made.
It recommended that every jurisdiction make available as part of the civil justice system opportunities for litigants to use non-binding dispute resolution processes. While it did not advocate mandatory mediation it did suggest the use of incentives to encourage litigants to use dispute resolution methods and to do so as early in the process as possible.
The Ontario government has recently launched a pilot project that imposes mandatory mediation as the first stage in all civil disputes. Interestingly enough it has accepted family conflicts.
Why do we want to stop and look at mediation in family disputes? The Canadian Bar Association did not go specifically to matters of family law, but the principles and recommendations made by the bar have also been used effectively to resolve family disputes and are being used to one degree or another in different jurisdictions in Canada.
The main concern about family conflicts that led to their exemption from the mandatory mediation pilot project was that in some cases it could involve domestic violence and other power imbalances in family relationships that some say would disadvantage women in the mediation process. However all provinces have had quite a bit of experience with mediation already and screening systems can be implemented to filter domestic abuse cases out of the mediation channel.
The Divorce Act already requires lawyers to make their clients aware they can pursue mediation in place of litigation and to different degrees provincial governments encourage the use of mediation.
Let us consider mandatory mediation. The commitment to mediation in family disputes must be stronger than simply a suggestion. Extensive documentation already exists about the negative effects of divorce on children. The adversarial nature of litigation and common battles over child custody leave even more scars on these innocent victims.
As the Canadian Bar Association stated, court trials should be seen as "an option of the last resort". Rather than mediation being an option within the hands of lawyers I suggest that lawyers become an option only if mediation becomes unworkable.
Is mediation the entire answer? Should consideration be made for counselling as well? The idea of courses before divorce, premarital courses, marriage and parenting courses has some real validity. The government minimizes by neglect the implications in societal contribution of strong marriages and so ignores such suggestions. The government minimizes by neglect the devastating effect of marital breakdown on children.
As usual government policy is working against families without these recognitions being in place. Financial incentives for counselling such as tax credits or at the very least a GST exemption for counselling services would be a step in the right direction.
Whether we make mediation mandatory or simply offer strong incentives which make it or counselling a more appealing alternative in most cases, the federal government needs to urge each Canadian jurisdiction to take seriously the importance of providing Canadian families with a practical alternative to litigation.
The Law Reform Commission of Canada report calls for reform in our court systems to aid families. The recent Canadian Bar Association task force suggests dispute resolution approaches that are already proving effective in resolving family disputes in some jurisdictions. The benefits of unified family court and mediation process offer families something that is not now there in the process.
Due to the growing concern over family conflict with today's level of divorce, due to the non-partisan nature of concern for Canada's children and due to the recognition there is much that can be done to prove their lot in society the motion deserves more than just one hour of debate. I therefore ask for unanimous consent to make the motion votable.