House of Commons Hansard #108 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was children.
Jacques Saada Liberal Brossard—La Prairie, QC
Madam Speaker, it is a list of membership on the liaison committee and associate members. This is done at the Standing Committee on Procedure and House Affairs.
Questions on the Order PaperRoutine Proceedings
The Acting Speaker (Ms. Bakopanos)
Is it agreed?
Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons
Madam Speaker, since the question has already been put on the bill, may I ask that we see the clock as 1.30 p.m. and now proceed to private member's business.
Business of the HouseRoutine Proceedings
The Acting Speaker (Ms. Bakopanos)
Is it agreed?
Business of the HouseRoutine Proceedings
The Acting Speaker (Ms. Bakopanos)
It being 1.30 p.m. the House will now proceed to the consideration of private member's business as listed on today's order paper.
Jay Hill Canadian Alliance Prince George—Peace River, BC
moved:
That, in the opinion of this House, the government should draft legislation that recognizes that it is in the best interests of children that (a) they have the opportunity to be heard when parenting decisions affecting them are being made; (b) those whose parents divorce have the opportunity to express their views to a skilled professional, whose duty it would be to make those views known to any judge, assessor or mediator making or facilitating a shared parenting determination; and (c) a court have the authority to appoint an interested third party, such as a member of the child's extended family, to support and represent a child experiencing difficulties during parental separation or divorce.
Madam Speaker, I thank my colleague from South Surrey--White Rock--Langley for seconding my private member's Motion No. 186 today. I will not read the somewhat lengthy motion into the record, Madam Speaker, since you were kind enough to do that.
The viewing audience at home might be interested in knowing where the idea for the motion came, a motion which obviously deals with not only parental rights but, more important, the rights of the child.
Quite some time ago, on November 18, 1997, the Minister of Justice, the same minister who is currently serving in that position, struck a special joint committee of the House and the other place to look into issues of access and custody involving children of divorced parents.
I would like to read the preamble of the resultant report by the Special Joint Committee on Child Custody and Access which became known and is still known by the term “For the Sake of the Children”.
When she struck that special committee, she said:
That a Special Joint Committee of the Senate and House of Commons be appointed to examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests.
That was just part of the directions she gave that special joint committee at that time.
It is interesting to note that the special joint committee did some terrific work. With regard to that special joint committee report, “For the Sake of the Children”, there are few times that committee reports have such widespread universal support for the recommendations that they came up with, but that happened in this case.
Some dissenting minority reports were filed by the opposition parties, at that time the Reform Party of Canada, the Bloc Quebecois and the NDP, to the actual report, “For the Sake of the Children”. By and large, they agreed with the thrust of the majority of the recommendations. It was just that the different parties had different ideas on where to go from there and how much to expand on some of the recommendations that were contained in “For the Sake of the Children”.
Why did I go to the effort of taking the recommendations out of the report, “For the Sake of the Children”, drafting them into private members' motions and then submitting them to the House for consideration, as I have done with Motion No. 186? For those who would take the time to look at what is contained in the motion that was just read out, it is virtually identical to recommendation No. 3 in “For the Sake of the Children”.
I have done that with all 48 recommendations in the report. I have drafted them into private members' motions and submitted them to the House for consideration.
All of us, and hopefully most Canadians, understand how private member's business is conducted. We draft motions and bills, submit them and then we participate in what in effect is a lottery. If members are fortunate enough to have their name drawn then they get to choose. If a member's name is drawn for a bill and he or she has tabled, submitted and introduced more than one bill in the House, then the member gets to pick which one he or she feels is the most important at that time or which one is possibly the most timely in the sense of warranting debate on the floor of the House of Commons, and similarly with motions.
I have somewhere in the neighbourhood of 60 private member's motions and I had to pick one. I chose this one which then became known as Motion No. 186.
Although we are looking at the motion in a singular sense, what we and the nation need to be discussing on behalf of the hundreds of thousands of families affected by antiquated and ineffective divorce laws in Canada is the report “For the Sake of the Children”. The report contains 48 recommendations. We need to look at it in its entirety rather than just at Motion No. 186.
I give special recognition today to the hon. member for Sarnia--Lambton who co-chaired the Special Joint Committee on Child Custody and Access. He has remained extremely active on the issue over the years as I have.
Because I sat for the first time in my parliamentary career on the subcommittee that attempts to choose votable items when they are drawn, the member for Sarnia--Lambton graciously accepted my invitation to appear before the subcommittee to plead the case to make Motion No. 186 votable. Even though he is a Liberal member of parliament I pay special tribute to him.
Many members of parliament from all parties represented in the Chamber have often referred to the issue. There are many issues that cut across partisan lines and party positions. However when dealing with the lives of children and families if there is an issue that cuts across partisan politics it would be this one .
I note and applaud the efforts of the hon. member for Sarnia--Lambton. I also applaud Senator Anne Cools of the other place. Senator Cools was very active in this report and has remained active in promoting the right of children to be heard during divorce and separation proceedings.
I wish there was time to read all 48 recommendations but this is a lengthy and comprehensive report. Unfortunately the government continues its course of inaction on the file. It is a huge disservice to Canadians and in particular to Canadian children.
As I made reference to earlier, hundreds of thousands of families out there are affected by the issue including extended families and second marriages. Sometimes people get the misconception that the issue is about father's rights versus mother's rights. It is not. All too often there are second families with stepmothers who love the children as if they were their own. They see their families being torn apart because of the inequality inherent in our court system in how these issues are treated.
It is not an issue of father's rights versus mother's rights. It is an issue of children's rights. That is why I chose to highlight this recommendation during this hour of debate.
Like MPs from all parties on both sides of the House I have received hundreds of letters on the issue during my eight year career as a sitting member of parliament. Other members have said similar things in conversations with me. The letters are heart-rending communications from people who are absolutely begging for our help.
I do not have time to refer to many of them but I will read quick excerpts from the latest two letters I have received. The first is from a gentleman by the name of Vic Desautels. He wrote me on October 17. He is from the city of Prince George. He says:
I am involving my political representatives at this time, because the situation I am in will not be useful to you after the fact. Only current problems seem to get attention, even those these injustices will be repeating themselves continually until the system is changed. Not many of us are capable of writing all the letters that need to be written, so I am trying to do my part.
He also says:
I am still active with non-custodial parent support groups. Locally, I am involved with the Parent Child Advocacy Coalition (PCAC), which Todd Eckert and I began as the Parents of Broken Families group.
Another lengthy and heart-rending letter was written on September 13 by Gil McGillivary of Dawson Creek. He says:
I have missed out a lot of activities and bonding time with two sons not that I wanted to but couldn't afford to sustain a long legal battle with my ex-wife. I'm 45. My oldest son has just turned 13 in Alberta child-welfare custody...My other youngest boy is in care of my ex-wife who has not allowed me to see him since he was 7 years old (he's now 11) and all I am to him is a money ticket. My ex-wife has totally alienated me from him and it hurts me. I would have preferred to have been able to take both of my boys camping, hunting, and fishing like any other normal family but have never been able to do so with my sons.
Let us remember that this letter was written two days after the tragedy and horror of the terrorist attack on New York. He concludes the letter by saying:
If the world is going to come to an end shortly or prolongedly war please let me have my son at home without this great distance separating us as a family even if you must find a group home or sponsor here in Dawson Creek, B.C. All my son wants is to be a part of this family. He's scared of what is transpiring in the world as is so many other people in this world. Please help us as quickly as possible. Thank you.
Madam Speaker, I am sure you have had similar letters and you can imagine their effect on me. You could probably search through your files and find similar letters that tug at your heartstrings.
It seems that no matter how much emphasis there has been on the issue from both sides of the House, the Minister of Justice has failed to act and rectify the wrongs inherent in the system.
The Special Joint Committee on Child Custody and Access, which received the testimony of thousands of people, either in writing or in person, back in 1988, did great work putting together its report, but what was it for? It sits there gathering dust like so many reports in the past. How frustrating is that for the hundreds of thousands of families and all the children?
There are thousands of divorces every year. Thankfully about 90% of them do not end up in court. Most parents who separate come to a reasonably amicable settlement that does not involve the courts. However about 10% do go to court and the families are torn apart. The children are often used as pawns between warring parents. We must stop this. We must try to do more for these children.
I look forward to the comments of my colleagues from all the other parties on this extremely important issue, an issue that goes well beyond partisan politics.
I hope the Minister of Justice is listening to this and to members on her own side of the House. I hope we will finally see action on this file.
Stephen Owen LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada
Madam Speaker, I thank the hon. member who has presented Motion No. 186. It has laudable intentions. However I will take the opportunity to outline the reasons the Minister of Justice cannot support the motion brought forward by the hon. member for Prince George--Peace River.
As presented to the House, Motion No. 186 proposes to amend the Divorce Act so that all children whose parents are divorcing have the opportunity to speak to a skilled professional with a view to providing them the opportunity to be heard when parenting decisions affecting them are being made. It is a laudable intention. The motion would also give the court the authority to appoint a person to support and represent the child.
Separation and divorce are difficult for children. The family law system must be responsive to their needs. It is important for the children's well-being that parents and others involved in the justice system learn more about taking the wishes of children into account when making decisions that concern their living arrangements. However they must do so without making the children the decision makers.
According to article 12 of the United Nations convention on the rights of the child, to which Canada is a party, governments should recognize that children capable of forming their own views have the right depending on their age and maturity to participate in a meaningful way in decisions that affect their lives. Such participation may be direct with the children speaking for themselves, or indirect with someone else presenting the children's views or interests.
Although the intention of Motion No. 186 is laudable the Minister of Justice cannot support it for two important reasons. First, it is inconsistent with the government's commitment to a comprehensive strategy for reforming the family law system that deals with child custody and access.
Second, it is inconsistent with the government's commitment to work closely with the provinces and territories to develop co-ordinated reforms that respect the constitutional divisions of powers and responsibilities. I will explain this.
In its May 1999 response to the report of the Special Joint Committee on Child Custody and Access the government announced a strategy to identify reforms, particularly reforms respecting amendments to the Divorce Act. The strategy is based on the primary principle that the individual needs, best interests and well-being of children are paramount.
The government's strategy is rooted in four principles. First, there is a desire to promote child centred reforms that focus on minimizing the negative impact of divorce on children. The strategy identifies the need to reform the legal rules, principles and processes that would better structure the decision making process in a child centred way and shift the focus of the family law system from parental rights to parental responsibility.
Second, the government is committed to work closely with the provinces and territories to pursue co-ordinated multi jurisdictional efforts while respecting the division of powers and responsibilities in the area of shared constitutional responsibility.
Third, there is a critical need to explore a broad range of measures to support families going through the separation and divorce process. Statutory amendments alone cannot address many of the problems that are in reality only partly legal in nature.
Fourth, we must recognize that each family has unique characteristics and experiences divorce and separation differently.
The strategy emphasizes the need for a comprehensive government response to address these important issues that have a major impact on children's lives. Motion No. 186 proposes to add only a specific provision to the Divorce Act relating to children's perspectives in divorce proceedings. Although the motion is commendable in its intent it is far too narrow in its scope.
The federal and provincial governments have specific constitutional powers with respect to family law. The territorial governments have specific responsibilities under their original acts. The federal Divorce Act generally applies where parents are divorcing and need to settle child custody, access and support. Provincial and territorial laws apply when unmarried parents separate or when married parents separate and do not pursue a divorce. They also apply to some issues in divorce proceedings.
Currently the federal Divorce Act and provincial and territorial legislation all have the same general legal principles governing custody and access disputes. If the federal law is reformed without corresponding changes to the provincial or territorial laws we risk creating confusion and uncertainty. This would lead to more conflict between parents and an increase in litigation which would only aggravate the difficulties experienced by children.
It is important to remember that provinces and territories have exclusive constitutional jurisdiction over the administration of justice. This includes the responsibility for establishing the rules of civil procedure and administering court services, including procedures respecting Divorce Act matters. We must be very careful to respect this constitutional division of powers when we suggest amendments to the Divorce Act.
What is being proposed by Motion No. 186 would have serious implications for provincial and territorial court services. Motion No. 186 intends to create a section in the Divorce Act that would provide children of divorcing parents an opportunity to express their views to a skilled professional whose duty it would be to make those views known to any judge, assessor or mediator facilitating the determination of parental arrangement.
Implementing the proposed provision would require that services and programs be put in place across Canada. Services would have to be both accessible and affordable for the children of all divorcing spouses. This may be ideal in some cases but it would have major economic consequences on the provinces and territories. They would not respond positively to such a legal requirement and would likely view this as federal intrusion into matters of provincial jurisdiction. Provinces and territories would also likely expect the federal government to provide the financial funding for these services since this legal requirement would be imposed on them by the federal government.
Motion No. 186 also proposes to create a section in the Divorce Act that would provide courts with the authority to appoint an interested third party such as a member of the child's extended family to support and represent a child experiencing difficulties during parental separation or divorce. The section is problematic for two reasons.
First, the Divorce Act only applies to divorcing spouses. The provinces and territories have exclusive jurisdiction over family matters concerning separating parents. Consequently, if this provision were included in the Divorce Act it could only apply to the children of divorcing parents. It seems rather unfair that different services would be available for children depending on whether their parents were separating or divorcing. Unfortunately that would be the result of the proposed motion.
Second, what is being proposed by the motion would have serious implications for provincial and territorial court procedures. It seeks to provide the court with the power to appoint a third party to support or represent the child. Court procedure falls within provincial and territorial jurisdiction. Currently the manner in which the children's perspectives are heard in family law proceedings differs in each province and territory. Some provinces and territories have models of legal representation for children, including a child advocate or lawyer, an amicus curiae or friend of the court, or a family advocate, which is a government appointed lawyer who acts in the child's best interests.
These people have specific training to represent children in family law proceedings. The appointment of a family member to represent a child, as proposed by the motion, may not be in the best interests of the child as this person would likely have neither the advocacy skills nor the knowledge of the law and court procedures to properly represent the child.
Alternatively, if the motion is suggesting that there be a nationwide program of child legal representation, then surely it would fall within provincial and territorial jurisdiction and would require a prior commitment by the provinces and territories as well as a large funding commitment by the federal government.
The government has spent a considerable amount of time working with the provinces and territories to improve the family law system for the children of separating and divorcing parents and to develop well considered reform proposals that would promote a more child centred approach to family law. These proposals were described in the consultation document “Putting Children's Interests First: Custody, Access and Child Support in Canada”.
In the spring of 2001, the federal government, in partnership with provinces and territories, held in person consultations in every jurisdiction across Canada. The responses received through the consultation process have informed the federal-provincial-territorial discussions and guide the development of our reforms in the area of custody and access, which the Minister of Justice has committed to table by May 2002.
For these reasons, the Minister of Justice does not support Motion No. 186 at this time.
Carol Skelton Canadian Alliance Saskatoon—Rosetown—Biggar, SK
Madam Speaker, I am very pleased to address Motion No. 186 from the hon. member for Prince George--Peace River and its relation to children's rights and needs in divorce proceedings.
Children are often looked at or viewed as property when parents divorce, but they are not simply another thing that needs to be argued over. These children have real feelings, fears and concerns. Often they feel that somehow the divorce is their fault. They wonder if they could have done something to bring it about. To not have their concerns addressed causes further damage to their fragile emotions.
A joint committee was established by the Liberal government to look at the issue of child custody and access. The results were published in 1998 and were then promptly overlooked by this government. I believe that there are some very important points in the report the committee released. The report is called “For the Sake of the Children”. What an excellent title for this topic.
Currently the Divorce Act states that decisions made in custody and access cases are to be in “the best interests of the child”. It fails to state who is to decide what constitutes the best interests of the child: a parent, a judge, a lawyer, a court, or a social worker. The voice of the child is often not included in the decision making process.
One of the mandates of this committee was:
--to assess the need for a more child-centred approach to family law policies and practices that would emphasize parental responsibilities rather than parental rights and child-focused parenting arrangements based on children's needs and best interests--
The motion before us today deals with three areas of change in regard to child custody and access, the first being that children have the opportunity to be heard when parenting decisions are being made that would affect them. Child custody and access should not be about the ownership of the child but rather what environment would be the best for the healthy development of that child, including social, emotional, physical and psychological development.
During the course of the study in “For the Sake of the Children”, many children of divorce were interviewed about their thoughts and ideas about divorce and access. This is what two of the children had to say: “They think you are nine years old and don't know anything. But it's your life”, and, “They're deciding your life and they don't even know you”.
Decisions about the futures of these children are being made by an anonymous person, a judge, who is certainly well intentioned but does not really know these children. Kathleen McNeil, representing Mom's House-Dad's House, stated before the committee:
When one takes the time to listen to the children and truly places their interests first, a greatly different picture can emerge as to what ought to be done in each individual family...Children find it incomprehensible that some unseen person called a judge has said that from now on, one parent...is someone you now have visits with, and not very often. You aren't going to see your parent every day--
The second part of the motion states that children should have the opportunity to share their views and ideas with a skilled professional who in turn would relay those views to any judge, assessor or mediator facilitating a shared parenting agreement.
This would allow children the opportunity to sit down with an unbiased person and let them know what they would like to see done. Their feelings and fears would be taken into consideration. Often children feel out of control. They feel that they have no say in the situation. The decision to divorce was that of their parents. Allowing the children to share their thoughts and ideas gives them a sense of control in this otherwise unstable situation. Traditionally adults are the ones with the power to make all the decisions, leaving children waiting in the wings for the outcome. The court would have the opportunity to get to know the children and therefore make a more accurate determination of what their best interests are when deciding custody and access.
The United Nations convention on the rights of the child was ratified by Canada in 1991. Article 12 of the convention provides for children to have the right to express their views freely in matters affecting them. The federal and provincial governments need to work together to develop a framework that would guarantee that the voices of children of divorce are heard, and not only heard but taken seriously.
Who knows the feelings of a child better than that very child? Part (c) of this motion outlines provisions for a third party, typically a family member, to help represent a child's interests during parental separation or divorce. For children to have a trusted family member near with encouraging words, to hold their hand and help make their voices heard, would be an effective way of empowering children. It would be reassuring to have a loved one near when mom and dad are struggling themselves. Some would say that court appointed representation would be the answer, but that again raises the issue of decisions being made by an individual who does not really know the child. A family member or friend would be better equipped for the position.
One of my concerns is that there are no age limitations in this motion. A child of 3 years is far less likely to fully understand the situation and the ramifications of their actions than a child of 10 or 12. This needs to be considered.
Also in regard to part (c) pertaining to third party representation, I believe the individual should be mutually agreed upon by the parents and the child. Children in the process of divorce are emotionally vulnerable and need to be protected. There would be an opportunity for the third party to sway the child or plant ideas. If the third party were to be agreed upon by all parties involved it would help to ensure a healthy support system for the child.
I believe that more can be and needs to be done to protect the emotional and psychological well-being of children in our country when it comes to divorce proceedings. Healthy children grow into healthy adults. As the number of divorces in Canada continues to rise so too will the number of children affected. We cannot ignore their voices. Without active participation in a decision making process it will be difficult for these children to fully accept the decisions being made.
Instead of presenting children with an adversarial environment, we need to ensure that they feel protected. They need to feel that their wishes, thoughts and feelings are being taken into consideration. Making them part of the solution instead of leaving them on the sidelines would be beneficial to all parties involved.
I would like to take this opportunity to congratulate the member for Prince George--Peace River on the motion. I feel that this would be a positive step in helping to protect our children. The report “For the Sake of the Children” provides an excellent look at the difficulties faced by parents, children and others involved in divorce proceedings in our country. I am saddened that the Liberal government refuses to look at this report or to act on the recommendations from the committee. Positive changes would be possible if the government would listen to the recommendations and to the voices of the children who are affected every day by divorce.
I support the hon. member's motion and I am hopeful that members opposite will see the benefits that this type of reform would provide.
Monique Guay Bloc Laurentides, QC
Madam Speaker, I would like first of all to congratulate my colleague on his great concern for children.
Unfortunately, the Bloc Quebecois will oppose this motion, and I will take the time allotted me to explain why.
We oppose this motion because of the flagrant encroachment by the federal government in Quebec's jurisdiction over separation.
Under sections 91 and 92 of the Constitution Acts of 1967 and 1982, marriage and divorce are matters of federal jurisdiction, whereas the celebration of marriage and civil rights are exclusively the jurisdiction of Quebec and the other provinces.
The result is potential friction and confusion. It is therefore vital that Quebec and the provinces be given jurisdiction to ensure consistency in marriage and its effects. We believe therefore that the Divorce Act must be repealed and the jurisdiction transferred to the provinces to put an end to the encroachment in matters of separation.
I cite in this regard Senator Gérald Beaudoin, who wrote, in 1990:
One may wonder why those who drafted the 1867 constitution granted to parliament exclusive jurisdiction over marriage and divorce. It would appear that it was for religious reasons.
Under section 185 of Lower Canada's civil code, marriage could only be dissolved by the natural death of one of the spouses. That principle was accepted by the overwhelming majority of Catholic Quebecers. Protestants wanted the opposite, namely to allow the Canadian parliament to legislate divorce. Hence section 91.26 of the Constitution Act of 1867, which gives exclusive jurisdiction to the Parliament of Canada over marriage and divorce.
The source of the distinction of constitutional jurisdiction is no longer at the core of today's issues, and laws must now reflect the multiple and extended realities of today's families.
This raises the issue as to which legislative body is in the better position to look after the child's interest and the resulting repercussions.
Quebec and the other provinces should have full jurisdiction over family law and should legislate in this area based on their own social reality. In this regard, I want to quote Senator Beaudoin once again:
The question begs to be asked: Should the jurisdiction over marriage and divorce be given to the provinces, so that Quebec could have more control over its family law, an important part of its private law which is different from that of other provinces?
Some experts see advantages in leaving this jurisdiction under section 91. Decentralization here would be a paradox, in their view, while our neighbours to the south appear to be moving toward centralization and standardization of divorce laws. They may be forgetting that we have to different legal systems in Canada, and the arguments supporting their position may be a little less convincing in Canada.
The terminology creates a problem between Quebec, the provinces and the federal government regarding parental responsibility. The closeness of the terms parental responsibility and parental authority generates confusion and allows the federal government to infringe upon the jurisdictions of Quebec and the other provinces.
The notion of parental authority is already applied in Quebec in that both parents are recognized as having parental authority, even if custody or access rights, whether exercised or not, are not involved. Parental authority has as its goal shared decision making by the parents with respect to the educational, social and health issues affecting the child.
Article 394 of the civil code of Quebec provides that the spouses together take in hand the moral and material direction of the family, exercise parental authority and assume the tasks resulting therefrom. The effects of divorce, including clearly defined parental responsibility, should flow from the same legislative source.
Parental authority is exercised both for married couples and for those living common law. The civil rights of the child and the responsibilities of his parents towards him are the same within and outside marriage. The notion of parental responsibility is applied only in cases of separation or divorce and solely to specify the right to custody and access rights, regardless of the child's interests.
There can be no agreement as long as the terminology is not standardized. Agreement is possible only if the Divorce Act is repealed in favour of Quebec and the provinces. The notions of parental authority and parental responsibility could thus be made concordant for enforcement purposes.
At this point, I am going to focus on various parts of the motion which we feel are very important. Quebec already has a third party, and a competent one at that, who can support and represent a child during legal proceedings. This third party is the attorney for the child. Article 394.1 of the code of civil procedure of Quebec provides that:
Where, in a proceeding, the court ascertains that the interest of a minor... is at stake, it may, even of its own motion, adjourn the hearing of the application until an attorney is appointed to represent him.
At this level--and I am speaking for Quebec--children already have a third party to help them through a crisis such as divorce.
There is the entire question of manipulation. There is a danger of manipulation by the children. If asked to voice an opinion on the decision relating to parental responsibility, they may give one that suits them but is not necessarily in their best interest.
Unjust situations can be created by manipulation of the court. Children might opt for living with the parent who always gives in to them.
Children can also cook up situations in order to tip the balance in their favour, manipulating not just the court, but the parents as well. Outside the court, the child could make demands of the parents in exchange for a favourable testimony for one or the other, trying to get each to up the ante. This is not unusual. It is very common to see a situation in divorcing families where the children try to manipulate both father and mother with tales of dad or mom is going to give me this or that, which often are untrue. One can well imagine what could happen if a situation were created which encouraged the risk of such manipulation. This can be avoided. Seeing it in the motion is extremely worrisome.
Parents can also be manipulative. As can be the case with children, parents may also have a tendency to try to manipulate the child to live with them. Parents could try to buy the child's favourable testimony. The result is that the child's testimony is biased. The court might then make a wrong decision in its custody ruling.
The role of the attorney for the child is to represent the best interests of the child, rather than representing the parents' or supporting their attempts to curry the favour of the child.
There is also the whole psychological aspect involved. Everyone knows that separation or divorce can have a severe impact on children and their emotional state. Children are upset when told by their parents that they are separating, and they often experience feelings of guilt. Many children feel that it is all their fault that their parents are divorcing.
These feelings can last a long time, even after the legal proceedings. Children often feel as though they are the target of parental confrontations, or as though they have caused them. Children should never be required to participate actively in such conflicts, which should remain between parents; children are only third parties.
The principle that children should not be made to testify is well known to the legal and psychological professions.
Indeed, a child cannot be required to testify on the parenting abilities of its parents, as this would require the child to have a thorough knowledge of each of its parents.
The child could not only end up feeling responsible for the separation, but for its finality as well.
All of this to say that, obviously, we are living in a time of change. Divorce and separation do occur. And yes, they cause children to suffer. Some of them suffer terribly, but I do not think this motion helps the present legal system in any way. It in fact complicates it. A legal system already exists in the provinces to look after all this.
And so we will oppose the motion.
Pat Martin NDP Winnipeg Centre, MB
Madam Speaker, I also am pleased to enter into this debate on Motion No. 186. As other members have done, I want to thank the member for Prince George--Peace River for his private member's business. It is a very useful and necessary debate.
As has been pointed out, it is an area of broad public interest. In fact as the hon. member from Prince George said, many of us, as members of parliament, receive representation from constituents in our offices on this very issue. These often are some of the most difficult issues with which we have to deal and are often heart-rending stories from people wrestling with the agony associated with a difficult marriage and divorce and the subsequent custody and access issues.
It is a reflection of the broad interest in the subject that the House of Commons, in the last parliament through a joint committee of the Senate and the House of Commons, undertook what had to be the most comprehensive policy review on this subject in Canadian legal history. I know you, Madam Speaker, were part of this committee.
I do not know a great deal about the nature or structure of the special joint committee, but it seemed to me that an overwhelming number of MPs and senators took an active role in this particular study. Although the standing committee was only seven senators and 16 MPs, as many as 40 or 50 other members of parliament sat on the committee at various times as it toured the country. A huge contribution of time, energy and resources went into this, as was only fitting given the broad level of interest and the very necessary debate that must take place.
As I did not have a chance to take part in that standing joint committee, I am glad to have the chance to share some of my views now. I appreciate the motion that the hon. member chose. As an indication of his level of interest in the subject, he chose to submit all 48 recommendations of the special joint committee on custody and access as private members' motions. That is one way we can keep the debate alive in the House of Commons.
There has been very little action on the 48 recommendations. In spite of the huge national interest in the subject, the federal government has been very slow to react to any of the many worthwhile recommendations that were made.
I note the hon. member chose the following motion for debate today. It states:
That, in the opinion of this House, the government should draft legislation that recognizes that it is in the best interests of children that: (a) they have the opportunity to be heard when parenting decisions affecting them are being made; (b) those whose parents divorce have the opportunity to express their views to a skilled professional, whose duty it would be to make those views known to any judge, assessor or mediator making or facilitating a shared parenting determination; and (c) a court should have the authority to appoint an interested third party, such as a member of the child's extended family, to support and represent a child experiencing difficulty during parental separation or divorce.
This is an eminently reasonable recommendation. It is worthy and has merit in every aspect of it. I am disappointed that some members could find fault with this very principled position. The operative words, as has been cited by other members, are “in the best interests of the child”. Surely that must be the primary guiding directive of any family law policy development review of any kind. It is in keeping with the United Nations convention on the well-being of the child.
Interestingly enough, the report title is not divorce. It is not about child support or alimony. It is called “For the Sake of the Children”. We are on the right track. No matter where the debate began when the committee started meeting, it evolved and matured in a way with which most Canadians should feel very comfortable and gratified.
The hon. member for Prince George--Peace River pointed out that he appreciated the input from people like the member from Sarnia. I am aware of his activism on this issue as well. People like Senator Landon Pearson, who co-chaired the committee, should be recognized in any debate on this subject.
I tried to understand the speaker from the government side on this subject, I still do not fully understand the objection to such a straightforward development, to what would be a shift in policy regarding family law. We are not talking about any fundamental change here. We are talking about better representation. That is one of the basic tenets of fairness. All sides in a misunderstanding or a disagreement should be given the tools necessary to make their points of view known in debate.
In other words, in this case it would be the children, those least able to make their views known, who should be given support or given an advocate, someone to advocate on their behalf to make their views and wishes known. This would be in keeping with the basic elements of fairness. That is why we give legal aid to someone who is charged with an offence and cannot afford a lawyer. It is based on the same principle that a person has a right to a real defence in a tribunal, a meeting or a hearing.
The motion deals with the rights of children in the event of a divorce and it is worth noting some of the changing attitudes toward divorce in general as background information as we go into this debate. Again I will read from the report, which I found very instructive and useful. Under the category of attitudes toward divorce it states:
Most Canadians consider divorce to be a right. Adults are free to marry whom they wish, and if one of the partners finds the relationship unsatisfactory, unhealthy, or unsafe, he or she is free to end the relationship through divorce.
People's attitudes toward divorce changed with the Divorce Act in 1985. It gave Canada no fault divorce. Under that act people do not have to prove or justify why they choose to end a relationship. They can simply announce their unhappiness with the relationship.
It is easy to enter into a divorce but let us take a look at other people who are affected by that choice. An assumption is made in the 1985 divorce law that children are better off living in a divorced situation than they are living in an unhappy marriage situation. This is a presumption. I am not sure if there is any empirical evidence or market research to back it up. It was a belief held by Canadians as they moved into the 1985 view of divorce. They feel that we are better off making it easier for parents to split up because there could be damage to children's development or well-being from living in an unhappy household.
That has only recently been challenged. That has been the prevailing thought in Canada for the last 15 years. There is a growing movement now in which people are not so sure about that any more. I am not talking about abusive relationships or violent situations where there is risk to a child's health, well-being or mental stability et cetera. I note that this book points out that in some states in the United States there are mandatory steps that couples must take prior to applying for a divorce. A comprehensive effort is made to do everything that can be done to keep families together.
I am not saying that it is a panacea. I am not even recommending it for this country as we move forward on this thorny issue. I am saying that what we once accepted as conventional wisdom is not carved in stone. There is nothing static about our points of view. Our thinking on family law should be dynamic and should evolve as the debate matures.
I am glad that this issue is being debated in the House of Commons today. It is appropriate and timely. We owe it to many thousands of people who are embroiled in often heart-rending situations of custody and access disagreements to have this debate in the House of Commons and bring this issue forward so they can take some comfort and solace in the fact that somebody cares. It is obvious that the member for Prince George--Peace River cares very deeply.
Ken Epp Canadian Alliance Elk Island, AB
Madam Speaker, my introductory story is about an older couple. He was 92 and she was 91. They showed up in court and said that they wanted a divorce. When the judge asked them why they would want a divorce after 67 years of marriage, the lady said that they would have divorced years ago but that they did not want to hurt the children. She went on to say that the children had all passed away so now they could get divorced.
My story just shows how important it is to put the children first, as that couple did, by hanging in there, settling differences and keeping the marriage together. I commend the member for putting children first in a very difficult situation.
Jay Hill Canadian Alliance Prince George—Peace River, BC
Madam Speaker, because I overlooked it during my earlier remarks, I would like to note that you were also a member of that committee and your name does appear on the very comprehensive report, “For the Sake of the Children”. I commend you as well for the interest you have shown over the years on this subject. As colleagues from all parties have noted, this does cross all party boundaries and partisan politics.
I want to end the debate this afternoon by thanking my colleagues from the other parties: the Canadian Alliance member for Saskatoon--Rosetown--Biggar for her kind and supportive comments; and the New Democratic Party member for Winnipeg Centre for his comments about this important issue, and the support of the intent of the motion.
I note as well the remarks made by my colleague from the Bloc Quebecois. It is unfortunate that there are times when one province or another, especially in Quebec, has better family law than in other parts of the country. If we had been able to have a good debate on this subject and Quebecers could have heard the Bloc and other representatives from Quebec present their case, I think it would have been a service to other provinces to note that perhaps there is some superiority in the laws, particularly in Quebec, dealing with families of divorce and separation which we could have incorporated into other parts of the country. However that was not allowed to happen.
I want to note my disapproval, frustration and sadness with the remarks made by the Parliamentary Secretary to the Minister of Justice as he spoke on behalf of the Minister of Justice and said that yet again parents and primarily children would be asked to wait longer. He used the term May 2002 before another step would be taken on this issue. I say shame on the government for not acting on this issue.
The member also said that to support the motion would be inconsistent with the government's comprehensive strategy of working with the provinces to pursue co-ordinated, multifaceted initiatives and other glowing terms. The reality is that nothing further will be done immediately to address these injustices despite, as he termed it, the laudable intentions of my motion.
The same arguments were used on February 23 when I introduced Bill C-237 that dealt with shared custody or shared parenting. The federal government was not concerned about the federal intrusion into provincial jurisdiction when it imposed Bill C-68, the gun registry, and yet it seems to be very reluctant to do it on behalf of children.
There is only one chance left and I will take it now. On behalf of children across Canada, I seek unanimous consent of the members present on this Friday afternoon to make Motion No. 186 votable.
Children of Divorced ParentsPrivate Members' Business
The Acting Speaker (Ms. Bakopanos)
Is there unanimous consent to make the motion votable?
Children of Divorced ParentsPrivate Members' Business
The Acting Speaker (Ms. Bakopanos)
The time provided for the consideration of private members' business has now expired. As the motion has not been designated as a votable item, the order is dropped from the order paper.
It being 1.13 p.m., the House stands adjourned until Monday next at 11 a.m., pursuant to Standing Order 24(1).
(The House adjourned at 1.13 p.m.)