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 We believe therefore that the Divorce Act must be repealed and the jurisdiction transferred to the provinces to put an end to the encroachment in matters of separation.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.