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.