House of Commons Hansard #20 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was children.


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1 p.m.

Canadian Alliance

Jay Hill Prince George—Peace River, BC

My colleague from Yorkton—Melville is right. A fundamental issue of democracy is to have proper representation, and that is the way in which a standing committee should operate.

A lot of members of parliament from all parties question the work that can be accomplished and the amount of effort that is expended on standing committees. I have not had the opportunity to be around this place nearly as long as the hon. government House leader but it has been my observation over the past seven years that there is a huge variance in how standing committees operate. Part of it comes down to the way the chairperson chairs the meetings. The chairperson can set the stage for the operation of the committee, which may then operate in a quite non-partisan way and accomplish a lot of good on behalf of Canadians and parliament.

Conversely, I and many of my colleagues have had the misfortune of sitting on standing committees that operate in a very partisan manner. In many cases, for members from all parties who sit on such committees and endeavour to get something done, it is questionable whether they should even waste their time showing up.

With the Standing Committee on Transport and Government Operations starting off by taking this step, it was a gross unfairness to the official opposition. I made the comment that I shuddered to see where it would lead if the stamp that was put on the operation of the committee at its inaugural meeting was one of unfairness and partisanship. How can members of that committee be expected to put in the effort, to work hard and endeavour to accomplish something on behalf of parliament and of the citizens of Canada?

All too often we are constrained by time. When legislation comes forward we are given a 20 minute time slot in the House. When that is further divided in half it gives us 10 minutes to discuss issues of importance. We all know it is sometimes extremely difficult to get a point across in 10 minutes.

I recognize and have often had the opportunity to remark, when I speak in my riding of Prince George—Peace River, that in some ways I am becoming a politician. It now takes me 20 minutes to say what I used to say in three or four. Bearing that in mind, it is probably good that we are a bit constrained. Otherwise we would go on and on, dare I say, ad nauseam.

I wanted to bring that issue to the attention of colleagues, as well as to the Standing Committee on Transport and Government Operations, which will soon be discussing, debating and calling witnesses on Bill S-2 and other legislation and projects that the committee wants to undertake on behalf of parliament. I wanted to sort of red flag that issue in the hope that we could negotiate some other agreement between members of that committee, but also between members of all the other standing committees. We need to get a structure in place.

I do not think my two colleagues and I are asking for anything outlandish. We are simply asking for fairness in respect to the numbers. I suggested that perhaps questioning at that committee, and indeed at all committees, should bear some resemblance to what was agreed upon for question period where there is a weighting according to the number of seats each party has in the House of Commons.

I believe it should be similar to what happens in standing committees, with the exception I fully respect that they are supposed to operate in a non-partisan manner. In fairness to Liberal members sitting on those committees, they should have at a minimum 50% of the questioning time because they have a larger number of members present listening to the presentations of witnesses.

I draw my remarks to a close. Hopefully the government will see fit to communicate not only to members of the standing committee on transport but of all standing committees that they should endeavour to launch the committees and indeed operate in as non-partisan a manner as possible, in fairness to all committee members regardless of the party they represent.

We would like to see this thorny issue dealt with as quickly as possible. Then the committee could get on with the important work I am sure it will have over the life of this parliament.

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1:05 p.m.


Mario Laframboise Argenteuil—Papineau—Mirabel, QC

Madam Speaker, first, I would like to congratulate you on your position of Assistant Deputy Chairman of the Committees of the Whole, and the hon. member for Bruce—Grey—Owen Sound on his election as chairman of the Standing Committee on Transport and Government Operations.

I would just like to inform the hon. member for Prince George—Peace River that the procedure in the Standing Committee on Transport and Government Operations is, obviously, the same as the one adopted when the Reform Party was the official opposition, and when the Bloc Quebecois formed the official opposition. So it is high time certain people stopped putting on airs. Obviously, we have adopted the same standard and the same procedure as in the past in the Standing Committee on Transport and Government Operations.

We are here today to discuss the bill on marine liability. This is an example of a bill on which all parties in the House were virtually unanimous. Why then is it not yet passed as we speak? We need to take some time to look at this, for it brings the whole Canadian parliamentary system into question.

Hon. members realize that the bill originated in the Senate. It could just as well have originated in the House of Commons. Then it would probably have had a chance to get passed before the last election. Once again, this is an example of how the parliamentary system complicates things, particularly for a bill of such benefit not only to the people of Canada but to people everywhere. Members understand because this bill deals among other things with oil spills, a major environmental concern.

Contrary to what the hon. member for Saskatoon—Humboldt kept saying this morning, members know that any reform of the Canadian parliamentary system would require a close look at the Senate and at the millions of dollars it costs the parliamentary system, as well as all the endless delays without which Bills S-17 and S-2 for instance would have been passed much more quickly in the best interest of the people in Quebec and in Canada.

For the benefit of Quebecers and Canadians, I would like to briefly review the purpose of Bill S-2. The first part deals with personal injuries and accidents. It would allow the dependants of any person injured or killed in a marine accident to recover damages, which is not possible under the current legislation which will be replaced by this bill as soon as possible, hopefully in the days or the weeks to come.

Members will surely understand that, in the interest of all families, the Bloc Quebecois agrees with these new provisions that would allow, as I said, dependants of any person injured or killed in a marine accident to recover damages, as is often done under civil law.

The second part sets the rules for the appointment of liability. Obviously, this is based on the principle that, if several persons or ships were responsible for an accident, their liability should be proportionate to the degree to which they are respectively at fault. If it is impossible to determine who was at fault, then the parties involved should be jointly liable for losses and damages, as is the case in Quebec civil society.

The Bloc Quebecois cannot be against such a principle, which respects the logic of Quebec law.

Part 3 of the bill deals with the limitation of liability for maritime claims. The purpose of these provisions is to limit maximum liability in terms of cash amounts or units of account. Obviously, this can be somewhat complicated for the general public.

Units of account are special drawing rights issued by the International Monetary Fund under the 1976 convention concluded in London and under the Canada Shipping Act. This liability in terms of cash amounts or units of accounts will now cover owners of docks, canals and ports who are responsible for an accident. Again, this would ensure that all parties responsible for an accident assume their share of liability.

The Bloc Quebecois totally agrees with this position with regard to maritime claims.

Part 4 of the bill deals with liability for carriage of passengers by water. The objective is to apply the liability of carriers that was included in the 1974 Athens Convention regarding the carriage by sea of passengers and their baggage to the carriage by water under a contract involving passengers or passengers and their baggage from a place in Canada to any other place in Canada, and which could even transit through a destination outside the country.

This includes compensation for passengers and their baggage. Therefore, from now on, all those who engage in the transportation of passengers by water will be responsible for damage caused to passengers and to their baggage under any contract or tour that would begin and end in Canada, even if the purpose of the tour is to go outside Canada, or to travel to foreign destinations. If they come back, these carriers will be held responsible for the passengers and their baggage.

The Bloc Quebecois supports this proposal, which is in the best interests of Quebecers and Canadians.

Part 5 of the bill deals with the liability for the carriage of goods. The idea is to implement the Hague-Visby rules and the Hamburg rules to the transportation of goods by water. This applies to a much more commercial type of transportation that involves ships and large shipments. In this bill, carriage by water is the same as carriage by sea. Shipowners will be responsible for marine transportation in Canada's territorial waters.

Part 6 deals with liability and compensation for pollution. Pollution is among the most important issues in this bill.

The goal is to make shipowners responsible for damage caused by an oil spill but that liability is limited in the case of shipowners governed by the international convention on the limitation of liability, the 1969 Brussels convention which was amended in November 1976 and in November 1992.

Ships governed by that convention are required to provide a compliance certificate that compels them to have an insurance contract or a guarantor who shares with them responsibility for any damage. This would permit those suffering damage to take action against the shipowner, the insurer and the guarantor.

The principle of Quebec civil law permitting proceedings against all those responsible, including the insurers and the guarantors is applied to the principle of shipping and marine damage. The Bloc Quebecois fully supports the bill's recommendations.

The second section of part 6 of the bill concerns compensation for pollution. It involves the implementation of the international oil pollution compensation fund. The public must understand that the transportation of oil will be covered by an international compensation fund. Clause 73 provides as follows:

  1. If a claimant commences an action against the owner of a Convention ship or the owner's guarantor...the International Fund may appear—

The international fund is required to pay compensation through the fund administrator drawn on a compensation fund opened from a Government of Canada account and known as the ship-source oil pollution fund.

Clause 88 of Bill S-2, under the heading “Claims for Loss of Income”, enables an individual deriving income from fishing, the production of fish or the culture of marine plants, the owner of a fishing vessel and the individual processing fish on shore, who suffer a loss of current or future income or a loss of supply as the result of a discharge of oil from a ship to be compensated by the said fund.

All citizens, all workers in the fishing sector, all those who benefit from the product of fishing, may now, in the event of an environmental disaster resulting from a shipping accident causing a discharge of oil, be compensated by a special fund, the ship-source oil pollution fund. This is a bank account opened by the Government of Canada. I will explain later how shipowners will deposit money in this account.

The Bloc Quebecois agrees fully with this provision of the bill. It is time that not only all those who depend on products of the fishery for their livelihood are provided with some security, but also all those who benefit from commercial fishing, even those who farm aquatic plants, those who may benefit from the ocean's resources. These people will be compensated if ever there is spill resulting from a shipping accident.

Even though we are in agreement with the bill, there are always important questions to ask. We will no doubt have an opportunity to discuss these in committee before the bill is passed.

Clause 91 sets a maximum on the amount that the ship-source oil pollution fund may pay. This maximum is the same as the maximum in effect on March 31, 1990. This bill adds annual indexing based on the “Consumer Price Index, excluding the food and energy components”.

It is all very fine and well to decide to have a fund, to pay compensation and to set a ceiling, but the problem is that this is the same amount that applied on March 31, 1990, indexed but “excluding the food and energy components”.

It is inconceivable that the energy component would be excluded for a company or industry whose business involves energy, petroleum products and their transportation, given the millions and billions of dollars in profits they have made in recent years.

I hope the government will have the courage to force them to pay compensation that is indexed to include the energy component in the consumer price index.

Under the heading “Payments into the Ship-source Oil Pollution Fund”, sections 93 and following require shipowners to pay a levy of 40 cents per metric ton in excess of 300 metric tons for shipments of oil imported by ship into Canada as bulk cargo or shipped by ship from any place in Canada in bulk as cargo.

Obviously this amount of 40 cents can be considered important, but once again we are back with the same problem as with the maximum amount. It is the same amount the industry was paying back on March 31, 1990. The bill states that the amount will be indexed annually according to the consumer price index, but again excluding the food and energy components.

The Bloc Quebecois will be insisting in committee on an amendment to this part of the bill so as to include the energy component for shipowners who are precisely the ones drawing benefit from this industry, which has become highly profitable in recent years.

This would represent a simple gesture of good faith toward all those who might incur damages and would like to see added to the annually indexed 1990 figures the cost of the energy component, which in this country has been one of the major causes of the increased cost of living.

Those who are listening will surely agree with us that the energy component has been the one most responsible for the rise in the cost of living, in the higher costs for Quebec and Canadian families. Energy costs have in large part been responsible for the increase in household costs in the past year and one-half, if not longer.

Moreover, the Government of Canada has even acknowledged this with the cheques it recently issued. This got a poor reception from the people who actually have to pay energy costs, who have to buy fuel oil, but many of whom were not included in this Liberal government largesse. Once again, because of the elections, they made another promise without calculating the impact on the good citizens of Quebec and of Canada. We trust that the energy component will be included.

I take the opportunity to pass the following message on to the Liberal government. Correct this error as quickly as possible. It is serious for anyone heating with oil, anyone facing increases in heating costs and should have received a cheque, regardless of their income.

These people have had a significant increase, sometimes as much as 80%, in the cost they pay for heating in recent years. Once again the industry benefited and not the public of Quebec and Canada.

We will agree with part 6, apart from the fact that, according to the consumer price index, the energy factor should be added to this indexing and not excluded from it.

The seventh part of the bill validates certain regulations, including those of the Canada Ports Corporation Act of 1983 and 1985, in addition to the regulations made under the Pilotage Act, the Laurentian Pilotage Tariff Regulations, 1992. We fully support the bill, which validates the tariffs for the Laurentian Pilotage Authority.

The Bloc Quebecois would like to point out the work of the Canadian Marine Pilots' Association and the International Maritime Pilots' Association, including the work of the lower St. Lawrence pilots and the pilots of central Quebec, who have had to fight for over 30 years for their profession.

Shipowners and members of the industry are constantly harassing pilots in the St. Lawrence Seaway and in central Quebec, in an attempt to eliminate their work, on the grounds that it is an excessive cost for their industry.

When a ship plies the St. Lawrence River and its affluents, it is taken care of by a pilot who is a member of the pilots' association to which I just referred. This pilot has the experience, skill, wisdom and knowledge required to avoid marine disasters.

It is important that in the bill we accept and recognize the Laurentian Pilotage Tariff Regulations.

I take this opportunity to ask the Liberal government to stop listening to shipowners who, again, are trying to make profits at the expense of pilots from the maritimes, the St. Lawrence River and central Quebec. These pilots are competent and they take charge of ships precisely to avoid natural disasters and oil spills in the St. Lawrence River.

We must stop criticizing and instead consolidate the work of these pilots, who are not the only ones in the world doing that job. There are pilots' associations on the Mississippi and elsewhere in the world, including in countries with large rivers and affluents.

Once again, we must try to send a clear message to these pilots, whose role it is to protect our environment and particularly to be responsible for a ship, regardless of its destination, whether it is Canadian or foreign owned, that they must take responsibility for it and ensure its safe arrival at ports along the St. Lawrence and all its tributaries.

I think that this is the best security we can obtain as Quebecers and Canadians. We must ensure our constituents, the people we know, Quebecers and Canadians, those around us, that there are people who are working to try to stave off future environmental disasters, the human errors made by captains unfamiliar with the difficulties of the St. Lawrence and its tributaries.

We are therefore taking this opportunity to pass this message on to the government and also to congratulate and thank marine pilots of whatever allegiance—because there are several marine pilots' associations—but especially those working on the St. Lawrence and its tributaries, the St. Lawrence and central Quebec pilots' associations, and all those doing a good job of trying to protect the environment of Quebec and of Canada.

The Bloc Quebecois is in agreement with part 8 of the bill concerning transitional provisions.

It has been my pleasure to present my position on a bill which, I repeat, should be passed as quickly as possible.

As I said at the beginning, it is sad that the Canadian parliamentary system, such as it is, delayed the passage of this bill before the last election. This is a bill originating in the Senate, with the result that there are very tight deadlines. The result was that a good bill, supported by all parties in the House, was significantly held up.

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1:25 p.m.



Don Boudria Leader of the Government in the House of Commons

Madam Speaker, if no other member wishes to speak on this bill, I wonder whether we could put the question immediately to refer it to committee. I think that all parties are in favour of the bill, because I discussed this earlier.

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1:25 p.m.

The Acting Speaker (Ms. Bakopanos)

Is that agreed?

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1:25 p.m.

Some hon. members


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1:30 p.m.

The Acting Speaker (Ms. Bakopanos)

Is it the pleasure of the House to adopt the motion?

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1:30 p.m.

Some hon. members


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1:30 p.m.

The Acting Speaker (Ms. Bakopanos)

The motion is carried. Accordingly, the bill stands referred to the Standing Committee on Transport and Government Operations.

(Bill read the second time and referred to a committee)

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1:30 p.m.

The Acting Speaker (Ms. Bakopanos)

It being 1.30 p.m., the House will now proceed to consideration of private members' business as listed on today's order paper.

Divorce Act
Private Members' Business

February 23rd, 2001 / 1:30 p.m.

Canadian Alliance

Jay Hill Prince George—Peace River, BC

moved that Bill C-237, an act to amend the Divorce Act (joint custody), be read the second time and referred to a committee.

Madam Speaker, at the outset of my remarks I thank my hon. colleague for Skeena for seconding my bill today.

I am pleased to have the opportunity this afternoon to address my proposal for what I believe to be an important amendment to the Divorce Act. This is contained in private member's Bill C-237.

The purpose of the bill is to establish a new basis for sharing the custody of children following the divorce or separation of their parents. The bill would ensure that courts grant custody of a child to both parents unless there exists evidence that to do so would not be in the best interests of the child.

In 1985, Bill C-41 amended the Divorce Act, making it easier for Canadian couples to file for and receive divorces. The changes removed most of the blame from divorce proceedings. Since then, in effect, we have had no fault divorce. It is estimated that as many as 90% of divorces are now granted without a formal court hearing. Putting this 90% figure into perspective, 69,872 of the 77,636 divorces granted in 1995 did not proceed to the courts. The downside is that the remaining 10%, or 7,764, were the subject of protracted and at times difficult litigation.

In the same year, more than 47,000 children were the subjects of custody orders. Using the same 10% figure, it means that approximately 4,700 children were exposed to ongoing tension, fighting and at times even violence between their parents. It is the children who are the sole inspiration for the bill.

During the review of the Divorce Act in 1985, significant lobbying took place to encourage parliament to take action to protect the interests of children involved in divorce and custody battles. Parliament agreed that the subject required extensive review and established a Special Joint Committee on Child Custody and Access that eventually released a report in December 1998 entitled, “For the Sake of the Children”. Unfortunately, this was two years following the passing of the amendments to the Divorce Act and many of its recommendations have yet to become law.

The committee was comprised of senators and members of the House of Commons from all parties. They set aside their partisan differences to examine and analyze the impact of custody arrangements on children of divorced or separated parents. I would be remiss if I did not take this opportunity to commend all members of the special committee for their work on this very difficult and sensitive subject.

The committee approached its work with great determination and travelled from St. John's to Vancouver and conducted 39 meetings where it heard from no fewer than 500 witnesses. These witnesses included individual parents, children, fathers' organizations, women's groups and professionals, including lawyers, judges, social workers, psychologists, physicians and others. The committee paid particular attention to what was being said by all of the witnesses and one resounding conclusion was reached. Dramatic changes were needed in the way parenting arrangements are decided following divorce.

The committee concluded that there was difficulty with the current provisions of the Divorce Act, as it focuses solely on granting custody of the children to one parent and access to the children by the other parent.

Courts rarely impose joint custody orders in the absence of the consent of both parents. It is thought that unless the parents could work together amicably and constructively enough to set up their own custody and access arrangement, joint custody would not be in the best interests of the children. There is considerable evidence to suggest that this assumption is deeply flawed.

Marital breakdown is not an appropriate time for parents to be making decision regarding the division of parental responsibility. Far too often the courts are granting custody arrangements that will result in the estrangement of children from not only the non-custodial parent but also the members of a non-custodial parent's family, such as stepbrothers or sisters, aunts, uncles and grandparents.

Bill C-237 seeks to establish that the custody of the children will automatically be granted jointly to both parents. This represents a fundamental change to the current system of custody. We will no longer look upon the process as determining custody and access but as establishing joint parenting responsibilities.

Children define themselves by their parents. It follows that it is in the child's best interests to have continuing contact with both parents, based on the child's existing relationship with each parent as it has developed during the course of that child's lifetime.

It is very important for me to clarify that joint custody does not necessarily mean that parents start out with 50% access to their children. It means that the parents will have equal decision making authority with respect to the child on issues such as schooling, religious upbringing and medical care.

It is estimated that under the current system, 86% of children reside with their mother, 7% with their father, and that only 6% live under some form of joint custody arrangement. We recognize that these patterns generally reflect the division of child care responsibilities in intact households and that many divorcing parents agree to these arrangements because it continues with arrangements that existed pre-divorce or is otherwise in the best interests of the child.

By amending the Divorce Act to automatically grant joint custody we will be establishing a new starting point for discussions regarding custody of children. In these discussions both parents will be working from a position of equal footing and the children will no longer be pawns in divorce proceedings.

The proposed amendments also contain a number of additional provisions relating to the authority of the courts in determining the best interests of the children. The court retains the ability to amend the custody agreement where it can be demonstrated that the child has suffered mistreatment by one of the parents. The court also has the ability to amend the custody agreement for a definite or indefinite period of time or until the happening of a specific event or it can attach conditions that it feels are fit and just.

There is also additional protection for parents who enter into joint custody arrangements. For example, the courts may include in any order a requirement that the custodial parent provide advance notice to the non-custodial parent of any intended change of address. In addition to being of obvious benefit to the non-custodial parent, this also provides a benefit to the children, as it allows sufficient time for changes to be made to parenting agreements and to analyze the impact of the move on the child.

In advancing these amendments to the Divorce Act, Canada joins countries such as Australia, the United Kingdom and many states in the United States in the establishment of joint custody laws.

The bill is about putting the interests of the children ahead of the interests of two divorcing parents. It is about preserving the role and contribution of both parents and their extended families in the upbringing of children.

I would hope that all members of the House would join me in supporting the legislation for the sake of the children.

Divorce Act
Private Members' Business

1:40 p.m.



John Maloney Parliamentary Secretary to Minister of Justice and Attorney General of Canada

Madam Speaker, as presented to the House, Bill C-237 proposes to amend the Divorce Act by creating new section 15.4, which would provide that courts grant the custody of the child of the marriage to both spouses jointly, unless it is the opinion of the court that to do so would not be in the best interests of the child.

Bill C-237 would amend existing subsections 16(1) and 16(4) of the act that currently authorize courts to grant custody of or access to any or all children of the marriage to any one or more persons, by deleting the references to custody so that these subsections would pertain only to access orders. In effect, the bill creates a rebuttable legal presumption of joint custody.

The Government of Canada announced a strategy for family law reform with respect to child custody and access in May 1999 when the Minister of Justice tabled the government's “Strategy for Reform”. This strategy includes fundamental principles for reform and emphasizes the need for a comprehensive government response to address those important issues that have an impact on children's lives. In light of this commitment to a comprehensive strategy, the Minister of Justice is not in a position to support Bill C-237.

The effect of Bill C-237 is to create a legal presumption of joint custody. There are four fundamental problems with this legal presumption.

First, it is inconsistent with the government's strategy for reform which rejects the idea that a one size fits all approach may be applied to all families experiencing separation and divorce.

Second, it is inconsistent with the recommendations of the special joint committee's report “For the Sake of the Children”.

Third, the bill is inconsistent with the government's commitment to work closely with the provinces and territories to develop co-ordinated reforms that respect the constitutional division of powers and responsibilities.

Finally, the bill potentially creates confusion by imposing a legal presumption of joint custody without defining what is meant by that term.

I have noted that Bill C-237 is inconsistent with the government's strategy for reform of the family law system dealing with child custody and access. Let me explain. The reform strategy was announced by the Minister of Justice in May 1999 when she tabled the government's response to the report of the Special Joint Committee on Child Custody and Access, “For the Sake of the Children”.

The government's plan for identifying reforms, and in particular, reforms respecting amendments to the Divorce Act, is based on the primary principle that the individual needs, best interests and well-being of the children are paramount. The government's response notes that the Government of Canada has developed a strategy that is rooted in four principles.

The first principle is the desire to promote child centred reforms that focus on minimizing the negative impact of divorce on children. This strategy identifies the need to reform the legal rules, principles and processes that will 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.

The second principle is the government's commitment to work closely with the provinces and territories to pursue co-ordinated, multijurisdictional efforts while respecting the division of powers and responsibilities in this area of shared constitutional jurisdiction.

The third principle refers to the critical need to explore a broad range of measures to support families going through separation and divorce, because statutory amendments alone cannot address many of the problems that are, in reality, only partly legal in nature.

The fourth principle is of the utmost importance for the matters we are currently discussing. It is the recognition that each family has unique characteristics and experiences divorce and separation much differently. It is exactly the reason why we do not want to apply a one size fits all approach such as that suggested by Bill C-237 to all Canadian families experiencing divorce.

Conflict levels of separating parents vary widely, as do individual children's needs. As well, children undergo developmental change over time and adjustments may be needed to allow for changing relationships and circumstances. The Government of Canada's reform strategy recognizes that no one model of post-separation parenting will be ideal for all children. For this reason, the minister cannot support the one size fits all approach that Bill C-237 attempts to introduce into the Divorce Act with the creation of a presumption of joint custody.

As indicated, the proposed bill is inconsistent with the recommendations of the special joint committee's report “For the Sake of the Children”. The special joint committee heard many arguments in favour of various different legal presumptions such as the one proposed by Bill C-237 when it held public hearings across the country.

The special joint committee held 55 meetings and heard from many witnesses across the country, including individual parents and children, women's groups, fathers' organizations, lawyers, judges, social workers, psychologists and physicians. The hearings highlighted the difficult, emotional and contentious nature of custody and access issues and confirmed that the very different and often conflicting views continue to be held, both about the problems and about the reforms that are required.

The special joint committee's report entitled “For the Sake of the Children” acknowledged that one of the most frequent requests at these hearings was that the Divorce Act be amended to add a legal presumption. However, the special joint committee decided not to recommend a legal presumption. Instead, the report states on page 42:

Presumptions in favour of joint custody or the primary caregiver have been adopted in a number of US jurisdictions, but in some cases legislatures have subsequently withdrawn them after finding that they were not having the intended desirable effects. Presumptions that any one form of parenting arrangement is going to be in the best interests of all children could obscure the significant differences between families...Presumptions can also have a negative effect of compelling families who might otherwise have been able to make constructive, amicable arrangements to apply to a court, if they want to avoid the application of a presumptive form of parenting arrangements.

The special committee carefully considered and rejected the use of legal presumption, such as the one that Bill C-237 attempts to introduce into the Divorce Act. This is another reason why Bill-237 should not be supported.

The government is committed to working closely with the provinces and territories. I am concerned that Bill-237 is inconsistent with the government's commitment to collaboration and partnerships in this area of law. This is one of the four fundamental principles of the government strategy for reform, to work closely with the provinces and territories to pursue a co-ordinated, multi-jurisdictional effort while respecting the division of powers and responsibilities in the area of shared constitutional jurisdiction.

The federal and provincial governments have specific constitutional powers with respect to family law, and the territorial governments have specific responsibilities under their original acts. The federal Divorce Act generally applies where parents are divorcing and need to settle issues such as child custody, access and support. Provincial and territorial laws apply when unmarried parents separate or married parents separate and do not pursue a divorce, as well as to some issues involving divorce proceedings.

Currently the federal Divorce Act and provincial and territorial legislation all have the same general legal principles to govern custody and access disputes. Bill C-237 would impose a legislative presumption that is not found in any of the provincial or territorial statutes. If the federal law is reformed without corresponding changes to the provincial or territorial laws, we risk creating confusion and uncertainty leading to more conflict between parents and increasing litigation. This would only aggravate the difficulties experienced by children.

The bill amending the Divorce Act could also have serious implications on provincial and territorial court procedures and court services. The provinces and territories have constitutional power over the administration of justice. This includes responsibilities for establishing the rules of civil procedure and administering court services within their jurisdiction, including procedures respecting Divorce Act matters.

Arguably, specialized court services and programs would be necessary to assist families who had a joint custody order imposed on them by the courts without their agreement. This could be the result of the proposed Bill C-237 presumption of joint custody. Members of parliament from every party should be concerned about supporting a bill that could have this kind of potential impact on the provinces and territories while seeking their prior co-operation and commitment.

It is critical to remind ourselves that developing and implementing family law reforms is a complex task. The challenge in reforming the Divorce Act is to identify terminology that is consistent with a child centred approach and is carefully defined so that there is a clear and accepted understanding and use by both the courts and the public. I believe that the proposed Bill C-237 does not meet this challenge.

The bill creates a presumption of joint custody without clarifying what this means. Does joint legal custody mean shared decision making? If so, can we force parents to make joint decisions concerning their children when they are unwilling or unable to communicate with each other? This would be particularly dangerous in a high conflict situation. How can this be in the best interests of the child?

It is also possible that the bill is imposing a joint physical custody arrangement that would require each of the parents to be responsible for the daily care of the children for an equal amount of time. This may not be appropriate for many families. I believe that children's living arrangements should be determined according to what is in their best interests as opposed to ensuring an equal division of time between the parents.

Separation and divorce are difficult for children. The family law system must be responsive to their needs. The bill could aggravate an already difficult situation for families. It would impose a “one size fits all” approach. That is inconsistent with the government's strategy for reform and that was rejected by the special joint committee. It could create significant demands on provincial and territorial services without seeking their prior co-operation and commitment. It also introduces a legal presumption without providing clarification of what it means.

I know that the government has spent a considerable amount of time working closely with the provinces and territories to develop well considered reform proposals. To this end a number of background research papers have been prepared and several more are underway. Work is also underway evaluating the impact of legislative reforms recently undertaken in other countries. Public consultations will be taking place this year on specific reform proposals.

Developing and implementing family law reform is a complex task. Although we need to work quickly, we also need to take the time to insure that we get it right.

Divorce Act
Private Members' Business

1:50 p.m.


Réal Ménard Hochelaga—Maisonneuve, QC

Madam Speaker, as always, it is a pleasure to end the week in your company, at least the parliamentary week, because, as we all know, the work of a member of parliament is never done.

I want to commend our hon. colleague for his initiative. Unfortunately, I have to advise him that we will not be able to support his bill for a number of reasons that I will try to explain.

When these issues come up we have to remember that they are dealt with in the civil code, the justice system in effect in Quebec, where equality in law for both parents is enshrined in section 587 and subsequent sections. It is called parental authority and parents are considered the tutors of their children. That comes with a number of duties and obligations. This legal reality is enshrined in our civil code and cannot be questioned unless one of the parents is found to be unreliable by a court of justice. I am not sure how relevant this bill is, at least for Quebec.

Second, a federal-provincial-territorial task force will be making recommendations concerning family law and I will have the opportunity to come back to this issue later on. It will consider the need to reform the Divorce Act. Although well-intended, I think the bill introduced by the hon. member for Prince George—Peace River is a bit premature.

This also leads me to say that it is a bit illogical to have the federal government responsible for the Divorce Act, while the provinces are responsible for decrees of judicial separation, and Quebec is responsible for the celebration of marriage.

It was my pleasure to take a course in family law at the University of Ottawa a few years ago. If Michelle Giroux, my law professor, is watching, I send her greetings and want her to know I intend to make use of what she taught me.

There is some inconsistency in the distribution of jurisdictions, since one is hard pressed to find the logic behind Quebec's being able to legislate on marriage matters, particularly the formal requirements, on matters relating to the civil code and the right of judicial separation, while the federal government is responsible for divorce.

Does that mean that custody, fair access, something parents and guardians must have, is not a problem? No, let us make no mistake, it is an important issue.

It is such an important issue that, for a number of months, a joint parliamentary committee, comprising MPs and members of the other House, travelled across Canada. The committee made recommendations. It led to this report, which I want to show those in the gallery. It is called “For the Sake of the Children”.

To give an idea of the import of the phenomenon of divorce, I would like to read calmly, what I consider to be the essence of the report. I will not read too quickly, out of respect for the interpreters. I quote “Because of the high rate of divorce, over 47,000 children were affected, in 1994 and 1995—” You can see that this is a fairly recent phenomenon. The quotation continues “—by custody orders under the Divorce Act”. This is the legislation for which our colleague is seeking amendments to sections 15 and 4.

The report goes on:

As a result, more children—and younger children—are experiencing rearrangements in their households. Their parents' remarriages or other new relationships following divorce compound the complexity of these children's lives.

Dissolution of the marriage has a heavy impact on the children of the marriage. This is self-evident. Some 75% of divorced men and women remarry. Everyone has emotional needs, we all need to have someone in our lives. So 75% of people whose first marriage ended in divorce remarry, and children from first marriages have to develop relationships with step-parents.

In 1992, 13% of divorces were of second marriages. Why should we as parliamentarians be concerned about this? Because divorce is not just a marginal phenomenon. Members will remember that, at one time, a couple wanting a divorce had to go through the Senate and it was an exceptional procedure. This is no longer the case. Not only is divorce more accessible as an institution, but it is no longer left entirely up to the courts. Quebec has set up a mediation process between spouses, and it is working very well.

What happens with the bill proposed by our colleague? It is based on the presumption that custody has to be shared, and this makes me wonder. I consulted with my colleagues, particularly the women in our caucus since they carry a lot of weight within the Bloc Quebecois. They reminded me that presumption of shared custody is not a good thing per se unless both parents have clearly indicated that this is what they want. Shared custody must come from a common desire if it is to be fully effective from a legal perspective as well as from the perspective of the quality of life of the children, who are our main concern.

When a divorce decree is issued by the court, the judge has total discretion to assess the respective situations of both parents. In some cases, the income and the situation of each spouse make shared custody possible. However, in other cases, shared custody is not an option under the circumstances. That is the reason why presumption of shared custody is not desirable.

Again, when we talk about divorce, it is important to understand the life experiences of those parents who want to leave each other and go their separate ways. But it seems to me that our primary concern should be the well-being and interest of the children. In my view, this is not the focus of the bill as worded.

As for the expertise of Quebec, where this assumption did not have the support of witnesses from Quebec who appeared before the joint parliamentary committee, we believe, once again, that the interest of the children must be our primary concern. What do we mean by “the interest of the children must be our primary concern”. There are apparently four considerations. The first is recognized in law. We could without any trouble find cases in which common law judges relied on this concern, making it part of the jurisprudence. We are saying that, in so far as possible, the child must remain in an economic situation comparable to the one that existed prior to the divorce.

That is why, when we speak of shared custody, we must be concerned about the ability of each parent to continue to ensure the material well-being of the children as it was before the divorce. We must also place primary emphasis on the ability and the right to remain, in so far as possible, in the same neighbourhood, in the same natural environment. Automatic shared custody does not seem to us to be desirable if it means that a child will be uprooted.

When I was a law student, I recall very clearly being asked to read a decision involving a parent who wished to move to Australia. The parent with custody lived in Toronto. There was a protracted legal dispute. We see how upsetting it can be for a child who is required, in the case of shared custody, to be uprooted for one parent or the other.

Since I have little time remaining, I will conclude by saying that we are unable to support this bill. I give my colleague credit for taking an interest in the matter and I hope that our debates on the topic are productive.

Divorce Act
Private Members' Business

2 p.m.


Joe Comartin Windsor—St. Clair, ON

Madam Speaker, I rise to address this bill. By way of background, I am bringing to this the perspective of having practised family law almost exclusively for some 15 years and then significantly for another 12 or 13 years in the province of Ontario. I have also instructed in family law at the local law school as a sessional instructor and I have been a sessional leader at the bar admission course in Ontario as well.

There is a point I particularly want to address. If I understood the comments of the author of the bill, he is interested in avoiding what at times is the inevitable conflict between parents in the course of a marriage breakdown. I have to say to the member that my experience tells me the presumption he wishes to build into the legislation would inevitably have the effect of heightening both the amount of litigation that would go on and the level of hostilities between the parents.

In that regard, I draw to the House's attention some of the statistics he gave on the breakdown that exists in the country in terms of how custody arrangements are finalized. Members may recall that he made the point that in approximately 85% of all custodial arrangements custody resides with the mother of the children and some 6% or 7% with the father of the children, the remainder being joint custody arrangements.

As a bit of an aside, that 6% is a substantial increase from the time I first started practising law. I think it reflects some change in society and society's orientations and particularly in the orientation of women and mothers to be willing to look at a custody arrangement. It also reflects, I think importantly, the amount of additional time that male members of society are taking with the children in wishing to have that type of arrangement.

However, I want to come back to the reality of the process when marriage breaks down. What will occur, I prophesy, is that of the 80% of mothers who attain custody we will have a much greater number of them going to court if this type of bill and presumption are passed into legislation. We will have them going to court to rebut that presumption in order to establish sole custody in their names.

The end result is that instead of having 10% of all cases going to substantial litigation, which is the figure he quoted, we will have a greater number. As an aside, I can point out that does not mean those cases go to trial and are determined by a judge. What that means is simply that they are lengthy and protracted litigation, which oftentimes ultimately end up in settlement in any event.

However, what we will be having is a number greater than 10% in our courts. If we are really sincerely interested in protecting our children from the abuse they suffer from the litigation process, we will want to avoid this. I can speak to that personally from the fairly substantial number of contested custody cases I was involved in. There is emotional abuse of children as they suffer their way through the protracted battles between their parents. This proposed legislation would only heighten that.

From that perspective alone we would have to oppose this proposed legislation. There are a number of other points we could make regarding the validity of the presumption, but recognizing that it is this time of the week, I will leave my comments at that.

Divorce Act
Private Members' Business

2:05 p.m.

Progressive Conservative

Rick Borotsik Brandon—Souris, MB

Madam Speaker, it is now my turn to debate the bill that has been tabled by the member for Prince George—Peace River. I do thank him for putting it forward.

However, before we get into the bill itself and talk about the merits of this particular piece of legislation, I would first like to thank the member for Windsor—St. Clair for giving us his curriculum vitae and telling us of the experience he has through being a member of the bar, particularly in family law, because earlier today I commented about the Deputy Prime Minister, who made a comment yesterday about dealing with the law only if one is in fact a lawyer and which law school one should have come from. As I said earlier, I am not a lawyer but that does not stop me from—

Divorce Act
Private Members' Business

2:05 p.m.


Réal Ménard Hochelaga—Maisonneuve, QC

Good for you.