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.