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.