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.