House of Commons Hansard #52 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was children.


Divorce ActGovernment Orders

11:45 a.m.


Judy Wasylycia-Leis NDP Winnipeg North Centre, MB

Mr. Speaker, I am pleased to participate in the debate at second reading of Bill C-22. This is a very important piece of legislation on amendments to the Divorce Act and other statutes.

As others have already noted in the debate, this is a very critical issue for many in our society today.

This is a policy that affects a large number of families, children, women and parents in general. It is critical that the House of Commons study these issues and develop a bill that will bring solutions to these problems.

As many Canadians have already indicated in the steps leading up to the bill, this is a very important issue that needs to be addressed in a comprehensive and serious way by this chamber. The legislation has been eagerly awaited and some would say it is long overdue.

Today we have the opportunity to discuss the broad principles of Bill C-22. As others have already indicated, we believe the bill is so complex and the issue is so full of emotion and competing views that the bill must be sent to the justice committee as soon as possible. I support the recommendations made by members previously that this bill must be addressed in great detail and that we must be receptive to a great number of witnesses and expert testimony.

It is clear that the goal of these changes to the Divorce Act is to attempt to take into account the concerns and hopes of those who are calling for changes and those who want the status quo to be maintained when it comes to how divorce proceedings are handled.

Clearly the bill is an attempt to bring a balanced approach to custody and access and divorce based on a number of years of consultations and indepth study and research. I do not need to remind members of the rocky path that has preceded this moment with the bill before the House.

It is important for us to remember that the bill is an important phase in a long process that started in 1997 when, in exchange for Senate support for the child support guidelines, the Minister of Justice at the time agreed to create the Special Joint Committee on Child Custody and Access. The hearings at the joint committee were emotional. There were a number of heated presentations throughout the course of the committee hearings across the country. For many the end result was not satisfactory. It left a bad taste in the mouths of many who participated and it reflected some very serious divisions in our society.

Certainly there were very emotional and heated presentations from what has come to be known as the fathers' rights lobby. There were some angry words and hostile reactions in that process to the work of the feminist community, to the work of the status of women organizations which have devoted many hours and years in pursuing a just policy that reflects our goal of gender equality in this very important policy area.

Not surprisingly, given that kind of emotional testimony and heated debate throughout the special committee hearings, the report that was tabled in 1999 entitled “For the Sake of the Children” was met with a great deal of concern and criticism. There is no question about that.

Concerns were raised by individuals and organizations across Canada about the recommendations which included mandatory joint custody and shared decision making, maximum contact, parenting plans and mandatory mediation, coercive sanctions targeted against the non-cooperative parent and criminal sanctions against women who make false allegations. That is a summary of some of the contentious recommendations that were made.

Clearly the issue was not resolved with that process. Most would agree that in the report there was a lack of balance and a lack of evidence of sound research to back up the recommendations that were made. As a result the Minister of Justice promised further consultations on proposed law reform options.

In the spring of 2001 the Department of Justice and the Federal-Provincial-Territorial Family Law Committee released a consultation document entitled “Custody, Access and Child Support in Canada: Putting Children's Interests First”. It was recognized that this was an important step in terms of breaking the impasse. However, that process also generated considerable controversy and concern.

Many of the women's organizations, including the National Association of Women and the Law, felt that the process was not conducive to a serious review of the issues and was not founded on what they would consider to be a fundamental stepping off point, which is a gender based analysis. They decided to boycott those consultations and to show a concern with what they considered to be an undemocratic aspect to the consultations initiated by the government back in the spring of 2001.

The Department of Justice has taken the process a step further. Today we have a bill that seeks to address some of those concerns raised over the past five years but which still raises many unanswered questions.

The New Democratic Party position is that the bill be sent as quickly as possible to committee for indepth consultation with the proviso that there be adequate time to hear from a wide range of witnesses and to receive expert testimony with respect to the provisions in the bill.

At face value Bill C-22 seems worthy of support. By the New Democratic Party's recommendation today to send the bill to committee, we are indicating a measure of support for the provisions. We accept that there is an attempt here to find a balance and to address the outstanding concerns of many organizations in Canada.

The changes being proposed to the Divorce Act seek to remedy the often confrontational situation that exists in divorce. In the bill there is the possibility that children's interests are paramount and that is important. The bill, rather than focusing on which parent will get custody, puts in place a responsibilities framework where the responsibilities of both parents in the case of a divorce will have to be worked out. The bill attempts to strengthen the enforcement of child support guidelines and agreements.

My party also acknowledges that beyond the changes to the Divorce Act, the legislation seeks to expand the unified family court program in order to ensure that there is a specific grant to the judiciary oriented toward family issues and concerns. We understand this will include increased funding and the hiring of at least 62 new family court judges. This is absolutely imperative. There are also provisions in Bill C-22 to increase provincial and territorial family justice services, including mediation, parent education and other court related services.

After a preliminary analysis of the bill, there seems to be an important attempt to find balance and to address outstanding concerns. However I want to make a couple of points and to give further examples of why we believe the bill must be addressed at committee and full hearings held before we give full support to it.

The first point has to do with a very legitimate concern raised by the women's community. Has a gender analysis of this legislation taken place? By all accounts that has never happened. The women's community and status of women organizations in this country have repeatedly called for such an analysis. The government does not seem to be taking those recommendations seriously.

That does not surprise me given what we have been going through in the last few days with respect to the reproductive technologies legislation where the Minister of Health vetoed an amendment from the health committee pertaining to gender parity on the new agency to oversee reproductive technologies. It does not surprise me given that we have just been through a long and arduous process in terms of reforming Canada's immigration and refugee legislation and there was no gender analysis.

The need to have a gender analysis with respect to every legislative proposal, every program and every policy is part of Liberal government policy. It has been stated that this is a fundamental imperative for government. To this day it is hard to discern where that policy comes into play and is actually practised.

Today we call on the government to ensure that a gender based analysis is done and is presented to the justice committee so it can be taken into account during the hearings on Bill C-22. It is a very important issue. We are trying to grapple with the impact on women living in violent situations in the context of this important debate around custody and access. I want to remind members of why this is so important.

The National Association of Women and the Law very clearly stated:

[The association wants]... to ensure that changes to family law be made not only in the best interests of children, but also that they not jeopardize the autonomy and equality interests of women in the family. We believe that government policies must promote women's equality if Canada is to live up to its charter obligations and to its commitments made in the Beijing Platform for Action and other international instruments.

That association and many other status of women organizations have written to the Minister of Justice and to many of us in the House to make a similar point. I will quote from a couple of those sources, beginning with NAWL which said:

Making joint custody and shared parenting mandatory, enforcing a rule of “maximum contact” between father and children and imposing a “friendly parent rule” can all be used by abusive or dominating men to bolster their power over ex-wives, forcing them to remain in oppressive relationships.

I will quote from a couple of other submissions made to the Minister of Justice and to all of us. A member of the Kitchener-Waterloo sexual assault support centre said:

I expect that any changes to the federal Divorce Act will acknowledge the prevalence of violence against women and put provisions in place to ensure that child custody and access arrangements protect women and children from exposure to violence and abuse on the part of former partners. These provisions are entirely in keeping with the federal government's national and international commitments to end violence against women.

I would also like to quote from a letter sent to the Minister of Justice by the Association des francophones du nord-ouest de l'Ontario a few weeks ago:

This letter is to ask if you have fulfilled your duty, as a minister, to ensure that a gender-based analysis be done of all aspects of this federal legislation that is likely to have a significant impact on women.

There are many other organizations and expert advisers who I could quote. I want to reference very briefly the Vancouver Custody and Access Support and Advocacy Association, which is a very important organization to take into account. It was the first group in Canada to identify how the cycle of abuse was perpetrated beyond intimate relationships through custody and access mechanisms. That organization has done a very indepth examination of the whole area of custody and access and ought to be taken seriously in the process of careful scrutiny of Bill C-22.

Also, I want to reference the British Columbia ad hoc custody and access coalition which has also made that very important link between divorce law, custody and access arrangements and the way in which it can have a deleterious impact on women already in precarious situations of domestic violence, something that is critical in this day and age.

As we have heard many times before, I want to remind members how serious this issue is. I refer to an expert from my own community in Winnipeg, Dr. Jane Ursel who is with the department of sociology, University of Manitoba and with the Winnipeg Family Violence Court. In 1998 before the special joint committee, she said, “This data has indicated that of course family violence is serious and endemic in our community”. She makes that point in the context of reviewing child and custody and access arrangements and proposed changes or amendments to the divorce law because of the interrelationship between domestic violence and arrangements pertaining to custody and access.

There is no shortage of evidence to help us understand the vulnerability that women face in domestic situations and to come to grips with the significant extent of family violence in our society today.

The information by Jane Ursel at our committee meetings five or six years ago was very important for understanding the links and reinforcing the need to take seriously this very important issue. I want to reference a couple of her statistics.

In a study she did, based on her assignment with the Winnipeg family violence court, she said:

First of all, unfortunately, in the three-year time period that I have the data for you today, there were 5,674 cases of spousal abuse. The court indicates that 92% of the convicted offenders were male and 89% of the victims of those offences were female.

This was said in response to some of the testimony that we heard before that special committee suggesting that when it comes to violence in the home, domestic assaults, really there is no difference in terms of gender and that should not be a factor in these discussions. The fact of the matter is that by and large women are the victims in cases of family violence and men are the perpetrators. We need to be very conscious of that and we need to be prepared to scrutinize this legislation from that point of view.

Our job today is to take the benefit of the advice and knowledge out there in so many different organizations and apply it to the work at hand. We need to get down to a serious indepth analysis of Bill C-22 knowing that our demands and obligations require us to seek balance. We need to do everything we can to ensure that we do not make more serious a grave situation of family violence in our society today.

Divorce ActGovernment Orders

12:05 p.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I know how hard the member has worked on the issue of gender equity and on the issue generally of domestic violence. I know the member is aware that Health Canada recently issued a report on the incidents of domestic violence. Based on survey data, it concluded that the incidents of domestic violence or violence was perpetrated equally by men against women and women against men. I believe this tells us that the issue of family violence or domestic violence should not have a gender with regard to our discussions. Should there be a perpetrator, clearly the courts have to take that into account.

The joint Commons-Senate committee on custody and access produced the report “For the Sake of the Children” in December 1998. It also looked at this matter very carefully and received witnesses from across Canada. Based on the testimony, one thing it concluded was that children had the right to love each parent even though the parents hated each other.

I believe, subject to check, that the joint committee also recommended that even if there were a situation of violence or abuse, there were cases in which a parent, even if accused or convicted of domestic violence, could still have supervised access to the children.

Would the member concur that the issue of custody should certainly take into account the family violence facts, but that even if there should be some evidence of some past or recent abusive behaviour, that parent should not be precluded from having at least supervised access to their children?

Divorce ActGovernment Orders

12:05 p.m.


Judy Wasylycia-Leis NDP Winnipeg North Centre, MB

Madam Speaker, I want to indicate to the member for Mississauga South that I am not trying in my presentation during this debate in principle on Bill C-22 to inflame an already emotional issue or polarize matters any more than they are.

In my opening statement I wanted to simply try to ensure that the House was aware of the fact that one cannot look at custody and access matters and legislative changes to the Divorce Act without taking into account the impact on women and without considering the prevalence of violence against women in our society today.

It is clear that we are operating on different premises and assumptions. I want the member to know that I believe he is wrong when he suggests that violence in the home knows no gender, that gender is not a factor in when analyzing domestic abuse. All the statistics show the opposite and those statistics have not changed over the years, certainly from the days when they were reported during the special House-Senate study on the issue.

I do not believe that the member can deny the fact that when we look at the statistics over the years of spousal abuse where convictions occur, well over 90% of the offenders are men and almost 90% of the victims of those offences are female. I already made that point in my remark.

I want to further quote from Jane Ursel who is an expert in this area. She looked at 562 convictions in the same period to which I just referred. She said:

--89% of the accused were male and 76% of the victims were female, with the remainder male and female children who were victimized. In the case of elder abuse, 91% of the accused were male and 81% of the victims were female.

She concluded by saying, “It is a sad statement about our society that the factor that makes a person at risk is vulnerability”.

That must be taken into account in this debate. So many experts already have said that legislation on divorce and provisions on custody and access have an impact on women and could create for a situation where violence in the home is perpetuated, not diminished. We need to look at all the facts. I am not an expert in terms of this whole area but I know one thing. We must be open to the testimony, the facts and we must ensure that our legislative proposals do not have a deleterious impact on women who are already vulnerable and facing domestic violence in the home.

Divorce ActGovernment Orders

12:10 p.m.

Progressive Conservative

Rick Borotsik Progressive Conservative Brandon—Souris, MB

Madam Speaker, first, I congratulate the member for Winnipeg North Centre. She is consistent and puts her positions forth with passion. However I have a couple of questions.

She talks of the gender analysis, and I agree with that. However she also talks about seeking balance. In cases of divorces there is more than just simply abuse and violence. There are other areas that have to be dealt with which also have to seek that balance. Those areas obviously are financial supports and shared parenting and custody. We are not necessarily in all cases dealing with violence and abuse.

My question is twofold. In dealing with the gender analysis and issues of violence and abuse, is she prepared to keep that same open mind to seek balance with respect to both parties in divorce when dealing with other criteria such as financial support as well as shared parenting and custody? It is imperative that we ensure that we have that balance between the mother and the father in a situation that deals with children and divorce.

The second question is probably more of a rhetorical question. The member said initially in her debate that she was prepared to send this forward to committee. I concur with that but she perhaps gives committee a bit more confidence than perhaps I share by going to committee, trying to develop some better changes to the legislation, then bringing it forward to the House so that all factors can be dealt with. Does she believe that the committee is prepared at this time to have an open mind and listen to amendments that make this better legislation than what is being proposed right now in Bill C-22?

Divorce ActGovernment Orders

12:15 p.m.


Judy Wasylycia-Leis NDP Winnipeg North Centre, MB

Madam Speaker, first, the member for Brandon--Souris knows that I always keep an open mind on legislative proposals, and I am certainly trying to do that in this debate.

When I focus on the question of a gender based analysis, I am pointing out what appears to be a missing piece in this whole process and a necessary one in terms of being able to critically evaluate this legislative proposal and make wise judgments in the end.

I am certainly open to all the other issues raised by the member from Brandon but I want him to acknowledge the fact that there is a need for legislation like this to be based upon a solid, gender based review of the policy area and the legislative proposal for us to do our jobs effectively.

With respect to all the other issues that the member raised, he may have missed the fact that at the outset of my remarks I said that based upon an initial analysis of the bill there appeared to be an attempt to achieve balance in this very difficult policy area. I also pointed out what appeared to be some very positive aspects to the legislation. I also referenced the issues around putting the child's interests front and centre, about finding a better framework for dealing with parental custody and responsibility, about revamping our unified family court program and about making advancements in those areas.

I have indicated that we are prepared to see this move forward because there is some balance in the legislation. It is not totally in conflict with our fundamental beliefs and values. On that basis we believe it should go forward but with the proviso that we need to hear from expert witnesses in the context of the bill.

I hope the justice committee is prepared to do the hard work in terms of amendments but, more important, it is critical, because this is such a complex bill, that we get the bill to committee and hear as many witnesses as is necessary to evaluate the bill in a positive way.

Divorce ActGovernment Orders

12:15 p.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Madam Speaker, it is a pleasure to see you in the chair this morning. It is always a pleasure.

Clearly, this is a very important bill for Canada. Divorce is a very complex and emotional subject. The implications for children, parents and all families throughout the country are significant. These issues can have a very negative impact on society.

So, the government must respond by passing a bill that takes a very clear and very direct stand on these issues.

The debate, clearly, will evoke some very emotional responses from members of Parliament who have been involved in this issue for many years. I know the member from Mississauga, as well as my colleague from the NDP, have followed the issue very closely and will present compelling arguments and important perspectives as we move forward with the legislation.

However we must constantly be cognizant of the fact that the changes we initiate in the bill can have a profound impact on people's lives, particularly those with children and those with families in general. The bill could have significant, long-lasting and, at the risk of sounding overly dramatic, life-lasting implications.

Legislation is part of the answer. I would suggest that there is attitude and obviously a need to put protections in place, as has been referred by my colleague from Winnipeg. It is always difficult to legislate morality, just as it is difficult to legislate against immoral and sometimes simply stupid behaviour.

I prefaced my remarks by saying that Parliament began by investigating this important issue back in the mid-1990s. You would know this, Madam Speaker, because you were very much a part of that study and a part of that committee. In fact, a Special Joint Committee on Child Custody and Access was established during the 36th session of Parliament. The committee's recommendations were presented to Canadians through Parliament back in 1998.

The Special Joint Committee on Child Custody and Access brought forward a report entitled, “For the Sake of the Children”. It provided an indepth examination of all issues surrounding children and divorce and, in total, made 48 important recommendations. Some of those recommendations have found their way into this legislation.

Unfortunately, I would underline, for children and their families, 13 key points, which I think are crucial to the legislation, did not make their way into the legislation. I will discuss some of those in my remarks today.

A few of those major omissions include the omission of the use of the maximum contact principle in which each of the parents are required to have a maximum amount of contact for the best interests of children.

The requirement for parents to attend post-separation education programs and create parenting plans before being able to proceed with their applications for a parenting order also did not find its way into the report. I strongly suggest that this would have added a greater transition period for families going through the trauma of a divorce.

Recognizing the importance of family relationships with other extended family members is also something that is difficult to legislate but there could have been some inclusion in the legislation.

The amendments to the Criminal Code regarding punishment for intentionally false allegations of abuse or neglected family law matters. I cannot underscore this enough because, as much as I strongly agree and wrap my arms around the discussion put forward by my colleague from Winnipeg, the implications of abuse and the need to protect women, children and all members of the family from the terrible implications of violence and sexual violence, the false allegations, although on a scale are not as serious, do have a tremendous impact on a person's life and his or her reputation in the community if these allegations are made falsely.

According to the minister's legal team, which would be formidable in size and legal knowledge, the most substantive changes to the Divorce Act attempt to remove the tensions that exist between parents wishing to divorce. As members know, our judicial system is based on the adversarial model where one person is the winner and one is the loser. That sadly is often the feeling at the outcome.

In essence, the government will remove the terms “custody” and “access” and replace them with what it feels is less contentious wording, such as “parenting orders”.

These changes are outlined in clause 16(1), which reads:

A court of competent jurisdiction may make an order relating to the exercise of parental responsibilities in respect of any child of the marriage, on application....

The government believes that this change in terminology, the elimination of the words “custody” and “access”, which tend to focus on a parent's rights rather than on their responsibilities toward children, will have a beneficial effect. Well, as the old saying goes, time will tell.

What this represents is a conceptual shift, which, unfortunately, in my view will not change the dynamics present in cases of divorce. Regardless of what we call it, sole custody parenting, one parent will be the winner and one parent will still be the loser. It will take more than the bill to change societal attitudes and values in this regard.

The rationale that a change in terminology will make a divorce easier on families and by extension children, is beyond debate. Not only will it be virtually impossible for the court to extend a change in societal attitudes and values but realistically it is unworkable. By not taking into consideration the reality of divorce and some of the more preventable motivating factors, we stand to put at risk the well-being of a child further. All too often parents are more concerned about hurting one another than they are with the best interests of children, and the children unwittingly become pawns in the game of one-upmanship.

Having practised law, I far too often saw this occur. There really was no winner and loser in the final analysis. It appeared to me that everyone seemed to be losing some of their dignity and some of their emotional well-being. Some might argue that the winners were the lawyers in terms of their billable hours. However, all kidding aside, it is a very disturbing situation when this tension plays itself out through a divorce and children are thrown into the middle of the conflict and left with two competing parents, whom they love dearly, using the children to hurt one another. I cannot think of a more gutting situation for a young, impressionable child beginning life. It is a terrible situation and difficult to remedy, but we are missing an opportunity in the legislation unless some corrections and amendments are brought about.

The concerns of course deal with worse case scenarios. It is important to recognize that there are cases, and I would suggest many cases, where parents do put the best interests of their children at the forefront, regardless of their feelings in a breakdown over their own relationship with one another. Emotion often overtakes rational thinking in that regard and even some of the subtleties can be very detrimental to a child.

We in the Progressive Conservative Party are very concerned with the minister's approach, which seems to remain in the status quo with regard to grandparents.

That is my opinion. This is a very important question. Grandparents also need protection in this bill.

This is a very real failing in the legislation. It seems to defy logic and ignores the legitimate rights of maternal and paternal grandparents to access children. Clause 16(1)(b) outlines those persons other than a parent who can ask the court to review the parenting orders. It reads:

a person, other than a spouse, who is a parent, stands in the place of a parent or intends to stand in the place of a parent.

We all know there is a broad range of individuals who can fill the role of guardian. It might be a sibling or a close relative such as a nephew, a niece, an aunt or an uncle. However I would suggest that grandparents deserve special consideration in circumstances of a family breakup. I would suggest that there should be a legislated recognition of the special role that a grandparent can play in the life of a child.

While there is no specific reference to grandparents, the clause I just referenced, clause 16(1)(b), deals with the application by a grandparent to the court to seek leave of the court to make the request to assume the role of guardian.

The Progressive Conservative Party has taken the approach that we want to advocate for grandparents' rights when seeking custody of grandchildren. This issue was given considerable examination by the joint special committee, and you, as Speaker, will recall that there were many representations by grandparents.

I know that other members of my caucus, the member for St. John's East and the member for Saint John, New Brunswick, have met with grandparents groups in their communities and have heard with passion the concern that grandparents have about getting this recognition, not just to seek leave but to have automatic consideration by the courts.

The requirement that the grandparents apply for leave can become extremely costly and unnecessarily time consuming so on November 4 of this year I introduced a private member's bill that deals with a specific amendment to the Divorce Act which would allow grandparents to apply directly for custody of their grandchildren without leave of the court. Such an important amendment would allow grandparents greater ability to nurture, protect and care for children in the stead of parents. This is of course only if parents are unable, unwilling or deemed unfit to care for their children. It is an issue that should be acted upon when the bill goes to committee and an issue that has been completely ignored in the bill in its current form.

I am going to list some of the most important omissions in this bill. For example, there was no mention of the principle of maximum human contact with the parents or guardians, nor of amendments to the Criminal Code regarding false allegations of abuse or neglect with respect to family law. The most important omission is, perhaps, that it is impossible for grandparents to directly intervene regarding child custody.

This bill provides a very important opportunity for the Parliament of Canada to improve existing legislation.

There are difficulties as well with subclause 16.2(2) of the proposed legislation, which sets out the criteria that the court must consider when determining the best interests of the child. This section directs the court to consider all the needs and circumstances of the children, not necessarily an approach which will ultimately protect the child.

The criteria in paragraphs 16.2(2)(a) to (l) of the bill consider such things as the physical, emotional and psychological needs of the child, taking into account the child's age and stage of development; the benefit to the child of developing and maintaining meaningful relationships; the history of care for the child; any family violence, including its impact on the safety of the child and other family members; and the child's well-being.

I believe that this section, although it tries to go through an exhaustive list, is a sort of Cartesian thinking. It might in fact have been better to have approached this the other way and in fact have put in place the phraseology for what would not be in the best interests of the child rather than trying to include an exhaustive list of everything that is important for the child.

According to the government in this presentation of the bill, all the criteria in this section will carry the same weight, although the judge will certainly give priority to different sections depending on each case.

For example, there may be some competing interests at times. Paragraph (h), which speaks of the nature, strength and stability of the relationship between the child and each spouse, will carry the same weight as paragraph (c), the history of care for the child, although I suggest that there are instances where one parent may have been absent in terms of child care and then this would carry more weight with the judge when making his or her decision. That is to say, if one parent is working outside the home it may afford an unfair advantage to the parent providing the most day to day, hands-on care.

I find that the way in which the legislation is worded may be cumbersome. It may be setting up a situation whereby the judge is forced to make a decision on somewhat arbitrary terms because of the way in which the legislation has been set out.

Surely there are important decisions that the judges across the land are making already, based on the evidence provided to the court, and that is what ultimately should be the determining factor: factual, backed up information that is presented during the course of a hearing which allows judges to make a case by case proper determination to the best of their abilities in what will best serve the interests of the child.

The legislation is coming forward at a time when there is a sense of need. There is a sense of confusion, I would suggest, in the courts in many instances in cases involving children, particularly when the parents have taken a very adversarial approach toward one another. It is my hope that the legislation will provide further direction, yet that is one of the real concerns I have. Because of the way in which it is presented, it may throw the courts into further confusion.

The government's reasoning behind certain sections of the legislation, which set out in detail what constitute the best interests of the children, may in fact focus away from the rights of the parents. The rights of the parents also have to be given ample consideration when going through the process of determining access and custody and contact with the child. They place the focus on the best interests of the child, which have to be given primary consideration, but again, this will of course be subject to a judge's interpretation. More likely than not the end result may of course be that it causes further strife and tension because of an improper decision, because of a decision that may in fact exclude one parent from the desired contact. There are then terrible ramifications which can lead to situations that we have sadly borne witness to, where children are abducted, where parents react violently, where parents, motivated, I am quick to add, by a strong love and a strong desire to see that child, respond emotionally and irrationally.

The situation is always volatile. I can think of few other situations with such potential for a terrible result than when a parent is deprived of the right to be with a child, the right to foster and nurture a loving relationship with a child.

We are all, in this tumultuous world, aware of the violence that is taking place around the world and the images of children suffering that are constantly portrayed on the television. That tends in some cases to almost desensitize people, yet I do not think that there is any desensitization when it comes to people's connection to their child and the thought that they might lose that contact.

So the federal government is quietly spending almost twice as much money on advertising and on training lawyers about the new divorce law when it could be putting that money, I suggest, more productively into areas like counselling, like mediation for separating parents, into helping ease the pain and the excruciating emotional strain that occurs in some divorces.

Again it is an issue of priorities, I would suggest. While we agree that the Divorce Act needs to be modified and modernized to represent the current societal trends, we are concerned that this legislation does not quite fit the bill, does not quite live up to the standard that is going to be required as we go into the future with this type of legislation.

It will require and will receive examination at the committee level, I suggest, and I look forward to taking part in those committee hearings. I hope that we will be able to improve this legislation. I cannot think of a bill that is more closely tied to the societal trends that exist in Canada today, that deals with the issue of the proper rearing and nurturing of children, an important issue that all Canadians and all parliamentarians are clearly concerned with.

I look forward on behalf of the Progressive Conservative Party to bringing forward amendments that I think will improve the bill. Hopefully we are going to get this right. We have the opportunity.

We have the opportunity to develop a very productive and positive bill for the future of families and the country.

Divorce ActGovernment Orders

12:35 p.m.


Paul Szabo Liberal Mississauga South, ON

Madam Speaker, the member touched on a number of points that I think are quite useful for the House's consideration. I have read a book with regard to the issue of divorce. One of the lines that really impressed me was that when a couple divorces, “a small civilization” is destroyed. The author was referring to the family tree in that the separation of parents meant that access to grandparents, uncles, aunts and couples suddenly was taken away from the child. Children have to be put first in this.

What is really happening out there, because custody is so prevalent for the mothers, is that we have a lot of fathers out there who are having difficulty seeing their children. They are subject to what is called parental alienation syndrome, whereby the child is pitted against the father. We have numerous cases where, notwithstanding visitation rights specified by the courts, access is denied to those fathers. Fathers then have to go to court and exhaust all their resources in simply trying to see their children.

I hope that the member will give his comments on what is really happening out there. I wonder if he would also agree that Bill C-22 does not change the current substantive policy on presumptive sole maternity custody, and also that it does not address the lack of enforcement of custody and access court orders and the resulting parental alienation of children, and that possibly it does not address the denial of access of children to grandparents and other extended family members.

Divorce ActGovernment Orders

12:35 p.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Madam Speaker, I thank my friend from Mississauga. I think he will find that within the body of my remarks I did refer to all of these. In particular, I agree with the point on the omission of some specific reference to grandparents, because of that special relationship.

Similarly, this presumptive maternal custody that is still very prevalent in courts does pose a particular problem for paternal participants in the process. I feel that in many cases fathers do emerge from the courts extremely frustrated. The word “balance” is going to be thrown around a great deal in the discussion and yet the balance in my view is still not correct. It still does not favour an approach that is completely level as far as a parent's participation and a father's participation in the nurturing and raising of a child is concerned.

I am hoping, and I know that my colleague will be participating in these hearings as well, that we will somehow try to re-calibrate the approach that the courts are taking. I will admit that I myself come from a home where my parents separated when I was quite young. It goes through a child in such a painful way to see that happen. When the father is excluded from access and significant participation in a child's life the damage is fourfold, depending on how other family members react.

The ability to give the courts the opportunity to give the father that type of participation, that type of access and in some instances the custody of a child is an extremely important and powerful decision. I would suggest that we have to somehow adjust the legislation so that it does not continue to reflect a bias toward one parent over the other.

The enforcement also becomes very difficult. My friend is correct. There is nothing that I have seen in my time practising law that was more disturbing than having to send police or child support workers to a home to remove a child from one parent or the other because that child was being used as a tool to injure the other parent. That trauma lasts a lifetime as well. With regard to the enforcement mechanisms, I think we are going to have to rely on great expertise, like that of the hon. member himself, to determine the way in which we go about enforcing the law without doing further harm to the child and the relationship with the child's parents and family members.

I thank the hon. member for his questions. I know that he has been an active and passionate advocate for parents in situations such as this.

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12:40 p.m.


Paul Szabo Liberal Mississauga South, ON

Madam Speaker, one of the roles of members of Parliament obviously is to bring to Parliamentarians, colleagues in the House, the feelings of their constituents. I have had numerous people come to me who are in these situations. They have given their stories, which the member has related, and the general circumstances that the world is not unfolding. We have situations where people cannot get along, they split up and children turn out to be the victims.

I will support the bill to get it to committee and start talking about it. However, we had two years of cross-Canada consultations that were reported in 1998. The response to that was slow and in fact the response was to have another series of consultations with other people. Now we are coming here.

One of my constituents, and I will speak on his behalf, said that contrary to the commitments of the previous justice minister and the special joint committee's recommendations, this bill is not in the interests of the child, but is in the interests of the divorce industry. It is a serious indictment and I believe it is incumbent on members of Parliament to bring themselves up to speed and to inform themselves on the actual impact of the changes being made here.

The act has not been amended for a very long time. One of the things everyone agreed with, throughout all those hearings and consultations, was that we must put the interests of the children ahead of the interests of the parents. We cannot have everybody have their own way. Parents have their lawyers in court. Who is the lawyer for the children?

I am not sure whether or not we will be able to deal with this balance and put the children's interests first. I am not sure, I have not fully informed myself about the provisions of the bill and I will have to wait until it gets to committee to find out, whether or not we have balanced the interests of the divorce industry and the divorcing couple and children, instead of looking at the balance of the parties affected by the divorce.

I wonder if the member has heard similar concerns about whether or not the bill has somehow skewed or gone out of focus with regard to the principal objectives and that is to put the interests of the children first?

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12:45 p.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Madam Speaker, although I am aware of the atmosphere of cynicism and doubt around this issue, I try to be instinctively optimistic that we can in fact improve the situation.

I find myself in complete agreement though with the hon. member's condemnation of his own government and the length of time it has taken to get this matter back before Parliament in such a fashion that we can do something about it.

Yes, I hear from constituents quite regularly. I heard from them during the time I was practising law about the frustration and the need to go back to basics in offering an approach that is balanced toward ensuring that the rights of both parents and grandparents are protected, all those persons interested in the well-being of the child, and that the rights of children are protected.

The hon. member is certainly correct to suggest that in some instances it is apparent that it would be preferable to have a lawyer there speaking solely for the child. There have been rare instances where the court has appointed counsel for a child in cases where the warring parents become so driven and obsessed with their own interests that the child becomes very much the victim.

I look forward to working with the member and hearing from those who are still striving to improve the situation, and who will come before committee. Our objective is to bring forward a bill that will in fact improve the situation and not exacerbate it. I have real concerns that the way the bill is currently presented will not improve the situation, but cause further problems for parents and for children in situations of divorce and separation.

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12:45 p.m.

Western Arctic Northwest Territories


Ethel Blondin-Andrew LiberalSecretary of State (Children and Youth)

Madam Speaker, I am honoured today to speak to Bill C-22.

I was in the House this morning when the Minister of Justice spoke. I was listening very intently, as many Canadians were, to hear the tone of the presentation of the Minister of Justice. I was so overwhelmingly pleased that in every aspect of the changes of this legislation it was child centred. In every comment that the Minister of Justice made, it always returned to the fact that it was in the best interests of the child.

As the Secretary of State for Children and Youth I am particularly touched by that because I know, from my own personal experience, as well as those of many Canadians and worldwide citizens, that divorce is not something one intends; it is something that happens as a matter of circumstance and other things that occur.

We bring children into this world to perhaps have as good a life as we have had, if not better. We bring them into this world to dream big dreams, achieve great things, and perhaps achieve the unachievable. We bring them into this world to attain their highest goals in search of excellence. We do not bring them into this world and put them in a circumstance of victimization from their very early years on to their teen years when they go out on their own. In a sense, unfortunately, circumstances of divorce have prevailed that upon our children, and our youth. It is very unfortunate.

In listening to the Minister of Justice this morning I am happy about the important steps the government is taking for children of divorce in Bill C-22, an act to amend the Divorce Act and other acts.

What greater assets do we have in this country than our children? Yet we often feel powerless or unprepared to help them when they experience the breakdown of their family. It is clear that in introducing this bill and the child centred family law strategy the government is committed to improving outcomes for children of divorce.

Prior to the Divorce Act reforms, federal, provincial and territorial governments held public consultations to learn more about the views of Canadians on parenting after separation and divorce. Some of these consultations were conducted with youth. I am particularly interested in this as I am the secretary of state for youth. In one of these groups a young participant wondered whether we could make a law that would force parents to be responsible.

While laws may not effectively force parents to act in a certain way, they may help them to see things differently, but primarily they provide protection for children and youth.

This is the essence of Bill C-22: helping parents focus on their responsibilities; ensuring that parenting decisions are based only on what is best for children; providing help and guidance to parents and others who must make these difficult decisions; and encouraging parents, when appropriate, to resolve their differences out of court. In an ideal world we would not have these circumstances, however we live in a great world, but not all circumstances are ideal.

Often children are the ones who suffer the greatest consequences because of what happens. They do not make the decisions; they have decisions made for them that shape their lives.

By moving away from the current terms “custody” and “access” to an approach based on responsibility we are shifting the focus from the parents to the child. In this new system parents would decide how they would each carry out their responsibilities, including the time they spend with the children and the decision making responsibility that they each would have with respect to the children.

The issues families would need to deal with would remain the same. It would not eliminate the acrimony and the hard feelings that occur sometimes when there is the situation of divorce, or the history that those people share, or how other people get involved. It becomes a whole family situation and some of it is not good. The main thing is that children are victimized. In this circumstance all that could be there, but the government and the legislators have put something forward to protect the children.

The bill would continue to provide the court with discretion to make decisions on parenting arrangements that are in the best interests of the child. However the bill would provide greater guidance on how decisions could be made. For example, parenting orders can vary greatly in terms of how responsibilities for the child are distributed between the parents. By outlining the various types of parental responsibilities that may be allocated, the new Divorce Act approach would facilitate the work of parents when they sit down to tailor an arrangement to suit a particular child.

Too many times in the past it has been about the win-lose situation; who got custody of the child or access to the child. It was all around and about the child. It was not for the child. It was about the people around the child or children.

Parents are generally best placed to determine what is in the best interests of the child. Parents can work out arrangements themselves or with the help of a mediator, counsellor or lawyer. Where a judge is needed to make a decision, for example, where parents cannot agree or are in high conflict as well as family violence cases, judges would be able to issue a parenting order allocating parental responsibilities, because this is purely in the interests of the child.

The addition of the best interests criteria to the Divorce Act would play an important part in helping all parties focus on working out arrangements that are the best for the child in his or her unique circumstances. The criteria would help people understand the factors that a court must consider when making a decision on the basis of the best interests of the child. There is currently no list of factors and the court is directed only to make a decision that is in the best interests of the child.

In the new approach there are at least 12 best interest criteria. This list is not exhaustive and no one factor is more important than another. The weight to be given to each factor would depend upon the importance to the best interests of that particular child. These factors are not intended to direct particular outcomes, since this would not be consistent with the child centred approach. Rather they indicate important issues that the court must consider in the circumstances of the particular child.

Parents often need to make the best decisions about their child's care after separation and divorce. Family justice services, such as parent education courses, mediation and court-related services, all help parents focus on their children's needs. Children would benefit when parents would use these services.

This bill would require lawyers to discuss with their clients the mediation and family justice services available in the community. We expect that by requiring lawyers to inform clients about these services early on, this would result in timely and more amicable settlements that in turn would reduce the pain of divorce for children.

I have many cases and examples of people who are in pain, adults who are engaged in divorce or who have been divorced for a number of years. These people have issues of separation anxiety, the pain of going through a divorce, and being separated from ex-spouses as well as their children, but the underpinning of this is not about them. It is about what happens to those most vulnerable and most at risk, the children.

The technical aspects are about how to dissolve a relationship. The fallout is about the children and the parents, but we must provide protection for those children. The best laws are not based upon individual circumstances or instances. There must be a universal application that has the broadest breadth of application that does the best for those who are most at risk. Again, in this case, those are children.

What we must keep in mind is that besides dealing with the legal aspects of divorce, families have many emotional issues to deal with.

To quote another youth who said during the consultations, “Divorce is about law and about feelings; you need to make sure both are in the right place”. No law is going to fix the problems associated with the feelings. For the reforms to work, everyone from judges and lawyers to mothers and fathers must recognize that children's need for love, attention and support should be paramount. The most important thing should be the love the children get, the attention they get and the support they get.

That was very well reflected in the minister's speech. By focusing on parental responsibilities rather than parental rights, Bill C-22 along with other components of the child centred family justice strategy, will bring about improvements to the family law system that will have important benefits for children and their families as well as long term benefits for Canadian society.

Another a youngster said, “Kids should come first. We are the future”.

Given all of these considerations, we have to reflect on some of the provisions in the bill. People will want to know such things as what a parenting order is; what parental responsibilities are; what decision making responsibilities are; what is parenting time; what are the implications of having taken out the terms “custody” and “access” from the Divorce Act; and contact orders. Do people know that contact orders have to do with the provision of contact between the child and a person other than a parent, such as a grandparent, in the form of visits or oral or written or other methods of communication? People need to know this.

When the special joint committee recommended the removal of the terms “custody” and “access” from the Divorce Act some people believed there was the presumption of shared parenting. There was not. The special joint committee did not recommend a presumption of shared parenting. Instead, the committee's recommendation focused on the best interests of the child. That should be clear.

Although the committee has not recommended establishing a legal presumption in favour of either parent or any particular parenting arrangement, the committee did see the value of shared decision making and even substantially equal time sharing where appropriate, but always in the best interests of the child.

Today is another good day for children in Canada. It is a good day because in listening to and reflecting on the remarks of the Minister of Justice, I can see that after a long period of acrimony, confusion and a lot of the fallout from very difficult circumstances, children have a chance of surviving the economic fallout, the emotional fallout, the acrimony, all of those things that happen to children in a divorce. They become the victims of what happens. It is not in all cases, but too often that has happened.

I would like the House to know that I think this bill is a good thing for Canada. It is good for children. It is good for all parties concerned and we should support it.

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1 p.m.

Canadian Alliance

Larry Spencer Canadian Alliance Regina—Lumsden—Lake Centre, SK

Madam Speaker, it is an honour to speak on behalf of the children and on behalf of the many parents and families who go through the great tragedy of separation and divorce and see their families being divided.

I want to look at two or three of the committee recommendations and glance at the UN resolutions before I get into the legislation itself.

The committee recommended that the Divorce Act be amended to include a preamble alluding to the relevant principles of the United Nations Convention on the Rights of the Child. I looked to see what those might be and I found article 3 of the Convention on the Rights of the Child, ratified in 1991 by Canada, which states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

I am aware that phrase was in the divorce code even before these revisions and it has not helped much. It is good to know there is a stronger focus on that now. We agree with that idea.

Article 9 states:

States parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

We must keep that in mind.

The committee also recommended that the Divorce Act be amended to repeal the definition of custody and to add the definition of shared parenting that reflects the meaning ascribed to the term by the committee. The Minister of Justice has insisted on ignoring this recommendation and still does not want to discuss the real meaning of shared parenting. The change recommended by the committee indicated more than simply a change in terminology.

I have to ask, have members been there? I do not necessarily mean have they been there personally, but have they been there with more than just a personal issue? Were members there when parents moved from the happiness of their marriage into a time of debate and quarrelling and battle? Were members there to calm and encourage and help parents? Were members there when that was not successful and the parents went to court? Are members aware of the things that happen within the courtroom? Have members been there? I dare say a large number of members have not been there in that capacity.

I have been there in all of those cases. I have seen it in my own family. I have counselled many families who have gone through this. I have sat in the courtroom and heard the verdicts. The Divorce Act is in bad need of repair. We believe the repair being offered today falls short of what is needed.

Who is impacted by the ongoing injustices imposed by the courts in the present adversarial winner takes all approach? Every child and every parent who goes through that situation is impacted and it does not end there. There are thousands of grandparents across Canada who have been cut off from access to their own grandchildren. They cannot see them. Maybe they see them on rare occasions but in a number of cases there is no occasion at all. When that happens the grandparents are severely impacted. I can also speak to the bill from that aspect. I have grandchildren who have suffered through divorce. I know how badly they are impacted.

The impact goes on, not just for the wife and husband who go through the breakup, the separation and divorce. The judgment is so often the final spike in the heart of that couple. It goes on to perhaps another family when the mother or the father establishes a new relationship in a new home with another family perhaps. Other ingredients are added. The impact goes on and on. The innocent party in the new relationship often is put through agony because the new spouse is being driven into the ground or is agonizing over the loss of contact with children from a previous marriage.

It does not end in the courtroom. If only it did end in the courtroom. Even though the parents get divorced, the relationship between them does not end; it changes drastically but it does not end. We must especially remember that parents do not divorce their children. There is a relationship and we need to be extremely careful in how we handle it. There needs to be an ongoing relationship between the children and their mother and father and their grandfathers and grandmothers. That needs strong consideration.

We are talking about the best interests of the child in the legislation and let us leave that as the top principle. I agree with that. But let us also realize that we have a responsibility to the mother and the father to do the best we can to assist them through that traumatic time in their lives and see a proper outcome.

Subclause 1(1) of Bill C-22 states:

The definitions “custody” and “custody order” in subsection 2(1) of the Divorce Act are repealed.

That is wonderful news in itself but as I look at Bill C-22 very carefully, although the wording has changed, I do not see the veil yet removed. I see the same things simply said in other words and in other terms. We are going to see the same thing continue to happen. We could have done a better job of making that clearer. In fact, just today the Minister of Justice in his presentation said that the government could not accept the concept that one parenting arrangement was better than any other.

Well, I suggest and I dare any member to argue with it, that there is one parenting arrangement that is better than any other and that is to have a child with its natural mother and its natural father in a happy relationship. The Canadian Alliance would have been laughed out of this place had we made a statement like that, that there is not a situation that is better than another. There is one.

We can look at the statistics across the land and across North America as a whole and find the awful tragedy that is imposed upon fatherless homes where there is only one parent. I am sure there are also tragic statistics for the family that has only the father in the home. I believe that we are made in such a way that we need the influence of our mothers and our fathers in order for us to develop to our greatest potential.

The minister said that the government could not put shared parenting in because it would lead to confusion. We are already confused. This act as is has led to confusion. Even though it talks about the best interests of the child, we are confused because no one seems to be really concerned about the best interests of the child. The child is shuffled off to one side or the other, whichever way the judge perhaps feels is the expedient thing to do. I can think of cases where this was not in the best interests of the child, but was for the convenience perhaps of the court.

One thing that is put forward in the new bill is parenting orders. Again, even though these new terms do not say custody, they are still veiled and weighted. Let me read subclause 16(1):

A court of competent jurisdiction may make an order relating to the exercise of parental responsibilities in respect of any child of the marriage, on application by

(a) either or both spouses;

Then it goes ahead to mention other people. It says either or both spouses.

I agree that my education, experience and background is a bit different than the norm in this place, but I remember something from when I studied theology. There is a principle when one is taught how to study the Bible that the first mention of something is always the most important thing to consider in considering a matter. Ladies may have a little trouble relating to this because when they go into a store it is never the first article they see that they want to buy, at least not until they have checked the rest of the mall. Men like to go into a store, pick out the shirt on the first rack that fits and buy it. We are attracted many times to the first thing we see.

Subclause (a) says either or both spouses. I think we could have had a little stronger language. Maybe this is a small point, but perhaps it should have said that a judge could write the order to both spouses or to either. I think we should at least imply that the first order of things should be to consider these spouses in an equal manner before the court.

I suggest that one of the reasons there is so much confusion around the term “shared parenting”, and there is not as much confusion as the hon. minister implied, is because there are those who have attempted to ensure that there is confusion and that it is obscured. There are those who have run the idea that shared parenting would dictate that every couple that walked into a divorce court would get fifty-fifty time with the kids and the kids would have to shuttle back and forth. That is not the idea that most would have on shared parenting.

When parents walks through the courtroom door, it is a real tragedy of justice when the judge, with the entry of those people, has already made up his mind on his verdict, as recently told in one case in Saskatchewan. The judge literally slept through the divorce proceedings and at the end made his ruling. That is a travesty of justice. That happened only because he already knew what would do, which was the same thing that he had been doing, and on and on it goes.

Parenting orders is a good change from custody but at the same time we need to understand that the parents need some sort of equality until it is demonstrated that one of the parents in their relationship would bring harm or has brought harm to the child in the past.

The legislation talks about parenting time. It talks about the time they spend with other people. I want to read subclause 15(5). It states, “The court may, in an order under this section, allocate to either spouse or to both spouses”, and there is that wording again “either spouse” or by a wild change maybe to both, “any combination of those individuals, parenting time, responsibilities for making major decisions”. It goes to say that they would be responsible for making other kinds of decisions. I think we are starting to get the point that responsibility for making decisions can be assigned and divided under this.

First, it says that parenting time is something that they can order by way of a schedule. I looked at that and I realized there has never been an adequate way of enforcing, encouraging or handling the time schedule. Yes, some of the court orders read with wonderful terminology. That I cannot deny. It all looks good on paper, but when one parent is given the run around week after week, shuttled to the end of the line, shuttled to the end of the month and then shuttled to another month and not allowed to have decent time spent with their own children, something needs to be in the legislation as to how the breaking of that order can be enforced, because the failure of the paying parent to pay can be enforced and that is done quite readily. There are contact orders and also guidelines under that.

The legislation talks about ensuring that we do it in the best interests of the child. The court shall take into consideration only the best interests of the child. Perhaps we understand that is the highest, but I think we need to mention also the inherent rights of the child and perhaps even of the parents.

One thing that has improved is the putting in of the list of criteria that the judge needs to consider to determine the best interests of the child. However, as we look at this, there is no guidance given or indication that a disqualification in any of these categories has to be proven. It can only be alleged and that is all that is required. Because it does not have to be demonstrated that it would not be helpful, it leaves it very vague.

The legislation talks about including the child's cultural, linguistic, religious and spiritual upbringing and heritage, including aboriginal upbringing and heritage. For one thing, why do we single out one race? Whose heritage? Whose religion and whose culture?

We are leaving so much up to the judge that I am afraid the adversarial system of the past will simply be passed on. I am afraid we will continue to disengage some who will not go to court, or will not pursue the interests of the child, or will not pay or will not be responsible. I would suggest the reason so much of this happens today is not so much because we have deadbeat parents, or deadbeat dads or deadbeat moms, but because the court system, in the way it has interpreted this past legislation, has issued radically unfair and not charter proof rulings. I do not think this legislation will keep that from continuing to happen.

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1:20 p.m.


Paul Szabo Liberal Mississauga South, ON

Madam Speaker, Bill C-22 seeks to make some amendments to the Divorce Act of Canada. I believe we have not had changes to the Divorce Act since 1986.

Members will talk today in the House, in committee and as we go through the various stages of legislation about the best interests of the children and putting their interests first. There will be all forms of description of somehow trying to shift the focus away from couples in dispute and to their children.

Why have parliamentarians and other groups around the country, such as the judicial system, recognized that children are in distress when it comes to divorce situations? That question twigged my interest back in 1997. I penned a monograph, only about 80 pages long, called “Divorce--The Bold Facts”. It struck my interest because I learned that in 1967 there were 11,000 divorces in Canada. Some 30 years later we had gone from 11,000 divorces up to 90,000 divorces, a significant change. Fifty per cent of marriages in 1997 ended up in divorce, which shocked me. What happened in our society that all of a sudden the percentage of marriages ending in divorce would go from 10% to 50%? What are the consequences?

As parliamentarians, we are concerned about issues such as child poverty. We are concerned about the Young Offenders Act and our criminal justice system. Well here are the facts and why I wrote this monograph.

The monograph says that lone parent families represent about 15% of all families in Canada. Lone parents are those who are no longer in a married relationship or have a partner. However they account for 54% of all children living in poverty. Fifteen per cent of the families account for 54% of children living in poverty. Why then, when we talk about child poverty, do we somehow have to talk about giving money here and there? If we really want to address child poverty, clearly we have to address the one issue which is the cause of more than half of it, and that is the breakdown of families.

In addition to that, the Department of Justice reported that 70% of young offenders come from broken families. Do members think that children are affected by the breakdown of the Canadian family? Do members think that maybe there is an opportunity for us to address the criminal justice system as it relates to young offenders?

Children are not born bad. Children are a function of their environment, and the breakdown of the Canadian family is the single largest cause of poverty and youth crime in Canada. That is why we must address the Divorce Act. That is why we must make absolutely sure, in making changes to the Divorce Act this time around, after so many years and after so much study, that we do not have a false start. We cannot afford to let our children down. This is all about children.

Earlier a member spent most of the speech talking about domestic violence. I have a report produced by Statistics Canada in 1999 on behalf of the Canadian Centre for Justice Statistics. It is the most recent information available. It reports that there were 690,000 incidents of violence against a female spouse and 549,000 perpetrated by a woman against a man.

The conclusion of the survey was that we were getting very close to where the incidents of domestic violence were equally perpetrated by men and women. This is shameful. Something is wrong out there and we need to be extremely careful not to be relying on anecdotal evidence of the past about the existence and perpetration of domestic violence or abuse because it does affect children.

We know from the research that has been done in Canada that children who witness abuse are as seriously affected by that abuse as if they had been abused themselves directly. That is how serious it is. That is why as we approach this I think it is absolutely critical that we take into account the full range of impacts on children.

It is not simply that Mommy and Daddy are breaking down and are going their separate ways. The children have to witness that. The parents may hate each other and abuse each other but the children are the ones affected. All of a sudden there are two homes to care for. Mommy's and Daddy's incomes did not change but expenses sure went up because now there is a second residence.

Anyone who enters into a family breakdown relationship had better know real quick that their financial viability will go south. The financial burden on couples when they break down often manufactures poverty. Many families, when they are together, statistically and however we measure family poverty, would say that they are not in poverty. However, once they split up, once they have a second residence, and once they have ongoing legal and court costs and all the other things attendant to an acrimonious breakup, those families in a lot of cases end up living in poverty. It is not economic poverty due to economic circumstances. It is economic poverty due to social circumstances. It is a social poverty; a manufactured poverty.

We have to understand that children always are the victims. When we worked through the joint Commons-Senate committee on custody and access we talked about these issues. We heard witnesses over a two year period. There was no disagreement and recommendations were made in the December 1998 report, “For the Sake of the Children”. It reflected the theme and the principles on which we should approach our Divorce Act.

One of the key issues the committee talked about was the whole concept of custody and access. Custody and access would tend to indicate to parties that there is a winner and a loser. The committee disagreed with that based on broad, expert testimony from across the country over a two year period that said that we should get some things straight. It said that each parent had an important contribution to make to the lives of their children and they should have that opportunity, and that children had the right to love both parents equally, even if the parents hated each other. These are important, base foundation principles that must be taken into serious account as we look at the Divorce Act.

Many members will come forward with horror stories from their constituents. We will hear stories about the concept of parental alienation syndrome. This is a situation where a parent pits a child against the other parent and makes the parent look bad. Usually it is the custodial parent who perpetrates this.

Even though there are court orders and access orders stating that a non-custodial parent can have access at certain periods, we will hear stories that access is actually denied by the custodial parent. The recourse to the parent who has been denied access is to go to the courts. All of sudden we need lawyers again and we need the courts. In the meantime, the family has exhausted all of its resources and liquid assets fighting a battle that basically would allow them to see their children.

I will talk about the fathers out there but first I will explain why I say fathers. The evidence is clear that about 80% of custody orders go to women when they go to the courts. However, it is even worse than that. The lawyers for the fathers who want access advise their clients that the climate is such or their circumstances are such that they do not have a hope. They tell them that since it will cost them hundreds of thousands of dollars to fight the case only to lose that they might as well not go.

It is not just 80% of custody orders going to the mother. When we take into account all the fathers who just cannot afford to go bankrupt trying to express their love for their children and wish to have access to those children, they are not even in the game and are not included in the statistics. However, when all is said and done, probably closer to 90% of custody is held by women and, therefore, the incidences of parental alienation and the incidences of denial of access are predominantly to the disadvantage of the fathers.

We have fathers' groups set up all across the country that have been crying out for a little bit of equity within the Divorce Act. These fathers want the opportunity to love their children and to play a role in their children's lives.

One of the important aspects of how we deal with parents who decide to split up has to do with a parenting plan. What a lovely concept that parents, before they leave the table, before they go their own ways and before they pick up the pieces of their lives, that they will have a parenting plan that will lay out visitation privileges, education and medical decisions, religious arrangements and anything else to do with the lives of those children. It respects the principle that parents will have the maximum exposure possible.

The question of access or visitation of non-parents, like grandparents, was an issue raised by some members and certainly by witnesses before the committee.

A parenting plan sounds like a good concept. It should be there, not just imposed for those cases where there is a custody dispute or a disputed split up. I believe that a parenting plan should be there for all parties, whether children are involved or whether they have a harmonious relationship or not, and it should be protected by the courts.

I think it is very serious to violate a parenting plan, to deny access, to perpetrate parental alienation, to take flight with a child or to simply not respect the provisions of a parenting plan.

When the committee discussed this, and in some of the testimony that was given, it was said that if parents were not going to play ball, if parents were not going to understand that children needed protection and if parents were not going to respect the provisions of a parenting plan, they needed to understand that they were breaking the law and that it would jeopardize their right to have custody of that child. That is how serious this is.

As we go through the legislative process I hope members will seek to ensure that the changes that we make to the Divorce Act will protect and enshrine the fundamental principles that came out of that very important committee work through the joint Commons-Senate committee on custody and access.

I do not think there is anything more important than children when it comes down to dealing with this issue. I have heard some members express some concern for balance because one size does not fit all. We need to have some dynamism within our legislation to take into account unusual circumstances, such as the case of a mother who has custody of the children. If she has special training but a job is no longer available in her community should she be able to relocate to another community where there is real work? I think there is good argument in that case but what about a case where it is a little bit grey? Obviously there are concerns there.

The bill ought to have some dynamism. It should not be black and white. It should not be rigid.

I have spent a lot of time following the development of the debate on the Divorce Act. I have given a number of speeches to groups, ostensibly fathers' groups, fathers who were fighting to have access to their children, fathers who have lost everything they had trying to get access to their children and could not find justice in Canada.

If we honestly believe that both parents have an important contribution to make to their children and that we should do everything possible to make that happen, those who would break that bond and not respect that principle should understand that it would be against the law to do so and that there would be consequences for denying a parent their legitimate and important right to have access to children.

The bill is at second reading. Rather than getting into too much detail and into each individual clause I want to hear more. I want to hear some of the experts and legal experts comment on the provisions of the bill, the true intent, the effect and to see whether it is happening.

I also hope that the committee will look at the recommendations of the joint Commons-Senate committee. Over 40 recommendations were embraced by members from all parties, including members of the other place. It is important that the committee look at each and every recommendation to understand the genesis of those recommendations and to understand what is appearing now in Bill C-22 that reflects that important work that was done by Parliament.

If any of those recommendations are not there, and I know many are not, parliamentarians on the justice committee and those who will appear should make their case as to why they should or should not be there. I think we have to vet that particular report.

I received a report from Mr. Brian Jenkins who is very active in a fathers' group. Mr. Jenkins is fighting to get a bit of equity in our system. I would like to put into the record a couple of his concerns that I hope the committee will address. He raised the concern about the terms custody and access. He said that the vocabulary changed but that it would not correct the divorce law regime. I hope we will address that.

He also said that the bill did not change the current substantive policy of presumptive sole custody and control that makes fathers mere visitors in children's lives and that it did not address the problems of parental alienation. I think he has a good point. I think the bill should if it does not.

He also said that the bill would repeal subsection 16(10) of the Divorce Act which provides for children to have maximum contact time with each parent, both custodial and non-custodial. I do not have a problem with that. Why would the bill repeal it? I want the committee to ensure that it investigates and examines the true intent.

The bill also does not address the lack of enforcement of custody and access of court orders which result in the parental alienation of children. Why?

I could go on but I know I will have other opportunities. I think members should be aware that this an important issue. It is a children's issue more than it is a parenting issue. Members should also know of the importance demonstrated around the world in other models where counselling after breakdown should and will help. We would like to find out how come these rules do not also apply to the breakdown of common law couples with children. Are these children not as important as the children of married couples?

Divorce ActGovernment Orders

1:40 p.m.

Canadian Alliance

Larry Spencer Canadian Alliance Regina—Lumsden—Lake Centre, SK

Madam Speaker, I appreciate very much the work done on this file by the hon. member who just spoke, his stand on it and his willingness to stand even on some controversial issues. He mentioned the fact that there is a lack of enforcement, so I have a couple of questions I would like him to comment on.

Could the member suggest ideas for a better, less expensive way to possibly review a court decision, parenting orders or custody and access orders, whatever we want to call them, a way that would take less money and make it more accessible to the parents? Should they be able to review both the time allocation and the money? Is there any way that the member could think of that would encourage the enforcement of time access orders?

Divorce ActGovernment Orders

1:40 p.m.


Paul Szabo Liberal Mississauga South, ON

Madam Speaker, the member raises good issues, because the problem is that at some point we have an understanding, it breaks down and then does not seem to be followed. Then we have this difficulty of trying to enforce or address it. We end up getting lawyers and the courts involved again and the situation continues to spiral and get worse.

It is not a matter of whether I can suggest a way in which this might be improved. The important point is to recognize that these circumstances do exist and that it is incumbent upon parliamentarians on all sides to look for those opportunities to ensure that we can get equitable, timely addressing of some of these severe problems that occur so frequently, so that children do not lose that access, even for a heartbeat.

Divorce ActGovernment Orders

1:40 p.m.


Robert Lanctôt Bloc Châteauguay, QC

Madam Speaker, I would like to ask one thing of the member for Mississauga South, who has just spoken. He mentioned having taken part in the work of the committee, or subcommittee, probably in 1998. Our expectation at that time was an in depth reform of the Divorce Act.

As hon. members are aware, under the Constitution, the Divorce Act is a federal jurisdiction. Would it not be wiser for everything relating to families to be under the jurisdiction of the provinces, Quebec among them? From listening to him, it would appear they have changed the entire world and wanted to give this legislation some real clout. Yet, imagine, Quebec has been talking about the child's interests for more than a decade already, and this is already in the Quebec civil code.

The Divorce Act already contains provision for the child's interests, in subsection 16(8), so this bill is not changing the whole world and improving the legislation. Once again, it is a matter of just sprinkling a little bit of blue powder in the eyes of the public, or those who are having problems, in order to convince them that their government is working for them, listening to them. But all of society is affected.

We have no choice but to study this bill here, because this is still an area of federal jurisdiction. Ought we not, however, to take this out of the Constitution and hand it back to the provinces?

Divorce ActGovernment Orders

1:45 p.m.


Paul Szabo Liberal Mississauga South, ON

Madam Speaker, regardless of the level of government, I think that there is a common bond of association in that we should be addressing the best interests of children.

The Divorce Act is a federal law, but the provinces do have laws that deal with family law matters. One excellent example is what is done in Alberta. There is actually a law in Alberta that the court can order mandatory counselling prior to the granting of a legal sanction of a divorce. Ninety-five per cent of the people who were ordered by the courts to go to this mandatory counselling said that afterward they were glad they made it, because they did not understand the financial consequences, the impact on their children, et cetera.

The Province of Alberta has shown that provinces that have these programs would certainly have an important contribution to make to support the principle. I agree with the member that there is provincial jurisdiction with regard to family services. Alberta has shown that it can be done within the context of current envelopes of spending so that there would be no new costs. It has shown that if we keep people out of the courts it in fact saves families from destroying themselves financially. That is also now the case in B.C. and I understand that about 15 states in the United States have the same program.

The member is quite right. The provinces have an important role to play in the lives of children.

Divorce ActGovernment Orders

1:45 p.m.


Robert Lanctôt Bloc Châteauguay, QC

Madam Speaker, with your leave, I have a few questions to ask. I am told that counselling is important. Since there are four minutes remaining, I will try to ask a two-minute question so that the hon. member will also have two minutes to answer me.

When one talks about mediation and counselling—I too am a mediator not only at the civil level but also at the family level—this is the best solution if one wants diversion and to act in the best interests of children.

How is it that this has existed in Quebec for several years already? It is even obligatory to provide information sessions regarding mediation. The hon. member tells us that yes, that is good. It is true, Quebec is ahead in this area, and the reason is that family law is a provincial jurisdiction.

It is because of your Constitution that there is a federal Divorce Act. Did you know that you are behind the times? That is probably why Canadians who are married and use the Divorce Act are obliged to wait several years. There are delays of seven, eight and even ten years.

The government tells us that we are disrupting things, but we are not. We are simply trying to bring things up to speed. It also tells us that it is trying to change the terms. Is it not in fact simply changing the terms without improving the system?

Improving the system is not a question of just changing the words “custody rights” or “access rights”. Of course, it will tell us that this is what the bar association is calling for. This may well be, but that is not what we need. We need to have the necessary money to invest in the right place to help children and to address the interests of children. Then we will have legislation that will change things. It is not different terms that we need. We need money and we need to focus on hiring psychologists and social workers in the right places and at the right times. Of course it would be even better to do this in the framework of mediation.

Divorce ActGovernment Orders

1:45 p.m.


Paul Szabo Liberal Mississauga South, ON

Madam Speaker, the statistics are clear that the rate of marriage in Canada has gone down. In fact, the Vanier Institute reported that it has declined in Canada by 39% over the last 25 years. Interestingly enough, the province with the biggest drop in the marriage rate was the Province of Quebec, with a 58% drop.

Every bit of testimony, every witness we heard and every research study I have ever read have said that the safest place for women and children and fathers is with the biological mother and biological father in a family home.

The member cannot lecture others about the good job that Quebec is doing. Quite frankly, I think the record is clear: Quebec must do better.

Divorce ActGovernment Orders

1:50 p.m.

Canadian Alliance

Brian Fitzpatrick Canadian Alliance Prince Albert, SK

Madam Speaker, I was interested in the comments about the explosion of the divorce rate in the last 20 or 30 years in our country. It struck my mind that one of the biggest causes for breakdowns is financial problems in the family. It also occurred to me that in a lot of cases there is a heavy tax penalty to being married in this country.

I would like to ask the member if he can enlighten us as to what specifically the Liberal government is doing about addressing the real negative discrimination there is in the tax system against married folks.

Divorce ActGovernment Orders

1:50 p.m.


Paul Szabo Liberal Mississauga South, ON

First, Madam Speaker, when I penned the monograph on divorce facts let me tell the member what the real causes of divorce were according to Statistics Canada at that time in 1997. Abuse was the cause in 25% of the cases, adultery in 20%, substance abuse in 15%, and there was a financial cause in 20%. The balance related to illnesses, incompatibility, career decisions, et cetera.

I think the member is referring to the marriage penalty, et cetera. One of the problems when a couple breaks down and a mother has custody of the child is that the mother can then claim the child as an equivalent to spouse exemption and in fact lower the couple's taxes because the marriage broke down. In fact, divorced couples, split up couples, actually get a better tax deal than people who stay together. I agree with the member that we should fix it.

Divorce ActGovernment Orders

1:50 p.m.


Diane Bourgeois Bloc Terrebonne—Blainville, QC

Madam Speaker, it is with great interest that I read Bill C-22, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other acts in consequence.

As the Bloc Quebecois critic for the status of women, I want to tell this House about the concerns of Canadian and Quebec women regarding this bill.

While we feel that the committee has made some efforts to improve the Divorce Act, we think that the legislator, or the committee, will have to go back to the drawing board. We are asking that committee members hold hearings, so that all groups, that is those representing both men and women, can express their views.

The reason we say all groups is simply to acknowledge the fact that there is currently a strong lobby of men's groups working to ensure that their rights are recognized, because, apparently, some judges are not granting them access and custody rights.

First, I remind the House that Canada does not even have a real family policy, and it does not have a policy promoting women's equality and the well-being of their children within the family.

During the World March of Women, which took place in the year 2000, the Canadian committee for that march made a number of recommendations, namely: to eliminate poverty and violence against women, to ensure equality for women in the workplace, pay equity, employment equity, universal, accessible and affordable daycare services, social assistance programs, a comprehensive civil law legal aid program, comprehensive social programs, specific measures to meet the various needs of women and their children, public and universal health care services and so on. There was also a specific request that had to do with the changes that we wanted to the Divorce Act.

The bill now before us turns the responsibility for one's family into a private affair. However, I, like other women, feel that since children are the future of a society, the responsibility for them falls on all citizens.

Too many studies show that the rise in child poverty is due, for the most part, to higher poverty rates among women. Not everyone is convinced that the child-centred family justice strategy does indeed minimize the negative impact of separation or divorce on children as it claims to do. Take, for example, the current guidelines for child support payments, which stipulate that in cases of joint custody, the support payments be dramatically reduced or even eliminated.

In reality, a great many women today find themselves caring for children alone and without child support payments, despite joint custody agreements. This problem only adds to and exacerbates the already extremely high poverty levels experienced by single mothers, leading to some of the worst situations of social and economic hardship in Canada.

Driven to such poverty, many mothers become much more vulnerable to harassment and threats of violence.

Women are also very concerned about proposals to entrench a model based on shared parenting.

In June 2001, the National Association of Women and the Law submitted a brief to the federal-provincial-territorial family law committee. In it, the association recommended against creating a legal presumption in support of joint custody or shared parenting. Imposing this type of formula on recalcitrant parents guaranteed disastrous results.

Divorce ActGovernment Orders

1:55 p.m.

The Acting Speaker (Ms. Bakopanos)

Order, please. Unfortunately I must interrupt the hon. member. She will have 14 minutes to continue her speech once the oral question period ends.

Winterfest New BrunswickStatements By Members

February 4th, 2003 / 1:55 p.m.


Andy Scott Liberal Fredericton, NB

Madam Speaker, I rise today to inform the House that the second annual Winterfest New Brunswick festival will take place this coming weekend, February 8 and 9, in Oromocto.

Winterfest is a non-profit community based organization of volunteers dedicated to the success of a non-commercial winter festival.

Winterfest was born of the vision of winter fun embodied by our national capital's Winterlude. New Brunswick's winter festival offers free of charge, fun filled and safe outdoor winter activities to people of all ages.

Winterfest New Brunswick is an ambitious concept that requires the dedication of many volunteers and strong partnerships. I would like to take this opportunity to pay tribute to Winterfest executive director John Antworth, the Department of National Defence and everyone who volunteers their time and energy to make Winterfest such a timely and unique event.

National Children's Infrastructure ProgramStatements By Members

1:55 p.m.

Canadian Alliance

James Moore Canadian Alliance Port Moody—Coquitlam—Port Coquitlam, BC

Madam Speaker, the city of Coquitlam is joining with the Federation of Canadian Municipalities in calling for a national children's infrastructure program which would provide resources to communities to develop recreation spaces and programs. Last week the city sent me a letter asking me to bring their voice to Ottawa, so here I stand.

The federal and provincial governments are supposed to share the cost of medicare 50-50, which would give the provinces the resources to fund initiatives like the one the city of Coquitlam supports. But the federal Liberals are only paying 14% of the costs, leaving provinces to pay the other 86%.

In B.C. we have tried electing NDP governments to develop our ideal health system, but they failed. We have tried by electing a centre right government in the B.C. Liberals and are also encountering problems with closures and cutbacks at St. Mary's Hospital and Delta Hospital.

No matter whom we elect in B.C. we have difficulty in securing the ideal health system. This is because the genesis of the problem is in Ottawa, not Victoria.

The Liberal government, led by the current Prime Minister and managed by the former finance minister and leadership frontrunner, has devastated our health system.

My constituents deserve a strong, publicly insured health system that is properly funded by Ottawa. It is time that the irresponsible health policies--