moved that 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, be read the second time and referred to a committee.
Mr. Speaker, I would like to thank my colleague, the Secretary of State for Latin America, Africa and the Francophonie for his support for this important bill.
I am most pleased to rise today to begin debate at second reading of Bill C-22, an act to amend the Divorce Act and other Acts in consequence. As I have already mentioned clearly on numerous occasions, these reforms deal first and foremost with children.
In December I announced that the federal government would be providing $163 million over five years to support the child-centred family justice strategy. This bill deals with two of the three pillars of this strategy: legislative reforms to the Divorce Act and expanding the unified family courts.
Combined with family justice services, which received $63 million from the government, this bill will allow us to fulfill our commitment from the 2002 Speech from the Throne to improve Canada's family justice system.
The breakup of a marriage often leads to tremendous stress and suffering. Every member of the family undergoes an extremely intense emotional experience. Unfortunately, those who are often the most directly affected by the stress of a family breakup are the children.
This child-centred family justice strategy will attenuate the often negative effects of separation and divorce on children by providing parents with new tools to carry out their parental responsibilities in the best interests of the child.
When parents are unable to resolve their problems on their own and must turn to the courts, this strategy will help to put in place a simpler legal system, expand services, and provide access to expanded information programs and services, public legal information programs, and professional training to make it easier to determine what is in the child's best interests.
In this context, Bill C-22 promotes an approach based on the needs of children. It reaffirms that solely the child's interests must be considered when decisions about the child's care and education are made. It drops the terms “child custody” and “access”. These terms reinforce the notion of “winners and losers” in a context and at a time when it is important to minimize conflicts between the parents and promote their cooperation, whenever possible.
Rather, this bill introduces a new approach to parenting arrangements for children. This new approach is based on “parental responsibilities”. It is flexible and allows parents and the courts to establish the best interests of each child, as well as how responsibilities regarding a child's needs and education must be exercised.
Each parenting agreement or parenting order could grant “parenting time”, which is the time during which each parent is responsible for the child. Each parenting order could also grant one parent, or both parents, decision-making responsibilities regarding the child's health care, education, religion and other matters. The court will also be able to include a dispute resolution process in a parenting order for future disputes regarding parenting arrangements, if the process has been agreed to by the persons who are to be bound by that process.
Our approach, however, does not presume that any one parenting arrangement is better than others. We believe that such presumptions tend to focus on parental rights rather than on what is in the best interests of a particular child, which we believe should be the key aspect that we should focus on.
In its report, the Special Joint Committee on Child Custody and Access rejected the use of legal presumptions when it comes to parenting arrangements and stated:
In view of the diversity of families facing divorce in Canada today, it would be presumptuous and detrimental to many to establish a “one size fits all” formula for parenting arrangements after separation and divorce.
The Government of Canada agrees with the special joint committee. Therefore the proposed approach allows for a wide variety of parenting arrangements that can be tailored and should be tailored to each child's needs.
It is important that any new Divorce Act concept not be interpreted as preferring a particular parenting arrangement. The term “shared parenting” has become associated for some people with a presumptive starting point about the appropriate parenting arrangement for children upon divorce. As a result, using the term “shared parenting” in the Divorce Act would have led to confusion.
Bill C-22 also introduces some specific criteria respecting the needs and circumstances of the child, in keeping with the recommendation of the special joint committee. This list of best interests criteria reflects the bill's child centred approach.
The statutory list is intended to help parents make child focused parenting arrangements and to assist family justice system professionals in helping parents through mediation or parenting education courses. Also, legal professionals will be guided by the criteria which provide a foundation for their discussions with parents and any negotiations about parenting decisions.
Finally, the bill directs judges to consider the list of factors when assessing each child's best interests. All relevant factors must be considered including, but not limited to, those specifically mentioned in the bill. The criteria are not prioritized, reflecting the principle that there should be no presumptions. The weight to be given to each individual criteria will depend on the needs and circumstances of the particular child.
Everyone agrees that children need the love and attention of both parents but even such basic principles can become complicated in some situations. The benefit to the child of developing and maintaining meaningful relationships with both parents is indeed an important factor for the court to consider and is included in the list of best interests criteria.
The current maximum contact principle has had the unintended effect of discouraging parents from disclosing the existence of family violence. As a result, and consistent with the recommendation of the special joint committee, the importance of the relationship between a parent and a child has been included in the best interests list, to be weighed and balanced along with other factors that speak to the best interests of the child.
Children also require a safe environment. The difficulties that children experience when their parents separate or divorce can be compounded by the presence of family violence. We all agree that family violence is a serious problem and that all too often children are its silent victims, whether through direct experience or harmful exposure to it. This is why the best interests list identifies violence against members of the family as a factor to be considered.
Furthermore, family violence is defined in a non-exhaustive manner, and the bill clarifies that the civil standard of proof will be used to ensure that all relevant evidence is considered.
While it will always be important, in assessing the best interests of the child, to weigh this factor against other important considerations, in some cases due to the severity, persistence or impact of family violence, this criterion and the need to ensure a child's safety may be given primary consideration in a parenting order.
In light of concerns about the issue of family violence, the current past conduct rules of subsection 16(9) of the Divorce Act would be removed. However it is not that this would change the longstanding rule that conduct should only be considered if it is relevant to the ability of a person to act as a parent to the child. The best interests criteria require the courts to consider the ability of individuals to care for and meet the needs of the child. There is no requirement to consider conduct that is irrelevant to the best interest of the child.
Many important factors are included in the best interests list. Although I cannot comment on all of them today, I would like to stress the importance of considering a child's views and preferences to the extent that these can be reasonably ascertained. As one young person put it during our public consultations, “Don't make decisions for us; make them with us”. Adults have an obligation to create situations that encourage children to talk without fear of recrimination, and children should not be forced to choose one parent over the other.
The bill also introduces a new type of order, a contact order. Contact orders will apply to individuals such as grandparents who wish to maintain a significant relationship with a child and who need a court order to facilitate this. Like parenting orders, contact orders will be governed solely by the child's best interests. As is currently the case, leave from the court will be required to make an application for a contact order to discourage adversarial and unnecessary litigation.
I will now move on to one of the essential components of the family justice system, namely the duties of lawyers. Often lawyers are the ones parents turn to for advice in the event of family breakdown.
In order to facilitate the achievement of the objectives of the strategy, this bill also proposes an expanded role for lawyers. In addition to informing the parents about mediation services, they will also have to provide information on family justice services such as parenting courses. As a result, parents will be more aware of the existence of alternative solutions.
As well, lawyers will be required to explain to their clients their obligation to comply with any court orders under the Divorce Act. We have heard of too many cases of parental non-compliance with orders, whether in connection with financial obligations or their responsibilities as a parent to put their child's interests first.
These new provisions acknowledge the important role which lawyers have played, and continue to play, in recommending cooperation between the parties and respect for the law.
Bill C-22 also establishes a new procedure for making variations to a support order when the parents live in different provinces or territories or one lives outside the country.
It is particularly complicated to use the services of a lawyer in a jurisdiction other than one's own, so the bill facilitates the process for families in this situation by making it possible to make a written application accompanied by evidence to the jurisdiction of the beneficiary. The court with jurisdiction over the area in which the respondent resides will request provision of supporting documents by the respondent.
If additional evidence is required from either party, the court may obtain this in the fairest and most expeditious manner possible, for instance by conference call.
Children also need to be protected from the economic consequences of family breakdown. This means there must be assurance that the financial assistance required for their care is received in full and on time.
Many parents continue to fulfil their parental obligations after separation. Nevertheless, the problem of deliberate non-compliance with parental obligations remains.
In addition to the changes to be made to the Divorce Act, there will also be amendments to the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act with a view to enhancing the efficacy of the programs for enforcing support orders.
A major change to the Garnishment, Attachment and Pension Diversion Act is that family support obligations take priority over other judgment debts. This is an unequivocal acknowledgement that the needs of the child are a priority and reinforces our government's child-centred family justice strategy.
Additionally, the effectiveness of federal enforcement legislation is reduced when a child support debtor does not file a tax return. Consequently, federal legislation will be amended to introduce a mechanism to require a child support debtor to file a tax return.
These are the major components of only one of the pillars of the child-centred family justice strategy. The second pillar of our strategy is the expansion of the Unified Family Courts.
As the name suggests, Unified Family Courts unite jurisdiction over all family law matters within one court. Currently, a family undergoing marital breakdown must turn to the Superior Court for a divorce and division of family property. The court that has jurisdiction to grant interim support and custody is either the provincial court or the Superior Court, depending upon whether an application for divorce has been filed. This division of jurisdiction is indeed confusing for families. Under our proposed strategy, one court that specializes in family law issues will deal with all issues related to one family's separation and divorce.
The UFC also offers the benefits of a specialized bench. The judges of the Unified Family Court are experts in family law. These specialist judges fully appreciate the extent to which a decision may affect all the members of a family and are committed to achieving better outcomes through effective use of court processes and family justice services.
The bill would amend the Judges Act to provide resources for 62 additional judges for Unified Family Courts, a commitment that would permit significant expansion of these courts across the country. Various forms of the UFC currently exist in seven Canadian jurisdictions, and interest in this model continues to be strong given the benefits it offers.
One goal of the UFC is to encourage the resolution of issues in a constructive and less adversarial forum to the greatest extent possible. Integral to achieving this goal is the availability of family law services, either attached to the court itself or based within the community. For example, alternative dispute resolution mechanisms such as mediation and conciliation can result in settlements that satisfy all parties and are achieved in a non-adversarial setting.
In conclusion, developing this strategy, as elaborated in our legislation, will take time. There will be a legal framework to support these changes, but they will not come about on their own.
It is sometimes difficult to change the collective mindset. Putting the emphasis on the interests of the child and parental responsibilities—and not on rights—promoting parental cooperation, reducing conflicts and ensuring the security of families will be at the forefront of all our efforts to promote positive outcomes for children who go through breakups.
The federal government cannot do this alone. As a society, we must make an effort to reduce the human, social and economic cost of divorce and separation, and develop a broader and more integrated system of family law that supports families in transition and reduces the vulnerability of children.
Bill C-22 will greatly contribute to meeting the needs of Canadian families. I recommend that the House pass this bill.