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.