Mr. Speaker, it is a pleasure to participate in the debate this afternoon on Bill C-252, an act to amend the Divorce Act (access for spouse who is terminally ill or in critical condition).
The NDP supported the amendment that the member for Lethbridge brought to his private member's bill. NDP members had some concerns about the original private member's bill, but we are pleased to see that in his amendment he took into consideration many of the concerns that were raised in the first hour of debate and in discussions with other members of the House.
It is a much better proposal in its current form and I look forward to it going to the justice committee for further discussion and perhaps improvement there, although I share the concerns of the member for Hochelaga about the workload of the justice committee. It is extremely significant at the moment and I hope the bill gets the attention that it deserves when it goes to committee. I hope it has that opportunity.
NDP members had some serious concerns with the original bill. Our concerns stemmed mainly around the fact that it seemed to mandate a visit of a child and a terminally or critically ill parent. The language “to ensure that a spouse who was terminally ill or in critical condition is granted access to a child” was of great concern to us. That language flies in the face of the experience of Canadian jurisprudence and families who have faced the situation of divorce and visitation rights over the last many years. Children were not forced in those circumstances to make those kinds of visits, even in that circumstance.
I had concerns with the original wording, but there is some improvement now in the amendment. It clearly recognizes the importance of the best interests of the child in consideration of arranging such a visit when there is a terminal illness or a critical condition.
I am not sure the bill, as amended, really changes the practice of our system now. I am sure that critical or terminal illness could be considered a change of circumstance and would amount to a court hearing arguments around a change in visitation rights. I do not think there is a significant change in the practice and would hope that any court confronted with that situation and the serious concerns about someone whose life is coming to an end might consider this an important reason to revisit the issue of visitation rights. I am sure in most instances that would be the case.
I am not sure this significantly changes the current practice, but if it clarifies it and draws attention to the importance of that circumstance, then perhaps there is no harm in doing this. The key in all of this is that whatever decision is made it be made in the child's best interest. This has been the long established practice and importance of these considerations in the system.
There are concerns about defining the age of a child with regard to this legislation. We have seen in the past that courts have absolutely refused to order a child 12 years or older to visit a parent when that child has refused to do so. That is a rough rule of thumb for the court, according to my colleague, the member for Windsor—Tecumseh, but is something that we need to take into consideration.
I believe there has been an established precedent that children should have some say in the requirement to visit a parent and that probably applies in any circumstance, including one where there is terminal or critical illness. To move to a situation of requiring such a visit of a child would be a serious problem. Children over 12 certainly have the maturity to decide if they are willing to visit a parent or not. In further discussion of the bill, we have to ensure that this is one of the things that is a serious consideration.
It is very clear that visitation rights in Canada are rights of the child, not of the parent. The key factor is that the best interests of the child must guide the court in making a determination. When those visitation rights are enforced or ordered, this still needs to be the key consideration. The rights of the child and what is in the best interest of the child in the circumstances need to be taken into account. That has to have a prime place in the considerations here, even in these difficult circumstances.
I think it is fair to say that all of us would like to see terminally ill people have the ability to perhaps have a last visit with their child. We can all understand why that might be important to someone. However, I do not think there should be a compulsion on a child, especially an older child, to do that nor do I think the need of a terminally ill person to have that final visit should necessarily trump the best interests of the child in this case.
Unfortunately, we know, even at the time of terminal or critical illness, that often people can be as manipulative as they have been at other points in their lives. It is not always a completely altruistic moment in our lives. To make an exception in the case of that circumstance around visitation rights would be a serious problem. This is something that still merits the attention of the committee and members as the bill is discussed further at committee.
It is important that the discretion of the court is maintained in these circumstances. This is why I would argue against the use of words like “ensure” or other words that access is granted. This kind of hard and fast language may impede the ability of the court to take into consideration all the factors that may come into play in a circumstance like this. We want to ensure that every possible circumstance and issue is brought to the attention of the court and discussed in the circumstance of the child, the family and the parents.
It is very important that we maintain the discretion of the courts to deal with these circumstances. While we might offer guidance in the Divorce Act around this circumstance, this needs to be worded in a way that maintains the ability of the court to ultimately make the decision based on the best interest of the child, according to the information the court has at hand at the time.
I am happy to have had the chance to speak to the bill as amended. I think a better version of it is now being discussed. Hopefully it will go forward to the committee where it may have a chance to improve it further and send it back to the House. At that time, we can make a further judgment on private member's Bill C-252. We can see whether it goes forward and allows a more appropriate way to address the circumstances of visitation rights of a critically or terminally ill person.