House of Commons Hansard #33 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was harbour.


Divorce Act
Private Members' Business

11:05 a.m.


Rick Casson Lethbridge, AB

moved that Bill C-252, An Act to amend the Divorce Act (access for spouse who is terminally ill or in critical condition), be read the second time and referred to a committee.

Mr. Speaker, it is indeed an honour to stand today and speak to my private member's bill, Bill C-252. It is an act to the amend the Divorce Act. This bill seeks ensure that divorced parents who are terminally or in critical condition are granted access to their children to say goodbye before passing on.

The bill is about families, specifically families where parents have been divorced. Divorce is an unfortunate reality in Canadian society today, a reality that transcends socio-economic, racial and religious boundaries. The bill recognizes that although divorce severs spousal bonds between parents, the family bonds between parents and their children remain. Although divorce usually means that a family structure and dynamic is forever changed, it is very important that the bonds and relationship between parents and their children remain intact, unfettered and free to evolve.

The bonds that exist between parents and their children are both natural and essential, a physical and emotional attachment. From birth, children depend on their parents for all of their needs and continue to depend on their parents in one way or another throughout life. Children are dependent on parents for more than just physical or material basics for survival. Parents provide a primary example, a template for their children. Parents are their children's best teacher. Parents are their children's first friend. Parents bring their children into the world, and I believe that all parents should consider their children to be the centrepieces of their lives and achievements.

Few people in children's lives, if any, play as significant and as meaningful a role as their parents. Likewise, few, if any, people in the life of a parent mean as much to them as their children. These bonds are like no other. Few bonds run deeper than those between parent and child.

Divorce does not have the automatic effect of severing or suspending all parent-child bonds. Indeed, parents, divorced or not, usually continue as primary supporters and nurturers of their children. Whether this means taking them to a hockey practice or celebrating a graduation or a wedding, divorced parents, like all parents, need to share in their children's lives.

They need to share these times with their children just as their children need to share special times with their parents. The sharing of life between parent and child is essential as they walk the path of life together, through the good times and the bad, until it is time to say goodbye.

The circle of life is made up of segments of individual lives, lives with beginnings and ends. It is always a happy occasion when we say hello to a family member for the first time and a very sad event when we say goodbye for the last time. Nonetheless, the two occasions are both important and essential--not just saying the cheerful hellos but also the sad goodbyes.

This is a bill that I have undertaken because there are indeed regrettable situations that exist across the country where divorced parents who are terminally ill or in critical condition have difficulty achieving or are denied the opportunity to say goodbye to their children before passing away. This is truly regrettable and requires the attention of the House.

Parents and children need to be ensured, as much as is possible, access to each other to say goodbye in these sorts of circumstances. Although saying goodbye under such sad circumstances is always difficult, it is an important step for both parent and child.

There was such a case involving a former constituent of mine who died of leukemia. This young divorced mother was in her final days of a courageous fight for her life when her children were removed from her custody. This is why I have undertaken this bill.

Judges need to be empowered through the amendment proposed by this bill to grant access to divorced parents who are terminally or in critical condition. It is not enough for us to hear of such a sad story and to shake our heads and turn away. We need to take meaningful action to prevent this sort of thing from happening again.

This private member's bill seeks to guarantee parental rights but also ensures that such rights are not granted at the expense of the rights of children. The bill declares that any access granted under the authority of the proposed amendment would be subject to subsection 16(8) of the Divorce Act , which clearly states that any custody order must be based upon the “best interests” of the children.

For instance, if a parent who had been abusive were critically ill, the history of abuse would influence the ability to gain access to the children. This ensures that the interests of the children involved are upheld and protected in situations where such protection is necessary.

Once again, the ability to say goodbye is important for both parent and child, but we must approach this issue in a balanced and prudent fashion. I believe that this bill and the condition it contains do just that.

I know that topics of family and emotional bonds are not common to the House. Indeed, it seems a bit ironic for such matters to be addressed by Parliament and discussed from a legal or policy perspective. However, the bill and this debate are indeed necessary.

The work of the House is of a normative nature in that we seek to establish norms, legal rules and ideal standards. The Divorce Act as it currently exists does not provide divorced parents who are terminally ill or in critical condition with access to their children to ensure that they can say goodbye. I believe this is a natural and essential right that the House needs not only to recognize but to pass into law.

The Divorce Act was created by Parliament as a legal framework from which divorces and the conditions of divorces are to be structured. The Divorce Act therefore provides our judges with a road map which they use to navigate through cases of divorce in the pursuit of fair and balanced settlements, settlements that hopefully make the best of a bad situation for both parents and children.

Having to say a final goodbye, especially at a premature juncture of life, is perhaps one of the most difficult yet essential events that a parent may face. I use the word “essential” here because it is important for both the parent and the child. The parents need to have the chance to say goodbye to the most important people in their lives, their children. The children likewise need that chance to say goodbye, for different reasons. If a child is faced with losing a parent, saying goodbye is an important step of preparing for the imminent loss they face. Without the chance to say that goodbye, closure is complicated and the grieving process is skewed. Guaranteed access for divorced parents who are terminally ill or in critical condition, so that parent and child are ensured the opportunity to say goodbye, is important for both child and parent.

I believe that as elected members of Parliament representing parents, including divorced parents, and their children, it is time for us to amend the Divorce Act to ensure that divorced parents who are in their last days or hours of this life are guaranteed access to their children to say their goodbyes. This is a bill that Parliament needs to pass. It is an instruction that our judges need to be empowered with. It is a right that every parent, divorced or not, deserves.

I look forward to hearing what the other parties have to say on this issue today. I know that the Divorce Act and some of the issues in it are in need of a tune-up, not just this aspect, but this is one that I have chosen to key in on. I think that most of us as members of Parliament hear from divorced parents many times on custody issues, maintenance issues and issues of access. To have the bill passed through the House and to get it to the justice and human rights committee for discussion and debate would give us an opportunity to have a look at this aspect of what needs to be changed.

As I indicated, there are other problems with the Divorce Act, and perhaps in the future there will be an opportunity for those problems to be addressed, but I want to reiterate that under section 16 of the Divorce Act, custody orders, subsection 16(8) is the key here. We want to make sure that we are doing this in the best interests of the children. Subsection 16(8) does that. It clearly states that in making an order under this section the court “shall only take into consideration the best interests of the child of the marriage as determined by the reference to the condition, means, needs and other circumstances of the child”.

If there were a case where an order had been issued that the child should be kept away from a parent for some reason, whether it is abuse or whatever, that would be upheld by subsection 16(8). Our amendment would simply be added as subsection 16(11) after the other subsections, which would allow that to be upheld.

It is hard to imagine a situation where people could come to such a state in their lives or in their personal feelings that this type of problem would actually exist for a terminally ill parent. In the case I mentioned, it was leukemia that took this young lady over a period of time. In the last days it became very difficult for her to have her children with her because of the divorced partner.

If we address this it will be one small step toward bringing some justice to this issue and allowing a healing process.

I think many of us in this House, probably all, have had to go through that at one time or another in our lives with somebody who was very close and that ability to have that last chance to have contact to say that last good-bye is very important. It is almost hard to believe that this could happen in our society today here in Canada without the protection of the law.

I look forward to what the other parties have to say and I will wrap up later during my remaining five minutes.

Divorce Act
Private Members' Business

11:15 a.m.


Gary Goodyear Cambridge, ON

Mr. Speaker, I would like to commend my colleague for looking into one of the parts of the Divorce Act. Certainly we hear from parents across the country how sometimes they do not feel that the Divorce Act is treating them fairly. One side or the other feels they are being discriminated against. Their children are not getting the opportunities to be with both parents, fathers and mothers alike, as well as the grandparents.

The member mentioned a number of other issues that we as a Parliament needed to potentially address to ensure kids are taken cared of and looked after.

I wonder if the member would comment on the opportunity to address the issues in the future, not just in the case of terminal illnesses but in the case of terminal illnesses or the impending demise of a grandparent.

Divorce Act
Private Members' Business

11:15 a.m.


Rick Casson Lethbridge, AB

Mr. Speaker, the Divorce Act does allow the courts to give people access to children other than the parents. Many times we have heard of grandparents who are caught up in the divorce issue and are not given access to their grandchildren. They wish to have access but in many cases they do not have any and it becomes very difficult to see the children.

All the issues that surround custody and maintenance orders surround the ability to have a divorce. Half the people who get married end up in divorce. That is an alarming statistic but it is a fact of life. I am not sure when it became easier to walk away than to stand and fight for the marriage and the family but it seems that is what is happening in many cases.

Many of us, in our offices and in our ridings, deal with the Divorce Act in one way or another, not on a daily basis but certainly on a weekly basis. We have people going through custody issues in the courts. We have people whose wages are garnisheed or their driver's licence is taken away for failure to keep up maintenance payments and it all becomes very troubling to deal with.

I hope that sometime in the future, although I do not think it is on the radar screen just yet, the government will have an opportunity to have a look at the Divorce Act and to make some changes.

A few years ago, a joint committee of the House and Senate tabled a very well done report entitled, “For the Sake of Children”. The report contained a lot of key issues that needed to be looked at. A some point in time, maybe with more pressure and more private members' bills from the House of Commons from all parties, we can start working at getting some of those changes implemented.

Divorce Act
Private Members' Business

11:20 a.m.


Bev Shipley Lambton—Kent—Middlesex, ON

Mr. Speaker, it is an honour to speak to the private member's bill introduced by my colleague from Lethbridge. As many members of the House know, the member for Lethbridge has pursued multiple private members' bills dealing with child protection. I commend the member for all his hard work over the years in exposing the weaknesses in our child protection laws and for working toward making our country a safer place for our children to live.

The private member's bill that we are discussing today deals with families that have experienced a separation by divorce. As some members know, divorce takes a heavy toll on the basic family structure and can pit parent against parent as spouses break their bonds.

The bonds between parents and children are important to both and must be promoted, especially those who experience divorce.

Divorce Act
Private Members' Business

11:20 a.m.


Shawn Murphy Charlottetown, PE

Mr. Speaker, I appreciate the spirit of this private member's bill and I commend the member across for bringing it forward. There is no question in my mind that he does have the best intentions at heart, and I do not know this for a fact, but it is probably motivated by a constituent who has been ill-treated by the existing judicial system and, in particular, the Divorce Act.

However, it is my position that it goes against the intent of subsection 16(8) of the Divorce Act which deals specifically with custody orders. The section reads:

In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

The Divorce Act goes on to enunciate that every child benefits from the principle of maximum contact with each parent.

Subsection 16(10) of the act states:

--the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

We would agree that in most situations and, I would suggest, the vast majority of situations where one parent is terminally ill or in critical condition, it obviously would be in the best interests of the child for the parent to have access to the child in such a difficult and trying time.

It is imperative that we as legislators not think just of the easy cases but also the difficult ones. For example, what if the parent who is terminally ill has a history of violence or perhaps the court has knowledge of that parent's willingness to apprehend the child and flee the jurisdiction? Surely we can all agree that in those scenarios it would not be in the child's best interest or in anyone's best interest to grant the parent access, even if that parent, unfortunately, were critical ill.

Supporters of the bill will say that this is why they have proposed subsection (8) but we know that the words that we choose to put in an act can have serious consequences and sometimes we cannot anticipate what all of those consequences will be. I believe the Divorce Act flows. If we were to couple subsection (8) with subsection (10) with whatever a divorce decree states, there would be absolutely no problem for any terminally ill or critically ill parent to go back to court and seek a variation order.

I would hope and trust that in circumstances such as that, especially with regard to subsection (10) dealing with maximum contact, a variation order would be granted and the parent would be allowed as much access as the court would deem necessary in the best interest of the child, all according to subsections (8) and (10) of the Divorce Act.

If the matter were brought back before the court pursuant to a variation order, the bill would tie the hands of the court or limit the discretion of the judge in the case. It is my submission that it is only the judge of the court who will have all the facts of a given situation at his or her disposal.

As the previous speaker so clearly and rightfully enunciated, the issues are very complex and complicated when we are dealing with a family that has broken up. Some stress is involved and a lot of considerations must be taken into account. However, the overarching consideration is the best interests of the child. These judges are required to make difficult decisions every day given these particular situations.

By making this amendment, we, as legislators, would be in fact saying that we know better than these judges, that we know better than the people actually dealing with the cases involved. We would be in effect saying that, never mind all of the other factors of which they may be aware and with which they are experts in dealing, we have a one size fits all solution or a cookie cutter approach which, in my submission, will not work in all cases. Again, it will work, I submit, in the vast majority of cases, but I do not believe it is in the best interest of society to legislate in that regard. I would leave it to the discretion of the courts.

We would be elevating this one particular factor above the multitude of factors that the courts would regularly consider. The more conditions and factors that we try to fit into section 16, the more likely we will create situations that will lead to unintended consequences. Let us instead have faith in our judges and judicial system. They are the experts, not us.

As the previous speaker pointed out, the Divorce Act is a tough issue. Many people who come out of a divorce situation are not satisfied with the law. They are not satisfied with the way they were treated. In many cases both parties are not satisfied with the way the situation has turned out, but again, the judges deal with these issues every day. They are complicated and complex. When a family divides, it does present a lot of problems. These are the problems that judges have to deal with, supported of course by the social workers and the people who do the background information.

I do not believe the bill in its present form is one that the House should pass, although I do respect the member for bringing it forward. I am certain there are a lot of situations that the bill would cover, but it is in our best interest to leave the discretion with the judges, so I will not be voting for the bill.

Divorce Act
Private Members' Business

11:25 a.m.


Carole Freeman Châteauguay—Saint-Constant, QC

Mr. Speaker, I am pleased to take part in the debate at second reading of Bill C-252, sponsored by the member for Lethbridge, amending the Divorce Act.

My colleague's bill, tabled on May 4 in the House, is intended to amend the existing act in order to enable a spouse who is terminally ill or in critical condition to have special access to a child of the marriage. We conclude that parents, who do not have “regular” access to a child can claim the state of their health to have the decision of a court amended in order to become reconciled with that child in what are likely to be their final moments. The bill provides that such access is to be consistent with the best interests of the child, of course.

This is the crux of the matter. Currently, subsection 16(8) of the Divorce Act sets out very clearly the basic criterion to guide the judge in deciding the terms of custody of the child. Thus, it provides that in making an order, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

The best interest of the child is the fundamental notion guiding all measures set out in the Divorce Act. In this regard, members will recall the unsuccessful attempt by the former Minister of Justice, Martin Cauchon, to have Bill C-22 adopted in the 37th Parliament. At the time, the minister was working on an ambitious project involving reform of the legal framework for divorce. He had in fact based his approach on a strategy closely linked to the interests of the child, but had introduced at the same time the notion of parental responsibility, in opposition to the use of “custody” and “access”, which gave a negative win-lose quality to the terms of rulings.

Since the reform never came to fruition and the bill died on the order paper when the House was prorogued in the second session of the 37th Parliament, nearly three years ago, the matter remains largely unresolved.

The proposal put forward by the hon. member for Lethbridge, which would add a new criterion to be considered, would result in exceptional consequences for previous rulings. I fully understand and appreciate the noble intent that prompted my colleague to develop his bill and I commend him on that. It goes without saying that the sincere and profound wish of a seriously ill parent living out their final days is to spend the last moments of their battle surrounded by their children or one of their children. It is perfectly natural to want that.

We should question and think hard about why, since this involves a departure from the original court order, this specific access to the child being now requested was previously restricted or prohibited by the judge. This is precisely where the concept of the best interests of the child becomes important and is what makes this debate so interesting.

If everyone agrees that the best interests of the child are the priority, then does the seriousness of a parent's medical condition, from a human point of view, justify access to and visitation of a child because the parent is dying? As I was saying earlier, the court provided a well considered justification to limit such contact, which, as natural as it may be, is not necessarily desirable.

This leads to me question the subordination of the best interests of the child to the humanitarian aspect of the situation. One would have to know what it was like to be ill and dying to understand the extraordinary comfort to be derived from the mere presence, no speech even being necessary, of a close family member at one's bedside.

To ease the suffering of body and mind, a parent could request the presence of a child to whom they previously did not have access by court order. The new reality proposed in the bill intrinsically implies adding a criterion to guide the judge when it comes time to hand down a ruling.

My question has to do with the subordination of the best interests of the child to those of the parent. I have given it some thought and I have come up with two diametrically opposed observations.

If the only purpose of the member for Lethbridge's bill is to allow a possible exception to a court decision by explicitly subordinating the parent's extreme medical condition to the interest of the child, then the bill respects the spirit of the current law, thereby making it ill-advised. If the child's interest comes first under any circumstances, the parent's medical condition would not justify making an exception to the court's decision in favour of the parent.

Take, for example, a parent who was denied access to a child because of some kind of physical abuse. What does it matter that that parent has only a few days to live and wishes to express remorse or ask forgiveness? If it had been decided that it was not in the child's best interest to visit the parent, the access restrictions would be maintained. In this case, amending the act would be pointless because the child's interest takes precedence.

If, however, my colleague's intention is to create a broader or more flexible definition of the concept of the child's best interest—which would inevitably result in reducing the extent and especially the precedence of the child's best interest in favour of the parent who has been denied access or who has limited access—that would make the bill completely unacceptable. This is a basic principle that should not be questioned, not even in the case of a parent's imminent death.

That said, I do not believe this is my colleague's intention, and I think that he has brought before the House a very interesting issue that requires serious consideration.

So as to contribute to this debate, I would like to draw the attention of the House to a historical position of the Quebec government staunchly defended by the Bloc Québécois that dates back to when Daniel Johnson senior was in power. This position calls for exclusive jurisdiction for the provinces in the area of divorce. Given that the provinces have jurisdiction for the solemnization of marriage, it is only logical that the dissolution thereof also fall to the same authority. This is merely common sense.

I should point out that it is not stipulated anywhere in the Civil Code of Quebec that a parent's critical state of health must be taken into account when establishing his or her visiting rights. Furthermore, our interpretation is based on article 3142 of the Civil Code of Quebec, which stipulates that “A Québec authority has jurisdiction to rule on the custody of a child provided he is domiciled in Québec”. Articles 33 and 34 of the Civil Code, which refer to the child's interests, compel the court to seek the child's opinion.

It would therefore be pointless to amend the Divorce Act, as I indicated earlier.

However, in the interest of openness for the remainder of the debate and in order to further explore the issue raised by our colleague from Lethbridge, the Bloc Québécois will support the bill at this stage of the legislative process. By referring the bill to the House of Commons Standing Committee on Justice and Human Rights, we will give the hon. member an opportunity to thoroughly explain the objective of his proposal.

Before I close, I would like to reiterate the Bloc Québécois' position that the Divorce Act should be repealed, and that Quebec and the provinces should have the power to legislate divorce. This would correct one of the aberrations of the Canadian Constitution.

In the meantime, since divorce remains under federal jurisdiction, we will earnestly take part in any reform initiative that would ensure greater protection of the child's interests.

Divorce Act
Private Members' Business

11:35 a.m.


Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, I acknowledge the work done by the member for Lethbridge in bringing forward this private member's bill, which raises an issue of some substantial concern. Although thankfully, looking at the circumstances, it is not one that arises all that often. By no means does this lessen the need for us to address the issue however.

When I first looked at the bill, I thought it would pose some problems, and I want to address those. I recognize that it will raise some significant issues as to some modifications to the bill. However, as my colleague from the Bloc has suggested, the bill is worthy of being adopted at second reading and sending to justice committee to see if modifications can be made to it to address my concerns.

I believe the intent of the bill is to mandate visitation between a child and a parent who is either critically ill or terminally ill. We have to assume it would be a factual situation where visitation has not taken place or there has been no access between the parent and the child, which could be for a number of reasons. My first concern about the bill is that child is not defined in terms of age. This could involve a child, as defined generally in our provincial statutes, as being under 18 years of age or under 16 years of age, depending on the provincial statute.

It has been quite clear for at least 40 or 50 years that our courts have either been reluctant or 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. It is highly unlikely that any court would be willing to order a child 16 to 18 years of age to visit with a parent even in circumstances involving a terminal illness. We have to recognize that the existing pattern in our jurisprudence is that a child roughly the age of 12, depending on their maturity, can decide if he or she is willing to visit a parent or not. This would have to be one of the changes made to the bill.

The other issue is the mandatory nature of the bill. The bill uses the term “that the court shall ensure”. I do not think there is any way of interpreting that other than the court would mandate, by way of a direct order, that the child be placed in the presence of the applicant parent for the purposes of exercising contact and access.

Members can appreciate factual circumstances where the history of the family is such that there has been abuse by the parent, who is applying for the visitation order, either of a physical or sexual nature and that there is an outstanding court order which denies that particular parent access to the child or children. In these circumstances, it is hard to imagine the court would be willing to order visitation.

There may be special circumstances where there could be some type of visitation, perhaps with the intervention of counsellors. It is the kind of thing we could review in committee and perhaps get some pertinent evidence from people in the social services field to see if we could develop some guidelines as to visitation under those kinds of historical circumstances.

My final point with regard to that kind of a fact situation is that our courts, for more than 50 years, in terms of jurisprudence developing and then it being incorporated into our statutes at both the federal and the provincial levels around visitation rights, have made it very clear that the rights are the rights of the child, not the rights of the parent and that the best interests of the child is to guide the courts in making a determination as to whether visitation would be allowed, ordered and even enforced.

It is a very tricky set of circumstances. I can think of a number of custody access cases I had in my own professional career, where all the other issues between the adults had been resolved, but there were ongoing battles almost on a weekly basis over visitation, the nature of it and even when it was permitted.

In a fact situation, where it has been originally denied and now the person who is terminally ill has come back and has asked for it, I can see significant complications. Those will need to be addressed.

I anticipate that the member for Lethbridge will be open enough to consider those concerns and take them into account, assuming the bill goes to committee and amendments are proposed to clarify the role of the court.

Then there is the whole issue of judicial discretion. We have been very clear in North American and throughout the Commonwealth on custody and access cases, and I think I can say this without exception, of never completely mandating our courts. This means the courts have to do this absolutely. We have guidelines in the statutes and we have precedent, but we have never, either from the appeal courts or from legislatures, had an absolute mandate as we developed our family law in this last half century.

There has been great change in how we have approached custody and access cases in that period of time. Throughout that entire period of time, throughout the Commonwealth, the United States and most western democracies, we have never required the court or a judge to make an order this way in these circumstances. It has never been a part of our history.

There will need to be some reasonable flexibility in any amendment that we make along these lines, which would preserve that history and discretion in our courts. We would have to tie that with some fairly clear guidelines as to when the court should take this into account. It should be a significant factor that the courts have to take into account, that is the illness or pending death of the applicant. This is a very serious consideration.

To then move to the next stage of making it absolutely mandatory, I would not be prepared to support that. I really think this legislature should not go down that road.

The member has obviously done some significant work on the bill. He feels quite passionately about it and appropriately so. Hopefully, if the bill gets to committee, we can make the necessary changes that will preserve the history of our jurisprudence on this type of issue and at the same time provide some additional protection for parents who find themselves in these circumstances.

Divorce Act
Private Members' Business

11:45 a.m.

Fundy Royal
New Brunswick


Rob Moore Parliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, it is an honour to rise today to speak to private member's bill, Bill C-252, an act to amend the Divorce Act, access for spouse who is terminally ill or in critical condition.

First, I thank my hon. colleague, the member for Lethbridge for bringing forward a bill that enables the House to focus on the important question of marital breakdown and its impact on children.

My hon. colleague has introduced a bill that would ensure that a parent who is terminally ill or in critical condition would have access to their children unless it was not in the best interest of those children. My colleague has already outlined the situation that led to the drafting of the bill.

Before discussing the bill, the dissolution of a marriage is not happy event of course. It can be highly emotional and stressful for all family members. Divorce can also take a serious toll on any of the children who are involved. All of us, as members of Parliament, have dealt with those cases in one form or another.

Children often experience their parents' separation as a loss, a loss of their former family unit. How much more difficult would this situation be if the child knew that one of his or her parents was terminally ill? Imagine too the parent in this situation, a parent who is experiencing a similar sense of grief and loss. Imagine wanting to turn our family and those who are dear for comfort and support.

As a parent, one's utmost wish would be to spend as much of the remaining time with one's children, to share with them the hopes and dreams for their future. For a child struggling with his or her parents separation, the knowledge that a beloved parent is dying could be devastating. Understandably, children would want to cherish the time they could still have with that parent, to foster fond memories and to know that they were loved.

For a dying parent, contact with their child could help to alleviate some grief at a very critical time. For children being able to pay their last respects to their parent could provide some closure and piece of mind.

I believe most Canadians would agree that unless it not in the child's best interest, a parent should be able to die peacefully with their child by their side. We know the underpinnings of the current Act, and as they should remain, is what is in the child's best interest.

The government considers families to be the building blocks of Canadian society. We are committed to supporting families whether intact or separated, thereby building a stronger society. Families raise children and children are our future.

The government also believes it is important to ensure that when parents divorce, both parents are encouraged to maintain a meaningful relationship with their children unless it is not in the best interest of the children. Again, the underlying theme is what is in the best interest of the children.

These principles are currently reflected in the Divorce Act. Subsection 16(8) sets out the criteria for granting custody and access orders. Such orders are to be granted solely on the basis of the child's best interest.

This is not only a nationally recognized standard, it is an internationally recognized standard and it is reflected as such in the United Nations Convention on the Rights of the Child, to which Canada is a party. It is also the standard foundation in all provincial and territorial family law acts that apply after separation for custody and access or parenting orders.

Studies show that the optimal outcome of divorce for children is to have two involved parents sharing responsibilities for raising their children. Subsection 16(10) of the Divorce Act requires the court to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the child's best interest.

To address the concerns raised by my colleague, we need to distinguish between cases where the court has decided that access is not in the best interest of the child and cases where access has been ordered or agreed to and the custodial parent has denied or frustrated that access. It is my understanding that a denial of access was at the very heart of the case that led to the introduction of Bill C-252.

I would like to speak for a minute about the scope of the federal Divorce Act. While section 16 of the act sets out the criteria for granting custody and access orders, provincial and territorial legislation is applied for the purpose of ensuring compliance with such orders. Parents can, however, apply for a variation of the original custody and access order under section 17 of the Divorce Act when there has been a material change in the circumstances. While this is not an enforcement measure per se, it does provide the spouse with an opportunity to bring new circumstances to the attention of the court. Moreover, the case law shows that variation applications are being used to address situations where access has been denied by the other spouse.

Spouses divorce each other, not their children. Fortunately, most parents make a concerted effort to maintain the bonds between their children and their former spouses. Regrettably, however, I am sure we are all aware of situations where this has not been the case. In some situations, parents have difficulty setting aside their differences and they sometimes unwittingly place their children in situations where they feel compelled to choose between one parent or the other. Children should never be placed in such a position, particularly when one of their parents is on his or her deathbed. In some cases, parents frustrate or deny contact between the child and the other parent even when it would be in the best interests of the child. Again, children should not be subject to this kind of thing.

The Minister of Justice and I strongly believe that people should be complying with their obligations toward their children. Contract orders and agreements exist for the sake of the child and should be complied with for the sake of the child. Most children want and indeed need continuing contact with both of their parents. They often describe lack of contact as one of the most difficult aspects of their parents' separation.

Unless circumstances indicate otherwise, ensuring that a child has access to a dying parent is a laudable goal. I would like to thank the hon. member for bringing this important issue to our attention.

Divorce Act
Private Members' Business

11:55 a.m.


Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, I am pleased to have an opportunity to address the private member's bill put forward by the hon. member for Lethbridge.

As the parliamentary secretary outlined, the bill is derived from a laudable desire on the part of the member that a hypothetical or perhaps real constituency out there has concern for circumstances following or during a divorce where one of the parents is terminally ill. There may be seen to be rigidities in allowing the child the ability to see the parent who is dying. That circumstance would tug at the heart strings of everyone. The bill would be an assertion of that circumstance of that context in the Divorce Act and would essentially require the court to allow the child to have contact with the terminally ill parent, provided it was consistent with the best interests of the child.

On the face of it, there really is not a problem. Most people would say that if the parent is dying, why not? However, the bill does not answer the question of why not. There may be why nots and perhaps the why nots are covered off in the phrase “the best interests of the child” to which the courts always look.

The bill does raise a couple of questions. I will not attempt to answer them because if the bill is successful at the second reading vote, I know that the committee which would look at the bill would navigate these issues. They may be seen as sidebar issues, but in terms of the law in the Divorce Act, they are quite real.

First, I want to point out that it does raise the spectre of the factual circumstance of the prospect of a death much higher arguably than it would be in real life. No one would suggest that in a court hearing the court would not be in a position to take account of the context of a dying person. The question is whether it is in the best interests of the child to see the dying parent.

Second, because this involves the Divorce Act, it does not involve separation. We have the prospect possibly of the absence of symmetry between custody and access decisions under the Divorce Act and custody and access decisions under provincial legislation. This would be put into just the Divorce Act and would not be put into the provincial statutes.

Third, if there was a parent dying at the time of the divorce, one could deal with the issue, but in most situations the potential passing or death of one of the parents would not be foreseeable.

There is a variation application section in the Divorce Act, where a parent can go back if there is a huge change in circumstances. Most separation agreements have these variation clauses. After the custody and access are settled, circumstances are probably not all foreseeable, so a parent could go back to the court and attempt to revise a custody or access provision. If it is for the purpose of a dying parent and the child wants to see the parent and the parent wants to see the child and everybody is happy about it, there would be no need to go back to court. It would probably happen because family members would make it happen. However, where there is a conflict and other issues extant, there is the prospect of litigation.

In the context of somebody dying, there is the reopening of a custody and access scenario which has already been settled by the court, maybe one in which the child simply has never seen the parent. Maybe 10 or 15 years have gone by and there has been no contact between the parent and the child and the parent who is deceased or a family member of that dying parent decides they want to take one last kick at the cat in the custody and access regime in place and would rely on a section like this to go back and try to destabilize the context of the child.

Those circumstances may or may not have been in the mind of the member who put this bill forward. I know the member put the bill forward in good faith and in an attempt to deal with compelling and compassionate circumstances. In the law things can go sideways fairly quickly once two or three lawyers begin debating, arguing and interpreting.

I raise these cautions in relation to the bill. I do not dispute the spirit of the legislation as it is put forward. In any event, if colleagues wish to see this bill adopted at second reading, there are any number of issues they may want to look at when considering the bill at committee.

Divorce Act
Private Members' Business



The Acting Speaker Royal Galipeau

If it may be helpful, the hon. member has another four minutes and he can have them.

Divorce Act
Private Members' Business



Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, I thought the time was coming to an end.

There is one last contextual piece that I would like to put forward for consideration just to put it on the record and not to militate against the spirit in which the bill is put forward. It has to do with the whole evolved envelope of the criteria which the court now uses, much of it judicially generated, in deciding what is in the best interests of a child.

This particular amendment would be added to the Divorce Act beside the best interests of the child criteria, if I could put it that way. We could end up with a lack of clarity about just which criteria are the most important in dealing with child custody and access.

This particular section would be a side piece, a collateral piece. There is every prospect that when the courts get a hold of it, it would not be clear as to just what degree of strength or what degree of importance this new section would have. It may prove to be unclear to party litigants and also to judges. This may invite a temporary destabilization in the criteria.

Just to draw an analogy, about 10 or 15 years ago, Parliament put in place sentencing criteria. The initiative put all the criteria in order. We tried to rank them so the criteria were all there. No new criteria have been put forward since then. Those sections of the Criminal Code that set out for the courts the criteria appropriate to sentencing decisions are all there in one code.

If this section were adopted as part of the Divorce Act, it could destabilize or significantly alter those established criteria for determining what is the best interests of the child. We could have a whole list of things that are criteria for those best interests and then one new one, death or terminal illness of a parent, which may trump all the others, but it is not clear from the legislation.

I will leave that on the public record and hopefully that may be helpful to colleagues in the event they have to review this legislation further.

Divorce Act
Private Members' Business



The Acting Speaker Royal Galipeau

The time provided for the consideration of private members' business has now expired and the order is dropped to the bottom of the order of precedence on the order paper.

Business of the House
Private Members' Business



Ralph Goodale Wascana, SK

Mr. Speaker, I rise on a point of order.

I noticed from the projected order of business, compared to the projection of business last week, that Bill C-15 has moved up in the order, which I am very pleased to see. Still there is no guarantee that we are going to be able to deal with this matter as quickly as I think farmers would like to see us deal with it.

I wonder, Mr. Speaker, if there would be a disposition in the House by consent to agree that, notwithstanding any Standing Order or usual practice of the House, at 2 p.m. today, Bill C-15 be deemed to have been read a second time, referred to a committee of the whole, reported without amendment, concurred in at report stage and read a third time and passed.

If there is consent for that type of action, Mr. Speaker, it would assure farmers that by the time we get to question period, this matter will have been successfully dealt with and on its way to the Senate, which would be helpful.

Business of the House
Private Members' Business

12:05 p.m.


The Acting Speaker Royal Galipeau

If it pleases the House, I would like to put the question to the House in 20 minutes.

I recognize the hon. member for Yukon.

Business of the House
Private Members' Business

12:05 p.m.


Larry Bagnell Yukon, YT

Mr. Speaker, I would like to let the public know, who are watching, that we should be on Bill C-9 dealing with conditional sentences. I would like to summarize what I am going to say in my speech. There a lot of problems with the bill. There is one small part of it that we want which would protect people, but unfortunately, I am going to have to vote--