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.