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.