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.