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.