Mr. Speaker, I am happy to speak once again to Bill C-252, to amend the Divorce Act, at report stage.
Specifically, the goal of the hon. member for Lethbridge's bill is to amend the current legislation in order to allow a former spouse who is terminally ill or in critical condition access to any dependent children. This leads us to believe that a parent who does not have a right of daily access to their child can argue that, because of their condition, the court should make a variation order so that he or she may get closer to their child. This visit would take place during what are believed to be the parent's final moments. However, the bill stipulates that this access would be granted inasmuch as the situation is in the best interests of the child.
I would like to remind the House that subsection 16(8) of the Divorce Act very clearly defines the interests of the child as well as the basic criteria that should guide the judge's decision regarding the terms of custody. For example, according to the act, when a court makes a decision, it only considers the interests of the dependent child, defined according to the child's resources, needs and general situation.
Under Bill C-252, adding a new criterion to be considered would have an exceptional effect on previous rulings. I therefore understand the noble intent behind my colleague's efforts in presenting 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.
At the outset, we had some concerns about the effect of Bill C-252, particularly regarding the reasons why this new access to the child, a sort of exception to the decision previously made by a court, had formerly been limited or prohibited by a court. This is in fact where the concept of the "best interests of the child" is most in play.
If we start from the principle that the best interests of the child are paramount, could the fact that a parent is in critical medical condition justify access to and visitation with a child, from a humanitarian point of view, on the basis that the parent in question is about to die, when the court had serious justification precisely for limiting that contact?
For example let us take the case of a parent who was denied access to the child because of physical abuse, of whatever kind. Regardless of whether the parent has only a few days to live and wants to express remorse or apologize, if it is not found to be in the best interests of the child to visit the parent, that restriction on the right of access will be upheld. In that case, amending the act would be pointless because the only criterion to be considered is that everything is subordinate to the best interests of the child.
On the other hand, I understood that my colleague's intention at the outset was not to propose a broader or more flexible interpretation of the concept of the best interests of the child. That would undeniably have reduced the original effect of the bill, and thus the paramountcy of the child in relation to the prohibition or limitation on access by the divorced parent. Consequently, it would have made it completely unacceptable. There is a basic issue that should not be revisited, even because of the probably imminent death of the parent who has been denied access.
The changes made to clause 1 by the Standing Committee on Justice and Human Rights therefore fine-tune my colleague's initial idea by eliminating some ambiguities concerning the role of the court, and in particular the idea of ensuring " that the former spouse is granted access as long as it is consistent with the best interests of the child." In fact, the amended clause reads as follows:
a former spouse's terminal illness or critical condition shall be considered a change of circumstances of the child of the marriage, and the court shall make a variation order in respect of access that is in the best interests of the child.
This amendment makes it possible to avoid certain shortcomings identified by the committee, namely the approach of “as long as is consistent” in view of certain degenerative illnesses that can last longer than the estimated life of an individual.
However, setting aside the honourable intention of the member for Lethbridge to improve the rather difficult circumstances of certain individuals, the traditional position of the Government of Quebec is staunchly defended by the Bloc Québécois. This position calls for exclusive provincial jurisdiction in divorce matters.
I would like to 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 314.2 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.
However, I remain sympathetic to the initiative of our colleague from Lethbridge. I will be supporting this bill, as will my party, in this last step of the process in the House of Commons. Bill C-252 deserves to move forward to third reading and then to be sent to the upper house, although, with our view of the relevance of the Senate, the bill is already near approval.
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.
I congratulate my colleague from Lethbridge for tabling this bill.