Debates of May 27th, 2014

Reform Act, 2014

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Mr. Speaker, quite simply, the rules would be enforced by the members themselves, just as we self-enforce the rules on the Standing Orders and other unwritten conventions that govern parliamentary parties in this place.

To respond to the first part of his question, political parties are quasi-public institutions. The days that this chamber and political parties existed as private clubs for an elite group of people are over. Parties in this country are registered under law. They are creations of the Canada Elections Act for a reason, because they receive hundreds of millions of dollars a decade of political public taxpayer dollars. In return for the receipt of that public money, they ought to be publicly accountable and publicly available to a broad group of Canadians.

In the last ten years, the Conservative Party of Canada has received close to $300 million in public support through political tax credits and other political expenditures, which the Department of Finance Canada considers expenditures, and other forms of subsidies. In return for that money, we are quasi-public institutions, and we ought to be publicly accountable for that money.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, if you would allow me, on this debate on Bill C-586, I would like to begin with a very short quotation:

Canadian party leaders today enjoy a remarkable amount of power when measured against their peers in Canadian history, or against leaders in similar parliamentary systems around the world.

That is taken from a remarkable new book that I think many in the House are beginning to read, by Alison Loat and Michael MacMillan, Tragedy in the Commons: Former Members of Parliament Speak Out About Canada's Failing Democracy.

It is important to note that, in addition to party leaders, party leaders as prime ministers have a particular power in Canada. A 2007 study quoted in the book I just cited, by Irish political scientist Eoin O'Malley, compared 22 parliamentary democracies and found that the Canadian prime minister ranked as the most powerful of all 22.

Not only party leaders but prime ministers in our particular version of the Westminster system have a great deal of power. It is for that reason that I thank the member for bringing the bill forward, for daring to bring the bill forward and spark the kind of debate that is necessary for us to ask whether or not the particular degree of power of both party leaders and prime ministers needs to be looked at in order to make our democracy healthier.

I would also like to quickly summarize what I understand to be in the bill, so we can be clearer when I speak to one or two other elements in terms of how much I support or have concerns.

First of all, I would say the bill would do three things. In the first area, it would decentralize the nomination process of party candidates in two key ways. The first is that local registered associations—let us call them EDAs—would determine the timing of and the governing rules for nomination contests. That relates to the question I just asked the hon. member. The second thing is that, within this decentralization of the nomination process, the party leader would be removed by the bill from the process of endorsing party candidates under the Canada Elections Act and replaced by province-wide nomination officers who are given that role.

The second thing the bill would do is in the realm of caucus governance and discipline, and there are two key elements. One is that there would now be mandatory election rules for caucus chairs to be elected and rules around how that would happen. That is already done in the New Democratic Party. I understand it is not the case in the Conservative Party. This would make it mandatory for all. The second thing within the caucus governance and discipline theme is that the caucus would explicitly have control over membership in caucus, specifically the issue of expulsion or readmission to caucus, an area that is unclear in terms of constitutional convention about whether or not that currently resides in the hands of party leaders or actually is something by convention that is with caucuses. This would certainly clarify it.

The third area of change is that Bill C-586 would legislate rules for the House of Commons caucus members to remove the leader—and it is very important to note—of a recognized party in Parliament, while at the same time leaving untouched the party's rules for selecting the leader of what we call the registered party or the extraparliamentary party. This would lead to some confusion on the part of the public and commentators, and I will come back to it, but the third element involves the ability to remove the leader in Parliament.

I have indicated that I welcome the bill. I believe it is important. It will stimulate debate, and it already has, at a time when it is hard to say that there is not a malaise in our parliamentary system and a recognition of that by the public.

My hon. colleague has somehow tapped into a certain zeitgeist, the response in civil society to the bill. It reflects that, and obviously this is quite brave in the context of our parliamentary system that puts such a premium on party discipline, at the moment.

I would also like to make clear that everything is not sunlight here, in the sense that I believe—and some of the comments coming from farther down the chamber suggest this—that there is some element that this focuses on the experience of one party and some of the problems within that party's own organization. It does not necessarily mean I am not willing to act in solidarity through legislation to share the rules we already have. We already elect our caucus chairs. We have a leadership review at every convention, for example. Nonetheless there is an element of asking other parties to come to the rescue of one particular party. At least, that is my view of it.

Second, there are two elements here: reforming the Canada Elections Act and reforming the Parliament of Canada Act. They are not mutually necessary. The Parliament of Canada Act provisions on caucus governance, removal of the leader, et cetera, is really about the independence of MPs, regardless of their philosophy of representation, while the Canada Elections Act clauses about nomination contests really seem to be about localized democracy.

They do work together, certainly in the conception of my hon. colleague, but I do want to suggest that the two can be severed and that, from my perspective at the moment, the whole question of greater independence of MPs in caucus is where I would certainly want to be putting my emphasis.

There are three very good things about the bill that I would like to emphasis at this time. First, I do believe that the innovation of having province-wide nomination officers be the ones to sign off on candidates once they have been elected from a nomination contest is very much worth looking at, and I personally would support that.

Second, on the idea of electing caucus chairs, having specific rules around it is okay, although I think some of the rules have been too finely drafted in the bill. We might want to look at loosening them up. We currently have caucus chairs elected every year, and I would want to make sure that we do not have to get creative after this bill is passed to allow that to continue, because the bill states that caucus chairs would have to be elected after every general election and then in some other instances.

Third, I believe that the provision that gives the caucus control of its membership is perhaps the most important part of the bill. The idea that caucus, through a voting mechanism, would decide whether somebody should be expelled and readmitted certainly clarifies what is a hazy area. Whether it even approaches a constitutional convention or not, it is certainly hazy. This clarifies that this would no longer be the pure prerogative of the leader of a party.

I think this provision, in and of itself, would create significant independence and extra protection for free speech and for the decisions—sometimes complicated, angst-ridden decisions—on whether to exercise a vote contrary to what others in the party are doing. I think it respects the electorate who, when they vote, are voting for an MP, almost always, who represents a party.

At some level, the wish of the people to be represented by not just an individual but an individual from a party is thwarted when a person is ejected from caucus. I think it is all more the reason that the caucus should have a say.

I have indicated, however, that there is one provision about which I am a bit worried. The electoral district associations would be able to control the timing and the rules around nomination contests. At the same time, there is a provision that says the act's rules would prevail over any bylaws and constitutions of parties.

Therefore, apart from the mechanism that my hon. colleague has suggested, which is that there be always the ability to sort of coerce riding associations to adopt national rules as local rules because ultimately there can be a threat of de-registering, I would much prefer to see more clarity that says certain kinds of national rules unambiguously can apply.

The NDP has a policy whereby at least 50% of all electoral districts shall have women running as NDP candidates for election and the goal is that a minimum of 60% of electoral districts where the NDP has a reasonable chance of winning have women running as NDP candidates for election.

Also, we have a goal that a minimum of 15% of electoral districts where the NDP has a reasonable chance of winning should have NDP candidates for election who reflect the diversity of Canada and include representation of equity groups.

Therefore, it is not an entire coincidence that the current caucus has around 40 women and 5 members of the LGBTQ community. The process at the national level, although stated as a policy, has clear rules for each EDA to follow to make sure it has actually made the effort to contribute to the goal.

My concern is to make sure that this is unambiguously protected at the time at which this bill would emerge from committee, as I hope it will, because I will be voting for it to go to committee. I look forward to studying it.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I first want to thank my colleague for bringing this forward. There has been a lot of discussion about this for quite some time, to say the least.

A lot of it is taking place electronically. A lot of it is taking place through many of the forums we see around here and outward. This is one of those issues where people say, “You guys only talk about this in the bubble of Ottawa”, but quite frankly, it has burst through the bubble and many people are talking about this across the country from coast to coast to coast.

I congratulate my colleague for bringing this discussion to the nation because, as he mentioned in his speech, each and every leader, dating back 50 or 60 years or more, has always talked about electoral reform and we have seen it managed at a snail's pace in many cases. What the member is attempting to do is say that some of the incremental changes that took place within legislation some time ago should be taken further; in other words, we have a choice.

Back in 1970, there was the requirement that, in order to have the party attached to one's name on a ballot, one had to have the signature of the party's leader. Anyone within this House and beyond who has ever run in a federal election, unless he or she is an independent, had to have that affixed next to his or her name or have a letter from the party's leader saying that he or she stands as the candidate. Candidates may have been elected through the electoral process within the party itself, by nomination as we normally call it, or by appointment for whatever reason. That is certainly within the ability of a party leader to do, because we must remember that what is required is the signature. Therefore, what my hon. colleague is doing is taking that and pushing it further to affect the two acts in question here.

Just to recap what was talked about thus far, the enactment would amend the Canada Elections Act. Nominations of contestants would be held by a party's electoral district association. Proof of the party's endorsement of prospective candidates would be provided by the nomination officer of the party's electoral district association, and now with other signatures, so there has been a slight change in that. I also commend the member for making that change based on a provincial designate.

There is a fundamental shift here in what we are looking at; that is, it would make it a local aspect of a nomination process. Originally, there was to be a nomination officer in each electoral district association. We have made a slight change. A lot of people are okay with that.

We also talked about some of the other changes the member would make, such as the ability of the caucus to eject a leader or to call for the vote on a leader. We also have that juxtaposed to the fact my hon. colleague pointed out, which is that in this country the process of selecting the leader of a party or ejecting a leader from that position would now also involve the caucus in a much more proactive way. That is something we have to address within this debate as well.

What I hope to do here today is present some of the facts and further this debate. I will not leave members in animated suspense, because I have not yet decided how I am going to vote, because I believe in debate in this House. I do believe I am leaning in one certain direction—God forbid that I tell anybody—but what I want to hear during this debate is this. In a private member's bill there is what we call a five-minute rebuttal that the mover of the bill gets to do. What I am planning on doing is being specific, which was started by my colleague from Quebec, and talk about some of the concerns that were brought about during our discussions not only within our caucus but within the structure itself of the Liberal Party of Canada. We are talking about some of the concerns around imposing the same rules by a single law to all parties and caucuses. The fact is that the parties are free to adapt and change the rules. With this bill, they would not be able to do that anymore.

It would be a precedent to allow Parliament, the party that holds the majority, to decide internal democratic rules for all parties. A majority of MPs may vote for the current provisions of the bill against the will of the majority of a specific caucus. For example, a caucus within the House may contain members from an entire region, not just one province, of the country. Therefore, that voice would get weighted in a certain direction for one particular reason.

Propositions for reform, trying to convince parties to implement it, the Liberal Party made specific changes about nomination processes in the past. The Conservatives are welcome to adopt these changes for themselves. This is why I think the colleague from Alberta asked the question about leaving it to the party itself to decide these rules and not make it institutionalized within Canadian law. There are concerns about how we police that once we break the law.

Leaders are chosen by caucuses alone in some places. While they also have the power to take them out of that leadership, and that has been the case in countries around the world, it is not the case in our country. Then there is the process of allowing caucus to play a major role in removing a leader from his or her position when, at the genesis of that, it did not play a role in selecting that leader. Many people within parties would certainly have that concern.

On the positive side, there are a few things I would like to talk about, and I am reflecting my own personal view. I want to return to the nomination process. I think the member is on to a fundamental concept of allowing local democracy to select the candidate of their choice.

There are mechanisms within parties. We have one called the green light committee, which decides whether a candidate is eligible to run for the party. There are certain things about candidates, whether they are passed or whether they support the principles of the party. These kinds of measures have to be analyzed by every party in the House. It is no good for one of us to condemn another party for having a stringent process, saying that it is against democracy. It is not. Otherwise, we would have candidates in all political parties, no matter what their ideology, who would run madly off on all directions on whatever issue they chose.

The member is infusing an element of local democracy that to me shows promise, especially when he made changes before tabling the bill. That was also a good thing to do.

Let us go back to caucus chairs. We currently select democratically our caucus chair and so forth, but to eject someone from caucus, we go back to the principles that my colleague from Saint-Laurent—Cartierville mentioned earlier. We can apply the same sort of misgivings about that.

I hope when we return for debate, my hon. colleague gets a chance to rebut some of those concerns we have. I know he has done it personally, but I would like to see him do it within the House as well.

However, I want to commend him for all the work he has done on this. Over the course of this debate, I hope we all reflect on what we have done over the past while as politicians, as representatives. I hope we can say that we believe in a local democracy and we believe that people living within the boundaries of our riding or province should have the fundamental say over who the candidate should be. Then there is whether the party should be the decider of who that person represents it in that riding. If that is the way we feel, then we all need to personally reflect upon that.

This is the long way of saying that we need to have a good think when it comes to this legislation. I certainly look forward to having more debate on it. Unfortunately, we are confined as to the time we have. I know a lot of my colleagues would say that I should send it to committee. That requires me to say yes in principle, and therein lies the debate.

Do we say yes in principle to this, that we want democratic reform? Or does it currently go too far within legislation to confine parties on how they operate in the House, and by extension govern the country?

Again, I congratulate the member, and I look forward to the following debate.

Procedure and House Affairs

[Dan Albas, Conservative, Parliamentary Secretary to the President of the Treasury Board]

Mr. Speaker, there has been consultation among all the parties and I think you would find unanimous consent for the following motion.

I move:

That the order made Monday, May 26, 2014, pursuant to Standing Order 97.1, respecting the deferral of the recorded division on the motion to concur in the 13th Report of the Standing Committee on Procedure and House Affairs, scheduled to take place on Wednesday, May 28, 2014, be discharged and the motion deemed adopted.

[The Acting Speaker, Conservative, Bruce Stanton]

Does the hon. member for Okanagan—Coquihalla have the unanimous consent of the House to propose the motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Conservative, Bruce Stanton]

The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Conservative, Bruce Stanton]

(Motion agreed to)

The House resumed consideration of the motion.

Reform Act, 2014

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Mr. Speaker, Bill C-586, the reform act, addresses several issues, not one issue. All of these issues are part of a general problem or a cluster of problems that have been collectively referred to as Canada's democratic deficit. The democratic deficit can be summarized as follows. The ways in which the Canadian party system, including its caucus system operates, is considerably less democratic, on close inspection, than Canadians think it is, or think it ought to be.

Bill C-586 is divided into two parts, each of which amends a different statute, the Canada Elections Act and the Parliament of Canada Act. The two sets of amendments are concerned with issues that are completely unrelated other than the thematic similarity noted above. Therefore, each of the two parts of the bill has to be considered on its own merits. That means if one of those two parts turns out to be so seriously flawed that it cannot be fixed while the other is a useful improvement to the status quo, that would put all of us here into a quandary.

Let us start with the proposed amendments to the Canada Election Act.

Clauses 4 to 8 of Bill C-586 would create a position styled “nomination officer”. The nomination officer would have the authority to approve, and therefore disallow, party candidates, a power that therefore would be removed from the leader of the political party. Each party would have, in each province, a single nomination officer, elected by presidents of the actual district associations in that province for a four year term.

I do not think that the creation of this new officer would actually eliminate the party's ability to refuse a candidate nomination, something that could have been done. It just centralizes this power in a different officer in what is an unintentional division of the powers of the leader, rather than the elimination of an unwarranted power, as I have to think would have been the idealized way of dealing with the problem of centralized authority over nominations.

We ought to ask this question. What is the purpose the leader's signature serves in the first place and why not just get rid of it altogether? The answer is this. A registered party has a brand, a trademark, like a franchise and this is not the property of any individual person or candidate to use for his or her own purposes or agenda, which might be quite divergent from those of the party. It belongs to the entire party, and one individual who goes significantly off message can destroy the electoral prospects of many candidates.

Those of us whose history dates back to the old Reform Party remember that we were all castigated as, among other things, western separatists, racists and so on, based on a few completely unrepresentative comments made by people who were not part of the party's overall philosophy and who were dealt with by having their nominations removed. These people sought to exploit the credibility that the party and its then leader, Preston Manning, were building. Therefore, this is something that is of no small significance.

The other thing we have to worry about, as we deal with the attempt to balance these two considerations, the importance of the trademark and the danger that the leader will misuse his or her powers, is that this splitting of power does not mean that it is not subject to abuse in the future. Interest groups or party factions could take over the position of nomination officer. This would allow them to control candidate approvals in a given province. The nomination power having a veto over candidates could effectively support one faction from the party or one aspirant for a leadership race. If anyone doubts that could happen, one need only to look at what happened in the Liberal Party during the Chrétien-Martin struggle for power. The fact is that there was a real problem in the way in which nominations were being controlled and distributed in order to favour one faction over another.

In a provision that has been almost entirely overlooked by the media, the Canada Elections Act would also be amended to allow electoral district associations to establish their own rules governing timing of nomination races and the rules governing nominations. Based on my own experience in my own constituency, dating back to my first nomination, there is a real danger of gatekeeping practices designed to keep out candidates other than the one who has been chosen by the then current board of the riding.

When I discussed my own experiences from way back then, I discovered that many other people had similar experiences. The fact is that having some oversight of the central party can serve a useful purpose, although I grant it can also be misused.

Let me turn now to the other half of the reform bill. Section 9 of the bill would amend the Parliament of Canada Act in four ways. First, it would for the first time ever come up with a definition of the word “caucus”. Up until now, caucuses have been, from a statutory point of view, entirely informal. That is to say, they are creatures of usage, of convention, to the extent that they have ever been before the courts of the common law. Under a new section 49.1 of the Parliament of Canada Act a caucus would be defined as “a group composed solely of members of the House of Commons who are members of the same recognized party”. That would exclude senators.

Second, third and fourth, since there were four changes here, the bill would create procedures for three processes that are not now governed by statute: first, for caucuses to remove and replace leaders; second, for caucuses to admit new members or expel existing members; and third, for electing and removing caucus chairs. I will not be able to deal with the election and removal of caucus chairs except to say that I think the process laid out in the bill is probably a pretty good one.

I do want to dwell, however, on the leadership election process. The first thing to understand here is that other Commonwealth countries, and the most frequently cited being the United Kingdom and Australia, do use a system similar to this for having caucuses choose their leaders. There is no doubt about that.

Neither of those two countries, none of the others I am aware of, nor any of the Australian states, none of the sovereign jurisdictions we are looking at, have statutes dictating the process by which this occurs. These are entirely dealt with by the parties themselves. We know, for example, that the rules used by the labour party in Britain are not the same as those used by the conservative party in Britain. The labour party requires 20% of the caucus to trigger a leadership review and the British Tories require 15%. The British liberal democrats, an entirely different system, require 75 local riding associations to trigger a review.

The systems are different again in Australia and they are not unproblematic. To make this point I am going to give the House the history of recent leadership reviews in the Australian labour party.

There is a Wikipedia article on absolutely every subject under the sun, including leadership spills in Australia, the term used for a leadership review vote. I want members to keep count. Leadership spill one, June 2003, Mark Latham attempts to oust Simon Crean as leader of the labour party. He fails. Number two, in December, he succeeds. Number three, in December 2006, Crean and Latham are both gone but Kim Beazley is kicked out by Kevin Rudd. Number four, Kevin Rudd, who is now prime minister, is replaced by Julia Gillard. Number five, Kevin Rudd is not replaced by Julia Gillard, although there is an attempt. Number six, March 2013, Simon Crean attempts to cause Julia Gillard to be replaced by Simon Rudd who refuses to participate. Number seven, in June 2013, Kevin Rudd replaces Julia Gillard as leader of the party through their seventh leadership spill in the space of a decade. Shortly after that the labour party loses the election and then changes its rules to make sure that this kind of serial replacement of leaders is stopped.

The reason I have mentioned all of this is not because Australia's system is good or bad, but it is to make the point that it had the power to change its own rules because it was not entrenched in statute. That is the significant point.

Let me turn now to the very last point I want to deal with and that is the expulsion of members of caucus by means of a vote of the caucus. The proposed law would allow for a 50% vote to expel a member from a caucus. There would be no other way of expelling a member from a caucus. That is not a bad way of handling things.

I do not however like the proposal that members would be able, by means of collecting a series of signatures without revealing their identities, to begin this process. We would not get to do this under this proposed legislation when trying to replace a leader but we could when we are trying to kick a colleague out of caucus. I for one would want to be able to face my accusers if they were attempting to kick me out of the Conservative caucus.

Whatever happens, we can expect that if the bill goes forward and finds its way before a committee that would be one change that I would be looking for and there would be some others as well.

[The Acting Speaker, Conservative, Bruce Stanton]

Before we resume debate, I wish to inform the hon. member for Pontiac that he will have only six minutes for his speech. He will therefore have four minutes to complete it when the House resumes debate.

The hon. member for Pontiac.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I will make full use of the six minutes allocated for my speech.

It is somewhat unfortunate because this bill raises some very interesting and fundamental questions regarding the health of our democracy. I would just like to congratulate my Conservative colleague for having the courage to confront the issue, his own party and the Prime Minister. I know that the member is sincere and that he shares my passion for protecting our democracy.

Democracy, its transparency and its responsibility are not partisan issues.

In fact, they are questions of the tension between authoritarianism and freedom. In history, we have seen that authoritarianism is not limited to the left or to the right. Authoritarian governments have been both right-wing and left-wing. The only safeguard against what is an inherent tendency in our political system to gain power and to want to maintain it is to balance this tendency with what I call multiple localities of power; that is, a sharing of power between various jurisdictions and segments of society.

I think what characterizes a healthy, modern democracy is power sharing. This is done in many ways, both tacitly and implicitly in our society. For example, we can point out the free market system that, with its profit motive, contains contradictions, it is true, with regard to the expression of freedom, with its tendency to deny the right of access to capital and to the means of production, labour mobility, free association labour movements, et cetera, but, nonetheless, at least in its social democratic expression, and my colleague will forgive me for that, provide fundamental room in expressing oneself in freely formed relationships between human beings.

We can all think about the sharing of power within civil society at large, as well. There are vast areas of our society that are not political, thank God, yet function in a free and open manner where the right of association is clearly established and actually creates shared power, spontaneous shared power structures separate from government, which are freely made and freely associated in. This is not to mention the ballot box and universal suffrage that, in my opinion, can be fundamentally improved in our democratic system; for example, by moving to a mixed-member proportional and more democratic system than the first past the post system. However, that is neither here nor there.

However, when we talk about political parties, there is something fundamental that goes on. We have to admit that they are different animals than other types of associations, corporations, or groups. Why? Political parties are in the business of taking power and maintaining power. They are, by their very nature, political. Electoral laws also tend to institutionally favour already established parties and discourage the formation of new political parties.

My colleagues across the hall would probably be more familiar with that than I am, with the whole Reform Party experience.

However, within a free market system, political parties are also financed through private means; therefore, they are also directly related to money, which opens them to all contradictions of our economic system, as mentioned earlier, even more so with the elimination of the electoral return and the public support of the political parties, which was meant to level the playing field. This is unfortunate.

I do lament the fact that this bill would not address these problems, both within our electoral laws and the financing of political parties, because I think that these are the fundamental issues and the very basis of what is wrong with our democracy and why there is so much cynicism and a lack of participatory action within our country today, at a political point of view.

Also, we have to mention that political parties make their own rules. The Conservative Party and the Liberal Party have a long history of being flawed democratic institutions. Their relationship to Bay Street, where the oil industry is too close for them to represent the true interest of the majority of Canadians, is an example.

In its current form, the NDP is much more democratic because it is the only party that has a leadership review every two years. Furthermore, it is the only party that would subject a sitting prime minister to such a review. Since the last election, for example, Jack Layton and our leader have had such reviews. No other party has had a leadership race and two reviews in the past two and a half years. Furthermore, the NDP already elects its caucus chair. We also have transparent processes for choosing a leader.

Nonetheless, how political parties are structured and work, and in particular the relationship between the party and its elected officials, is clearly a blind spot in our democracy. I commend the member for shedding some considerable light on this issue.

Like many Canadians, I am deeply concerned about the highly concentrated power that the government has created in the Prime Minister's Office and his cabinet. We must remain vigilant lest our democracy slip. The fact is that a majority government in this country with a Senate that is undemocratic yields too much power.

One of these powers is the control of its own caucus and elected members, a democratic deficit this bill partially attempts to address.

I will finish the rest when I have four minutes at the next hour of debate. I am thankful for the attention of the members.

[The Acting Speaker, Conservative, Bruce Stanton]

As the hon. member mentioned, he will have four minutes when the House resumes debate on this motion. It will not be today.

The time provided for the consideration of this item of private members' business has now expired and the order is dropped to the bottom of the order of precedence on the order paper.

Pursuant to Standing Order 30(7), the House will now proceed to the consideration of Bill C-560 under private members' business.

The House resumed from March 25 consideration of the motion that Bill C-560, An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts, be read the second time and referred to a committee.

Divorce Act

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Mr. Speaker, I thank the House for the opportunity to speak to Bill C-560, an act to amend the Divorce Act in relation to equal parenting and to make consequential amendments to other acts.

My heart goes out to all those struggling through the breakup of a marriage, divorce, court cases for custody, and wanting more time with their children.

While I appreciate the terrible anguish of parents who want to spend more time with their children and the mover of the bill's intent—namely, to have two caring, engaged, and loving parents in children's lives—I believe the bill is fundamentally flawed in putting parental rights before the rights of children, the most precious and vulnerable among us.

The former Conservative minister of justice and Attorney General of Canada, in speaking to the Canadian Bar Association's annual conference in 2009 about equal parenting and the predecessor to this legislation, namely Bill C-422, stated that the best interests of the child are always paramount, and should be.

Bill C-560 was introduced by the member of Parliament for Saskatoon—Wanuskewin on December 12, 2013. This is not the first time the hon. member has introduced a bill regarding this matter.

The most significant changes that the bill would bring to the Divorce Act include the following: removing the current definition of custody from the Divorce Act and replacing it with parenting, defined as “the act of assuming the role of a parent to a child, including custody and all of the rights and responsibilities commonly and historically associated with the role of a parent”; creating a presumption that “allocating parenting time equally between the spouses is in the best interests of a child” and that “equal parental responsibility is in the best interests of a child”; adding factors that courts must consider in making custody orders; and altering the law on parental mobility.

The bill would represent a disservice both to children and to families by taking the focus away from children in favour of parental rights, detracting from the individual justice required by the Divorce Act, and promoting further and more fractious litigation.

The Divorce Act currently establishes that the best interests of the child are the paramount consideration in child custody cases. In other words, the rights of the parent are subordinate to the interests of the child. Bill C-560 seeks to weaken this in favour of the rights of the parents.

The best-interests-of-the-child test has been a fundamental part of most legislation relating to children for many years. It is used in federal legislation under the following acts: the Citizenship Act, the Divorce Act, the Immigration and Refugee Protection Act, and the Youth Criminal Justice Act. It is also used in some provincial legislation dealing with matters such as adoption legislation; child protection legislation; and custody, access, and child support for unmarried couples.

Equal parenting as defined in the bill appears to have received support from some observers, particularly certain parents' groups, but so far it has not received much support from the legal community.

The Canadian Bar Association, or CBA, represents some 37,000 lawyers, judges, notaries, law teachers, and law students from across Canada. The CBA's mandate includes improvement in the law and the administration of justice. The CBA family law section includes family lawyers from every part of the country. They are collaborative arbitrators, litigators, mediators, parenting coordinators, and practitioners. Their clients include children, fathers, mothers, grandparents, step-parents, surrogates, and so on.

The CBA family section believes that any discussion of “parental rights” is misguided when resolving arrangements for children and that the sole focus must be what is best for children. The CBA therefore opposes Bill C-560, as it would shift the way custody is determined under the Divorce Act to parents' rights and away from what is in the best interests of children.

Lawyers assist all family members during what are often impossibly difficult times in restructuring their responsibilities and arrangements following separation and divorce. As a result, the CBA family section sees the issue from all sides. The CBA firmly believes that the only perspective to foster outcomes that are best for children is to require that the courts and parents focus solely on the children's interests in making decisions.

While the bill refers to equal parenting, it would not actually advance equality. Rather, it would change the primary focus in custody and access matters from what is best for children to equal parental rights.

“Parenting is not about adults claiming rights”, says Patricia Hebert of Edmonton, vice-chair of CBA's national family law section. “It is about the desire and ability to put children's interests first”.

She continues:

The bill is based on the faulty assumption that equal parenting time will work for all families, regardless of abilities, circumstances, needs, history, challenges or attitudes of all those involved. In reality, the proposed change is clearly about promoting parents' views of equality at the expense of the interests of children, who are affected by their parents' separation.

The CBA agrees that shared parenting is a good outcome for many families. Where equal time and responsibility can be shown to be in the best interests of children, judges can and do make that order under the current law, but the CBA understands that one size does not fit all.

The CBA objects to the proposed legislation, which says equal parenting time and responsibility must be ordered in every case. This would require judges to justify any other outcome by ruling that the best interests of the child would be “substantially enhanced” by a non-equal regime. This clearly makes children's interests a very low priority, which is contradictory to the stated goals of Canadian family laws as well as Canada's obligations under the Hague convention on the rights of the child.

Finally, I would like to bring forth questions asked by my friend and colleague, the hon. member for Charlottetown, of the current Minister of Justice regarding Bill C-560 at the Standing Committee on Justice and Human Rights. My colleague asked:

A private member's bill is coming before the House, C-560, dealing with the Divorce Act. Back in 2009, your predecessor...indicated that the best interests of the child are always paramount. Given that this question is about to come before the House, what are your views on that, sir?

The Minister of Justice answered:

I can tell you, having practised some family law—as you have in Prince Edward Island—that the long-held legal maxim and the jurisprudence definitely supports that the best interests of the child will remain the primary concern. I see no change in that regard.

In closing, children must always be our primary concern. This legislation seeks to weaken that. This is not acceptable to the Liberal Party of Canada. This is not acceptable to the Canadian Bar Association. This is not acceptable to the present Minister of Justice or to the former Minister of Justice. This is why we will oppose the bill.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to have the opportunity today to speak on Bill C-560, an act to amend the Divorce Act with regard to equal parenting and to make consequential amendments to other acts.

The preamble to the bill states a number of objectives, including that of encouraging divorcing parents to take more responsibility for their disputes with less reliance on the adversarial processes.

I would like to focus my remarks on the stated objective of the bill in order to demonstrate how this concept is consistent with our government's current approach to divorce and matrimonial settlements.

We all know that divorce is often a messy and drawn-out process in which both sides have deeply rooted resentments toward one another.

Unfortunately, at times divorce is unavoidable and happens quite frequently in our society. However, rather than turning to the courts and other adversarial processes to find a neat and tidy solution to an otherwise complex and messy situation, our government has taken the approach of encouraging and supporting both sides to find a mutually agreed upon resolution themselves.

In the context of separation and divorce, when parents are able to work together and put their children's needs and interests first, they provide a supportive environment for their children during an often challenging time. This is an important step in allowing these kids to achieve their full potential.

Working together and minimizing conflict are important and necessary goals for the approximately 70,000 married couples who divorce in Canada each year.

While the government cannot support Bill C-560, as it moves away from a strong focus on the best interests of the child, I thought it would be helpful to outline for my colleagues some of the ways in which this government is already promoting the goal of encouraging parents to take more responsibility for the resolution of their disputes.

First, this government contributes funding to a wide range of family justice services that have been shown to support co-operation and minimize conflict.

Second, this government has developed various publications to help families deal with divorce, including a booklet for children to help them understand and cope with their parents' divorce as well as a parenting guide and tools that encourage parents to co-operate with each other and that help them prepare a parenting plan that would best suit the needs of their children.

The phrase “family justice services” refers to all programs and services that meaningfully contribute to the resolution of family law issues. Those to which this government contributes funding include information and resource centres, alternative dispute resolution services, parent and child education programs, and services directed at high-conflict situations.

Here is a brief description of each type.

Information and resource centres offer free information on family law and court procedures. As a general rule, these centres do not give legal advice. However, they give out necessary information and documents, such as court forms, and provide some guidance on the steps in legal proceedings. They also refer families to legal and community resources to help meet their needs.

An alternative dispute resolution process that is widely funded by governments is mediation. A mediator is a neutral third party who helps the parents discuss issues on which they disagree. The mediator does not take sides, but may make suggestions to help the parents communicate better and reach an agreement. The mediator does not replace a lawyer.

Parent education and information programs are usually run by lawyers and social workers. They often work together to help parents understand and cope with the emotional effects of separation and divorce on themselves and their children, deal with some of the challenges of parenting after separation, and learn techniques for communicating better with each other, resolving disputes, and co-parenting. Some of these programs are also available on government websites and in other formats. This helps to make them more accessible to those living in remote areas.

Some provinces and territories have developed special education and counselling programs for children that help them cope emotionally with the breakdown of their family and understand that their parents' divorce is not their fault.

Finally, there are family justice services designed to help in situations in which there are concerns about the safety of children and the other parent. As a key example, service providers, generally with social work experience, supervise visits between a parent and a child, or they may supervise the transfer of a child from one parent to another when there is a high degree of conflict between the parents.

I would like to emphasize that these programs and services are developed and administered by the provinces and territories. As many members are aware, the federal, provincial, and territorial governments share constitutional responsibility for family law, and the administration of justice is a provincial/territorial responsibility. The federal government is responsible for divorce, including custody and support when dealt with as part of the divorce. In all other situations, the provincial and territorial governments are responsible for custody and support.

Since 1985, the federal government has provided funds to provinces and territories to develop and improve services and programs that assist separating and divorcing families. The current funding program entitled the “supporting families fund” has two objectives: one, to contribute to the continued improvement to access to the family justice system; and two, to encourage greater parental compliance with family obligations, notably support and parenting arrangements.

To fulfill these objectives, the fund was recently renewed for three years, until 2017, to provide $15.5 million per year to the provinces and territories for the delivery of family justice services to help parents resolve their issues and comply with their family obligations for the benefit of their children. The fund also provides $500,000 per year to non-governmental organizations to develop targeted family justice information and training resources. By helping to reduce conflict and increase co-operation between parents, these family justice services promote better outcomes for children.

The second way in which this government supports the goals of co-operation and minimizing conflict is to make available on the government website information and other tools that can help children cope with divorce and help parents develop parenting arrangements that respond to the needs of their children.

The government recognizes that children need information as well as adults and has developed What happens next?, a booklet for children between the ages of nine and twelve whose parents are separating or divorcing. It gives them basic explanations of key legal terms and also discusses the emotions they may be feeling. The children's calendar helps children keep track of their schedule and important dates as they move between houses.

The guide entitled Making plans gives parents information about issues they need to address when developing parenting arrangements, including a schedule for the time children will be under the care of each parent. It also suggests processes parents can use to agree on a plan, such as mediation, negotiation, and collaborative law, and provides tips on how to include their child's perspective. This guide promotes agreement between parents by emphasizing the importance of communicating, reducing conflict, and building a co-parenting relationship that focuses on the best interests of the child.

The parenting plan tool is a companion to Making plans. It is a practical guide with sample clauses to help parents develop a written parenting plan setting out their parenting arrangement.

Finally, the federal government worked with our colleagues in the provinces and territories to develop a parenting plan checklist to help parents identify issues to consider when developing a parenting plan.

The need for public legal education and information materials such as these, as well as for family justice services, is widely recognized. Recently, the Action Committee on Access to Justice in Civil and Family Matters, a group broadly representative of leaders across Canada in the field of civil and family justice, and chaired by Supreme Court of Canada Justice Thomas Cromwell, emphasized the value of front-end services, such as those family justice services funded by this government, especially those that include “live” help. It noted that:

It is widely recognized that the provision of services early in a dispute helps to minimize both the cost and duration of the dispute and thus to mitigate the possibility of protracted conflict and the corresponding harm to family relationships.

The committee was equally adamant that:

The more that families can effectively take responsibility for the resolution of their own disputes, the better.... This push towards family autonomy...[must be] balanced by a corresponding public obligation to ensure that these families are given appropriate help in doing so.

I want to reassure the House that we take that public obligation seriously. That is why I have taken the time to explain today some of the ways in which we are contributing to high-quality front-end services that support the many Canadian families experiencing family breakdown.

I have highlighted the supporting families fund and the development of public legal education and information materials. Further, the government will review the custody and access provisions of the Divorce Act and, in so doing, will consider how it can further encourage parents to rely less on adversarial processes and focus on the needs of their children.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I started at Dalhousie law school in 2001, and in my second year I took family law with the great Rollie Thompson, one of the foremost thinkers on family law in Canada. If he is watching right now, he is laughing out loud at home because I said that; but he is a great thinker when it comes to family law, and I was really lucky to be able to take that class with him.

There is one thing he drilled into our heads over and over again. Yes, it is the law, but he made sure we fully understood what it meant, and that was the best interests of the child. We talked about different scenarios and hypotheticals, such as what we would do if we were judges with a certain case in front of us and how we would make the decision. We talked about the best interests of the child, because when it comes to conflict about custody and access in Canada, the paramount guiding principle under the Divorce Act, and also in many pieces of provincial custody and access legislation, is the best interests of the child.

What does that mean? It does not mean mom; it does not mean dad; it does not mean grandparents. It is the bests interests of the child. I point out that it also does not mean children across the board. That was a tricky thing for us to understand as law students. The question was not what the best would be for the children, writ large; it was this child who stood before us, who had a specific case, a specific family situation in a specific geographic area of Canada. There were all kinds of different considerations, such as socio-economic considerations, and it was about this child before us.

When we consider the best interests of this child who stands before us, there can be many different possibilities under the legislation. There can be equal time. Equal time is allowed under the Divorce Act. There can be sole custody by one parent with access by another parent. There can be sole custody by one parent and no access by the other, because it may be determined that in the best interests of this child, he or she should not have contact with a parent. There are all kinds of circumstances where that occurs.

Shared custody is an option as well, and it is even possible to have a scenario where a child has a different set of circumstances from that of his or her sibling. Again, I come back to the idea that it is not about what is best for children; but it is this child, not his or her brother or sister; this child. It goes back to the idea that the most important thing that we consider is the child standing before us, and that is the root of the law when looking at family law and how to deal with custody and access. It is beautiful and elegant. It is an elegant concept. Let us forget about who lives where and who has more money or anything like that. What is the best scenario for this child?

The bill before us would instruct judges to find a presumption of equal sharing of parenting responsibilities. This could be rebutted. It is a rebuttable presumption if a party can show that the best interests of the child would be “substantially enhanced” to do otherwise. Even if I thought this bill was a good idea or creating this rebuttable presumption was a good idea, which I do not and I will explain why later, this is a significant departure from Canadian family law. It is a significant departure. Even if I thought this was a good idea, in no way could anyone possibly think that something as significant as this concept, this reversal, this rebuttable presumption, should be changed through a private member's bill.

I know I am talking process here, but process is important. Not everybody knows that private members' legislation is different. It gets very limited debate. There are two hours at second reading and maybe a couple of days at committee. One would think a couple of days is big, but a committee meeting is just two hours. Then there are two hours at third reading. Therefore, we are talking about four hours of debate in the House.

The best interests of the child is the cornerstone of our federal Divorce Act, the cornerstone of custody and access laws provincially, and part of the UN Convention on the Rights of the Child. This is something to which Canada is a signatory, and we cannot possibly think that four hours of debate would be sufficient for changing this concept.

The mover of the bill is speaking to this bill; I am speaking to this bill; there is a smattering of other MPs who are speaking tonight; and that is it. We are just going to have this four hours of debate. Members cannot think that there is enough thought or insight or discussion here tonight that could support this fundamental change to family law. That is in the make-believe world where I think this is a good decision.

However, I do not support this bill. I do not support it in any way, shape, or form, thanks in large part to the constant drilling of the best interests of the child by Rollie Thompson, my family law professor. This is the most important concept.

I am going to quote the Canadian Bar Association.

The Bill would represent a disservice both to children and families by: taking the focus away from children in favour of parental rights detracting from the individual justice required by the Divorce Act and promoting further and more fractious litigation.

Litigation; we often hear how we need to change the Divorce Act. We need to change this idea of best interests of the child because there is all this litigation and it is so difficult. Yes, it is difficult. Of course it is difficult. However, there are lots of avenues for parents to take, so they do not actually have to resort to litigation.

When the focus is on the best interests of the child, it makes parents take stock for a minute. It makes them take a deep breath and focus on their children, rather than themselves. With this concept, they are more likely to put aside their differences. They are more likely to put aside their self-interest and to work to a resolution that works for their family.

This bill would actually make that consideration of the child secondary. I cannot support a law that is going to make the child second.

In coming up to this debate, I was contacted by a constituent of mine. He asked me to support this bill. He shared a heartbreaking story, a truly heartbreaking story of his situation with his ex-spouse and kids. He told me about how sole custody was used as a weapon against him and held out as a reward for his ex-spouse.

We are contacted often by people who want us to support legislation or to not support legislation, vote for or against, but his story really did stick with me. It was a very difficult story to read. There are always individual situations that do not fit or somehow do not work, but when I looked at his situation and he told me about everything he had gone through, I could not help but think about how much different his situation would be if we had support for parents, if we had access to justice, if people could actually access the courts and have legal representation.

I think that the goal of this bill, which is co-parenting, would be better served by greater funding for parental education, for access to justice, for access to legal representation and to counselling services. It would be better served by those things than it would by this bill.

I do not have a lot of time left. In doing research for this bill, I found there is a fantastic paper put together by the Canadian Bar Association. It was about a previous incarnation of this bill. I remember when this bill was introduced in the last Parliament. I was deputy justice critic, and my colleague the member for Windsor—Tecumseh was justice critic. We met with lots of folks to talk about the implications of this bill.

I will say the CBA discussion paper is fantastic. I wanted to quote from it, but I probably do not have a lot of time. I am going to make one quote. It talks about this committee that existed in Parliament, a special joint committee on child custody and access.

The Committee recommended: a series of criteria defining the best interests of the child, among which would be the principle that children benefit from consistent, meaningful contact with both parents, except in exceptional cases, such as those where violence has occurred and continues to pose a risk to the child. Whether an equal time-sharing arrangement is in the interests of a particular child would have to be determined on a case-by-case basis, with a full evaluation of the child's and parents' circumstances. ...the Committee said that “legislation that imposes or presumes joint custody as the automatic arrangement for divorcing families would ignore that this might not be suitable for all families, especially those with a history of domestic violence or very disparate parenting roles”.

I know my time is up. I thank the Speaker for being a little lenient.

[Leon Benoit, Conservative, Vegreville—Wainwright, AB]

Mr. Speaker, I am pleased to speak this evening on Bill C-560, although I must admit it is not a fun topic to deal with. Certainly, there have been all too many, usually young fathers, come to me in states of depression and desperation because they had been denied access or given very limited access to their child because of a divorce and a bad decision made by the courts and our justice system.

Bill C-560 would amend the Divorce Act to direct the courts to make equal shared parenting the presumptive arrangement for children following the divorce of their parents, except in proven cases of abuse or neglect. The key point of this legislation is that when parents divorce each other, they do not divorce their children. These amendments would keep both parents in the lives of more children in those cases where marriages break down. Bill C-560 would require parents to co-operate in establishing equal shared parenting unless they can make a credible compelling case that this would not be in the best interest of the child.

I have heard tonight many, mostly lawyers but not all, who have said that they favour a system where decisions are made based in the best interest of a child. Well, the simple truth is that a child having both parents is what is in the best interest of a child in most cases.

Far too often, cases are being decided by our courts that do not make decisions that are in the best interest of the child. I believe that the law is an ass, so to speak, in far too many cases.

I have seen the fallout of that, and it is not fun. There is nothing that wrenches at one's gut and strikes at the heart in a negative way more so than a parent, again, usually a young father, who is being denied access to his child for no good reason. It is not because they are any threat to the child, but it is because of a bad court decision. I believe that this legislation would make the outcome positive in far more cases.

Just over half of the number of divorcing couples today make their own arrangements for seeing their children without needing court intervention. For those who do need to use family courts, an equal shared parenting presumption would eliminate a key incentive for acrimonious conflict.

It is this conflict that breaks the heart, and breaks the will in many cases, and also makes lawyers rich. Of course, I would not be surprised if many lawyers did not support this legislation. I am not suggesting that all lawyers would oppose this just because they would be denied legal fees, I am not that crass, but certainly I believe that kind of thinking does come into things far too often.

Bill C-560 would foster settlements and reduce litigation due to the requirement that a parent seeking primary parent status must establish the best interest of the children, which means the focus under Bill C-560 is substantially enhanced by the disproportionate parenting time.

Studies have consistently shown that it is the very existence of custody litigation itself that causes the most harm to children. Bill C-560 focuses on the right of the child to know and to love two primary parents in accordance with the UN Convention on the Rights of the Child.

A marked drop in the use of litigation has been seen in Australia following recent equal parenting reforms in that country. This outcome was expected by advocates of equal parenting and runs counter to the scaremongering from opponents who falsely claim that equal shared parenting would produce great conflict among divorced parents and their children. That is simply not what has happened.

Another myth surrounding this bill is that it would impose a cookie-cutter, once-size-fits-all outcome on all divorcing families.

It would not do that. In fact, the opposite is true. The status quo is the cookie-cutter approach, with more than 75% of family court custody decisions being in favour of sole custody for the mother. That is a cookie-cutter approach. It is not a healthy one and it is not one that should be continued in this country.

We clearly see the de facto presumption in operation in today's family courts. Amending the Divorce Act to include a presumption of equal shared parenting, therefore, would not be a radical change to the current law. More importantly, it would be a change that replaces a parental rights framework for one that prioritizes the best interest of the child or children.

The current adversarial litigation system of settling child-related disputes is focused on parental rights. Parents are the ones represented by counsel and are the parties in the dispute. Each parent asserts that they are the better parent and are better able to meet the child's needs, and each parent defends against unfair or mistaken attacks on their parenting from the other parent. As a result, the courts are clogged with bitter, divisive, and financially devastating custody litigation between parents fighting over children like they are property.

I would also like to clarify that Bill C-560 would not impose the one-size-fits-all requirement of an exact 50-50 residential arrangement for the children of divorced parents at both parents' new homes. It would establish equal shared parenting as a starting point for parents and courts to use as they work toward a solution, typically in the range of 35% to 50% in residential access of the child to each parent, according to the unique circumstances of each family.

The international organization Leading Women for Shared Parenting reports that:

Research also proves that, although children want a relationship with both their parents regardless of marital status, healthy bonding with a...parent is impossible without a substantial amount of time spent in that parent’s physical presence.

That means very close to equal, again, in a 35% to 50% range for each parent.

Bill C-560 aims to implement selected best practices from other jurisdictions to encourage parents to make consensual decisions, to reduce conflict and costly legal battles, and to ensure that both parents have the option of equal time with their children, unless they are proven unfit. Equal time as a starting point in the divorce process means that both parents need not fear the arbitrary loss of their children.

I have got so much more that I want to say, but I see that my time is almost up. I will close by saying that we know, from the best social science research, a body of research that is growing every day, that ordinary children thrive most and produce the best outcomes when raised by both of their biological parents. This is what this bill is about. It could play a very important role indeed in helping to ensure that this is what happens, that the best rights of the child are considered and that it means, in most cases, near equal access to each of their parents. It is a result that is clearly, as I have said before, in the best interest of the child.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, I rise today to speak to a subject I feel strongly about, children’s rights. The bill currently being considered by the House poses a serious risk to the rights of Canadian children, which is why I would like to voice my opposition the current iteration of Bill C-560.

Bill C-560, as introduced by my colleague, the member for Saskatoon—Wanuskewin, amends the Divorce Act by replacing the concept of custody orders with that of parenting orders. The legislation instructs judges, when making a parenting order, to apply the principle of equal parenting unless it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.

This change to the legislation, which may, at first glance, appear innocuous, has significant consequences for thousands of Canadian families that have to navigate the already difficult experience of divorce.

The main effect of the bill is that it gives priority to the best interests of parents, rather than of the child, when a parenting order is issued. However, in my opinion, it is absolutely essential that the criteria of the best interests of the child remain the primary consideration in decisions made by judges regarding custody.

In this regard, I stand squarely behind the opinion issued by the Quebec Bar Association, which publicly announced its opposition to Bill C-560. Allow me to read a couple of excerpts from the letter that the Bar Association sent to the member for Saskatoon—Wanuskewin. I completely agree with the opinion of Bar Association and, at the same time, remain hopeful that the member will bear in mind the expert opinion and jurisprudence on the issue.

In his letter, the president of the Quebec Bar Association expressed the following opinion:

The bill being studied was preceded by two other bills, introduced in 2009 and 2002, that also included the concepts of “parenting orders” and “parental responsibility”. The 2002 bill was the result of a Canada-wide reflection that lasted more than a decade.

In 2001, at the invitation of the Federal-Provincial-Territorial Family Law Committee, the Barreau du Québec participated in this reflection and attended a conference on the subject.

A brief was prepared. The Canadian government's final report on custody and access and child support payments, entitled “Putting Children's Interest First”, along with Bill C-22, were the culmination of that extensive consultation. One of the most important conclusions that came out of the consultation concerned the rejection of all assumptions about child custody and the importance of maintaining the flexible criterion of the interest of the child along with the “friendly parent” and “maximum contact” principles. This conclusion was endorsed by the vast majority of those who participated in the consultation, which targeted numerous social and legal groups across Canada.

Bill C-560 proposes amendments that are contrary to the conclusions that came out of that 2001 consultation, particularly in relation to child custody. One of the legislator's objectives is to have the Divorce Act include, under the expression “equal parenting responsibility”, a presumption of joint parental authority and a presumption of shared custody.

Why does the bill disregard a decade of consultation? Why does it fail to take into account the opinion of experts?

The difficult experience of divorce and the issue of custody already place huge pressure on families and especially on children. However, the current bill would force judges to put the interests of the child second, behind the right of parents to equal custody.

This shift has serious consequences and may have an adverse effect on the healthy development of the child. Judges already consider the option of equal shared custody as the optimal solution for a divorced couple with a child, if indeed this option is in the best interests of the child.

What, therefore, is the point of this bill when the legislative tools at our disposal already provide us with the option of equal shared custody?

Canadian judges are competent and know what to do. In the face of ongoing family conflict, it is quite simply not in the interests of the child to be in a situation where the parents share equal custody. Moreover, where in this bill is the opinion of the child taken into account? Does it come second to the custody rights of parents?

Of course, the NDP will always stand up for gender equality, and the rights of fathers are just as important as the rights of mothers.

However, this bill misses the mark, since it in no way moves us in the direction of equality. Rather, it diminishes the rights of the child, and it is high time that the debate refocused on the real issue at hand: the best interests of the child.

It is also important to avoid relinquishing any legislative space to parents who, in the throes of divorce, often lack perspective and judgment. This vulnerability may cause one parent to use custody of the child to attack the other parent. Sometimes parents’ claims come from a selfish place rather than from a place of genuine concern for the best interests of the child. This must be avoided at all costs.

I will say it again: I share the opinion of the Barreau du Québec, which is that the best interests of the child must take precedence over any other consideration when it comes to custody rights.

I would also like to inform my colleagues that the opinion of the national family law section of the Canadian Bar Association is that Bill C-560 puts the rights of parents before the best interests of the child. The association further argues that:

Parenting is not about adults claiming rights…It is about the desire and ability to put children’s interests first.

The association goes on to say:

The bill is based on the faulty assumption that equal parenting time will work for all families, regardless of abilities, circumstances, needs, history, challenges or attitudes of all those involved...

In reality, the proposed change is clearly about promoting parents’ views of equality at the expense of the interests of children, who are affected by their parents’ separation.

I hope that my colleagues will also consider this expertise when it comes time to vote.

In closing, I would like to express my concern about two other aspects of the bill. First, this bill allows custody orders that have already been made by a judge to be changed. From what I understand, an application for judicial review can be submitted for any sole-custody orders, and the courts will now have to apply the presumption of shared custody. This gives a certain amount of retroactive power to change decisions that were already made in an appropriate manner in light of the facts presented to the judge.

Finally, there also seems to be a desire to rank a number of criteria that the judge must consider when rendering a decision. How can the child's opinion and family violence be ranked lower than maximum parental contact? That does not make any sense, and it represents a major setback in terms of child and family law when compared to the laws in most other western countries.

I would like to close by saying that when parents are more concerned about their children than themselves, they are more likely to forget their differences and their own interests and find a solution that works well for their family. The existing laws already offer the possibility of equal shared custody, if that solution is in the best interest of the child.

Rather than restricting the rights of children, I urge all my colleagues to think about more constructive solutions that will enable us to develop tools and provide families with the resources they need to deal with the painful transition of divorce. Parents who are better equipped will be able to minimize the negative effects of divorce on their children's development and well-being.

[The Acting Speaker, Conservative, Bruce Stanton]

Before I recognize the hon. member for Lethbridge, I will let the hon. member know he will have not the full 10 minutes but in fact about seven minutes left in the time remaining for debate on this question.

The hon. member for Lethbridge.

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, I am speaking in support of Bill C-560, which is the bill to amend the Divorce Act to make equal shared parenting arrangements for children following the divorce of their parents, except in proven cases of abuse or neglect.

I must admit that when this bill was first tabled and started to get some public attention and I started to pay attention to it, I was a bit surprised to see how controversial it became. I expected that most people would be in favour of it. That is part of the reason we have debate. It is because sometimes assumptions are challenged. I will say that the arguments against the bill seem as sincere as the arguments in favour of it.

I do not want to say anything about the intent of people who disagree with me on this bill. However, I will say that at home, when I have the occasional constituent come to talk to me about divorce law and family law problems, without exception, the problems have been fathers feeling that they are not getting fair representation through the courts and that the whole system is stacked against fathers having access to their children.

I want to make very clear that my support for this bill is not about preserving fathers' rights. It is not about mothers' rights. It is about the children's rights. It is not just about their rights but about the good of the children. When we talk about the good of the children, sometimes I wonder why we always say, “it is for the good of the children”. Why do children get this emphasis that other human beings do not get? It is not that children are more important. It is that children have not done anything to cause the grief they receive because of the mistakes adults make. Also, children just happen to be the people who will turn into adults who run the world, and if we have the children's best interests at heart and in mind, and we actually look after the children's best interests, by extension, we cannot fail in looking after the best interests of society as a whole.

Beyond children in and of themselves, when we have the best interests of families at heart and the best interests of families in our minds, we look after the interests of society, because family is the fundamental unit of society. When we do harm to the family, we cannot avoid doing harm to society. Decisions we make in this place, or any other place where we make decisions for all of society, must focus on children, and not just on children as individuals but on children as parts of families.

We live in a time when most men and boys are essentially fatherless. If men and boys are fatherless, so are the daughters. We live in a time when we lament violence against women, when we lament irresponsibility. Without fathers, we cannot teach our boys to treat women properly, and it is more difficult for daughters without their fathers to have a sense of who they are as well. Whatever the circumstances, when children do not have a father in the home, they find themselves on their own to figure out life, and they find out that it is a lonely place to be. They will often be ruled by their fears and anger and boredom, when lots of times all they seek is the affection of a father. There are many addictions that come from this fatherless place within them, a fundamental uncertainty in the core of their being.

In our art, our literature, our poems, our movies, our novels, there are so many written about children seeking out their parents, and in particular, their fathers. Lots of real life stories are about adopted children who at a certain age have an inner angst in their soul to find out who their parents are. They love their adopted parents and see them as their parents, but there is something inside of our souls that seeks to be connected with our fathers and our mothers.

The bill is in response to the fact that in today's current divorce law, it is fathers who are usually left out of the children's lives, and by extension, the children are left out of the fathers' lives.

What does fatherhood do? What does it teach people in general, kids in general? It is the new-found position as a requirement of the good life. It shows people how to fulfill duty. It binds us to other people in general. It binds us for real to a woman or to another adult. It is the only thing that still can do this.

Nowadays, marriage is instantly reversible and a negotiable contract, but fatherhood is not. Through this law, we will bring fathers closer to the hearts of the children and the children to the fathers.

The bill may not be perfect yet, but it is on the right track. We need to bring it to committee so we can examine it more closely. The concerns people have brought up about the bill can be addressed at committee. We cannot let it die at this point. We need to bring it to the next level. I encourage everyone in the House to vote in favour of the bill to bring it to committee.

[The Acting Speaker, Conservative, Bruce Stanton]

I would like to invite the hon. member for Saskatoon—Wanuskewin for his five minute right of reply.

The hon. member.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Speaker, I have some concluding comments for this second reading stage of debate on Bill C-560. I look forward to this, and I look forward to speaking again, hopefully, if the bill gets to committee and passes at that stage, amended or intact, and then back to the House. However, it has been an interesting process.

Over the past several months, I have heard from Canadians from coast to coast, from every province, from la belle province all the way across to western Canada and British Columbia. Over the course of the past years, I have heard from thousands of people.

I will confess from the get-go that the bill is not from my creative imagination per se. Certainly, I have carried the banner over the years, but there are some significant groups in the country that are involved in this.

I want to credit and thank Lawyers for Shared Parenting, a very distinguished group of lawyers that works in collaborative law and sees that all of these different things we have tried in the past, such as mediation and various other things, really have not got to the heart of the problems that of the flawed family law system.

I also want to thank the National Parents Organization, Preserving the Bond Between Parents and Children.

I want to thank Leading Women for Shared Parenting for the very considerable job it has done, and the number of its distinguished women across our country and the world grows every day.

Most of all, I want to thank the Canadian Equal Parenting Council, a very broad umbrella group comprised of 35 to 40 groups across the country that all have their own individual chapters. There is a sizeable number of people represented within these groups.

As well, I want to thank the many researchers with whom I have had the privilege to be in touch. They have weighed in on this, provided input and so on. Certainly, they will be prepared to come to committee. They are from Canada and abroad. A large consensus paper was recently written by a bunch of these individuals who have the intellectual heft on the social science kind of research that is being done.

This is coming at us in an avalanche. We are now beginning to better understand what the best interests of children are, adding already to those different criteria and parameters in the courts across the provinces.

Particularly, children want to love and be loved by both parents. The United Nations Convention on the Rights of the Child talks about that very necessary thing.

Long-time supporters of the New Democratic Party, Liberals, Conservatives, Bloc Québécois and the Green Party, from every region across the country, have been calling their elected representatives to stand up for the best interest of Canada's children in a divorce by voting in favour of Bill C-560.

I want to make the point that, resoundingly, across party lines, across the entire country, a number of polls over the last years show support at 80% and upwards, or just hovering at about 79%, in all provinces by all parties represented in the House and by both genders. In fact, it is about 80% in support from men and about 1% or 2% more for women.

Members may ask why women even more than men are supportive of this equal shared parenting bill or this concept. It is because those men and women may marry again or have another partner. The issue of children having access to them consumes them and creates different dynamics in those relationships as well.

In fact, the current adversarial litigation system of settling child-related disputes is focused on parental rights. It is about winning the boat, the car, the house and the battle over the children. The present system is focused on the rights of the parents, whereas this bill is focused on the rights of the children. It would actually foster settlements, reduce the litigation and so on in the best interest of children.

We have had the discussion about the myth of the fifty-fifty. It is actually in the 35% to 50% range. We have talked about how this is not a cookie-cutter, one-size-fits-all solution. There are variations and arrangements that could be made. This is to drive it to the best interest of children so they have access to both mom and dad, aside from abuse or neglect.

I would encourage my colleagues to read some of the good material that has been sent to them. Read the bill itself, and not what the Canadian Bar Association is saying about the bill. Read the myths and fact document that has been circulated to members.

Please help me to get this to committee where it can be looked at for further amendments or adjustments, so we do the right thing in the best interests of children in the days ahead by way of passing the bill.

[The Acting Speaker, Conservative, Bruce Stanton]

The question is on the motion. Is it the pleasure of the House to adopt the motion?