Debates of Oct. 4th, 2018

Justice

[The Deputy Speaker, Conservative, Bruce Stanton]

Questions and comments.

Since there are no more questions and comments. I just wanted to bring to the attention of the House that in the course of acknowledging the hon. member for St. Albert—Edmonton, force of habit and information that I had in front of me conspired to the fact that I did not realize that he was actually accorded 20 minutes for his remarks and a following 10 minutes for questions and comments. Accordingly, I gave him the two-minute mark at eight minutes into his remarks. I did sense that he had probably gotten on the record all the things he wanted to say. Nonetheless, I did cut him off midway through the time that was originally allocated to him. Therefore, I will open it up. If there are any more questions and comments, we can continue for a few minutes. We will take one more question.

The hon. member for Chatham-Kent—Leamington.

[Dave Van Kesteren, Conservative, Chatham-Kent—Leamington, ON]

Mr. Speaker, I want to take my colleague back to his concerns about the government's efforts to protect the child.

In a former committee, we had testimony for youth unemployment. It was actually called youth employment. In the testimony of one group, it said that it had found that those who finished grade 12, got married, stayed married, did not do drugs and alcohol had a greater chance. In fact, they probably would not experience poverty. Much of the talk today surrounds those issues and problems in our divorce courts today.

I am curious if the member might take us in another direction. What could governments do to help strengthen the institution of marriage? I know this is not part of the bill, but on the member's comments about the government's lack of enforcing proper punishment on crimes perpetrated against children, are there things the government could do to help propagate and build up marriages? We certainly know that would certainly help our society.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, speaking to Bill C-78, one of the criticisms that has been raised is that the bill would not provide for a rebuttable presumption for equal shared parenting. It is true that shared parenting is not always in the best interest of the child in every situation. However, I think most hon. members would agree that to the degree that it is possible for both parents to be involved in the raising of the child, in many circumstances, in the normal course of things, it would be in the best interest of the child, hence the basis for a rebuttable presumption for equal shared parenting.

That is one of the many issues that we will look at carefully when we study the bill in committee.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I appreciated the history lesson from my colleague across the way with respect to divorce acts and how they came into being. I appreciate the fact that he was born in 1984. The member talked about the patchwork in Canada at that time. To me, it emphasizes the importance of recognizing that, yes, it is good that we have this legislation and that it will move forward to committee. However, it is also important to recognize that other jurisdictions also have an important role to play in the area of divorce, maintenance and so forth.

Could the member provide his thoughts on the importance of having other stakeholders come to the plate as well?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, the hon. parliamentary secretary is absolutely right. When we are talking about family law, we are talking about shared jurisdiction between the provinces and the federal government. Subsection 91.26 of the Constitution Act provides that it is within Parliament's jurisdiction to legislate with respect to marriage and divorce. Everything outside of that falls within the provinces. Issues around separation, separation agreements, etc. would fall within provincial jurisdiction.

Beyond the issue of jurisdiction, he is also right that it is not just a matter between parents and children who are involved in these disputes. There are a number of stakeholders, whether they be social workers, or law enforcement, and I could go on. It is very important to get their perspective on the bill.

I trust we will be hearing from a cross section of stakeholders who can provide their feedback and perhaps critique or identify some shortcomings or gaps within the bill which could be closed. I trust we will do that at the justice committee.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, in one of his answers just a few minutes ago, the member mentioned Bill C-75. I am still concerned about Bill C-75. It would reduce sentences for very serious crimes, including the abduction of a child under the age of 14, participating in activities of criminal organizations, forced marriages, marriages under the age of 16 and concealing the body of a child. These policies are very alarming to me. Would he like to comment on them?

[Arif Virani]

Mr. Speaker, I rise on a point of order. I believe that question is out of order. We are debating Bill C-78. The matter of Bill C-75 was raised in a response made by my friend opposite in the context of the back-and-forth interplay on the dialogue. However, this question is only referencing Bill C-75, not Bill C-78.

I would ask for a ruling as to whether that question is in order when we are discussing at second reading Bill C-78.

[The Deputy Speaker, Conservative, Bruce Stanton]

I thank the hon. parliamentary secretary for his comment on this. This does occasionally happen when other references are made in the context of responses given in the House. It therefore sometimes opens the door to questions perhaps indirectly related to the matter before the House. Frankly, I must admit I did not specifically hear the reference in the question that was made by the hon. member for Yellowhead.

I will remind hon. members that even when we are in questions and comments, they can certainly address aspects of the debate they have heard, either in questions or in comments in this sense. However, I would ask them to keep their comments and inquiries pertaining to the matter before the House.

I will go to the hon. member for St. Albert—Edmonton for his response on this and then we will resume debate.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, there is a connection between Bill C-78 and Bill C-75 with respect to the hybridization of offences to the degree that we are talking about the best interests of the child in Bill C-78. Bill C-75 would be a step in exactly the wrong direction from that standpoint. when we talk about potentially reducing sentences from a maximum of 10 years to two years less a day.

In the case of Bill C-75, the reclassification of those offences would not only not put the best interests of the child first, it would not achieve the government's objective of trying to deal with the backlog in our courts. Indeed, 99.6% of criminal cases in Canada are before provincial courts. The reclassification of offences would simply download more cases onto our already overburdened and overstretched provincial courts.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Mr. Speaker, I will be splitting my time with the member for Willowdale.

I am pleased to rise today to speak to Bill C-78 and the significant contribution it would make to addressing family violence.

The Chief Public Health Officer of Canada has identified family violence as an important public health issue, recognizing that the effects of family violence go well beyond physical injury and can have long-lasting impacts on mental health.

In 2014, 13% of individuals who were separated or divorced and who had been in contact with their former partners within the last five years reported being victims of spousal violence. While we have no solid statistics on the number of family law cases where family violence is a factor, estimates from court file reviews and surveys of lawyers and judges range anywhere from 8% to 25%, yet, the Divorce Act currently makes no mention of family violence or how it is relevant to parenting matters. Bill C-78 would take concrete steps to address this gap.

There are marked differences in the severity and the violence that men and women experience. In 2014, women were twice as likely as men to report being sexually assaulted, beaten, choked or threatened with a gun or knife. In contrast, men were three and a half times more likely to report being kicked, bitten or hit.

We also cannot forget that children can be directly and indirectly affected by family violence and that the exposure to family violence often comes with direct abuse against the child. In 2014, 70% of adults who reported having witnessed parental violence as children also reported being victims of childhood physical and/or sexual abuse. Children who witnessed that violence were also more than twice as likely to experience the most severe forms of physical abuse compared to those who had not witnessed violence.

Children can be negatively and deeply harmed emotionally when they are exposed to family violence, whether it is from seeing the violence take place or bruises on a parent. Emotional and behavioural problems and even post-traumatic stress disorder can be a serious effect.

Despite all we know about family violence, myths about it remain. There are two myths that I would like to highlight today.

The first myth about family violence, particularly intimate partner violence, is that if a survivor has not reported to the police, then the violence did not happen or it was not serious. Statistics Canada tells us that only 19% of survivors report violence to police. Some do not report violence to police out of fear of not being believed and/or that calling the police may escalate the violence. Certain vulnerable communities also have mistrust for the police.

Despite these fears, survivors may choose to start family law proceedings in order to protect their children, whether they reported violence to the police or not. In some cases, starting a family law proceeding can increase the risk of violence. Leading family violence researcher Linda Neilson notes, “Family law cases involving domestic violence are not necessarily less serious or less dangerous than criminal cases. Indeed some are more dangerous.”

The other myth is that intimate partner violence ends after separation. In fact, separation can actually increase the risk of family violence, and it often persists long after the relationship has ended.

In 2014, 41% of those who experienced family violence by an ex-spouse reported that it occurred after the break-up. In just under half of those cases, about 48%, the violence took place at least six months after the separation. Very worrying is the fact that in almost half of those cases where violence occurred after the separation, it increased in severity.

Bill C-78 includes a number of measures to strengthen the family justice system's response to the unfortunate case of family violence.

First, we must realize that when a family is in crisis, it is possible that various aspects of the justice system may be involved, such as the criminal, civil protection or child protection proceedings, in addition to divorce proceedings. Unfortunately, however, the divorce courts are often not aware of other proceedings or orders that may have been made. This lack of information about other proceedings can lead to conflicting orders, such as where a criminal order prohibits contact between a parent and other family members, but a family order provides that same parent with access to a child.

This is why Bill C-78 would amend the Divorce Act so that courts would have evidence of other pending proceedings or orders in effect. This would help improve the administration of justice.

Where parenting is specifically at issue, courts are required to consider only the best interests of the child. New criteria listed in Bill C-78 would require consolidation of any civil or criminal proceedings or order relevant to the well-being of a child, even if no longer in effect. This is to help ensure that the court has all relevant information when deciding on the best interests of the child. It is critical that family violence be taken into account when deciding on parenting arrangements for children.

As we learn more about family violence, in particular intimate partner violence, we have come to understand that not all family violence is the same. Depending on the nature of the violence, it can have very different implications on the parenting of the child and the ability of former spouses to co-parent successfully.

At least four different types of violence have been identified, but given my short time today I will only mention two. The first is separation-instigated violence. It generally involves a small number of incidents around the separation, although these can range from very minor to more serious. While no violence is ever acceptable, this type of violence may, over the long term, be less likely to negatively affect the ability of the parents to work together or care for the child.

In contrast, the second type is coercive and controlling family violence. As the name suggests, this violence involves a pattern of control based on intimidation, emotional abuse and physical violence. Coercive and controlling violence is most often perpetrated by men against women. It generally occurs over a prolonged period, has the highest risk of lethality and is most associated with compromised parenting skills. The perpetrator often attempts to control his former partner long after separation. As a result, in these situations, joint decision-making can be challenging and contact between the parents during the exchange of the child can create opportunities for further abuse.

To address the range of family violence, Bill C-78 includes an evidence-based definition of family violence. It identifies that family violence can include a pattern of coercive and controlling behaviour. It provides examples of specific behaviours that constitute family violence, such as physical and sexual abuse and psychological violence and harassment, including stalking.

Finally, Bill C-78 specifically highlights family violence as relevant to the best interests of the child when making parenting arrangements. The proposed amendments will direct consideration of any impact of the family violence, but in particular how it might affect the ability of the parents to co-operate with one another, or how it might affect the ability of an abusive parent to care for the child. The bill also provides a list of specific criteria for the court to consider that will determine the severity of the violence, the impact that it has had or may have, and whether and how this should inform the parenting arrangement.

These criteria would help put focus on the particular dynamics of family violence in each individual case. Importantly, both the definition of family violence and the best interests criteria recognize that even when children are not directly subjected to violence, they can be harmed by it. Through Bill C-78, we are taking concrete action to promote children's best interests in situations where they are most vulnerable.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, I wonder if the hon. member would be able to clarify something under clause 54, the increased term of services binding by Her Majesty for five years to 12 years. Could he explain to me why it was raised?

[Randeep Sarai, Liberal, Surrey Centre, BC]

Mr. Speaker, unfortunately, I am not privy to that. I will look into that and will get back to the member opposite in due course.

[Arif Virani, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.]

Mr. Speaker, I thank the member for Surrey Centre for the work he is doing on behalf of his constituents. As a lawyer, I also take a lot of solace in the insight he has provided in terms of what the bill would do to address the litigious area that represents family law.

He focused a lot of his comments on family violence. I put to him that there are specific provisions in the bill that would require under the Divorce Act that there must be evidence before the courts about any criminal proceedings or orders against any person seeking a parenting order or a contact order. That is intended to avoid inconsistent orders where, for example, a criminal court might have said no contact to a certain parent, but the family court might be making a different order not knowing about the criminal order.

Could the member please elaborate on that kind of change and what it means for addressing the very important family violence objectives we are trying to achieve in reducing family violence in Canada?

[Randeep Sarai, Liberal, Surrey Centre, BC]

Mr. Speaker, it is going to help a lot. Litigation can be long and cumbersome. It can also involve different departments. There can be child protection arrangements that have certain contact orders. There can be criminal proceedings. Sometimes other family members are also involved where others have no-contact orders or stay-away orders or restrictive contact orders. Previously, the two did not marry in court and the family judge would not necessarily know of the other arrangements. With this legislation, the judge would have access to those.

They would not have to make special applications to have them heard or brought into court. A judge would have all the data available, all the orders available, regardless of the level of court or the jurisdiction of the court or the type of proceeding that it was made in. That facilitates the best interests of the child, the safety and security of the parent, and gives clarity so that judges do not make contradictory orders not knowing other aspects of the arrangement.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Mr. Speaker, I appreciate the child-focused approach of this legislation. It is really important that we acknowledge that during these difficult times children need to be at the centre of the conversation.

This legislation also includes a lot of discussion around reducing child poverty but no resources have been set aside for this. Could the member tell me a bit about how the government will provide the means to get to that ambition?

[Randeep Sarai, Liberal, Surrey Centre, BC]

Mr. Speaker, the legislation would reduce poverty by simplifying and streamlining processes related to family support. It would allow for the release of CRA information to help enforce family support, i.e., income information from T1s, which otherwise would have to be voluntary or a court order would be made for it.

The bill would allow for the implementation of the 2007 Hague child support convention, which provides a low-cost and efficient way for people to get family services across international borders.

The combination of those four would have a great impact on making the process more efficient and more cost-preventive for families.

[Ali Ehsassi, Liberal, Willowdale, ON]

Mr. Speaker, I will first thank the hon. member for Surrey Centre for focusing on the question of violence and how this bill would allow us to address that. I, on the other hand, will be taking a more general overview of this legislation, which I am incredibly proud of.

As we know, the first substantial update to Canadian family law in 20 years is occurring. Bill C-78 represents a landmark in strengthening and enshrining the best interests of the child and would make federal family law more responsive to the modern-day needs of Canadian families. Family law, as has been noted by all of the speakers today, is both complex and broad and as a result, there are significant gaps and inefficiencies, which existing laws have not adequately addressed. Bill C-78 seeks to remedy these gaps through a wide-ranging series of common-sense adjustments.

Today I will focus on six key elements of Bill C-78: strengthening the best interests of the child provisions, enshrining primary consideration into family law, important changes to terminology, modernizing the Divorce Act, creating contact orders and setting new relocation guidelines.

Allow me to start with the best interests of the child test. The best interests of the child test has been a fundamental part of family law in Canada and in many other countries for decades. Under the Divorce Act, courts must consider only a child's best interests when making decisions about who may care for or make decisions about a child. The Divorce Act, however, gives surprisingly little guidance regarding this test.

In 1998, the Special Joint Committee on Child Custody and Access called for the Divorce Act to include a list of criteria considered to be in the best interests of the child. Many others have added to this call, including academics, child advocates and the Canadian Bar Association. With Bill C-78, our government is answering their calls and taking important steps to address existing gaps and inefficiencies in the family law system.

The proposed criteria for the best interests of the child would emphasize critical elements of a child's life. They include a child's stage of development, ties to loved ones, cultural identity, and personal views and preferences. However, the list is not closed or exhaustive. If a particular factor in a child's life is especially relevant—for example, if the child has medical needs or participates in competitive sporting events—courts could consider these factors where appropriate and relevant.

Adding definitional certainty to the best interests of the child test in the Divorce Act promotes children's interests. It also promotes another one of the bill's key goals: improving access to justice. In some Canadian jurisdictions, over three-quarters of family law litigants are self-represented. Also, a list of best interests of the child criteria in the Divorce Act would help parents better understand their legal responsibilities. It would assist them to better frame their negotiations on arrangements for their children and more often come to agreements outside the court system. Alternatively, if parents cannot agree on their own, this clarity would help self-represented litigants to better frame their arguments in legal proceedings.

Allow me now to move to the second point, which is primary consideration. The reference to “primary consideration” is crucial to the values embodied in Bill C-78. Emphasizing primary consideration would ensure that courts prioritize a child's physical, emotional and psychological safety, security and well-being. Courts would weigh all other criteria in regard to this primary consideration. Doing so would ensure that the best interests of the child remain paramount in protecting families from the negative outcomes often related to separation and divorce.

I will move to the third point, updates to terminology. Bill C-78 would make important and, frankly, long-overdue changes in family law terminology. “Custody” and “access” are now archaic legal terms.

The term “custody” traces its origins to property law, which for hundreds of years has essentially treated children as possessions. The term “access”, meanwhile, refers to a right to use or pass over property. This is not how we should describe responsibilities for children in 2018. In addition, litigation over “custody” and “access” has created additional labels whereby custodial parents are viewed as winners of parenting disputes and access parents the losers. Bill C-78 would move away from such confrontational language, as Alberta, B.C. and several international jurisdictions have done.

Going to the issue of modernizing the Divorce Act, Bill C-78 would replace orders for custody and access in the Divorce Act with parenting orders. A parenting order addresses parenting time and decision-making responsibility for each parent. Specifically, “parenting time” refers to the time a child spends in a parent's care. This includes all time when a parent is responsible for a child, even when the child is at school. Each parent would have as much parenting time as is consistent with the best interests of the child.

On the other hand, “decision-making responsibility” refers to making important decisions on issues such as health, education, language, religion and significant extracurricular activities. BillC-78 would allow the courts to allocate this responsibility to one or both parents, or, alternatively, to divide elements between the parents.

Furthering the goal of improving access to justice, the bill includes a parenting plan provision, referring to agreements between parents that sets out a road map for the care of the child moving forward. The bill encourages courts to incorporate a parenting plan that is in the child's best interest. This provision recognizes that parents are generally best placed to make decisions about their child.

Moving to the fifth element, Bill C-78 also proposes a contact order, in keeping with the best practices already established by several provincial courts. Contact orders carve out time in a child's schedule with a person other than a parent, such as a grandparent. I would like to clarify that a contact order would not usually be necessary in order for grandparents and other loved ones to spend time with a child. It would only be necessary where, because of conflict, parents do not agree to let grandparents or other loved ones spend time with the child. In such cases, Bill C-78 would allow courts to make contact orders. These orders could help preserve a child's relationship with his or her loved ones, where appropriate. As with parenting orders, courts would make a contact order if it is in the best interest of the child.

Finally, the issue of relocation has challenged parents, lawyers, and courts for many years. Relocation involves moving a child after separation and divorce. It is one of the most litigated family law issues in existence. In a 2016 survey of lawyers and judges, for example, over 98% of respondents indicated that disputes are harder to settle when relocation is involved. Bill C-78 creates relocation guidelines to address this conflict. Parents would now be required to give notice if they want to relocate either themselves or their children. An assessment would be conducted using best interest criteria when considering such a request. These would include factors such as the reasons for relocation, the impacts of relocation on the child, and how reasonable the relocation request is.

[Arif Virani, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.]

Mr. Speaker, the hon. member for Willowdale, who happens to be an old high school classmate, gave us a very comprehensive overview of Bill C-78. He touched on many different facets, so I would ask if he could zoom out a bit and provide us with his insight on how the bill fits in with some of the broader initiatives our government is pursuing. There are two I would ask him about.

We heard about how the bill impacts on child poverty. How does that fit with some of the government's broader objectives of addressing child poverty in Canada? We heard about how the bill would address family violence in a more direct way. How does that work with Bill C-75, which is before the justice committee, which my colleague is a member of, and the provisions that are being put in place in that bill to deal with intimate partner violence in the context of things such as bail conditions? Perhaps he could elaborate on the broader impact of what we are doing as a government.

[Ali Ehsassi, Liberal, Willowdale, ON]

Mr. Speaker, I am much obliged to the parliamentary secretary for bringing to the fore two significant issues that are very much at the heart of this bill.

The first issue is on reducing poverty. As was noted, I think this is a huge step in the right direction. First of all, it should be noted that this particular bill simplifies and streamlines processes that relate to family support. Second, it will allow for the release of CRA information which can be critical in these types of disputes. Last, insofar as the issue of poverty is concerned, it is important that we are implementing the 2007 Hague child support convention.

The second issue the parliamentary secretary has raised is that of family violence. I think we can all agree that we should be very much concerned about the high incidence of violence. This bill does an incredible job of addressing this priority.

Looking at the bill, one of the things to note is that there is a definition for family violence in the Divorce Act, which for the first time would include any conduct that is violent, threatening, a pattern of coercive behaviour or behaviour which causes a family member to fear for his or her safety. In addition, it requires courts to consider family violence in determining the best interests of the children. I would like to highlight the fact that improving safeguards to account for family violence is very much a part of this bill.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, I do not think there is anybody here in this House who can deny that Bill C-78 is well overdue and is needed.

I listened in depth to the conversation about separation, families relocating, the court sitting down and evaluating a mechanism to look at both sides, and that body deciding if it is appropriate for the parties to move from one location to another.

I was reading through the bill and I am wondering if there is a mechanism of repeal if the court were to say that one party could not move. Is there an appeal mechanism built into this bill that would allow people to appeal that decision?

[Ali Ehsassi, Liberal, Willowdale, ON]

Mr. Speaker, as the hon. member kindly noted, this is a huge step because this is 20 years overdue. It is great to see that the members are focused on this significant priority.

Insofar as relocation provisions are concerned, I think the emphasis here is to make sure that when a court is considering such a significant issue that it actually consider the best interests of the child. The court considers it and hears from both parties. This is not an issue that is brushed aside. It is something that is at the centre of it. That is precisely why this bill provides guidelines for judges to consider such a significant issue.

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Mr. Speaker, I will be sharing my time with the member for Banff—Airdrie.

I am pleased to rise today to speak to Bill C-78. I do not come at this from a legal perspective—I am not a lawyer—and I do not come at it from the perspective of actually having experienced this directly. I was raised in a home with six children, a very happy, very busy home, and then when my parents were much older in life and I was a grown woman myself, they faced a difficult time when they came very close to divorcing. I have to say that even then, as an adult and with my own children, it was extremely unnerving and disturbing to me, which just raises the realization of how important it is that we have systems in place to assist children. I cannot imagine what it would have been like to actually be dealing with those circumstances as a young child in my home. Fortunately, things worked out well.

That being said, in regard to Bill C-78, I appreciate the four key objectives that are listed: to promote the best interests of the child; to address family violence; to help reduce child poverty; and to streamline various definitions and processes but, more important, to require legal professionals to encourage clients to use alternative ways to resolve disputes.

The Conservative Party has always had this perspective that we believe that in the event of a marital breakdown, the Divorce Act should grant joint custody and/or shared parenting, unless it is clearly demonstrated not to be in the best interests of the child. Both parents and all grandparents should be allowed to maintain a meaningful relationship with their children and grandchildren, unless it is demonstrated not to be in the best interests of the child. In every case where it is possible, the influence of both parents, and grandparents as well and siblings, is so key to making sure that the family unit is able to survive as best as it can through these difficult circumstances. We understand very well how traumatic divorces are on families.

We are overall pleased with the intentions of Bill C-78, especially the promotion of child welfare and the measures to combat family violence. We have always stood up for and believed in the safety and well-being of children and of families.

However, where this goes off the tracks for me is in the fact that the counterintuitive implementation of Bill C-75 is here as well. I know that Canadians' heads are spinning quite often when trying to determine, if this is a whole-of-government approach to things, how it is on the one hand we can be saying we are so concerned about children and then on the other hand be bringing in Bill C-75, which would reduce sentences for very serious crimes, including abduction of a child under the age of 14, participating in activities of a criminal organization, forced marriages, marriage under the age of 16, and concealing the body of a child. These are very serious crimes and impact children, yet the government seems prepared to bring in something that seems so contrary to me.

I want to quote something from the Lawyer's Daily, written by David Frenkel:

The impetus in the fights between parents does not begin when spouses read the terms “custody” and “access” in the Divorce Act. Therefore, unless there are additional provisions added to the proposed amendments, the family conflicts will likely continue even with the replacement of the terms “custody and access” with “parenting” as introduced by Bill C-78.

I appreciate what is being attempted there with the terminology being changed, but at the same time that is a good point, that simply changing the terminology will not in the end make a huge difference. Mr. Frenkel continues:

[A] “parenting order” will replace the traditionally named “custody and access” order.

That needs to be done, but actually it has already been taking place. He says:

The significant change in wording likely arose to answer the concerns from the courts over the years that awarding one parent the status of “custody” and the other “access” created unnecessary winners and losers.... [A]s early as 1975 Justice Robert Furlong...wrote as follows: “The time is long past when the Courts disposed of the custody of a child as a reward to a well-behaved parent or as a punishment to one who misbehaved. The custody of their children is not a prize to be contended for by parents as an award for their good behaviour.”

He continues:

In 1986, the Manitoba Court of Appeal upheld a decision to refrain from using the words “custody” and “access” because the trial judge thought “those are destructive to a child”.

He also states that perhaps the more important focus of this discussion should be the issue of “control”, as that, unfortunately, quite often is what the fights are about in these circumstances.

He continues:

Litigants, in time, will become sophisticated in understanding the effect of a future “parenting order” and couples that previously fought incessantly over the term custody will now fight over who will have “decision-making responsibility.”

In other words, although that is part of it, how can we come to a point where the extreme difficulties in making these decisions are not fought out in such a confrontational way?

He goes on to say:

Therapy and assessment orders for litigants will not solve all the problems in custody battles, but they may expose the underlying factors contributing to unreasonable positions taken by them. Therefore, in addition to a change in language to the Divorce Act, it may be necessary for a court to have the jurisdiction to order trained professionals to determine and opine whether a parent's desire for custody or a ”parenting” order is based on healthy motives or not. And if such information cannot be readily available when needed, then simply repealing the terms “custody” and “access” may not achieve the intended consequences we all have been waiting for with Bill C-78's introduction.

In other words, efforts need to be made to ensure that the individuals who are involved in these circumstances have the necessary tools at their disposal to assist them in the process more effectively. There is no question that this is probably one of the most trying and difficult circumstances to be in for a couple who at one point married because of their desire to see their life as a long-term commitment and to have children. Yes, sometimes there are very violent circumstances. Other times there is an inability to communicate. However, there needs to be a process in place to assist them.

Further to that, I read an article by Robert Harvie, a family lawyer, mediator and arbitrator with Huckvale LLP, an advisory board member for the national self-represented litigants project, and a past Law Society of Alberta bencher. Harvie comes at this from a very well-rounded perspective. He states:

The unveiling of Bill C-78 received almost uniform praise from the media and legal profession as the “first major amendment of the Divorce Act in 20 years.”

Indeed, it is.

He continues:

My opinion is less effusive. Perhaps it's the cynicism of a lawyer who has been working in family law for 32 years. Having sat as a bencher with the Law Society of Alberta, and in fact, chaired their Access to Justice Committee for two years, I have seen much promise and very little delivery in improving access to justice. As a result, I opened up the 190 pages of Bill C-78 with less optimism than many of my colleagues.

He says it is “similar to the excitement over the maiden voyage of the Titanic”, which piqued my interest. With respect to the Titanic, he talked about all of its amazing additions to improve its amenities and necessities, such as squash racquets courts, baths, a gymnasium, a swimming pool, electric passenger lifts, all these of different services, including more deck chairs, to make the trip better. However, the reality was that they did not have what they truly needed.

He indicates that, at its core, Bill C-78 is devoid of change to the overall resolution process, that lawyers charge too much money, that law societies appear focused on reducing complaints rather than caring for them, that litigation is antiquated and cumbersome, and that we need to fund and support more alternative forms of resolution.

I have a good friend who settled many divorce and custody cases for his law firm out of court and without expensive litigation. However, he lost his job. Why? It was because he did not have enough billables and was not productive enough for the firm. In other words, he did not make enough money for the firm. He was encouraged to work for legal aid, because that was where he belonged.

Our legal system needs to change so that firms invest in litigating these cases through mediation and arbitration. Yes, we can tell people that they should go and do this, that they should make this choice, but they usually first find themselves at a law firm. I would like to see this concern addressed within the legal profession in Canada, where we make this a priority and prepare our lawyers, who are clearly willing to take on this type of roll to serve Canada, and especially to serve children.

[Arif Virani, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.]

Mr. Speaker, I confess I find the member's comments quite puzzling. To draw an analogy between this legislation and the Titanic is preposterous, because we had widespread consultations and have since received vociferous support from coast to coast to coast for this legislation. The Conservative government in Alberta is the very government that initiated the concept of changing the terminology from “custody and access” to “contact and parenting” orders.

The member raised Bill C-75 and some of the provisions in it that she finds logically inconsistent with what we are doing in Bill C-78. It is quite the contrary. In Bill C-75, we are doing exactly the same as we are doing in Bill C-78 in two important respects. One, intimate partner violence is at the heart of what we are doing in Bill C-75. We are addressing it and would make it a prerequisite to deal with that as a condition on bail. What we are doing here is making family violence something that a judge would have to consider, including criminal orders or proceedings, in determining the best interests of the child.

The other conceptual component that is exactly the same between the two pieces of legislation is that in each instance we are trying to reduce the very backlog in our court system that my friend opposite laments, our over-reliance on the court system, the over-litigiousness of Canadian society. We would be reducing that with Bill C-75, and exactly what we would be doing here with this provision. Two cases in point are the ADR mechanisms for calculating support.

Could I have the member opposite's comments on how improving ADR mechanisms addresses the very problem she has identified?

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Mr. Speaker, I clearly hit a nerve. I have indicated already that there are many circumstances where the legal system needs to do what it needs to do to deal with very violent circumstances within families. That is important. I am not denying it.

It was not I who compared the legislation to the Titanic, but Robert Harvie, a family lawyer, mediator and arbitrator. He is also the advisory board member for the National Self-Represented Litigants Project, and past law society of Alberta bencher. This is a man who knows his stuff. He indicated:

While we uniformly acknowledge how damaging and inappropriate litigation is to resolve family disputes, at the same time, at the same time, funding and support for alternate forms of resolution is so scant as to be almost nonexistent, while the funding for the litigation machine only grows.

I personally know of scenarios where couples find themselves in an overwhelmingly difficult circumstance, where both individuals realize they are facing divorce and know that they have to get through that process and are very concerned for their children. I am talking about scenarios where we could do a great deal more to help couples deal with the circumstances they are facing through other methods than having to go through the legal system, where lawyers charge huge amounts of money and litigation is the natural path for them to take.

This is unlike what my friend did, an amazing lawyer who solved most of the issues that came to his desk through arbitration and mediation without going to court and without expensive litigation. That is the point I am trying to make. That is not a priority of the legal system when people within it are told to go work at legal aid, rather than the government investing within Canada in these types of services in our legal system to see healthy families continue to thrive.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Mr. Speaker, in rising to speak to Bill C-78, I would like to start with a personal story, one that will probably surprise many in the House and even many back home in my community.

I spent a number of years as a very young man as a single father. I raised by son, Quinn, who is now 22 years old. I was working two jobs while going to school full time and trying to raise him. It was a difficult time for me financially for sure, but we got through and did well. My son often tells me that some of the best memories of his life were from that time, even though I could not afford to put a lot on the table. It was Kraft Dinners, hot dogs and Hamburger Helper at best. We did without a lot of things. We lived in basement suite apartments for a few years while I went to school. However, I was able to raise him, and I think I raised him into a fine young man, one I am very proud of.

At that time, I did have some experience with family law, albeit not related specifically to the Divorce Act, which now speaks to some of the concerns this proposed legislation tries address today. It is for that reason, and from some stories I have heard from others whom I have spoken to during and since that time and during my time as a member of Parliament, that I do find the objectives and goals of the proposed legislation laudable.

Certainly, in some of the things it addresses, the bill tries to ensure that the best interests of the child are always promoted. It reinforces and emphasizes the importance of keeping a child's best interests as the absolute top priority in family law when making decisions about parenting in these cases. That is a critical principle. I also think it is important that more be done to require legal professionals to encourage clients to use alternative ways of resolving disputes, which is always something we should seek to achieve. The proposed legislation certainly has those things among its objectives. Although I do not often have occasion to do this, I do laud the government for its efforts in trying to achieve those goals.

However, I am still not certain that the proposed legislation would achieve the goals it sets out. There are some questions that I and others on this side of the House have that need to be addressed. Therefore, I want the bill to go to committee so we have an opportunity to address those concerns, issues and questions. I am hopeful they can be addressed.

I will point to a few articles about the bill. My colleague who spoke before read from one of them, but there are a few others I have noted that somewhat pan the bill. I will read very brief passages from them.

First is an article entitled “How the new Bill C-78 affects custody and access rulings”. It says that “On its face, this bill is an expression by the federal government that progress was needed in the way that separated families were treated under the law”. I would certainly agree with that. It goes on to say that “However, much of what is being proposed has been already implemented in out-of-court settlements, as well as in decisions made by judges.”

The second article is entitled “What’s in a name? Divorce Act amendment not enough to reduce parental conflict”. I will not read any passages from it, because I think the title speaks for itself.

The third is the article my colleague read from, but I want to read from some different parts of it. It is entitled “Bill C-78 amendments to the Divorce Act: ‘Rearranging the deck chairs’”.

I would like to read a little from that article. First, the author, someone who has vast experience in family law in my province of Alberta, says:

I would go further and suggest most of Bill C-78 is an expression of “good intention” without sufficient substance to accomplish real change.

That is quite a typical statement that could be made about many of the initiatives of the government. Often it tends to focus on symbolism, talking points and these kinds of things, rather than on really accomplishing anything that would achieve the kinds of objectives it often speaks about. I am not going to say that this is necessarily the case. The author of this article is certainly positing that, though.

The author goes on to say:

Also noted is that Bill C-78 is 190 pages long. The current Divorce Act is only 41 pages long. As self-represented litigants now comprise 80 per cent of the parties before many courts, one might reasonably ask how they will navigate through legislation that is over four times longer than the previous version—which was already difficult for a nonlawyer to digest.

So. My take?

Bill C-78 is a huge new ship, with some very nice looking aesthetic additions—but, with too few lifeboats.

And the iceberg is still coming.

Those are comments of the author of that article.

Obviously there may be some things we need to look at that may need to be addressed with this piece of legislation. However, as I have already stated, I believe that the objectives that are trying to be achieved here are laudable. I certainly hope that this bill will actually be found to address those or can be amended or changed in ways that would make sure that it would do just that. It is something that does need to be done. It is important.

I certainly discovered, during my time both as a member of Parliament and, as I mentioned, in my experience with family law, with my son, which ultimately worked out positively, that there were far too many parents, mainly fathers, and grandparents whose children and grandchildren were being deprived of time with them. That needs to be fixed.

That is part of the reason I am so proud to be part of the Conservative Party of Canada, which has the following policy regarding shared parenting. I will read the policy into the record:

The Conservative Party believes that in the event of a marital breakdown, the Divorce Act should grant joint custody and/or shared parenting, unless it is clearly demonstrated not to be in the best interests of the child. Both parents and all grandparents should be allowed to maintain a meaningful relationship with their children and grandchildren, unless it is demonstrated not to be in the best interest of the child.

That is a very important principle and one that I fully support and believe in. It is one we should be seeking to achieve here.

I will just tell a brief personal story. I was a child of divorce as well. My parents divorced when I was about 12 years old. I have two brothers. After my parents divorced, I spent some time living with each of my parents, and actually both of my brothers did the same, at different times.

My parents, as in most divorces, I suppose, certainly did not get along very well. To this day, I would say that they probably do not get along very well. The key point, however, is that they were able to put aside those differences when it came to their children and tried to do what was right to make sure that their children were able to maintain a strong, positive relationship with both parents. Even though, at times, my brothers and I did not live in the same house, and, in fact, lived in cities that were an hour apart, they made sure that we had the opportunity to continue to have a very strong relationship as siblings. I would say today that I have maintained that with my brothers and with both my parents. That was important, but it is not a common enough story.

That is why these changes are so important and why it is important that this bill is done in the right way and is not just about symbolism, that it is actually going to accomplish the objectives.

I certainly hope that after examination in committee, and after any amendments that might be required, it will be possible, through this piece of legislation, for more children and more families to achieve that goal of ensuring that the relationship remains with both parents and with all the children of the relationship.

If that is, in fact, the case following the completion of that examination, I would certainly be happy to support this piece of legislation.