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.”
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.
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.
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.