Debates of Sept. 26th, 2018

Accessible Canada Act

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, I thank my colleague for his excellent speech. He provided us with a greater understanding of the challenges people face with regard to mobility.

We always rely on support staff on these types of files. On that subject, I want to acknowledge the research and writing that went into my speech on Bill C-81. That work was done by Hugo Berthiaume, who recently joined my team as an assistant. I wish him lots of luck and especially lots of work. Opposition members often rise in the House to talk about good causes and the people who are important to them, the people in their ridings.

In this case, we are speaking on behalf of persons with reduced mobility, who have to overcome many barriers in their lives.

Bill C-81, an act to ensure a barrier-free Canada, is a step in the right direction. Every member in the House supports measures to reduce barriers for all Canadians in every aspect of their lives.

Canadians with disabilities deserve to have a government that always keeps mobility in mind to ensure that those with reduced mobility can live in a barrier-free society.

Unfortunately, even if it is a step in the right direction, Bill C-81 will not improve the lives of Canadians with disabilities in the short term. To this day, our society does not always bring forward measures that will make life easier for Canadians with disabilities.

We believe that we need to take action to help them, and we want to work with the government to find real solutions. However, this bill is proof that the Liberal government is somewhat out of touch and that it does not always understand the challenges that people with disabilities must face. With this bill, the government is going to use taxpayers' money to write reports or action plans.

I am going to talk a bit about my experience as mayor and, in particular, as the former president of an association that works to improve the quality of life of the disabled on a daily basis.

People with reduced mobility need us to deal with their infrastructure, both their homes and their workplaces. We must do everything we can to make it possible for them to get to work and contribute to Canadian society.

We need to help more Canadians with mobility issues enter the workforce. Our political party has always been committed to our country's economic development, and we believe that absolutely everyone can contribute.

There is no greater boost than feeling a sense of accomplishment and achieving one's full potential. Too many Canadians live and work in environments that, unfortunately, do not meet their needs. For example, they have poorly adapted apartments or houses, there are too few parking reserved spots at shop entrances, and public transit systems are inadequate.

It is our responsibility to do more and do better for those most vulnerable. We must work hard to ensure that every single Canadian has access to the same society, regardless of their physical abilities. On this side of the House, our goal is to help all Canadians.

The Liberal government wants to invest $290 million to develop accessibility plans and set objectives. I repeat, it wants to invest $290 million to develop accessibility plans and set objectives.

That seems like a lot of money to me. This money will be spent over a period of six years. Does that mean we will have to wait six years to see any changes? Will any other funding be announced in the meantime for putting these plans into action and achieving the objectives? Unfortunately, the bill before us has no answers to those questions, so it is hard for us to get a clear idea of what is actually going to come out of Bill C-81.

Canadians with disabilities cannot understand how a government can think it is totally normal to spend $290 million on plans and objectives. These people are living their lives right now, and now is when they want improved living conditions, accessible workplaces, and help to participate in this country's economic development.

People with mobility issues do not need a government that will invest in bureaucracy. They need a government that will actually tackle problems by adapting infrastructure.

I just want to point out that it was the Harper Conservative government that signed the United Nations Convention on the Rights of Persons with Disabilities in 2007. The purpose of this convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. The previous government created the enabling accessibility fund, which had a real impact on Canadians' everyday lives by funding infrastructure upgrades for thousands of Canadians. That is the way to help Canadian families and people with reduced mobility. This fund is still being used today to build projects in my riding and in many of my colleagues' ridings. It does not take six years of study to figure out when a two-storey building needs a stair lift.

The Liberals are pros at running deficits and burdening future generations. The worst part is that the money is being spent on plans and committees instead of going directly to the people it is supposed to help. We have a lot of questions, as I said. We know the Liberal government wants to create a Canadian accessibility standards development organization. The bill seems pretty good at first blush. Will the government be working closely with people with reduced mobility? Why wait so long before taking action? How will that $290 million be spent? I sure hope the government will be consulting the people it is supposed to be helping and will invite them to play an active role in the organization.

As I was saying, there are far too many unknowns in this bill. Again, with this $290 million we can really make a difference in people's lives. I can only imagine what local advocacy groups in each of our ridings can do with $290 million over six years to help persons with disabilities. These organizations work miracles with very little money. Through their actions and awareness raising they manage to get municipal and private buildings adapted. They achieve that with little to no resources. Therefore, $290 million is good. If it is needed, it is good, but if it is going to be used only to draft plans that will be shelved then we have cause to reconsider and to be concerned. We sincerely hope this is not the case.

We have many concerns. I would remind hon. members that it was not so long ago that we were standing here heavily criticizing the criteria for tax credits for persons with disabilities that penalized countless people with diabetes. Fortunately, the opposition's repeated questions made the government take a step back and correct the situation. However, would the government really have changed its mind if advocates and the official opposition had not spoken out against this anomaly? I have my doubts.

For all of these reasons, we need more answers to our questions in order to ensure that taxpayers' money will actually be used to benefit people with disabilities, whether in federal buildings or elsewhere. The Liberals do not have a very impressive track record when it comes to accessibility. Canadians expect better. The Liberals have been in office for three years, and they are just now beginning to take an interest in this issue, even though this was one of their election promises.

Let us come back to Bill C-81, an act to ensure a barrier-free Canada. Mobility is one of society's major challenges, and it is even more of a problem for people with disabilities. I would say that this is an ongoing battle in these people's lives. Every day they have to deal with difficult situations that may seem trivial to others. People with reduced mobility do not have the same access everywhere. Think about the shelves at the supermarket and other stores, offices that are not adapted, and workplaces they cannot get to. There are far too many places and things that are inaccessible to them.

We must be ambitious. The proposed plan is questionable. It serves only to implement bureaucratic measures that will have no real impact on these people's lives. We need to be more aware of this reality and always be in a position to act. There is still a lot of work to be done before we have proper facilities for all Canadians. We must give all Canadians the same opportunity to be empowered. In order to get there, we must be more inclusive and include as many organizations as possible. We must address the issue of accessibility in close co-operation with the provinces and municipalities across the country.

We can do better. We hope that we will get some answers in committee and that we will be able make amendments to the bill so that it really meets the needs of the people it is targeting, and so achieves in , thus creating a more barrier-free Canada.

[Colin Carrie, Conservative, Oshawa, ON]

Mr. Speaker, my colleague from Mégantic made a very passionate speech.

I look back and want to talk about our former colleague, Jim Flaherty. What a champion he was for Canadians with disabilities. I remember when we brought in the RDSP, registered disability savings plan, the current minister said it was a real game-changer.

One of the things Jim championed in my community in Durham region was the Abilities Centre. Mr. Speaker, if you ever get a chance to come to my community, I hope I can give you a tour and introduce you to this wonderful centre. It could have been called the “disabilities centre”, but they named it the Abilities Centre because it focuses on Canadians who have challenges to work with their abilities to make their lives and the lives of other Canadians better. It is a wonderful institution.

I will be supporting sending the bill to committee. However, my concern with the bill is to make sure that it is making a difference. The things we put in as a government really did make a difference.

I wonder if my colleague could comment on what he would like to see in the bill after it goes to committee. What kind of changes does he want to see? Does he think there was enough consultation done on how to spend this money?

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, I will begin by acknowledging the excellent work of our former colleague, Jim Flaherty.

I am going to take my colleague up on his offer. I would like to visit the centre he just talked about because we do focus a lot on the disabilities rather than the abilities. Many members should tour this centre. We tend to take for granted that there is always someone else taking care of these problems and the people who really need help. We always believe that an association or that someone in some government agency is looking after it for us. However, that is not always the case.

Now the government is telling us that it is going to spend $290 million on this file, but what exactly is it going to do with that money? They are going to hire people who will prepare plans. What will happen next? What are they going to do with those plans? What guarantees does Bill C-81 provide that there will be real change?

If that is the cost of making changes in these peoples' lives, it is a small price to pay. However, if nothing comes of it, it is money down the drain.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I think most of us in the House have had some experience with someone with a disability. I have spoken many times about ALS, and every June I try to give a statement on ALS, amyotrophic lateral sclerosis. My father succumbed to ALS. He went through the stages of using one cane to two canes to a walker to a wheelchair to a bed to a point where he could not eat on his own. This was obviously very difficult for my family, but we learned a lot of things. For example, we learned that not all doors in businesses or people's houses are wide enough to allow a wheelchair through. We learned the difficulties of just doing simple things, such as the assistance that people need when going to the bathroom. One of my colleagues talked about ramps. There are other simple things, such as how to get into an elevator with a wheelchair.

I do not really have a question for my colleague, but I would like to congratulate the government for bringing this bill forward. I could sit and talk about the many things the Conservative government did, but others can do that. I simply want to congratulate the government for making an effort to deal with people with disabilities.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, every step taken by the previous or the current government towards a barrier-free Canada and to help people with reduced mobility fully participate in life in Canada is worthwhile. We hope that this stage will be successful and we pledge to the government that our party will collaborate, to the extent that we feel all parties are truly collaborating in committee in order to improve this bill.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

Is the House ready for the question?

[Some hon. members]

Question.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

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

[Some hon. members]

Agreed.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities.

(Motion agreed to, bill read the second time and referred to a committee)

Divorce Act

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

moved that Bill C-78, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another act, be read the second time and referred to a committee.

Mr. Speaker, it is a great pleasure that I rise today to speak to Bill C-78. The bill, which I tabled on May 22 of this year, would help support and protect families, especially children, from the negative outcomes and conflicts that are the sad reality of separation and divorce.

Our government has taken great strides to strengthen the Canadian family justice system. In budget 2017, we created ongoing funding for federal, provincial and territorial family justice activities through the Canadian family justice fund. In the same year, we also signed two international family law conventions. This year in budget 2018, we announced funding to expand unified family courts, fulfilling one of my mandate letter commitments. However, despite all this progress, we still need to do more.

Separation and divorce can be difficult for families, especially for children. We know that the impacts can be wide-reaching. Over two million children live in families with separated or divorced parents. There is no other area of law that touches as many Canadians.

Federal family laws should help families resolve their disputes quickly and effectively, but these laws have not been substantially updated in over 20 years and were in desperate need of modernization. Over the past two decades, families have changed and our justice system has changed. Our government understands that much should be done to improve federal family laws and the family justice system to better meet the needs of all Canadians.

Bill C-78 advances four critically important goals: promoting the best interests of the child, addressing family violence, reducing child poverty, and improving the efficiencies and accessibility of the family justice system. I will address all of these in turn.

I will begin with the best interests of the child. The best interests of the child test is the cornerstone of family law. It is the only basis upon which decisions about who may care for a child can be made under the Divorce Act. This test has been called a child's “positive right to the best possible arrangements in the circumstances”. It allows courts to consider how to best foster the child's overall development and protect the child from conflict and the disruptive effects of divorce at such a vulnerable point in the child's life.

Despite the importance of the best interests of the child test, the Divorce Act currently provides minimal guidance on how courts should apply this test. Bill C-78 would change this. It proposes an extensive, though not exhaustive, list of criteria for courts to consider when making decisions in the best interests of the child.

The criteria we have proposed include elements such as the child's needs, given the age and stage of the child's development, the child's relationships with important people in his or her life, especially parents but also others such as grandparents, and the child's culture and heritage, including indigenous heritage.

One criterion in particular, the requirement that courts consider the views and preferences of the child, giving due weight to the child's age and maturity, demonstrates Canada's ongoing commitment to its obligation under the United Nations Convention on the Rights of the Child. This criterion encourages parents and courts to consider the voice of the child in determining parenting arrangements reflecting the importance of children expressing their views in matters that affect them.

The most significant change that Bill C-78 would bring to the best interests of the child test and the lens through which all other factors would be examined is the provision that would be called the “primary consideration”. This would be a requirement that courts consider the child's physical, emotional and psychological safety, security and well-being. It would help ensure that the most critical elements of the child's well-being are always the centre of focus and of any best interests analysis.

Also, to further the best interests of the child, we are proposing to remove the terms “custody” and “access” from the Divorce Act. For years, these terms have been criticized for fuelling conflict between parents. Custodial parents have been long seen as the winners of custody disputes and access parents have long been seen as the losers. The terms are relics from property law, reflecting a time when children were legally considered to be their parents' property.

To help parents collaborate and focus on their child's best interests, we are introducing terms based on parents' responsibilities for their children. Instead of custody orders, courts would make parenting orders. Parenting orders would address parenting time and decision-making responsibility. Two provinces, Alberta and British Columbia, and many of our international partners, such as Australia, New Zealand and the United Kingdom, have replaced property-based language with this sort of language focused on the child-parent relationship. In Canada, even where custody and access are still on the statute books, many judges, lawyers and other family justice professionals have already begun to abandon property-based language in their orders and agreements about children, favouring language focused on the parent-child relationships.

Another major change Bill C-78 proposes with the best interests of the child in mind is the creation of a relocation framework in the Divorce Act. Relocation or moving with children after separation and divorce is one of the most litigated areas in family law. The stakes are often very high, particularly when a proposed move would involve a significant geographic distance. The bill creates notice requirements for parents proposing to move, best interests criteria for courts to consider in relocation cases and rules for courts to apply depending on the parenting arrangement in place for the child. This would help courts and parents make informed, child-focused decisions.

Canada has recently taken steps to advance the interests of Canadian children in international family law disputes. On May 23, 2017, Canada signed two international family law conventions. One of these conventions, the 1996 convention on the protection of children, would make it easier for Canadian parenting orders to be recognized and enforced in other countries that are also party to the convention. This would provide better assurance to families that travel or relocate to another convention country that their Canadian court order would be respected. Bill C-78 also includes amendments that are necessary for Canada to become a party to the convention. The other convention is the 2007 child support convention, which would help with poverty reduction, as I will discuss a little further on.

The next aspect of Bill C-78 that I would like to address is family violence, an issue of great importance to our government and to all Canadians. Most provincial and territorial family laws address family violence in separating couples, but federal family laws are conspicuously silent. It is long past time to address this silence.

Although separation may be a means of escaping an abusive relationship, evidence shows that spouses are at an increased risk of violence at the time of separation. We are also learning about the lasting effects of trauma such as family violence on children's developing brains. The impact can be debilitating and lifelong. More can and must be done to prevent this from happening. Bill C-78 includes three amendments to address family violence in the Divorce Act and one in the Family Orders and Agreements Enforcement Assistance Act.

First, we have proposed an evidence-based definition of family violence in the Divorce Act that highlights common indicators of abusive behaviour. Coercive and controlling behaviour which is known to be particularly dangerous is highlighted.

Second, we have proposed a distinct set of best interests of the child criteria to help courts make appropriate parenting orders when there has been family violence. These include considerations such as the nature, seriousness and frequency of violence.

Third, we have a provision that would require courts to consider whether there are any child protection or criminal orders or any other proceedings that could influence an order under the Divorce Act. This provision would help prevent conflicts between courts, such as a family law order that gives a parent time with a child in a manner that conflicts with with a criminal restraining order.

Finally, we have proposed an amendment to the Family Orders and Agreements Enforcement Assistance Act that would restrict the sharing of personal information in situations of family violence where a family member's safety may be at risk.

Together, these measures would help courts better address family violence at a time when family members are particularly vulnerable, and help prevent family violence as families adjust to their new post-separation arrangements.

Next, I will explain how Bill C-78 would address poverty reduction, and child poverty specifically. Many families who go through separation and divorce experience a dramatic increase in expenses. The transition from a single family home with separate expenses to two homes with duplicate expenses can be a great burden. Shifting child care responsibilities can affect a parent's ability to find and maintain employment. These changes make many families vulnerable to poverty. Therefore, it is critically important that families receive the child and spousal support owed to them and that these amounts be fairly and properly calculated, reflecting accurate financial information.

Bill C-78 includes several measures that would help reduce poverty and help families recover from the financial crisis many experience as part of separation. First, we have proposed changes to the Divorce Act that would make it easier for families to determine and change child support without going to court, saving them money and, potentially, complication and stress. We have also proposed measures that would introduce a new application-based procedure to establish or vary a support order when parties reside in different jurisdictions.

Earlier, I mentioned the 1996 child protection convention. Canada also signed the 2007 child support convention. The 2007 convention will help families by providing a low-cost and efficient way to obtain or change support orders across international borders. As with the 1996 convention, amendments to federal laws are proposed as an essential step for Canada to becoming a party to the 2007 convention.

We are also proposing a number of changes to federal laws that would facilitate the enforcement of child and spousal support. For example, the Family Orders and Agreements Enforcement Assistance Act would be amended to allow for the search and release of a party's income information to courts and provincial services, including provincial enforcement services, for the purposes of establishing, varying or enforcing support. This amendment is intended to allow child support orders to be made more quickly, accurately and with less trouble and expense. Costs would be reduced for families and courts.

There are billions of dollars of unpaid child support payments in Canada. With this bill, we would be giving provinces, territories and individuals more tools to ensure that those obligations are being paid. In addition, the vast majority, some 96%, of cases registered in maintenance enforcement programs involve male payers paying female recipients. The problem of unpaid support contributes to the feminization of poverty, which the measures in this bill would help address.

Finally, another proposal in this bill is to prioritize child and spousal support debts above all other debts except Crown debts under the federal Garnishment, Attachment and Pension Diversion Act. Again, this would help make sure that families receive the money they are owed.

I will now move on to the bill's final theme, which is to improve the efficiency of, and families' access to, the Canadian family justice system. We know that changes to the family justice system are long overdue. Retired Supreme Court Justice Thomas Cromwell has noted the many calls for fundamental change to, or a paradigm shift in, the family justice system. Parents struggle to pay for lawyers and often have no choice but to represent themselves in family law disputes, which may be highly contentious and emotionally charged. It is not easy to be one's own advocate in these circumstances, yet research tells us that between 50% and 80% of Canadians in family law disputes represent themselves in court.

Self-represented family law litigants risk making choices without understanding their rights and obligations, and can find the process incredibly stressful. They also add to the strain of overburdened courts. Judges and court staff take significantly more time with self-represented litigants to help them navigate their complex legal challenges. The bill includes several measures to facilitate family law processes for families and to divert people away from the courts, saving time and resources for cases that require a judge's consideration.

One of these measures is to encourage family dispute resolution processes, which can include mediation, negotiation, collaborative law and other forms of out-of-court dispute resolution. These processes are generally less expensive, can help families come to agreements faster, and often allow parents to play a more active role in crafting appropriate arrangements for their families.

After the bill's proposed changes, lawyers would have a duty to tell parents about family justice services that could be of assistance to them and to encourage them to try a family dispute resolution where appropriate. Courts would have the option of referring parents to a family dispute resolution where available.

Other measures to increase access to family justice include expanding the range of measures that the administrative services that determine child support may address. Provinces and territories have administrative child support services that recalculate support orders based on a parent's current income. The bill would expand the role of these out-of-court services, including allowing for the recalculation of interim support orders. Families could use these services rather than having to retain lawyers to go to court to change their child support orders, again saving them money and reducing court time.

I would like to conclude by again stressing how important it is for our government to improve federal family laws. As I said, our family laws are outdated. They no longer reflect the reality of middle-class Canadian families. Many of the processes set out in federal family laws are slow, cumbersome and heavily dependent on the courts. Bill C-78 will help Canadians find faster, more cost-effective and lasting solutions to family law disputes, with the best interest of the child at the heart of all of it.

I am confident that the changes we have proposed would bring positive change to the Canadian family justice system and to Canadian families and children. I look forward to working with all of my parliamentary colleagues to help promote the best possible outcomes for families experiencing separation and divorce. I urge all hon. members to join me in supporting this incredibly important piece of legislation.

[Martin Shields, Conservative, Bow River, AB]

Mr. Speaker, I appreciated listening to the hon. minister outline what I believe is one of the most contentious and divisive situations we have in our country when families are in a state of divorce. When she talked about efficiencies, I would note that judges now have great latitude to direct people to go through mediation and those kinds of processes. When she outlined this, she talked about choices.

Is it her intention that the judges would still be able to direct people to go through processes where one party might want to and the other might not? Would the judges still have direction by which they could go through these new processes she is outlining, as it is one of the most contentious processes we have and one of the challenges for judges to deal with? If the people in the divorce process do not agree, will the judges still be involved in the process she is talking about?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Mr. Speaker, I thank my colleague across the way for the really important question, as well as stressing that for parents, and children in particular, who face separation and divorce, it can be really challenging and that there are and have to remain many ways to resolve these really contentious issues in complicated cases.

The focus of my remarks was on looking to out-of-court processes where appropriate, which parents who are going through a separation or divorce could take advantage of, and on putting a positive obligation on lawyers and legal agents to advise parents of these alternative dispute resolution processes. This does not in any way take away the ability to have these important matters to be heard before a judge. He or she would maintain their ability to determine what is appropriate in the particular circumstances. Again, the focus of this legislation is on the best interests of the child, which will be paramount in out-of-court settlements, as well as judge-delivered settlements.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I would like to thank the Minister of Justice and Attorney General of Canada for introducing this important piece of legislation.

As she pointed out, the Divorce Act has not been amended in over 20 years, so there was certainly room for improvement. It is only right to support amendments based on principles like the best interests of the child, the fight against family violence and poverty reduction.

I want to pick up on something the minister said at the end of her speech and ask her a question. In her conclusion, she said she hoped that we would support her in promoting this bill. We consulted a number of experts and organizations in our preparations to study Bill C-78. While they heartily welcome the bill, they did see other possible improvements, even though the bill is already 190 pages long.

I would like to know whether the government members who sit on that committee will be open to hearing and supporting the amendments brought forward by members of various parties based on evidence given by the experts who will be appearing before us to discuss possible improvements, in addition to the amendments moved by the minister.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Mr. Speaker, I recognize, acknowledge and appreciate the support my colleague has expressed for Bill C-78. I also recognize and acknowledge there have been many individuals, family law practitioners and others, who have expressed support for this legislation.

Like the hon. member, I too have had a number of discussions about where this piece of legislation could potentially be improved. That said, I hope we all share an understanding that the Divorce Act is outdated and needs to be modernized. It has not been updated for over 20 years.

I am open to hearing how Bill C-78 could be improved. I have received some letters and would be happy to continue to have discussions with all members of the House.

I look forward to this piece of legislation hopefully going to committee so we can do the work that is necessary to make sure that we get it right.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I commend the minister for her work on this legislation.

As she has said, divorce proceedings can be combative and adversarial. Often the children are treated as though they are the spoils of war, with devastating consequences for the whole family.

I welcome the focus of the bill's being on the best interests of the child and the way threats to children and protecting children from harm are given more clarity. The list is not exhaustive, but it is good.

My concern is what the courts do. The minister is familiar, of course, with the bill. Subclause 7.8(2) gives information to the courts to be aware of when they are making orders.

I know two mothers who have suffered the loss of their children because a court did not believe them.

Alison Azer became a friend of mine through the trials and tribulations of her non-custodial ex-husband taking four children out of her reach and secreting them to Iraq, Syria and then other locations. She begged the court not to let her ex-husband have passports for the children. He convinced the court they were only going on vacation to Europe.

Even more tragic is Sarah Cotton's case. I met her at her daughters' funeral. Both of her daughters were killed on Christmas Day. She had tried to convince the court that her non-custodial former partner was not sufficiently stable, and could be a threat to the children. Because he had never shown any signs of possibly hurting them, he was given Christmas Day visitation.

I do not know that this legislation could be improved in this area. There should be a positive obligation on the courts, almost like the precautionary principle. It is difficult because it is adversarial. A former partner might invent claims that the ex-partner represented a threat to the child.

We might want to strengthen the obligations of the court under subclause 7.8(2) to do more than consider whether there is a civil protection order or a child protection order, or likely to be one, and direct the court not just to make inquiries but also to direct it to specific things that it must consider, such as the possibility of a former partner taking children out of the vicinity or out of Canada altogether, or worse, doing serious violence to or killing the children.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Mr. Speaker, I thank my hon. colleague for her commentary and speaking about some personal cases and situations that she is familiar with. I do not believe that there was a specific question.

However, in terms of what we are doing broadly with respect to this piece of legislation, we want to put in as much information as we can to provide the courts and judges with specific factors to consider when they are looking at the best interests of the child. I think one of the primary considerations would be for a judge to listen to the child, in appropriate circumstances, as to where the child wants to go.

We are working, as I indicated, in terms of the international conventions. We are working with the provinces and territories around the protection of the child and how that will assist in terms of enforcement across international jurisdictions. I did hear my colleague on that.

As well, I have heard of individual circumstances and cases that are egregious. Perhaps there is a way we can have a conversation about how that can be addressed. I am not sure in thinking about it right now, but I am happy to continue to have that conversation to make sure that individual children do not, as much as possible, fall through the cracks. Obviously, every case is different, but I am happy to have that conversation to see how we can protect children in the face of violence and being taken out of jurisdictions and the consequences that result from some of those situations.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

Order. It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Provencher, Immigration, Refugees and Citizenship; the hon. member for Selkirk—Interlake—Eastman, National Defence; the hon. member for South Okanagan—West Kootenay, The Environment.

Resuming debate. The hon. member for Dufferin—Caledon.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, it is a pleasure to rise in the House to speak to Bill C-78, which, as has been said by the minister, is an an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another act.

As has been said, it has been 30 years since we have seen substantive amendments to the Divorce Act. In that time, the courts and the family law bar have been moving forward with modernizing divorce proceedings in Canada with updated language and terminology aimed at making the process less adversarial. It is good to see that the government is moving forward with legislation to bring the statute in line with the direction the family law sector has been moving in for several years now. While support for these amendments is by no means universal, they are generally being well received by the family law bar, at least in terms of the research that I have gone through in the response to Bill C-78.

Since its tabling in May, there has been a fairly steady stream of commentary, mostly in the legal press, regarding the bill and most of it has been positive. The bill's focus on updating the language surrounding controversial terms such as custody and access and replacing that with language that places the emphasis on parenting responsibilities, parenting time, parental decision-making, etc., is a positive one, in my view.

The language of the current statute is clearly adversarial and establishes a winner and loser scenario in which one parent wins custody of the child over the other. In the already emotional situation of divorce, this adds to the tension and is clearly not in the best interests of the child. With this change in language, my hope is that, should the bill make it to committee, the ramifications beyond the courts and involved parties with the new terminology will be looked at closely.

While many judges and family law practitioners have been using this less adversarial language for years now, other parties that have less direct involvement in divorce and custody proceedings are still rooted in the 30-year-old terminology this bill seeks to replace. I am thinking of Children's Aid societies, schools, law enforcement and others who may be called to intervene in disputes. They are operating under the existing language of custody and access. How will they react to this new language? Will their own enabling legislation or internal rule sets require changes as a result? How will they adapt? My hope is that the justice committee takes a long and detailed look at these potential rough spots.

The road to this set of reforms has been a while in coming. In 2013, the Action Committee on Access to Justice in Civil and Family Matters, which is known as the Cromwell committee, published its final report calling for meaningful change in the family justice system. Specifically, the committee report called for particular emphasis on increasing the use of consensual dispute resolution methods. It also recommended the language of custody and access be replaced by the language of parental responsibility and contact.

In preparing for this debate, I reviewed some of the case law that is of significant importance to the bill. In particular, I would like to quote a 2015 case from the Court of Appeal of Ontario, known as M v. F, 2015 ONCA, at page 277. This is with respect to the old terminology of custody and access and its tendency to produce a culture of winners and losers.

From paragraphs 38 to 40 of the decision, the appellate justice wrote:

[38] The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1) (a) of the CLRA is permissive, not mandatory: The court … by order may grant the custody of or access to the child to one or more persons.

[39] For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

[40] It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

Therefore, we see in this instance that the words “custody” and “access” have been causing trouble for a long time, and the bill's proposed move away from them should be viewed positively. How that plays out on the ground remains to be seen, of course. Divorce is, by definition, an emotional experience and with children in the mix, reason sometimes escapes the participants.

Another emphasis of the bill is to encourage those involved in divorce proceedings to use alternative dispute resolution mechanisms rather than resort to litigation. Again, I view this as a positive step. Litigation over children is very expensive and potentially very destructive. It is certainly almost never in the best interest of the child. Moving away from litigation and moving towards alternative dispute resolutions such as the use of parenting coordinators, family justice counsellors, mediators or arbitrators will go some distance in protecting children from the fallout of adult litigation.

When choosing to go the litigation route, parents can often lose sight of the fact that their children stand to be adversely affected by the litigation process. Indeed, they can even become weapons used by one or both parties to the litigation, to the great detriment of the child or children. Efforts to protect children against adult litigation are commendable and it is a positive aspect of this proposed legislation.

Another aspect of the bill seeks to establish a framework for the relocation of a child. The bill would establish a shifting burden of proof when one parent wishes to relocate. If the parties have substantially equal parenting time assigned by the court, the relocating party bears the burden of establishing that the relocation is in the best interest of the child. If the child spends the vast majority of their time with one party, the other party must establish that the relocation is not in the best interest of the child. The court retains flexibility to make adjustments to existing orders when determining these arrangements, again, in the best interest of the child.

I mentioned earlier in my comments this afternoon that while the overall reception of the bill has been positive, the reaction has not been universally so. Some critics have argued that the bill's lack of a rebuttable presumption for equal shared parenting as the default position for any divorce negotiation is less than ideal. They point to social science research that suggests that the default position of equal shared parenting leads to better outcomes for children. Of course, equal shared parenting is not always ideal, which is why they suggest that a default position should be rebuttable. The lack of this default position in the bill is a detriment for these critics.

Others have noted that replacing the terms “custody” and “access” with parenting-based terms would not substantially reduce the conflict that can be central in divorce proceedings. Some predict that the fights between parents over custody would, in future, turn into fights over who has “decision-making responsibility”, another term in the legislation. They claim that it is inherent in the process. There is clearly some work here for the members of the justice committee, should the bill pass second reading.

I trust my colleagues will seek out the views not only of the family bar but of all those who have an interest in supporting the decision of the courts in divorce matters, as well as experts in research and academia who make this their field of study. This would require a broad range of witnesses who will no doubt have suggestions for improvements to the bill. I would encourage the government side not to reject those suggestions out of hand but to consider them in light of this legislation's more positive, less adversarial approach to divorce proceedings in Canada. There may well be room for improvement here.

In closing, I for one am generally positive about the direction the bill seeks to take and look forward to the deliberations at the committee stage. I am sure they will be enlightening for all members.

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

Mr. Speaker, I would say to the member opposite that anyone who cites Ontario Court of Appeal case law in this august chamber automatically has my respect. I thank him for the statement he made about the important provisions that are in the legislation.

With respect to the point about the presumption of parenting, it is important to note that in the bill the presumption is that each case should be dealt with individually on a case-by-case basis and there is no presumed equal parenting or shared parenting model.

In light of what we heard from the minister about the fact that 96% of cases involve male parents who are paying female recipients, the fact that we know there are billions of dollars in unpaid support payments across Canada right now, that 60% of cases enrolled in maintenance enforcement programs are in arrears, and the fact that this is gender equality week, could the member opposite offer his perspective on what this would do to significantly address the feminization of poverty in Canada?

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, as has been stated, family law has become extremely adversarial. There are terrible stories about how the parties treat each other and the effects of that on the child or children.

On the issue of non-payment, Ontario in particular has a process where collection can be made. Sometimes that has not proven to be successful. All of us could tell of situations where the deadbeat dads have gotten away with something, but on the whole, the purpose of this legislation is to try and deter the system from becoming more adversarial, and if anything, to make the system become less adversarial.

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

Mr. Speaker, the member made reference to the importance of our bringing forward legislation at this time. After listening to the minister, I am sure those following the debate would be quite encouraged to see that what I and many constituents believe are outdated laws are being changed. That leads to the matter itself of how important it is to, at the very least, recognize this is a positive step forward, and it would be a good thing to see the bill ultimately go to committee.

I am not too sure where the Conservatives stand on the issue. Do they see proposing a number of changes? Are they thinking of making some specific changes or is it a matter of waiting to see what happens at committee?

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I think the member is going to have to wait and see how the debate goes in the House and the issues that are going to be raised at committee. There are many experts, such as people in the family bar, the police, Children's Aid Society, and the list goes on and on, who I know will want to make representations.

Again, my view is that the bill is making the process less adversarial. There are lawyers, including my wife, whose entire practice is family law. I am told that almost 50% of the population have gone through some form of separation or divorce proceedings that involve children. The system cries out for change. It has been 30 years since the Divorce Act has been amended, and I congratulate the government for bringing the bill forward at this time.

[Arif Virani]

Mr. Speaker, I would ask the member to address the issue of poverty, in particular child poverty and women's poverty, in light of certain and important aspects that are in the bill.

One, we are streamlining processes related to family support. Two, we are ensuring that different parts of government are talking to one another, allowing the release of information from the CRA to help establish, vary and enforce family support. Three, we are ensuring that the provision in the 2007 child support convention is implemented which provides a low-cost and efficient way for people to get family support across international borders.

In light of the member opposite's entire family involvement in this matter, I wonder if he could provide us with his views about those important provisions and how they relate to addressing child poverty.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, as we can well imagine, when couples who have children separate, their joint income is split in half and it causes poverty in many cases. People cannot live the life that they used to live. In many cases, it is women who suffer. The statistics show that more women suffer than men, but there are some men who suffer as well. It is not all women who have this problem.

That is going to reveal itself. I hope the bill passes and goes to committee where some of these issues will be brought forward.

The issue of crossing a border, people taking children out of a jurisdiction, is referred to in the legislation. I know there will be a considerable amount of time spent at committee dealing with that as well.