Debates of Jan. 30th, 2019

Divorce Act

[David Lametti]

Mr. Speaker, I thank the hon. member and leader of the Green Party for her comments as well. I have enjoyed working with her in the past on other files, and I certainly will enjoy working with her in the future on these files.

The problem the member identifies is a very real one. In this bill, we have tried to take measures that would address the situation of people, women in particular, who are facing violence. Yes, the encadrement that is provided within the system is very important.

The bill cannot do everything, but as a government, we will continue to look at and be open to suggestions, working with our provincial and territorial counterparts, which have a large role in the administration of justice, and working through, in many cases, a unified family court system, which will come online very soon in many of the provinces, to look at the kinds of training methods that will help this bill live up to its promise.

[Lloyd Longfield, Liberal, Guelph, ON]

Mr. Speaker, last year I held an all-party round table that looked at adverse childhood effects and the mental health of children. Something that came up in that round table was the indigenous cultural focus around children. If we can do things for children, the rest of our society benefits and benefits in future years.

Could the minister mention today, on Bell Let's Talk Day, when people are talking about mental health, how this legislation would help with the adverse effects of divorce on children and what it does to the mental health of children?

[David Lametti]

Mr. Speaker, I thank the hon. member for the work we have done together on the INDU committee and through our common interest in innovation.

Putting the primary focus on the best interests of the child and making that the lens through which we see how situations need to be resolved in cases of marital breakdown and divorce precisely helps us to improve the mental health of children, as well as everyone else around the system. By focusing on children, we put mental health as one of the factors that will be taken into account in assessing exactly what kinds of orders are necessary in any particular case. By putting the child first, we are necessarily putting the child's mental health first.

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

Mr. Speaker, I am pleased to rise to speak at third reading stage of Bill C-78, an act to amend the Divorce Act. As a member of the justice committee, I had the benefit of studying the bill in some detail at committee, where we heard from a wide range of stakeholders involved in family law. While there are some aspects of the bill that could be improved upon, and I will address those specific issues in short order, I believe that many aspects of the bill would provide greater clarity and certainty in the law. This, after all, is the first major update of the Divorce Act since it was passed in 1985, and in that regard, it is a timely update indeed.

Before getting into some of the areas where I think the bill falls short, let me start with some of the positives. One positive aspect of the bill is that it contains important measures to better ensure that children are not impacted by conflict and to encourage parties, where appropriate, to resolve their disputes outside the court process. It is important to note the words “where appropriate”. That language is in the legislation, because we know that in not all circumstances is it appropriate to resolve family disputes through negotiation or collaborative law, particularly where there is a history of family violence. However, we know that where it is appropriate, it is more often than not the best possible outcome. Because the court process is adversarial in nature, it increases conflict and it can prolong disputes, and that heightened conflict, of course, can have a profoundly negative impact on children.

We also know that the court process is often inefficient, and it is, indeed, costly. That raises issues of access to justice. More and more Canadians who are resorting to the family court system are self-represented litigants, because they cannot afford legal representation. Often these self-represented litigants do not know their rights. They do not have a good understanding of the law. That creates a number of issues, including from the standpoint of backlogs and delays in the family courts, but more broadly speaking, within our entire justice system. To the degree that we can encourage parties to settle, to go through mediation or negotiation or collaborative law, that is positive, and the bill contains measures in that direction.

A second area where the bill would provide better certainty in the law is through the codification of a wide body of case law that recognizes that in determining custody or access orders, the sole determination should be based on what is in the best interests of the child. The bill sets forth a number of factors a judge would consider in fashioning an order and determining, based on the individual circumstances of the case, what, in fact, was in the best interests of the child. That is entirely appropriate and is consistent with what the family law bar has been asking for. It is consistent with the special joint committee report the House and the Senate undertook in 1998 with respect to custody and child support.

One area that I have some issues with is with respect to relocation, about which I posed a question earlier to the minister. Relocation, for obvious reasons, is one of the most difficult areas of family law when one parent seeks to relocate with that child to another location. Based upon the evidence before the committee from the family law bar, that has not been necessarily made easier by the Supreme Court in the Gordon v. Goertz decision of 1996, which provides a highly discretionary test, based upon the best interests of the child. This has let to uncertainty and, frankly, has increased litigation around relocation matters.

The bill seeks to provide certainty by establishing a three-way split with respect to which parent bears the burden of establishing that the relocation is in the best interests of a child. In that regard, the bill provides that when a child has substantially equal time with both parents, then the burden falls on the party seeking to relocate. On the other end of the spectrum, where a child is with the relocating parent the vast majority of time, the burden would fall to the other parent. Then, finally, where there are cases in between those two spectrums, neither parent would bear the burden.

This approach is consistent with the legislation that was passed in the province of Nova Scotia in 2013. There was some evidence before the committee that it was working relatively well, that judges were not having a difficult time sorting out which person or group would fall into the three categories.

However, that being said, while it is laudable that the government is seeking to provide some clarity in the face of Gordon v. Goertz and some greater certainty, I have some concern that this may create some new uncertainty. In that regard, it was raised before committee, I believe by Professor Bala, a well-respected expert in family law, that by using the term “a substantially equal time“ that it might imply or might not imply shared custody with the requisite 40% threshold. Needless to say, it is new language. It has not been tested. It will be litigated,. Therefore, that is something to monitor.

Second, I have some concern about the appropriateness of a three-way split. Again, there was some evidence before the committee, and it is a view that I share, that from the standpoint of fairness and the standpoint of achieving what this legislation seeks to achieve, which is to do what is in the best interests of the child, that as a general rule, the burden should fall on the parent seeking to relocate to establish that it is in the best interests of the child, save for those circumstances where the child does spend the vast majority of his or her time with the relocating parent.

Having regard for the fact that unless the child is an infant, relocation does have, in the normal course, a significant impact on the everyday life of that child with respect to having to go to a new school, make new friends and adjust to a community, not to mention the impact it can have on the relationship with the other parent, who might have access or custody arrangements. It can often be a major disruption. From that standpoint, it would seem more appropriate that, as a general rule, the burden fall on the relocating party.

Then there are some technical issues with the notice requirements. I alluded to one of the concerns I had when I posed a question of the minister. One of the concerns with respect to notice is that the legislation would provide that a parent need only send a letter or some relatively informal notice to the non-relocating party.

At committee, Lawrence Pinsky, who is the past chair of the family law section of the Canadian Bar Association, among others, raised questions about the appropriateness of that form of notice. It seemed to Mr. Pinsky, and it seems to me, that it could unintentionally create situations where one parent would say that he or she had sent notice and the other parent would say that he or she did not receive notice. In the meantime, the parent who claimed the notice had been sent notice may have relocated with that child. What does one do in those circumstances?

In such a circumstance, it may be that the other parent might not be able to have access and custody for which he or she is entitled pursuant to an order. Is the other parent in contempt of that order? That seems to be an aspect of the bill that needs to be re-evaluated, with a very minor amendment when it goes to the Senate, since we were not able to address it at committee.

Then there is the issue of the 30-day response period; 60 days to provide notice of a relocation and 30 days to provide a response. Thirty days is problematic for individuals who may be in remote and northern communities and might not have easy access to a lawyer. It could be problematic for persons who may be disadvantaged or unfamiliar with the court process, maybe who have never retained a lawyer before, or who might perhaps be unable to afford retaining a lawyer and then find themselves in a position where an application to respond has to be prepared. There might be some significant barriers for many groups of Canadians. That is a concern.

Then there is the whole issue of rushing into court. Effectively, the only recourse for parents who are not relocating and who receive that notice is to file an application in court objecting to the relocation. That is inconsistent with one of the key objectives of the bill, which is to encourage parties, where possible, to settle disputes out of court. In most circumstances, someone who is relocating likely will have thought about that relocation long before he or she provides 60 days' notice. By contrast, the party who is not relocating, more often than not, may only learn of it upon receiving notice, in which that parent has 30 days to respond.

That is problematic inasmuch as it might take one some time to absorb what that relocation means, how it impacts custody or access arrangements and prohibits the ability of the parties to negotiate and approach the relocation in a collaborative way and avoid litigation on that issue. It is why I brought forward an amendment, consistent with evidence from a number of witnesses, to increase the time from a 90-day period to provide notice and a 60-day period to respond, Again, it is a relatively minor amendment that hopefully can be considered in the Senate since it was not adopted when it was studied at the justice committee. It is one that could have a profound impact on many families.

I was disappointed that the bill did not recognize the fact that in most circumstances, it is desirable to maintain a shared parenting relationship. That it is not to say that it is appropriate in all cases. We know, particularly in situations where there is family violence, that it is not. However, it does not make sense to remove a perfectly fit parent from having as much access and time to spend with his or her child, and yet we know that does happen every day. The government's response, I suspect, will be that shared parenting is not consistent with this legislation and it rejects the notion of shared parenting because the legislation is focused exclusively on the best interests of the child.

I agree wholeheartedly that any issue relating to custody or access should be based exclusively on what is in the best interests of the child. However, the fact is that in many circumstances, what is in the best interests of the child is to maintain that shared parenting relationship. We know that from common sense life experience and a wide body of social science evidence to back that up. That is why, when the Senate studied custody and access in 1998, it recommended the incorporation of factors that a court should consider with respect to the best interests of a child, which the government incorporated in the bill. One of the factors was the benefit to a child of a shared parenting relationship.

With that, on the whole, the bill gets a lot of things right. There is a fair bit of consensus among the family law bar and other actors involved in family law, divorce, separation, etc., but there are areas where there is room for improvement. I hope there will be some further consideration on how to improve the bill when it goes to the Senate.

[David Lametti, Minister of Justice and Attorney General of Canada, Lib.]

Mr. Speaker, as always, the hon. member displays a very in-depth knowledge of the bill and has a great deal to say. I shared some of the opinions and I am open to following the rest through the parliamentary process.

During the member's comments, he still used the terms “custody” and “access”. One of the points of the bill is to change that language to parenting language, “parenting order” and “contact order”. I would invite him to reflect on that change.

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

Mr. Speaker, the minister is quite right that the bill updates language to make it less adversarial, talking about “parenting” and “contact”. There are some who might say this is window dressing, but I would respectfully disagree. I believe that words matter, and to the degree that this might minimize the adversarial nature of a divorce and the impact it might have on children, so much the better. Indeed, there was a fair bit of support from the family law bar for those changes.

There was only one issue I would raise, which came up at committee. There was some concern from witnesses for, I believe, the South Asian Legal Clinic out of Toronto. They said, for example, that it might be problematic in an international context. They cited an example in which a father had abducted his child and taken that child to Pakistan. The mother sought to be reunited with her child in Canada, and they stated that the court in Pakistan was very specific in looking for the term “custody” and seeing that terminology used in the order. That is the only issue we may want to consider. However, that aside, I think it is a positive step.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I am glad to be here for the very first bill being brought forward by our new justice minister. I am sure he is extremely talented.

I have to admit that we share a mutual friend in Sandy Pearlman, the late producer of the Clash and Blue Oyster Cult, so I am going to ask that the minister lessen the cowbell when he is trying to get attention in the House.

I found my hon. colleague's discourse very interesting. In our office, the most difficult and saddest issues we deal with time and time again are those of family breakup, when people come in trying to find help. In particular, I am referring to the issues that arise when families are breaking up and whoever has custody is moving to another jurisdiction.

That is an extremely difficult, emotionally fraught situation. The courts never seem to be the healing institutions on this. These are deep, traumatic wounds for families, and some never recover.

From his experience, does my hon. colleague know ways that we can do this to make sure it is always child-centred, less adversarial, and more about trying to find some healing rather than a deeper rupture.

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

Mr. Speaker, the member for Timmins—James Bay is absolutely right that these are the most difficult of situations. When the breakdown of marriage involves children, emotions are high, often on all sides. Sometimes, because it is about access and the parents' relationship with some of the most, if not the most important people in their lives, it makes it all the more difficult.

For example, an acquaintance of mine is a judge. Although he had not practised family law, he said that upon being appointed to the bench, one of the most difficult things he found when making decisions was making a custody order or an access order, and having to hear the evidence without really being able to be there and understand in a true and profound way all the circumstances of what may be going on within a family.

The member is right. That is why, to the degree that we can encourage parties to mediate, negotiate and resort to means other than the court process, this will go a long way.

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Mr. Speaker, I would like to follow on my hon. colleague's comments and also offer congratulations to our new Minister of Justice. I would also like to underscore the importance of this bill, particularly the nature of the subject and the fact that it has not been updated since 1985.

With respect to the relocation aspect, my hon. colleague has made a recommendation on an amendment to change the time for the notice of relocation in the bill, which is 60 days for notice and 30 days for the response. The proposed amendment would take that to 90 days and 60 days, respectively. He mentioned that that was rejected at committee.

I wonder if he could expand on the arguments against making that amendment, and how he would respond to those arguments.

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

Mr. Speaker, there was very little discussion or debate around that amendment, unfortunately. The member for West Nova indicated that the 60-day and 30-day time frame was consistent with some provincial legislation, including legislation in the province of Nova Scotia.

I believe that is the rationale, but we have to recognize that the Divorce Act is national in scope, and some of the national issues affecting northern and remote communities, among other factors, should be more carefully considered. An amendment to provide a little more time would go a long way.

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

Mr. Speaker, I want to pose a different type of question related to the principle at hand.

I have had the opportunity to have discussions with many of the constituents I represent with regard to marital issues and parenting. There is a push to try to simplify the process. I am wondering if my colleague across the way could suggest other things that are not already within the legislation, which the government could look at pursuing in the future.

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

Mr. Speaker, moving outside of the court process is really key. A lot of work has been done amongst the family law bar to encourage parties and to provide information to parties, so that they have a better understanding of what is involved step by step. So often it is very difficult for people who are separating to understand what is coming next. There are programs and supports and information services in place.

A lot of things can be done, but those are just a few.

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

Mr. Speaker, my colleague touched briefly on domestic violence. One of the objectives of this bill is to combat domestic violence.

We heard from a lot of witnesses, including many representatives from a large Canadian coalition, including representatives from the Regroupement des maisons pour femmes victimes de violence conjugale, the Ottawa Coalition to End Violence Against Women, the Elizabeth Fry Society, and I could go on and on. They told us that the bill must highlight just how likely women are to be victims of domestic violence.

Does my colleague believe that the bill does enough to help stop domestic violence?

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

Mr. Speaker, I thank the member for Saint-Hyacinthe—Bagot, who spent time very carefully reviewing the bill.

An amendment was put forward with respect to incorporating gender-based violence. While I understand the intent underlying the bill, I was unable to support that amendment on the basis that family violence is all-encompassing. It can impact persons of all genders. It can impact children. It can impact a number of people in the relationship, which is why the legislation as currently worded is broad enough to encompass all of those situations.

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

Mr. Speaker, as my party's critic for families, children and social development, I am delighted to rise in the House once again to speak to Bill C-78.

I will get straight to the point. Bill C-78 is clearly a step forward, considering that the 40-year-old Divorce Act is no longer a useful tool for helping families navigate the problems they encounter during a divorce.

Let me illustrate that with a quote from Senator Landon Pearson. She was appointed to the Senate in 1994 and retired in 2005. I think this quote shows that we have long known the Divorce Act needs updating. Senator Pearson served as vice-chair of the Standing Committee on Human Rights.

This is what she said way back in the early 2000s:

When their parents separate, children's lives are changed forever. The responsibility of parents and family members as well as the professionals who engage with them, is to make that change as smooth as possible. Children have the right to be looked after, and to be protected from violence and undue emotional stress. They also have the right to maintain relationships that are important to them and to have their own voices heard. Only when these and all the other rights that are guaranteed to them by the United Nations Convention on the Rights of the Child are respected, will children be able to accept and adjust well to the new circumstances in which they find themselves.

That is why my NDP colleagues and I will support this bill. However, I want my esteemed colleagues to realize that, although this bill is a step forward, we cannot stop here. I believe this bill can and should be improved.

I think we can all agree that the objectives set out in the text—namely, promoting the best interests of the child, taking family violence into account in making parenting arrangements, fighting child poverty and making Canada's family justice system more accessible—are all steps in the right direction. However, the major flaw with this bill is that it too often lacks the teeth to support its intentions.

Many of the witnesses who appeared before the Standing Committee on Justice and Human Rights as part of its work on Bill C-78 came to the same conclusion. I would like to thank them once again. What I took away from those meetings is that families, associations, justice professionals and academics are all waiting for a comprehensive reform of the Divorce Act.

I want to emphasize how important it is that we not let the opportunity we have today pass us by, since we will likely not reform the Divorce Act again for another few decades. Let us not make changes just for the sake of making changes; we must listen to the recommendations made by witnesses in committee and in the many briefs that have been sent to us. We do not want to realize a few months down the road that the act does not resolve certain problems and only addresses them superficially.

We need to make sure we do things right. I do not want us to end up dealing with problems that we were warned about and that we could have resolved today. I am thinking in particular about situations of family violence and about how the child's views always need to be taken into account in divorce proceedings.

I would therefore like to talk about three issues: fully protecting the best interests of the child, of all children, managing situations of family violence, and combatting poverty.

First, when it comes to promoting the best interests of the child, we must not end up in a situation where the child's interests are determined a priori by the parents or the judge.

That is why it would make sense to include a provision in the bill to give the child the right to be represented by a third party. Countless studies show that questioning a child through such a process is very beneficial. Professionals note that when a person is there to communicate to the parents the concerns and interests of their child, the divorce is settled almost immediately.

Although the bill states in clause 16(3) the need to consider “the child’s views and preferences, by giving due weight to the child’s age and maturity”, it seems that representation for the child would guarantee that the best interest of the child is central to concerns in all circumstances.

Moreover, we should give considerable attention to training on how to duly take into account the point of view of the child in matters before family court. I think that our approach has to be based on the International Convention on the Rights of the Child and best practices being used in Canada and abroad. In fact, to go even further, the Convention on the Rights of the Child should be included in the section on the best interest of the child.

Unfortunately, the departmental officials told the committee that we did not need to explicitly incorporate the Convention on the Rights of the Child because it is a given that Canadian courts are required to comply with the convention. However, several witnesses testified that explicitly including it, not only in the preamble but also in the body of the act, would enable both us and the courts to take into account all the underlying principles of this convention. Sadly, this view did not find favour.

I also want to point out how important it is that children be offered services and resources that give them psychological support.

Lastly, it is equally vital that the best interests of children, all children, be taken into consideration. This means that indigenous children's right to their own culture, religion and language must be recognized in paragraph (f) of subclause 16(3) on the best interests of the child.

The testimony of UNICEF Canada representatives was extremely pertinent and supported this point of view. It is obvious to them that the International Convention on the Rights of the Child supports the principle of considering the culture of indigenous children. Here again, as I just said, we can look to article 30 of the International Convention on the Rights of the Child, which recognizes the rights of an indigenous child to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language in community with the other members of his or her group.

I would like to read a quote from the evidence we heard at committee in support of the representation of the child. I will quote Dr. Valerie Irvine, a professor at the University of Victoria, who talked about her studies on the impact of divorce on families. She said:

Canadian families require more integrated services, such as data analytics, the elevation of the role of a child's direct health professional team, and legal representation for the child.

It is clear that, to have these professional services, we must support the provinces, which are responsible for enforcing this law. We know that compared to health services, social services are often overlooked in the provinces.

Barbara Landau told our committee the following:

It isn't lawyers that I say shouldn't interview children; it's judges. I think bringing a kid to the courtroom and having a judge take a few minutes in chambers with the child is a pretty frightening experience.

I think that mental health professionals are the best ones to be trained to work with children. Interviewing a child as part of the process is really helpful. Almost every case settles almost immediately once there is somebody to reflect the child's concerns and interests to the parents.

In the divorce process, each parent is represented by lawyers, and although both parents are concerned about the child's well-being, the child's best interests can unwittingly get lost in the process. If a professional who can speak on behalf of the child and is not intimidated by the judicial process is present for every step of that process, we could truly say that the child is our primary concern.

Second, I want to talk about three considerations regarding family violence. First, it is a great idea to include a definition of family violence in the bill. The definition is purposely broad in order to take into account the complexity and the variety of types of family violence. Nevertheless, many organizations have drawn our attention to the importance of explicitly recognizing in the definition that family violence is a type of violence against women, and rightly so.

The goal is not to minimize cases of violence against men but to recognize the fact that, in the vast majority of cases, family violence is gendered in nature, because it is most often men who commit violence against women. The statistics are clear in that regard.

Next, we need to set out in the bill that alternate dispute resolution mechanisms should not often be used in situations of family violence. Many organizations and academics are concerned that resolving divorce proceedings outside the court system will merely give the violent parent more ways of controlling his victims.

As a result, it is essential that the bill include provisions regarding training for justice professionals on how to recognize, understand and deal with situations of family violence.

I want to take a moment to again pay tribute to two community organizations in my riding that do amazing work day after day for children whose parents are getting divorced and for all women experiencing domestic violence. The expertise of these organizations has been extremely useful for helping me fully understand and document my committee work on this issue.

First, I want to thank Le Petit Pont, an organization that works to create and maintain parent-child bonds in a neutral, harmonious, family-friendly setting during situations of separation and conflict. The child's best interests and safety, both physical and mental, are the top priority for this organization, which operates in both Saint-Hyacinthe and Longueuil.

Second, I want to express my gratitude to La Clé sur la porte. In its 37 years of operation, it has taken in over 4,000 women from all over Quebec. This organization provides shelter for women fleeing domestic violence and their children in Saint-Hyacinthe and also offers support programs in Acton Vale and Belœil. La Clé sur la porte is fully focused on keeping women and children safe.

Every day, these two organizations see the toll that domestic violence takes on women and the indirect repercussions it has on their children, whose welfare is closely tied to that of their parents, as we know. These organizations can attest to the importance of the three amendments I just talked about.

Finally, there is nothing in this bill, nor in the comments made by the Minister of Justice, to convince me that Bill C-78 will do anything to reduce poverty in any meaningful way. The provisions to facilitate the settlement of support orders are good, but what happens when the parent who is supposed to pay cannot afford it?

In addition, access to justice is limited for the most economically vulnerable families. Divorce proceedings are expensive; lawyers are expensive; notaries are expensive; and incomes shrink when couples separate. The use of alternative dispute resolution mechanisms, as required under this bill, is very likely to be effective when it comes to resolving conflicts, but at the same time, this could create new inequities in terms of access to justice, because those mechanisms will also be expensive. It is therefore crucial that the bill provide funding to support those most vulnerable in our society and guarantee true equality in terms of access to justice. Funding definitely needs to be set aside for transfer to the provinces to bring in these teams of professionals.

Several witnesses told us this. One witness in particular told us that she had the financial means to hire experts, use psychological support services for her children, and access resources for her defence. However, in light of her experience, she found it important to come testify to say that it was clear to her that not all families have access to the same resources and that the children of these less fortunate families had to face this situation alone. We must therefore set aside funding for these social services. As we know, access to legal aid is diminishing. We must ensure that all Canadians have the same access to justice.

If the Liberals truly want to the reduce child poverty, then Bill C-78 is not the answer. The Minister of Justice told us earlier that this bill will not help with that. He then once again pointed to the Canada child benefit, like many of his Liberal colleagues. We know that this benefit cannot solve everything. I will therefore accept the minister's invitation to offer my colleagues some potential solutions to truly end child poverty.

We need to come up with a real national strategy to end child poverty. It is not enough to set targets. We need to provide the means to achieve them, which the current strategy does not do. Then we must build affordable housing for families, seniors and those who need it now. Too many Canadians spend more than 30% of their income on housing. In some regions, that is the case for 50% of the population. In addition, we need a universal pharmacare plan and a universal day care system. We must also establish a $15-an-hour minimum wage. Those are real social policies that will actually reduce child poverty. I hope we will not see half measures and that the government will consider the recommendations made by witnesses and the opposition.

We must consider all the recommendations. I was very impressed that the witnesses who appeared before our committee were so well prepared. We proposed amendments that, unfortunately, were rejected. I hope that the work in this place will let us go further. Ultimately, we all want the best for our families and, above all, for our children.

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

Mr. Speaker, I am humbled to rise for the first time in this new House. I truly appreciated the speech and comments from the member for Saint-Hyacinthe—Bagot, as I appreciate her participation in meetings of the Standing Committee on Justice and Human Rights.

She spoke at length about child poverty. I would like to talk about poverty among women, which is connected to child poverty.

I want to outline a couple of important statistics.

We know that two million people in Canada are living in divorced or separated families. We also know there are over a billion dollars arrears for income support payments after the result of divorce or separation. We know that 60% of that bucket is in enforcement proceedings. When we look at who is in enforcement, who is owing whom, 96% of the time it is a man who is owing money to a woman.

I want to ask the member for Saint-Hyacinthe—Bagot for her views on how a bill such as this, which has different aspects of government talking to one another and facilitates the payment of support will assist those women, particularly the women who are caring for children on their own, with respect to alleviating the poverty that she has mentioned, the poverty of women and children.

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

Mr. Speaker, I thank my colleague for his question.

A number of women's groups felt it was important to testify in committee, since, quite often, women end up living in poverty following a divorce. I do not think that this bill does enough in that respect.

What can we do? Representatives from the Barreau du Québec gave us some suggestions. Quebec already has rules for collecting child support, but when both parents are struggling financially, even if the court decides that the woman needs child support, she does not receive it. This is a problem.

It is important to note that this bill will not apply to common-law partners who, in Quebec in particular, account for 40% of couples. In other regions throughout Canada, it is 50%. Thus, the rules of this bill on divorce will not apply to a majority of couples because they live together and are not married. In the event of a divorce, these women and their children, of course, will have little, if any, recourse to provide for their needs.

We have to think about that in Quebec because there is a very large number of domestic partnerships as a result of the sharp increase over the past few decades. We will have to examine this issue to see how we can help families deal with separation and divorce.

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

Mr. Speaker, I thank my colleague from Saint-Hyacinthe—Bagot for raising the issue of children's rights. I think we all agree that it is important to uphold children's rights. As she said, Canada is party to the United Nations convention, but there is no mention of that in this bill.

Would my colleague agree that we need a federal body, like those that exist at the provincial level, to protect children from the many ways in which Canadian society and the federal government can infringe upon their rights?

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

Mr. Speaker, I thank my colleague for the question.

One of the purposes of the bill is to make the best interests of the child central to the process. However, many witnesses who have attended divorce proceedings with couples for decades said that the proceedings are adversarial. During divorce proceedings, the children are often ignored. The parents do not mean to do that, but it is a two-party process and the children represent a third party.

It is therefore important for the federal government to have a mechanism and the necessary resources to ensure that children are well represented. In that way, the federal government would be helping the provinces.

Children often hear their parents talking about the divorce proceedings. There needs to be a third party who understands the legal system participating in the discussions. Their only mandate would be to ensure that the child's interests are represented throughout the process. The designated person would know when to intervene to express the will and interests of the child. The child's point of view would be represented at all times.

Some lawyers came to testify to tell us that, unfortunately, some judges are not well-suited to adequately speak to children. This is an intimidating experience for the children. Everything has to unfold in a climate of trust.

Children are often stuck in the middle between two parents and they do not want to say anything to upset either parent. Children should be able to confide, in a neutral way, in a professional who can then attest to their needs when a divorce happens. Children's best interests can then truly be the number one concern. Many witnesses gave us very concrete examples demonstrating why that is the best way forward.

[Karine Trudel, NDP, Jonquière, QC]

Mr. Speaker, I thank my colleague from Saint-Hyacinthe—Bagot for her excellent work, both in her riding and at committee.

I wonder if she could speak to us briefly about the rights of indigenous children in the context of Bill C-78. The NDP proposed an amendment in that regard at committee.

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

Mr. Speaker, we talked about integrating the Convention on the Rights of the Child. UNICEF Canada made it very clear that integrating the convention would ensure better recognition of the rights of indigenous children. The justice system would recognize their culture and their environment and it would mean they could be addressed in their language. Several witnesses raised that concern.

We know that is the federal government's responsibility. We cannot download that onto the provinces, as we often do. We have a duty to ensure that the best interests of indigenous children are taken into consideration in Bill C-78.

[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 Saanich—Gulf Islands, Natural Resources; the hon. member for Renfrew—Nipissing—Pembroke, Canada Post Corporation; the hon. member for Saint-Hyacinthe—Bagot, Dairy Industry.

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

Mr. Speaker, as I rise for my first full speech in our new chamber, I want to begin by acknowledging that we are on the traditional territory of the Algonquin people, expressing our gratitude for their patience and hospitality. Meegwetch.

There could not be a topic that is more fraught emotionally than child custody disputes in marital breakdowns, and it certainly is not new. As I pondered, having been in the deep weeds of this bill through clause by clause with my many amendments, to step back at report stage and really think about our topic, it struck me how very long humanity has struggled with the difficulties.

As my hon. colleague from St. Albert mentioned earlier, judges have a hard time with these decisions, and it put me in mind of the first book of Kings and the wisdom of Solomon. The quite well known story was 2,500 years ago, of two women coming to King Solomon with the claim that a baby was theirs. It was a child custody dispute 2,500 years ago. In trying to discern who was the real mother—we all know the story—King Solomon said to bring him a sword. He would cut the child in half and he would give half to each one of these women. Of course, the real mother said not to, but to give the child to the other woman. Of course, that is when King Solomon said now he knew who the real mother was, and that was that.

Our courts still struggle, and when they get it wrong, sometimes children die. It is still the case in this day and age, and perhaps increasingly so, as violence against an intimate partner sometimes turns into revenge against that intimate partner.

I wanted to start with these two cases because I raised them when this bill came forward for first reading, and I raised them to our then minister of justice to ask if this bill would help in these cases. I now believe that it would or, more accurately, it might. The two cases I want to raise are the cases of two women from Vancouver Island where I live, both of whom lost their children because a judge would not listen to them in a dispute over custody.

One is a case that has been raised in this House many times. In 2015, Alison Azer's children were taken on a vacation, over her objections. Her former spouse was a very well respected doctor, even in the kind of echelons where he was at least an acquaintance of our former prime minister. He was respected in the community, and the court took his word that, in taking Alison's children on holiday, he would bring them back. Alison Azer begged the judge not to give the passports of her children to her former spouse, who was originally from Iraq. She was terrified the children might be kept there, and that is in fact what happened. The children, Canadian citizens, still live overseas. Sharvahn, Rojevahn, Dersim and Meitan have now been so culturally and egregiously alienated from their own mother that, when she finally got a chance to see them, they were not willing to run to her arms. It is one of those things that just breaks one's heart. The judge did not listen to Alison.

The next case is worse, if there is anything worse. In January 2018, more than a thousand people crammed into Christ Church Cathedral in Victoria for the funeral of Chloe and Aubrey Berry, who were murdered by their father on Christmas. I was one of those mourners. I have never been through anything as difficult. The clergy struggled to find meaning, to give people hope, because those little angels were adored by their classmates and their family—of course they were; they were beautiful little girls—and murdered by their father. Their mother also sought to convince a judge that there should not be unsupervised visits for her children with their father. Tragically, the judge did not see that there was existing evidence of threat or harm that was sufficient to deny the father an unsupervised visit.

That mother's name is Sarah Cotton. When I talked to Sarah afterwards at the reception with the mourners, she was startling in her clarity. She was articulate and asked me to help work to make sure that what happened to her would not happen to other mothers. She said that the family court system had to change, that judges had to be prepared to listen and that they should not be so concerned with the access rights of a father that they should ignore the cries of a mother that there was a reason to be concerned.

The rest of what I am going to say about Bill C-78 is dedicated to Alison and Sarah, extraordinary mothers who have lost their children because they could not convince a judge to listen to them about the threat of allowing those children to go with their fathers, either overseas or for a Christmas visit that ended in the children's murder.

Where I find hope in the bill is in the recognition of family violence and the way in which the definition section of the bill would allow for a lot of consideration by a judge of a definition that falls short of “They have already been hurt. He has made specific threats”.

I should step back and say that in some contexts it is not a mother and a father. It could be a mother who is a threat. We are also dealing with situations that are not cisgendered individuals in all cases who are always in heterosexual relationships. We recognize that gender violence and gender inequity transcends hetero norms.

However, let me just continue with the traditional way in which we talk about family violence, which is that it is generally the case in inter-spousal violence that it tends to be a father making threats and a mother who is in the weaker situation, either economically or in terms of the power imbalance, as has been referred to by other members.

In this definition of family violence, and this is what makes it helpful, there is not an exclusive list. It uses examples but it is not a closed list. It defines family violence as:

any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person—and in the case of a child, the direct or indirect exposure to such conduct—and includes

Then we have a non-exclusive list of (a) to (i). I found it impressive, really, in terms of recognizing psychological abuse and also recognizing the real warning signs, such as under subsection (h), “threats to kill or harm an animal”, a threat against a family pet. If a judge hears that now, the judge can say that it falls within this definition of family violence and we ought to take action to protect these children. We need to think of all these elements.

It is not going to be perfect because judges will continue to make mistakes, but I hope that the recognition in this first reform in more than 20 years of our family law will direct the minds of judges to these various elements of family violence and the psychological stress. I certainly used to practice a little bit of family law. I found it very difficult because it is so emotional. However, we certainly know that there were some times that because it became so confrontational, there would be false charges against one partner or the other in an effort to gain custody. The larger risk comes when one does not listen to the parent who is really concerned that the child might be at risk if parenting time, as we now describe it, is allocated to a parent who may be capable of kidnapping their own children, alienating one parent and doing huge psychological damage to the children, or in the worst case, as I have mentioned, capable of murder.

That, I think, is an improvement: the injection of a more sophisticated understanding of family violence. The context of it and definition of it is certainly an improvement. Of course, this law is primarily child-centred legislation. It is much closer to what we have had in British Columbia for some years, which is, under British Columbia's Family Law Act, a focus on the best interests of the child.

Therefore, it is interesting that the two cases I have raised took place in B.C., even though they had this kind of framework of focusing on the best interests of the children. It suggests that the changes are going to be cultural and need training. I hope this legislation is going to protect children. Its goal is certainly to always have paramount the best interests of the child, and it is for that reason that I support the legislation.

It does have some other substantial improvements that are more about logistics. One of them I just referenced, all too briefly. When we used language about custody and access we created, perhaps inadvertently, more of a contested, gladiatorial struggle to win custody, to be acknowledged as, essentially, the better parent. In an emotional context, marriage breakdowns are certainly about the most emotional time in a person's life. The children were often treated as the spoils of war, and the word “custody” tended to fuel that. At least that is what the drafters of this legislation must have considered in changing the language.

A lot of family law experts who testified at the committee said they hoped this would take away some of that notion of winners and losers, of “winning” custody, because we now talk about parenting time. Parenting time is described in ways that suggest that it is shared parenting time and requires responsible behaviour during that parenting time. This is progress. I think it will help take out some of the conflict. I certainly hope so. As I said earlier, at least it might.

Another big improvement in the legislation, and long overdue, is that it allows a judge to access income information about one or the other parent from other government sources. We certainly know that it has delayed these cases. It has cost the court time. It has stressed out already stressed-out parents, particularly where one spouse has more income than the other, which is often the case. Where they are resistant to disclose voluntarily, now the judge has an access to get other information from other government sources. This will help for sure, and it is a win-win-win in a couple of different directions.

It has already been discussed at some length the improvements around a legislated test for the question of one parent moving to another location with a child and how that affects the other parent and access to parenting time. The rules here will, by being legislated, create a lot more certainty than in the past, where we were essentially dealing with the 1996 Supreme Court case of Gordon v. Goertz. This effort to legislate the test for mobility is clearly progress.

It is also worth reinforcing that in cases where family violence is not at play, the opportunity to go to mediation is certainly an improvement. Anything that takes the adversarial nature of family breakdown, turns down that temperature and makes it all about what is in the best interests of the child is good.

I was trained as a lawyer. I have mentioned that before. There is no doubt it is an adversarial thing. We are taught to go into courtrooms and win. That is not helpful. If in a family breakdown situation we can avoid lawyers and avoid courts and work through mediation everyone will be better off, except the lawyers, and that is okay. I so hope that the kind of co-operative law we have seen developing across Canada, the access to mediation, which is stressed in this bill, will help families get through this crisis period in their lives with their relationships intact. It certainly is the most helpful thing for the children.

I brought forward a number of amendments. My amendments were not accepted. I wanted to see an amendment that dealt with the issue of maximum access. There was a Liberal amendment that was quite similar. I hope we will see that playing out in a way that addresses some of the concerns raised by legal experts. I also put forward amendments to have more of a focus on the question of the judge turning his or her mind to the specific issues when a child is indigenous.

We have seen far too many indigenous children in this country taken from their families, historically and currently, and we need to pay attention to that and wherever possible ensure that children are in their communities, are in their culture, have access to their languages and have access to other relatives. The indigenous nature of child custody is referenced in the bill, but not as completely as it would have been had my amendments been accepted.

As I have said, though, the bill is a substantial reform of family law in Canada. It is long overdue. I so hope it works. I hope it works to avoid, ever again, the tragedies I have mentioned already. There could be nothing worse for any parents than to lose their children. Losing them in divorce is tough. Losing them forever is unbearable.

I hope and pray the legislation will be followed up with additional funding and more training, perhaps mandatory training for judges to think through these cases, to read and think about Aubrey and to read and think about Chloe, and about Alison's children, so that when dealing with a case in front of them they think about what the worst thing is that could happen if they get it wrong. That is ultimately the burden judges carry. I would not want to be the judges who said that they did not worry about the Azer children going overseas or the Berry girls going to their father at Christmas.

All of us need to make the best interests of the child the guiding light of all family law. Indeed, I could not agree more with my hon. colleague from Saint-Hyacinthe—Bagot. It would have been better had this legislation included an acknowledgement of our obligations under the United Nations Convention on the Rights of the Child. However, there is much more that can still be done. We have worked for years in this country, particularly retired Senator Landon Pearson, who led the charge to have a child advocate at the federal level to look at the broad range of issues as they affect our children.

With that, I thank the House for the opportunity to speak to Bill C-78. I look forward to voting for it at report stage and third reading, and seeing it go to the Senate, which potentially may go back to some of the amendments that failed in the House.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, I want to thank my hon. colleague from Saanich—Gulf Islands for her contributions at committee and the amendments she proposed, which were always well reasoned and much appreciated. Whether we come down on the same side or not on her amendments, I always enjoy discussing them with her.

My hon. colleague covered multiple aspects of the bill, but I wanted to ask her one question about an area she did not cover. She was present when the committee unanimously adopted an amendment guaranteeing the right to divorce in either English or French in every province in Canada. As my hon. colleague mentioned in her speech, only a certain number of divorces actually go to court. Those are the most confrontational and the most controversial, and people are incredibly emotional. It is often the only time they are actually in contact with the justice system, and it is only right they be able to do this in their own language.

The member did not have an opportunity to vote on those amendments. I would like to know how she would have voted.

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

Mr. Speaker, I want to thank the hon. member for Mount Royal for being such a fair chair in circumstances where, as he will know, I have constantly complained of the process that forces me to bring amendments to committee at clause-by-clause, rather than bringing them forward at report stage in the House, which is the right I would otherwise have had. If anyone is wondering, that is the reason I could not vote. I do not have rights at committee to vote on my amendments. I can speak to them. However, if I had a vote, it would have remained unanimous.