Mr. Speaker, as the Bloc Quebecois critic for Justice, I have the pleasure of being the first speaker from our party in this debate on Bill C-22. This is a very important bill and, if passed, it could considerably change the legal framework for marriage and its dissolution.
In fact, anticipating this bill, several people have already contacted me, and I have had the opportunity to meet with many citizens from my riding, who shared their hopes and concerns about this bill with me. I am thinking of, among others, Ms. Lafortune, who very eloquently expressed her views.
When we met, this lady pointed out the serious hardship unfortunately experienced directly or indirectly following a divorce by people like a second spouse or the children of the second spouse.
All this to say that the debate that got underway this morning is very important because it will affect the personal, daily life of hundreds of thousands of people across the country.
I am calling on my colleagues to ensure that, as we debate this whole issue, we do so bearing in mind these men, women and children who are unfortunately adversely affected by a marriage breakdown and that, in our consideration of the various clauses, we never lose sight of these people. This is not just a matter of coldly dealing with words written on a piece of paper; this is about the lives of individuals.
Bill C-22 will amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and other existing acts.
On December 10, the Minister of Justice unveiled a new legislative initiative known as the Child-centred Family Justice Strategy. The minister says he wants to upgrade and modernize the various existing acts to try to harmonize to some extent relations between spouses who eventually decide to break up. We know that such an ordeal, affecting a huge segment of the population in Quebec and Canada, causes major wranglings, over children in particular.
Divorce is difficult and sometimes tragic. The harsh reality of divorce, which is the break-up of a loving, emotional relationship between two people, is that, too often, it involves children who, also too often, feel as if they are being torn in two. It is essential to remember and, above all, to explain to these children that their parents' decision to separate has nothing to do with them and that they will always be loved and cherished.
As I was saying, the minister's bill aims for relative harmony, sometimes achieved with great difficulty, the ultimate goal being the well-being of children. However, I would say that, despite his efforts, the minister has missed the mark. On behalf of children and in his quest for happiness, the minister has missed an important issue in this debate, which is the harmonization of the various applicable acts regarding divorce.
During my speech, I will endeavour to demonstrate how the minister could have simplified his approach, better promoted the well-being of children, and in a more relevant way, while helping them through something as difficult and as complex as divorce.
The goal of the child-centred family justice strategy is to assist parents who are divorcing or separating and guide their attention to the needs of the children. The Minister of Justice's approach is based on three specific aspects: family justice services, legislative reform and expanding the unified family courts.
I must first clarify and repeat the fact that the Bloc Quebecois, because it opposes Bill C-22, will present a firm and very structured opposition to the minister's initiative. My colleagues and I will clearly show how and in what way the minister is going about this all wrong, and what would be the right way to reach the initial objectives, which should be those of society as a whole.
As is usually the case—and those who listen to us are aware of this—the Bloc Quebecois, despite its opposition to the bill will actively participate in all stages of the legislative process to try to drag a compromise out of the minister and thus make an effective contribution to this overhaul of divorce legislation. As always, our general attitude will be guided by indepth research into the situation, since the Divorce Act involves numerous considerations and affects a great many people.
Furthermore, we hope the Standing Committee on Justice and Human Rights will hold extensive consultations on the matter because the impact of this legislation could become a determining factor in the lives of thousands. I also strongly hope that when the Standing Committee on Justice and Human Rights holds hearings on the matter, it will not only listen to certain groups, such as lawyers, associations that defend the rights of spouses, children and so on, but also make a concerted effort so that children, ordinary people, the average citizen will also have the opportunity to come and give us their point of view on a bill that affects them so closely.
Not everything in Bill C-22 is new. For instance, the criterion related to the interests of the child is a recognized principle in current divorce legislation and in the Quebec Civil Code. Similarly, the well-known list of criteria in the bill with regard to the interests of the child, is basically a consolidation of existing jurisprudence. It is not new legislation, but simply the consolidation of existing legislation.
From this perspective, we will take advantage of this debate to highlight the elements of the proposed reform that cause us the most concern with respect to some of the practices that are specific to Quebec.
Our political party, true to its primary objective of defending the interests of Quebec, opposes the very principle of the bill because we feel that, in fact, the Divorce Act should be repealed. We think it would be better, more appropriate and more efficient if Quebec had full jurisdiction over matters of divorce. This call for full jurisdiction over family law in its entirety has been Quebec's traditional stand.
In fact, for decades all governments of Quebec, whether the Parti Quebecois, the Union Nationale or the Liberal Party of Quebec, have called for this power to be transferred from the federal to the Quebec government. This, along with marriage, being the only area of federal jurisdiction over family law, its would be both appropriate and advisable for it to be transferred to Quebec and included in civil law.
Before continuing with this debate, I believe it is important to draw attention to the Special Joint Committee on Child Custody and Access and its considerable accomplishments during the 36th Parliament.
When its task was over in December 1998, after months of intense efforts, the committee tabled a thick report which, unfortunately, did not take into account the specific nature of the Quebec reality. Nothing new there; it is too often the case.
The Bloc Quebecois therefore felt obliged to express a dissenting opinion on the contents of this report, based solely on its desire to see legislation on divorce be made the responsibility of Quebec and the provinces.
This position, you will understand, has not changed, and the arguments we made at the time are as relevant today as ever.
I will quote, if I may, an excerpt from the Bloc Quebecois dissenting opinion on the report of the Special Joint Committee on Child Custody and Access:
—all matters relating to the family, education and social services are clearly within the jurisdiction of the provinces, as are any questions relating to separation from bed and board.
The report goes on to say:
In Quebec, separation from bed and board is covered by articles 493 et seq. of the Civil Code of Québec. On the other hand, divorce is under federal jurisdiction, by virtue of the Constitution. The vast majority of divorces are settled out of court. In most cases, agreements regarding child custody and access are made when a couple separates. Since separation from bed and board is under provincial jurisdiction, it would be logical for legislation on divorce to be as well.
Accordingly, we recommend that the Divorce Act be repealed and that jurisdiction over divorce be transferred to the provinces.
It would also be logical to repeal the Marriage Act and transfer that jurisdiction to the provinces. The celebration of marriage, as well as division of property, the civil effects of marriage and filiation are within the exclusive jurisdiction of the provinces, while the substantive requirements (capacity to contract marriage and impediments to marriage) are under federal jurisdiction. In Quebec, for example, the Government of Quebec has legislated to permit civil marriages. In our view, this is another example of the pointless and outdated division of powers. It would be much simpler for all family law to be under the jurisdiction of a single level of government: the provinces.
As an aside, I can tell you that, for the sake of logic and rigour, this is also the position the Bloc Quebecois will defend when the time comes to debate the whole issue of whether of not homosexuals have the right to marry, which is currently under consideration in committee.
I could go on and on quoting Senator Beaudoin, a renowned expert on the Constitution if there was ever one, about the division of powers at the time when the federation was established, in 1867. The national duality at the time also reflected religious division.
So, the decision of the Fathers of Confederation to confer upon the federal government constitutional authority over divorce was essentially predicated upon a compromise between the Catholics and the Protestants concerning the dissolution of the bond of marriage.
I will now read on:
What was appropriate in 1867 no longer is today. Given that the religious issue no longer has the same significance, our laws ought to reflect reality. Our recommendation would mean that the provinces could have complete jurisdiction over their family law and could legislate in that field as appropriate to their own social context.
Naturally, this includes everything having to do with marriage and divorce.
As Senator Beaudoin stated further in his report entitled “La constitution du Canada, institutions, partage des pouvoirs, droits et libertés”, and I quote:
The question then arises of whether the field of marriage and divorce should not be returned to the provinces, thereby enabling Quebec to have more absolute control over its family law, an important part of its private law, which is different from the private law of the other provinces.
I would point out that this is a quote of comments made by a federalist Conservative senator from Quebec, and not a sovereignist.
This illustration of the issue and the Bloc Quebecois' approach reflects the long term historic claims made by Quebec and its governments.
Allow me to highlight some of the most significant steps taken by the Government of Quebec in this approach.
Take the government of Daniel Johnson, Sr., from 1966 to 1968. Members will recall he was a unionist premier, in other words, from the Union Nationale political party. His government demanded that the constitution be amended to include divorce as an exclusively provincial area of responsibility.
Later, in December 1969, at a first ministers conference, the very federalist premier, Jean-Jacques Bertrand, said that marriage and divorce should come under Quebec's jurisdiction under the constitution, in which case the decision to establish family courts would be up to it.
During the second term of the great René Lévesque's government, in the early 1980s, he made proposals in the area of divorce. The Parti Quebecois government at the time was proposing that divorce become a concurrent jurisdiction, even though Quebec law would override federal legislation. As such, a province could exclude the federal Parliament from divorce if the province wanted to.
Finally, in 1985, the Government of Quebec said that the division of constitutional powers should be reviewed in order to grant Quebec exclusive jurisdiction over marriage and divorce.
This proposal was laid out in a document prepared for the federal government by René Lévesque entitled “Projet d'accord constitutionnel—Propositions du gouvernement du Québec”.
Obviously, Canadian federalism being what it is, the changes Quebec has called for are not likely to come about any time soon. Federalism is increasingly heading toward standardization and uniformity, rather than the other way.
As a result, in view of the fact that for now divorce unfortunately remains under the jurisdiction of the federal government, we will review the minister's proposal and we will endeavour to preserve Quebec's particular and specific character in the reformed legislation.
The immediate impact of this type of government initiative is certainly too important and will affect so many people that we must remain ever vigilant and, understandably, beware of the intentions of the Liberal government.
Bill C-22 proposes radical changes to the Divorce Act, by including a new approach to agreements reached between parents with regard to the children, one that is based on parental responsibilities.
Rather than issuing custody or access orders, the court will issue “parenting orders”, which will establish parenting time blocks, as well as decision-making responsibilities in such matters as health, education and religion.
The court will also issue “contact orders”, establishing the nature of contacts that the child may have with persons other than the spouses.
A detailed study of the proposed clauses in Bill C-22 indicates the nature of these orders. These two types of court orders are based on the notion of the best interests of the child.
The minister took the time to establish a non-exhaustive list of criteria that the court must consider. The enactment also makes amendments to the Divorce Act by anticipating questions related to the nature and scope of such support orders when the spouses reside in different provinces.
That was a brief overview of Bill C-22. As I stated when I began, the proposed legislative measures would amend various other acts presently in force. Of these, I would mention the Garnishment, Attachment and Pension Diversion Act.
This legislation will make family support obligations a priority, include powers of monitoring and research and provide for protection from liability.
In this regard, and I know that many of my hon. colleagues are aware of this problem, it is important to point out that there is an organization in Quebec defending the rights of second spouses. In fact, the Association des secondes épouses et conjointes du Québec represents the interests of women with regard to support orders paid to former spouses. According to this organization, many divorced women are abusing the current system by using support payments for their own purposes instead of making an effort to take control of their lives.
The existing Divorce Act does not set a time limit on support payments when the divorce is granted. These payments are, therefore, a type of lifetime pension which, being a “pension”, is indexed and can be revised.
Of course both parties may avail themselves of this right. However, if, for instance, an ex-husband requests a variation he is not the only one involved. The assets, income, insurance, and pension plans of his new spouse—married or not—all come into play. It is slightly different when an ex-wife requests a variation. Citing a difficulty of some sort, she can take advantage of the arrival of the new spouse to have her pension increased.
It is easy to see the potential disputes inherent in such provisions. I feel it would be wise to address this issue head on in committee, and to make sure that this problem is examined at length when Bill C-22 is studied.
It will be important to meet with the Association des deuxièmes conjointes, the second wives association, and its equivalent for first wives, and listen to what they have to say, to ensure that the committee makes a thorough examination of this problem that affects so many people.
Bill C-22, introduced by the Minister of Justice, also specifies some related and rather technical changes to the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act.
However, in amending the Divorce Act, one of the crucial elements of Bill C-22 is the inclusion of a list of specific criteria for parents, jurists, lawyers and judges, so that they will take into account the best interests of the child. The purpose of this list is to reaffirm and implement the basic principle of family law, which is that the interests of the child are paramount.
We would like to remove the terms “custody” and “access” from the legislation. A new model based on parental responsibilities will be developed to eliminate any connotation of winner-loser and any notion of possession that some people associate with these terms. According to the minister, this change will contribute to reducing parents' levels of conflict and stress and supposedly allow them to focus more on their most important obligation, which is to make sure that their children receive all the care they need.
The intention is certainly laudable, but it will not change the perception of parents, especially in such a conflict situation, that there is a winner and a loser in a court-decreed arrangement.
Whether the words access and custody are removed or not, the fact remains that the child, boy or girl, will have to spend x number of days with mom and y number of days with dad. Change form and wording as we may, it does not change the fact that one parent will have the child for a period of time and the other will have him and her of another period of time.
Cooperation between the parents will also be encouraged, but we must recognize that happy, amicable divorces are rare. Unfortunately, it seems somewhat unrealistic to want to raise the parents' awareness of their parenting responsibilities, and particularly of how they intend to carry them out, when a case is before the court and, all too often, the parties are communicating only through their lawyers.
It is well known how painful divorce is. Emotions run high, and this may get in the way of an amicable settlement between spouses.
Parents would be provided with the services of a mediator or lawyer to achieve the department's objectives. However, need I insist that this is an approach that has been favoured for many years in Quebec, Quebec once again showing its leadership in this regard?
Taking a step back and looking at the bill as a whole, we must recognize that the proposed amendments to the Divorce Act are not the revolution they were made out to be by the Minister of Justice. Without being overly pessimistic, one cannot rely on this bill to overhaul current legislation and its enforcement.
Where the interests of the child is concerned, the Bloc Quebecois has taken a clear philosophical position. In their dissenting opinion in the 36th Parliament, my colleagues also asserted their recognition of the principle of the best interests of the child. It read, and I quote:
—a child must not be the victim of conflicts between his or her parents, and the child's interests must not be confused with those of the child's parents or extended family.
The principle of the best interests of the child is not a new idea in law. It strikes me as appropriate in this connection to draw attention to subsection 16(8) of the current Divorce Act, which states the following:
In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
This does not strike me as much different or broader than what the minister is proposing today.
As well, the principle of the child's best interests is part of the philosophy of Quebec, and is moreover set out in section 514 of the Quebec civil code. It reads as follows:
The court, in granting separation from bed and board or subsequently, decides as to the custody, maintenance and education of the children, in their interest and in the respect of their rights, taking into account the agreements made between the spouses, where such is the case.
The courts have spoken on numerous occasions on these provisions and have, in connection with them, already established a list of criteria to which they refer when interpreting what constitutes the child's best interests.
The only thing that is new about this list of criteria is that it is now included in the law. What the minister has done is merely to codify existing criteria from the jurisprudence. This cannot be considered new law.
However, I will be pleased to share my views as to whether it is appropriate to enshrine it in the act. I wonder if this change will have the effect of setting criteria that will help determine the best interests of the child. Could this way of doing things have the opposite effect, that is restrict the judge's options? These are important issues that I intend to raise in committee, and I hope that we can get some clear answers.
I will follow very closely the work relating to the various legislative stages of this bill. I am especially looking forward to working in committee to examine and debate every aspect of the bill, and particularly the possible impact of the list of criteria regarding the best interests of the child, when these criteria are considered by the courts.
I mentioned this in my introduction, but I want to repeat it: in my view, this bill does not represent the innovative and revolutionary approach that the Minister of Justice would have had us believe when he introduced this legislation. Once again, the government has very little to show for all the promises it made.
In many ways, it seems that the only thing that has changed is the terms used for principles that are already recognized. The government uses some fine sounding terms which, unfortunately, do not reflect, far from it, the harsh reality experienced each year by thousands of couples or former couples.
Even though the terms custody and access are removed, the fact remains that, in reality, children will have to spend x number of days with their father and y number of days with their mother.
The minister argues that avoidance of anything suggesting winners and losers will help reduce the level of conflict and stress between parents. This is, theoretically, a step forward. In actual fact, however, it does not really do anything to change parents' feelings.
The legislative measures proposed are based on the model of parental responsibility. According to this model, both parents will be responsible for their child's well-being after separation or divorce. It is up to them first and foremost to decide how they will agree to fulfill their obligations to their child.
Should a major impasse occur, as for example when parents do not manage to reach agreement or in cases where there is a high degree of conflict or family violence, the court will in future issue a parenting order setting out the responsibilities of each parent. In my opinion, this reflects the way the courts are already handling the cases submitted to them. Despite the minister's claims, we wonder about the true impact of this change in terminology.
Before I end my remarks, I have a duty to raise one other important aspect of the minister's family justice strategy, namely the unified family courts.
When the new child-centred family justice strategy was announced, the Minister of Justice announced the expansion of the unified family courts. According to him, these courts will improve outcomes for children and families through the following advantages: a single place with jurisdiction over any matter of family law, ready access to a full array of family justice services, specialist judges who are experts in family law, and a user friendly environment with simplified procedures.
I would remind those listening that the Bloc Quebecois spoke out in its dissenting opinion on the December 1998 joint committee report against one recommendation that:
—the federal government continue to work with the provinces and territories to accelerate the establishment of unified family courts, or courts of a similar nature, in all judicial districts across Canada.
It is still clear to the Bloc Quebecois that the Quebec government does not endorse the unified family court. The reason is quite simple, since the approach currently favoured by the federal government is to grant jurisdiction for all matters pertaining to family law to the provincial superior court, for which the judges are appointed by the federal government. Quebec would rather combine all jurisdictions in this area under the Quebec court, which would, naturally, mean amending the Constitution.
In this regard, I would remind all my hon. colleagues that, in terms of the unified family courts, civil law and the administration of justice are the responsibility of Quebec and the provinces. I believe that it would be appropriate, however, since the federal government has announced increased funding for the unified family courts and since Quebec does not wish to set up such courts, for Quebec to receive its fair share of the federal funding to deal with this matter in its own way, according to its character and specificity.
That, then, as an introduction, is the position that the Bloc Quebecois will defend throughout this legislative process. We strongly hope that the government will hear our point of view and understand the scope of our line of reasoning, the first cornerstone of which is the fact that all family law, including marriage and divorce, should be under the jurisdiction of Quebec and the provinces, should they so wish. This is the basis of the Bloc Quebecois' philosophical and political action. It is, naturally, on the basis of this philosophy, on this solid basis, that we will base our action in Parliament when the time comes to take other positions on Bill C-22.
