Madam Speaker, it is an honour to speak on behalf of the children and on behalf of the many parents and families who go through the great tragedy of separation and divorce and see their families being divided.
I want to look at two or three of the committee recommendations and glance at the UN resolutions before I get into the legislation itself.
The committee recommended that the Divorce Act be amended to include a preamble alluding to the relevant principles of the United Nations Convention on the Rights of the Child. I looked to see what those might be and I found article 3 of the Convention on the Rights of the Child, ratified in 1991 by Canada, which states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
I am aware that phrase was in the divorce code even before these revisions and it has not helped much. It is good to know there is a stronger focus on that now. We agree with that idea.
Article 9 states:
States parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
We must keep that in mind.
The committee also recommended that the Divorce Act be amended to repeal the definition of custody and to add the definition of shared parenting that reflects the meaning ascribed to the term by the committee. The Minister of Justice has insisted on ignoring this recommendation and still does not want to discuss the real meaning of shared parenting. The change recommended by the committee indicated more than simply a change in terminology.
I have to ask, have members been there? I do not necessarily mean have they been there personally, but have they been there with more than just a personal issue? Were members there when parents moved from the happiness of their marriage into a time of debate and quarrelling and battle? Were members there to calm and encourage and help parents? Were members there when that was not successful and the parents went to court? Are members aware of the things that happen within the courtroom? Have members been there? I dare say a large number of members have not been there in that capacity.
I have been there in all of those cases. I have seen it in my own family. I have counselled many families who have gone through this. I have sat in the courtroom and heard the verdicts. The Divorce Act is in bad need of repair. We believe the repair being offered today falls short of what is needed.
Who is impacted by the ongoing injustices imposed by the courts in the present adversarial winner takes all approach? Every child and every parent who goes through that situation is impacted and it does not end there. There are thousands of grandparents across Canada who have been cut off from access to their own grandchildren. They cannot see them. Maybe they see them on rare occasions but in a number of cases there is no occasion at all. When that happens the grandparents are severely impacted. I can also speak to the bill from that aspect. I have grandchildren who have suffered through divorce. I know how badly they are impacted.
The impact goes on, not just for the wife and husband who go through the breakup, the separation and divorce. The judgment is so often the final spike in the heart of that couple. It goes on to perhaps another family when the mother or the father establishes a new relationship in a new home with another family perhaps. Other ingredients are added. The impact goes on and on. The innocent party in the new relationship often is put through agony because the new spouse is being driven into the ground or is agonizing over the loss of contact with children from a previous marriage.
It does not end in the courtroom. If only it did end in the courtroom. Even though the parents get divorced, the relationship between them does not end; it changes drastically but it does not end. We must especially remember that parents do not divorce their children. There is a relationship and we need to be extremely careful in how we handle it. There needs to be an ongoing relationship between the children and their mother and father and their grandfathers and grandmothers. That needs strong consideration.
We are talking about the best interests of the child in the legislation and let us leave that as the top principle. I agree with that. But let us also realize that we have a responsibility to the mother and the father to do the best we can to assist them through that traumatic time in their lives and see a proper outcome.
Subclause 1(1) of Bill C-22 states:
The definitions “custody” and “custody order” in subsection 2(1) of the Divorce Act are repealed.
That is wonderful news in itself but as I look at Bill C-22 very carefully, although the wording has changed, I do not see the veil yet removed. I see the same things simply said in other words and in other terms. We are going to see the same thing continue to happen. We could have done a better job of making that clearer. In fact, just today the Minister of Justice in his presentation said that the government could not accept the concept that one parenting arrangement was better than any other.
Well, I suggest and I dare any member to argue with it, that there is one parenting arrangement that is better than any other and that is to have a child with its natural mother and its natural father in a happy relationship. The Canadian Alliance would have been laughed out of this place had we made a statement like that, that there is not a situation that is better than another. There is one.
We can look at the statistics across the land and across North America as a whole and find the awful tragedy that is imposed upon fatherless homes where there is only one parent. I am sure there are also tragic statistics for the family that has only the father in the home. I believe that we are made in such a way that we need the influence of our mothers and our fathers in order for us to develop to our greatest potential.
The minister said that the government could not put shared parenting in because it would lead to confusion. We are already confused. This act as is has led to confusion. Even though it talks about the best interests of the child, we are confused because no one seems to be really concerned about the best interests of the child. The child is shuffled off to one side or the other, whichever way the judge perhaps feels is the expedient thing to do. I can think of cases where this was not in the best interests of the child, but was for the convenience perhaps of the court.
One thing that is put forward in the new bill is parenting orders. Again, even though these new terms do not say custody, they are still veiled and weighted. Let me read subclause 16(1):
A court of competent jurisdiction may make an order relating to the exercise of parental responsibilities in respect of any child of the marriage, on application by
(a) either or both spouses;
Then it goes ahead to mention other people. It says either or both spouses.
I agree that my education, experience and background is a bit different than the norm in this place, but I remember something from when I studied theology. There is a principle when one is taught how to study the Bible that the first mention of something is always the most important thing to consider in considering a matter. Ladies may have a little trouble relating to this because when they go into a store it is never the first article they see that they want to buy, at least not until they have checked the rest of the mall. Men like to go into a store, pick out the shirt on the first rack that fits and buy it. We are attracted many times to the first thing we see.
Subclause (a) says either or both spouses. I think we could have had a little stronger language. Maybe this is a small point, but perhaps it should have said that a judge could write the order to both spouses or to either. I think we should at least imply that the first order of things should be to consider these spouses in an equal manner before the court.
I suggest that one of the reasons there is so much confusion around the term “shared parenting”, and there is not as much confusion as the hon. minister implied, is because there are those who have attempted to ensure that there is confusion and that it is obscured. There are those who have run the idea that shared parenting would dictate that every couple that walked into a divorce court would get fifty-fifty time with the kids and the kids would have to shuttle back and forth. That is not the idea that most would have on shared parenting.
When parents walks through the courtroom door, it is a real tragedy of justice when the judge, with the entry of those people, has already made up his mind on his verdict, as recently told in one case in Saskatchewan. The judge literally slept through the divorce proceedings and at the end made his ruling. That is a travesty of justice. That happened only because he already knew what would do, which was the same thing that he had been doing, and on and on it goes.
Parenting orders is a good change from custody but at the same time we need to understand that the parents need some sort of equality until it is demonstrated that one of the parents in their relationship would bring harm or has brought harm to the child in the past.
The legislation talks about parenting time. It talks about the time they spend with other people. I want to read subclause 15(5). It states, “The court may, in an order under this section, allocate to either spouse or to both spouses”, and there is that wording again “either spouse” or by a wild change maybe to both, “any combination of those individuals, parenting time, responsibilities for making major decisions”. It goes to say that they would be responsible for making other kinds of decisions. I think we are starting to get the point that responsibility for making decisions can be assigned and divided under this.
First, it says that parenting time is something that they can order by way of a schedule. I looked at that and I realized there has never been an adequate way of enforcing, encouraging or handling the time schedule. Yes, some of the court orders read with wonderful terminology. That I cannot deny. It all looks good on paper, but when one parent is given the run around week after week, shuttled to the end of the line, shuttled to the end of the month and then shuttled to another month and not allowed to have decent time spent with their own children, something needs to be in the legislation as to how the breaking of that order can be enforced, because the failure of the paying parent to pay can be enforced and that is done quite readily. There are contact orders and also guidelines under that.
The legislation talks about ensuring that we do it in the best interests of the child. The court shall take into consideration only the best interests of the child. Perhaps we understand that is the highest, but I think we need to mention also the inherent rights of the child and perhaps even of the parents.
One thing that has improved is the putting in of the list of criteria that the judge needs to consider to determine the best interests of the child. However, as we look at this, there is no guidance given or indication that a disqualification in any of these categories has to be proven. It can only be alleged and that is all that is required. Because it does not have to be demonstrated that it would not be helpful, it leaves it very vague.
The legislation talks about including the child's cultural, linguistic, religious and spiritual upbringing and heritage, including aboriginal upbringing and heritage. For one thing, why do we single out one race? Whose heritage? Whose religion and whose culture?
We are leaving so much up to the judge that I am afraid the adversarial system of the past will simply be passed on. I am afraid we will continue to disengage some who will not go to court, or will not pursue the interests of the child, or will not pay or will not be responsible. I would suggest the reason so much of this happens today is not so much because we have deadbeat parents, or deadbeat dads or deadbeat moms, but because the court system, in the way it has interpreted this past legislation, has issued radically unfair and not charter proof rulings. I do not think this legislation will keep that from continuing to happen.
