Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 19 - Evidence - Afternoon sitting
OTTAWA, Wednesday, January 29, 1997
Upon resuming at 1:30 p.m.
[English]
The Chair: Honourable senators, before we hear from our witness from the Support for Children - Organization for Public Education, Senator Phillips has a motion to present.
Senator Phillips: Madam Chair, I move that membership on the Subcommittee on Veterans Affairs be increased from five to seven members.
I would also move that Senator Jessiman be the minority addition. He was with us in Charlottetown. He is a very valued member. In addition, he is a veteran of the Navy.
Senator Losier-Cool: I agree with that.
The Chair: Senator Phillips has moved that the veterans affairs subcommittee be increased from five to seven members. He has also recommended that Senator Jessiman, from the opposition side of the house, be one of the members. That would mean that the Liberals would appoint their own.
On the motion that we increase from five to seven, is there any discussion?
Senator Bosa: Madam Chair, we were unprepared for this. We do not have a name to propose now, but I do not suppose there is objection to the increase in numbers.
Senator Phillips: The name can be added at any time.
The Chair: Is it agreed?
Senator Bosa: I should like to hear a comment from the chair of the other subcommittee. What does Your Worship think of this?
Senator Bonnell: As the deputy chair of that committee, I would say that this is a new item; it is not on the agenda. Senators were not informed beforehand, and, therefore, we should not be voting on it without receiving notice of the motion in the meeting agenda. The people who want to vote could then have time to think about it and attend and vote.
The Chair: We have a meeting on February 4. Perhaps we could entertain the motion at that time.
Senator Bonnell: The proper thing to do is to put a notice on the Order Paper and deal with it at that time. However, I would be prepared, as the deputy chair of the veterans subcommittee, to support my chairman Senator Phillips' motion. It would be more proper to wait until we receive the proper notice that this will be considered.
Senator Phillips: On February 4, I will having minor surgery. That is why I would like the matter considered now.
Senator Bonnell: Under those circumstances, since he will be in the hospital that day and cannot be here to make the motion, I will agree to the motion today. We will put our Liberal member on on February 4.
The Chair: Honourable Senators, is it agreed?
Hon. Senators: Agreed.
The Chair: The motion is carried.
We return to Bill C-41. We have with us Judy Poulin.
Ms Judy Poulin, President, Support for Children - An Organization for Public Education: With me today is Barb Thompson, a family law lawyer in Ottawa, and she is an advisor to our organization, and Wendy Byrne, vice-president of our organization.
My name is Judy Poulin. I am founder and president of Support for Children - An Organization for Public Education. SCOPE is a non-profit group committed to changing attitudes on the responsibilities of parents after separation. I am speaking today on behalf of SCOPE's 3,000 members for whom child support is the key issue.
We appreciate the hard work and difficult issues which have been addressed by these guidelines. During the past six years that we have been involved with guidelines, we have been aware that a wide range of groups representing all sides of the issue have been heard and have contributed to the guidelines.
The guidelines represent a compromise for every group which has had input into them. It is important that the initiative be given effect and that the guidelines and changes to the Divorce Act and the Income Tax Act be implemented on schedule.
I should like to briefly describe my personal situation, as I feel it is representative of that of many of SCOPE's members.
When my ex-husband and I separated, I had two young boys, ages six and four. I was four months pregnant. Since we had decided I would stay home to raise our children, I had not worked in five years and had no way of supporting myself and my children. My ex-husband had his own business and was paying child support whenever he felt like it.
Shortly after the birth of my third son, I went to college to earn a degree and quickly found full-time work. My parents looked after my children while I went to school and fed us many times when my cupboard was bare. Had it not been for the help of my family, my life would have been much more difficult. My family kept me off government assistance and out of food banks, even though it was not their responsibility to so do. They helped me raise my children in a positive, caring environment.
Fourteen and a half years later, I am remarried. My boys are 20, 18 and 14, and I am very proud of my children. Even though we went through rough times during those years, they have never given me any reason not to be proud.
I am also proud of the fact that I never stopped my ex-husband from seeing the children when many times it would have been so easy to say, "You cannot see them unless you give us the money that you owe."
My children never question why they were not allowed to see their father, because they were. They do, however, question why their father and his new children live at a higher standard of living than they do and why he still seems to have trouble paying support.
I recently lost my job due to downsizing. As a family, we have had to cut back on our expenses. At the same time, my ex-husband says his business is not doing well. I continue to cover the children's expenses from my limited resources. My ex-husband has decided not to pay his support. Once again, the sole financial responsibility for our children falls on my shoulders, as my ex-husband chooses not to contribute. My children continue to see their father.
My circumstances are far from unique and are, in fact, representative of many of the issues facing our membership. These guidelines will help our membership in three ways: Consistency of awards, reducing tension and conflicts between parents, and providing flexibility for significant expenses.
Guidelines are needed to improve upon award levels and to provide more consistency in awards. These guidelines provide a fair starting point for support.
It has been clear for a long time that the status quo of inconsistent and low child support awards had to be addressed. It is well documented that most children experience a substantial decline in their standard of living when their parents live apart.
These guidelines have started to have a positive effect of increased awards, as some courts are already referring to them. Once they are implemented, all of our children will benefit by them.
One of the main reasons for implementing guidelines was to ensure that children from separated families receive support from both parents according to their means. Guidelines will reduce tension and potential conflict between parents by basing the amount of support on a standard table with certain specific add-ons for defined expenses. The guideline approach will thus take child support off the bargaining table in most cases. This will allow security for our children and let parents work on the more important issues of raising children. Anything that can reduce tension will provide more time and space for parents to work on parenting issues. Defusing the animosity around the amount of support will provide a firmer ground to work on visitation and access issues.
Guidelines should save parents money when it comes to legal fees. At present, without guidelines, most of our members tell us that too much money is spent on legal fees due to the excessive amount of bargaining which now exists. This money would be much better spent for more important things like savings and children's education.
The guidelines are flexible, not rigid. Important expenses not covered by the basic table amounts -- such as child care, post-secondary education expenses, and extraordinary expenses for health and extracurricular activities -- can and should be shared by both parents in proportion to their means. When a large medical expense like orthodontia becomes necessary, it should not be borne by the custodial parent alone, as is often the case now.
The same analysis applies to extraordinary school expenses such as remedial tutoring or religious education which, although few families incur them, can be very substantial. School activities, sport uniforms, locker rentals, choir and band expenses, and driver education fees are expenses associated with teenagers. Currently, custodial parents tell us that these expenses generally fall solely on their shoulders. Given the current trend of cutbacks to education, we will be required to bear more of these types of expenses in the future. It is, therefore, important that we address them within the context of these guidelines.
SCOPE is aware of the issues raised by non-custodial parent groups. One issue which seems to be raised frequently is problems with access. Yes, there are some concerns surrounding some parents' access to their children.
Our membership asks how to deal with a non-custodial parent who does not exercise their right to access. We know of hundreds of custodial parents whose children wonder why they are not seeing their other parent regularly or why they seem to be pushed aside when the non-custodial parent has something better to do.
Many times over the years I was tempted to deny access to my children's father when the support was not paid. It seemed like the only leverage that I had. However, I recognized that support and access were two entirely different issues and that two wrongs do not make a right. Even if we had to struggle financially, the children still needed a relationship with their father. The majority of SCOPE's members tell us the same thing. They want their children to know their dads.
We acknowledge that there are legitimate concerns with custody and access; however, it would be impossible and impractical to address them within the context of this bill.
Another concern raised by these groups is that guidelines will increase existing child support payments.
One of the initial reasons for the creation of the guidelines was to provide more adequate support for our children. Statistics tell us that, after separation, many non-custodial parents have the same or a higher standard of living as they had before, while custodial parents and their children tend to have a lower standard of living than they had before the separation. We believe that these guidelines will provide a fairer and more consistent means of providing support for our children than now exists.
Yes, SCOPE has some concerns with the guidelines. For example, at certain income levels, the amounts of support seem low. Even after add-ons, if strictly applied, they will not account for the differences in ages and increases in expenses for different-age children. For example, they will not account for the cost of raising teenagers. However, we believe that our concerns are best dealt with by way of ongoing reviews and monitoring of the guidelines.
Will guidelines work in all cases? Of course not. The courts will continue to have the discretion to deviate in appropriate cases, as with the undue-hardship rule. However, this rule must be strictly applied to protect the standard of living of both households, with the children's standard of living given the highest priority. Provided the undue hardship rule is restricted to the minority of cases that are truly unusual, we believe the guidelines as written will meet their objective, an objective which SCOPE endorses.
It is important that this committee be aware that, over the last seven years, many hours have been dedicated by SCOPE's members and myself to child-support issues. Even though I have participated in many conferences and presentations, I sometimes feel confused by the complexities and technicalities of this issue. Imagine how those parents who have not had the same exposure feel when they are required to respond to these issues which directly relate to and affect them. They simply are overwhelmed. I speak for SCOPE's members who do not have the time, the energy, or the courage to do so themselves.
The benefits of guidelines must be appreciated, and the guidelines must go forward. All other countries that have implemented guidelines have been required to fine-tune them as they went along. We must be prepared to do the same. The guidelines must be monitored and the necessary adjustments made to them as needed.
The time to implement these guidelines is now. Our children have waited long enough for adequate support from both parents. SCOPE has come before you today because we are concerned that this bill may not pass. Yes, there are minor problems with the guidelines; however, we have been assured they will be closely monitored and adjusted on an ongoing basis. During the past six years, many hours of consultations and research has been done by many groups, agencies, organizations and individuals.
No, this bill is thought perfect. It would be wonderful if we had perfect bills which made everyone happy. However, your main certain with the implementation of this bill should be our children. Please ask yourselves whether these guidelines will improve the lives of the majority of our children. We believe that you can only answer "yes" and allow this bill to pass.
Thank you for your time and for listening to me today.
The Acting Chair (Senator Losier-Cool): Thank you. Your children are very lucky in having parents who realize that support and access are two different things. It is to the benefit of your children.
Ms Wendy Byrne, Vice-President, Support for Children - An Organization for Public Education (SCOPE): I have been working with Judy on this issue as well for five or six years. During that time, I also put myself through law school. I am the mother of two children and am now a family law practitioner. I strongly agree with what Judy has been saying today.
These guidelines have been a long time in the making, and a great deal of thought, time, effort, and consultation have gone into them. I believe that they are the best possible at this time. It is now time for them to be put into place and put into the courts, and the fine-tuning can be done as reality comes into play. Whatever discrepancies arise can be dealt with on a factual basis, as happens with other bills and laws.
Senator Forest: One concern which has been expressed by a number of witnesses has been that there is no provision for other than the 50/50 time spent. There is no provision giving the non-custodial parent some recognition for expenses which might be incurred if they have the children for a significant amount of time, which is not necessarily 50 per cent. Would you care to address that, or have you had concerns expressed about that?
Ms Poulin: The majority of people do not have 50/50 custody. One of the reasons for couples separating and divorcing is disagreement on issues around raising children. Another one is money. There are many different reasons.
In order to have a situation where children live 50/50 with both parents, both parents must live in the same area, the children must be able to go to the same school, and so on. It does not happen often, but it does happen.
There is discretion within the guidelines to deviate when you have the actual situation. However, if you are referring to someone who buys his child a bike at his home because the child is there every other weekend and maybe one day through the week and we say, "Okay, we will give you credit for buying the child a bike," we run the risk that perhaps at the home where he lives with his custodial parent there will not be enough money to buy food. Who will decide that that bike was necessary? Yes, the non-custodial parent spent the money on the bike, but will we take that away from that support amount?
If you consider giving credit for time spent, you must look at both sides. I raised my children. I lost job opportunities because I was the one who had to be there for them. I would not have changed it for the world, but I am saying that you must be prepared to look at both sides of the coin. How much time is the custodial parent spending? How much credit will we give her? Do we consider the fact that she buys birthday presents and Christmas presents? All those things must also be considered.
To be fair, if you create that type of system, you should be prepared to consider both sides. It would be too difficult. It would be beyond the scope of anyone's ability to do that.
Senator Forest: Many people would agree with that. However, others have questioned it, and I wondered what your response might be. Thank you.
Senator Losier-Cool: Did your organization have the opportunity to present your views on the guidelines in front of a committee of the House of Commons?
Ms Poulin: Yes.
Senator Jessiman: Are any of your members part of the Federal-Provincial-Territorial Family Law Committee?
Ms Poulin: No, we are not.
Senator Jessiman: Do you know of that committee?
Ms Poulin: Yes.
Senator Jessiman: It represents federal, provincial and territorial people. Did you know that they issued a report in January, 1995?
Ms Poulin: Yes.
Senator Jessiman: Did you know that, in that report, they recommended that where custody arrangements provide that each parent has physical custody of, or access to, the child for at least 40 per cent of the time, the court should have the discretion to depart from the formula amount while considering the increased costs of such arrangements and the actual distribution of expenses between the parents?
Ms Poulin: Yes.
Senator Jessiman: Do you agree with that?
Ms Poulin: Yes, I do.
Senator Jessiman: The guidelines do not provide for that.
Ms Poulin: I believe the regulations will.
Senator Jessiman: I am telling you they do not. Are you a lawyer?
Ms Poulin: No.
Ms Barbara Thompson, Legal Counsel, Support for Children - An Organization for Public Education (SCOPE): Perhaps I could speak to that issue.
It is my understanding that the wording in section 7 of the regulations does address your concern.
Senator Jessiman: No, it does not. It says nothing about 40 per cent. It says "in a substantially equal way."
I asked officials from the Department of Justice what that meant. They said it is 50/50. The committee representing both the provinces and the feds indicated 60/40, which is what we are recommending. However, this legislation and these guidelines do not provide for that.
A number of people who appeared before us said this was unfair. Obviously, it is unfair. It will encourage people to not parent their children. We are trying to encourage people to parent their children and spend more time with them. If they are to do that, it will cost them money.
I know of instances where people have two homes with a room for each child in each homes, and it costs money for both of them. There should be some consideration in that regard, and the committee thought so as well.
Ms Thompson: I suppose at some point one has to draw a line.
Senator Jessiman: The committee suggested 60/40, and these guidelines indicate 50/50. An expert on mediation told me that, to start with, it is probably not a good idea to have a 50/50 split. You might work up to it. Initially, it may be 30/70 or 40/60. That will encourage the non-custodial parent to do part of the parenting of the child. If the non-custodial parent does that, it will cost money, and the non-custodial parent should given some credit for it.
Ms Thompson: I certainly acknowledge your concerns. The guidelines were established under a number of assumptions, such as the 40/30 equivalent scale, which assume, in part, that both parents have equal incomes. We all know as a reality that that is not the case.
The guidelines are numbers. We have something to work from. As Ms Poulin mentioned earlier, we should try them to determine if they work.
Senator Jessiman: It will be difficult. They will cause more problems than they solve.
Senator Cohen: We have heard many witnesses speak about mediation. We feel that mediation is not addressed in this bill and that mediation should be emphasized as a first step when there is a marriage breakup.
Do the members of your organization avail themselves of mediation before, or is it a crisis situation and you go right to the courts? It becomes very adversarial; it is like a war.
Ms Poulin: Personally, I did not go through mediation. I talked to some of our members who have, and they said it was terrible. It was not a process they enjoyed. They found that the person was not fair, and they did not get out of it what they thought they should. They ended up in court anyway.
Mediation will not work with everyone. It is an oxymoron to believe you can force people to mediate. If you do not want to mediate, it will not work. You must be prepared and willing to do that. In a divorce or a separation, there is a great deal of animosity to begin with. I am not sure that mediation will work in many cases.
Ms Thompson: A section in the Divorce Act discusses the importance of mediation. As a person who only practices family law, I would say 40 per cent of the people who come into my office do some mediation directly on custody or property and support issues. It is something which ought to be carefully addressed with every separating person. To go to the next step and make that mandatory may not meet the unique circumstances where there has been violence or an extreme power imbalance within the relationship.
Senator Cohen: Did you find the 40 per cent who availed themselves of mediation were less adversarial when they came to your office? Was there a difference in attitude as a result of it?
Ms Thompson: Some angry people use the mediation process as a way of letting off steam. I am not saying that only people who are getting along are prepared to request mediation; however, one must be prepared to sit in the same room and go through some painful, emotional stuff with the person from whom they are separating.
The Chair: Sometimes we feel that any means available to keep the family intact should be considered first. That is important.
Senator Cools: I wish to add something to a profound point the two witnesses have made. Whether it is mediation or counselling, so often the success of these processes are a function of the skill of the individual practitioner, and sometimes more so than the predisposition of the parties.
I am hearing you say that the failure was in the person rather than the process. Is that what you are saying?
I ask that question because all you hear now is the phrase, "Go and get counselling," as though counselling is akin to an injection. When you work in this business, you can search hard and long to find skilled people who can manage these problems.
We hear of the advantages of mediation and counselling, but we never hear of the success rate. How many people go through the process and fail? We do not hear much about that.
Ms Thompson: Of my clients who go, I would say probably 70 per cent settle during mediation.
Senator Cools: That is excellent.
Ms Thompson: Of the remainder, many get closure through negotiation; some go ahead and litigate.
Senator Cools: You are saying that the process of mediation is definitely useful and helpful. That would be my perception as well.
Ms Thompson: It is useful if it is encouraged with people who are prepared to do it.
Senator Cools: Yes. The persons must be prepared, but they also must have a skilled and good practitioner. I appreciate that.
The Chair: I thank you for appearing before the committee today. You are our final witnesses before we meet with representatives of the Department of Justice and begin clause-by-clause consideration of this bill.
Our next witnesses are from the Department of Justice. Would you please introduce your colleagues, Mr. Thompson?
Mr. George Thompson, Deputy Minister, Department of Justice: I am pleased to be here. With me today are Carolina Giliberti and Murielle Brazeau. They have been major leaders in the development of this policy over the last several years, and they are here to answer your questions as well.
The Chair: They have been here consistently listening to the witnesses as well.
Mr. Thompson: I have a few things to say, and then I will be available for questions.
I am obviously here today in my role as deputy minister. The bill with which you are dealing is one in which I have a very special interest because my background has tended to be in the area of family as a former family court judge, professor of family law, chairman of a review of social assistance in Ontario, and head of children's services in Ontario. This law is relevant to each of those roles.
Bill C-41 represents several of the good trends in terms of the way government laws are developed in this particular area. Overall, it represents an attempt to give guidance to decision-makers on a very difficult issue, namely, that of child support, while at the same time preserving discretion for exceptional cases. It is that balance between more predictability but some discretion for exceptional cases that is the key part of this bill.
This bill is also a product of cooperation among government departments and between the federal government and the provincial governments. In fact, it has been a six-year effort. The work between the federal government and the provinces to pool research funds, to develop a child support formula, to consult together on that formula, to do the solid economic research on family expenditures on children, and then to reach a consensus on an approach to take with respect to the formula's application to child support cases and when you depart from it has been a joint effort.
Much close work has occurred within government because the guidelines are one part of an overall package which contains the three elements key to child support and its effectiveness: the amount that should be paid, the enforcement of that award, and the application of tax laws to those awards. It takes the three elements together to make a package which works. The fact that they are there makes this a particularly good reform effort.
Bill C-41 has also been the product of extensive consultation with all stakeholder groups. We went out at least three times with proposals in this area over several years. Hundreds of submissions were received, and over 8,000 copies of the original report were distributed, as were large numbers of each report and set of proposals since them. There has also been an enormous amount of work to prepare for the implementation of the bill.
The announcement was made last year in a way designed to link these three changes and have them come into effect at the same time so that one integrated package would come into effect 14 months later, which is May 1, 1997.
The package works when the three parts come together in an integrated way. Although there are several reasons for that, the most important one is that it ties to the unique nature of family law reform work. Everyday, people are negotiating their family law disputes. When law reform is approaching, the upcoming law begins to factor into the decisions that are being made. There are hundreds of cases of people reaching agreement on the terms of their separation and divorce which now anticipate May 1 and say, "This is what the rules will be up to then; these are the rules afterwards." We knew that they would be doing that, so we adopted our approach last spring.
If the bill is delayed and there is a further major alteration to the entire approach, much of the benefit of that attempt at coordination would be lost. The tax change would occur without the benefit of the implementation of the guidelines, and the absolute right for those with existing orders to return for variation because of the changes in tax laws and guidelines would be justified.
The province of Quebec has already passed legislation to introduce their own guidelines, which is permissible under the act. They have set that up to coincide with the May 1 date.
Without guidelines, those with existing child support orders would have real difficulty determining whether they should return to apply for a variation of their orders based upon the tax change. If we do not build on this national consensus -- and the experience in the United States bears this out <#0107> the provinces will go their own way. Some will adopt guidelines, some will not. Some will go the approach of the proposed federal guidelines; some will not.
The guidelines will only apply to provincial applications for support, not to applications under the Divorce Act. People who are seeking support on the way to divorce, under provincial law, will have the same rules applied to them when they seek a divorce. This is preferable to having two different approaches to the issue of child support at two different stages. Without guidelines, the incentive of national consistency, which is a real ideal strengthening the cooperative approach we took here, would be lost.
In analyzing the proposed law, it is important to begin with one major decision. Do we maintain the status quo, which gives broad discretion to decision makers, or do we introduce guidelines to produce more predictability in the vast majority of cases? I believe the latter is the right approach -- like treatment of like cases and having some predictability and encouraging settlement -- for reasons which have been discussed a great deal before this committee. People can see what the result will be other than in unique cases.
The best approach is the one that we have taken, which is to introduce the concept, make our best efforts to develop a set of guidelines which try to meet the various goals and needs that people have identified as we consulted with them, to respond to those as best we can, and then to monitor implementation through a comprehensive research plan. We must then be prepared to adapt them, as necessary -- not on a five-year basis when you do the overall fundamental review, but, as experience elsewhere would show, on an ongoing basis.
You must learn from the cases which apply them at the beginning and be ready to adapt the guidelines as required. We are establishing an advisory committee of experts from across the country to help us with that feedback. We have a major research effort to learn as we go. The federal-provincial task force will continue, and then there is the five-year overall review of how the guidelines have done. The technique is to develop a model through which you try your best to respond to the desires of people from different perspectives. You learn as you go from there.
All governments and groups have had an impact in some way on these guidelines. The result is, as you probably know better than most, that no group is completely satisfied, whether with respect to the amounts the guidelines produce or how particular issues are addressed. Each would have done a number of things differently if they had sole control of forming these guidelines. However, most of them have put aside their own particular preferences in favour of the goal of national consistency and have coalesced around the model that we have developed.
There is a recognition in the literature that there is no one perfect model. There is debate about one model versus the other, some of which you have heard. Each model has its strengths and weaknesses. There are unique issues such as how to recognize access, what are second families, and what are unique circumstances. Those are tough issues, and the answers we reach are a compromise. You then learn as you implement the guidelines.
We have had the advantage of trying a number of models, receiving feedback, and then responding. We continue to do that. We have brought to you today the most recent and up-to-date draft of those guidelines responding to feedback we have received. We have made some variations over the last few months in response to things we have learned from outside experts, from this committee, and from others.
Some of the things we have changed respond to issues which were raised here. One example is how to approach joint custody. Professor Finnie has raised this, and we have responded in a way which would please him.
We are continuously adapting the guidelines, but this process has produced more consistency and consensus than would otherwise have been possible. All the provinces are now prepared to implement guidelines. Most of them, although not all, are prepared to implement this set of guidelines. They are all prepared to work with us to learn from the experience.
The opportunity for national consistency in the United States was lost when each state went its own way and adopted the guideline model it preferred. A recent national commission on enforcement of child support orders in the United States acknowledged the usefulness of one uniform set of guidelines rather than a different approach from province to province.
I should like to address two or three concerns and questions you have raised about the bill and the guidelines.
You point out that Bill C-41 eliminates the objective statement in the act with respect to child support presently contained in subsection 15(8). We have not eliminated that objective. That objective still exists, and it is important. We have moved it from that section down to the introduction to the guidelines themselves because we are moving out of the broad discretion approach in section 15 and moving to guidelines. Therefore, the principle must apply in the guidelines as opposed to section 15. It is appropriate to move it down. If we did not, we would risk having it look as though there are two approaches -- the broad discretionary approach in section 15 and the approach of the guidelines. There would be a risk of having judges pick one or the other, which would create the very kind of uncertainty that these guidelines were designed to avoid.
All models of guidelines are based on the principle that each parent has a financial responsibility to support their children and to contribute in accordance with their means. The first objective which I have just set out is the first provision of the guidelines. It indicates that the objective of these guidelines is to establish a fair standard of support for children which ensures that they continue to benefit from the financial means of both spouses after separation. That is an essential part of all sets of guidelines that have been introduced.
The tables only establish the contribution of one parent, which is what child support laws do generally. They establish what the non-custodial parent will pay. However, that is in no way intended to represent the total expenditures on children. Custodial parents must make up the difference, which represents a similar proportion of their income under the approach that is taken.
A number of committee members have expressed concerns about the definition of "child of the marriage" in the act. This new definition makes explicit reference to the pursuit of reasonable education. I do not think that removal of that reference would preclude the court from doing what it often now does, which is to award child support to children over the age of majority who attend university. Existing case law does that, and this was intended to reflect that existing case law.
Senator Jessiman: Is it not true that some of the provincial statutes dealing with that sort of thing include words which allow the judge to interpret other statutes than the Divorce Act? The maintenance act statutes under provincial legislation have words which allow judges to do that. In the alternative, perhaps it is the words in the present act which list the various things or other cause. If that is what they are using, we would want that out as well.
Mr. Thompson: I cannot speak for all the provincial acts because I do not know them all, but the provincial laws do not apply in the situation in which this act applies. The provincial law applies when you are seeking support outside of divorce -- for example, in a separation. It is possible that some of those laws do not recognize post-secondary education as a factor. For all I know, there may be some which limit access to that.
If the provinces adopt these guidelines, that will change. Whatever the provincial laws say, this law applies once they apply for divorce. The judge cannot look to the provincial law; he must look at this law.
Senator Jessiman: Has that been interpreted by the Supreme Court? Section 91 of the BNA Act provides that the federal government has jurisdiction over marriage and divorce. Has that been interpreted to mean consequences of divorce as well in respect of payments?
Mr. Thompson: Yes. Corollary relief, as it is called, custody and support, have been interpreted as being part of that power.
Senator Jessiman: Is that by the Supreme Court?
Mr. Thompson: Yes. A court could decide to make no award of custody and support on a divorce. That is rarely done because it is unclear whether the provincial award would survive divorce. It may not, so they deal with it in the divorce. There is no question that it is within the constitutional authority of the federal government.
Senator Jessiman: If the federal Divorce Act conflicts with the provincial act, it has been interpreted that the Divorce Act takes precedence?
Mr. Thompson: Yes. The Divorce Act would take precedence on the divorce itself.
Senator Jessiman: I am not referring to the divorce itself but to payments as a result of the divorce.
Mr. Thompson: I think we are in agreement. The payments occur after the divorce takes place, but the decision about what the payments will be is made at the time of divorce. It is possible that a court could say nothing on the divorce. In that case, the provincial legislation might apply. There is debate about that. However, the established practice is to deal with support and custody at the time of divorce. That award continues after the divorce and remains valid. If you want a variation, you must come back under the Divorce Act.
Senator Jessiman: Has the Supreme Court said that whatever the judge awards under the Divorce Act at the time of the divorce takes precedence over whatever the provincial statute says?
Mr. Thompson: I cannot give you citations, but I am confident that I could find a fair amount of case law showing that the federal order would take precedence in that situation.
Senator Jessiman: I would like to see some citations.
Mr. Thompson: It is particularly important to recognize that children can be disadvantaged at the time of divorce simply due to the economic impact of divorce overall. Therefore, we think it important that thought be given to post-secondary education. These days, it is a key to success, which is why we think it important to reinforce post-secondary education in the guidelines, subject to undue hardship.
There has been a desire expressed to review the guidelines once they are available in a format for prepublication. As you can see, we have been refining the guidelines. You will be receiving the most recent package today. Ultimately, they will go through the regulations process and be finalized.
If we were following the normal routine of passing a bill with no one having any idea what will be in the regulations, then I could understand the desire to protect time for that to come back. In this case, we have been tabling draft guidelines for quite a while. The guidelines to which we refer and which we have been refining were tabled last June. There has been a great deal of opportunity for comments and response to them. In fact, most groups and individuals have had quite a bit to say about the guidelines.
Senator Cools: Were the guidelines were tabled last June?
Mr. Thompson: The draft guidelines were released publicly last June.
Senator Cools: You said they were tabled.
Mr. Thompson: I am sorry. They were made public and made available to all who wanted to see them, and thousands did, last June. We have had quite a bit of feedback. Our federal-provincial-territorial committee is even meeting today and looking at the package we have here.
We are eager to hear from all who have views on the guidelines and have feedback in particular on how they are applied. It would be a problem if we missed the date to implement this overall package as a result of that. The better answer is to implement the bill, make the changes as a result of the feedback to date, and then, over time, learn through our research and feedback and, as required, adapt the guidelines. That is what happened in all other jurisdictions which introduced guidelines.
There is a fair amount of work being done to prepare for implementation of this bill. One element of it is a $50 million fund set aside to be made available to the provinces as part of the implementation. That $50 million is to enable them to implement the guidelines. There will be a fair amount of work at the beginning as people come back for variations. It is to enable them to improve the system overall, not just in support law but the entire family law system. A number of provinces are looking at the introduction of mediation services to assist in support and custody issues. Quebec is putting particular emphasis on that, as are others.
Members of the committee have raised the issue of parenting courses and people knowing in advance about these issues. Some of the money will go into that in some provinces.
Money will be used to do research, to obtain ongoing feedback, and to do a fair amount of public and professional education about the law and the guidelines. In that way, we can not only implement them well but learn from the experience so that we can adapt to it.
Madam Chair, I am quite prepared, along with my colleagues, to answer any questions you may have.
Senator Phillips: Madam Chair, my questions arise out of ones I asked this morning of Professor Finnie.
Would you tell us how the various tax breaks were factored into the guidelines?
Ms Carolina Giliberti, Chief, Family Law Research, Department of Justice: The tax benefits have been incorporated into the guidelines. The tables you have in front of you incorporate all provincial and federal taxes applicable to those income brackets. The tax benefits and the GST credits have been included in the calculations for the ability to pay of the non-custodial parent.
The benefits which arise out of the new set of reforms you have discussed have been included, but they have been reserved for the custodial parent and the child. The intent of those benefits is to assist children in poverty. It was felt that those resources are needed for the custodial parent when she is in a poverty situation. As her income increases, the benefits are reduced. We have determined the ability to pay of the non-custodial parent. That ability does not go down as a result of the custodial parent receiving benefits for her children. Those benefits are for families in poverty. As the custodial parent's income increases, those benefits decrease because they are based on the income, whether it be social assistance or work income.
Senator Phillips: You said they are factored in. Would you tell me how they are factored in?
Ms Giliberti: The mathematical factor used to do those calculations is a complex computer algorithm program. We look at the impact of the taxes and the benefits on both parents' income when determining the ability to pay of the non-custodial parent. We determine what amount of money anyone, custodial or non-custodial, will have to spend on their child in an intact family. We then say that is the parents' ability, and it becomes that ability after they are separated.
Mr. Thompson: This may be a somewhat simplistic way to say it; however, given the change in the tax rules that come into effect, you work out with the guidelines what will be paid and then take into account the fact that the person will be paying tax on it. That reduces the amount they would pay. That is one way that the tax impact is taken into account, and the guidelines do that.
Previously, if you knew what the guidelines indicated, you would raise the amount because they had the tax deduction. It is a difference in the application of the different tax rule to that individual. That is factored into the determination.
Senator Phillips: Are the calculations made on the pre-tax income or the post-tax income? I am referring to the little bit that is left over after taxation.
Ms Giliberti: The calculation is done on pre-tax income because you want to maximize the income available for the child support determination. In current law, when you use net of tax, you hide income, thereby reducing the capacity to pay of the non-custodial parent. It is much cleaner to look at the gross income as opposed to the amount after tax. Someone could put resources into RRSPs and all kinds of deductions in order to reduce money that is available for the child. That is not a fair way to determine child support.
We do the calculations, and the amount is determined on pre-tax income. However, we take all the tax considerations into account when we determine the calculation.
Senator Phillips: Is that with respect to both parties?
Ms Giliberti: That is right. That is one reason the tables vary by province or jurisdiction. Provincial taxes have a major impact on the disposable income of the parties. A decision was made to produce a table for each jurisdiction. A fairer way to determine child support is to look at the tax consequences to that individual.
Senator Phillips: You mentioned the guidelines. This morning, Senator Losier-Cool referred to a new guideline which is coming out.
Senator Losier-Cool: We have it now.
Senator Phillips: Is this it?
Ms Giliberti: Those tables eliminate the notch problem.
Senator Phillips: What date would one put on these?
Ms Giliberti: That would be today's date.
Mr. Thompson: You could put today's date on them, although they were printed a few days ago, and they represented the feedback as of today.
It is conceivable that between now and when they are tabled, there will be other small issues. It is the same overall set and approach to the guidelines.
Senator Phillips: I was impressed by the witness from Halifax this morning. At the present time, there is no difficulty in having the son visit the father because they live a short distance apart. However, the custodial parent, the mother, is moving to Edmonton. This will incur considerable travel expenses which I am sure were not taken into account at the time the amount of child support was agreed upon.
All of a sudden, this individual is facing minimum return airfare from Edmonton to Halifax of $500 at sale time.
How will we deal with that problem?
Mr. Thompson: There are three potential ways to deal with this problem, or a combination of ways.
The first question is whether she is able to move with the child. This is the parental mobility issue. There is a recent decision of the Supreme Court of Canada, Goertz v. Gordon, which questions whether it is in the best interests of the child for a parent to move a distance away from the other parent. It is conceivable that there could be a debate in court on whether that move is in the child's best interests.
If the move has been made, it sometimes happens that the parties renegotiate access so that there are fewer visits but for longer periods of time. In that way, the costs, which can be very considerable, are less.
As well, under the guidelines, the non-custodial parent could apply for a variation in the award based on undue hardship. In a case where one parent is having regular access and is incurring high costs to go to the child, or for the child to go to him, that would constitute undue hardship, depending on the overall impact on that person and his income.
Senator Phillips: An undue hardship application would cost at least $8,000.
Mr. Thompson: There is no question that when circumstances change, and they can change under the present law if the parties cannot agree on what makes sense, you end up going back to court. That is the present law.
Under the present law, which has a best interest test, you would have the same debate and it would cost as much to have that application. I would not suggest that the costs of going back to court would not be a problem. We are hoping that a portion of the resources we are giving to the provinces will be used to develop mediation and other programs to determine if the parties can agree on an answer to avoid that cost.
If they cannot, it is an additional high cost for the parties to come back to court. That is, I would argue, whether you have guidelines or a best interest test. We are here dealing with the issue of access, and there are not, at the moment, guidelines with respect to that.
Senator Phillips: Could there not be something in the legislation whereunder the fees for the undue hardship could be taken into consideration in the guidelines? That would make both parents a little more agreeable to mediation.
Mr. Thompson: Are you saying, senator, that if someone had to bring an undue hardship application, someone else would pay the fees or would share the fees, or that the custodial parent would pay the fees?
Senator Phillips: Yes, they would share them.
Mr. Thompson: The general practice in family law, since each party has fees and must go back to court, has not been to try to split that down the middle. I used to be a family court judge, and I have done that. I have, in some situations, asked parties to share the costs. To make that an absolute rule would be difficult.
Certainly a judge could look at that, amongst all the other costs the person has had in trying to decide whether there is undue hardship. That would be reflected in the child support order. In essence, a judge would not want to do that since the cost of the fees would be coming out of the child support award.
Ms Murielle Brazeau, Senior Counsel and Acting Head, Child Support Team, Department of Justice: We were specific in giving directions on what would constitute undue hardship since saying you have undue hardship, for example, in extraordinary access costs would encourage participants to negotiate. By making the guidelines clear on what the judge would say if it comes in front of the court, the parties have more tools with which to negotiate and to come to an agreement before they go to court. That reduces the fees. We gave several examples to encourage parties to negotiate between themselves.
Senator Bosa: As an example, before the implementation of Bill C-41, $1,000 is paid to the custodial parent per month. The custodial parent has that as his or her sole income, and it is taxed at15 per cent. The custodial parent would be left with $850.
Now that the tax is integrated, under an analogous situation, how much would the custodial parent receive?
Ms Giliberti: I wish I could give a simple example of how that would work, but, in short, I cannot. We determine the capacity of each individual to pay using their gross income and incorporating all their federal-provincial taxes.
For example, we could consider two families: a custodial parent who makes $50,000 and a non-custodial parent who makes $50,000. When we look at what money they have available for child support, we look at all the tax implications on those two individuals.
Senator Bosa: I would prefer to forget that type of example. I would prefer to look at an example where the custodial parent has no income other than the allowance the non-custodial parent remits.
Ms Giliberti: Where she has zero income, she would get whatever the income is from the child tax benefit and the new national benefit.
Senator Jessiman: That would be included in her income.
Ms Giliberti: If that is all the income she has, she will be on social assistance. She will not rely solely on those benefits.
You are asking me whether, when we calculate the child support amount, we subtract from those expenditures what she is receiving in social benefits. That is not how the calculation is done. The calculation looks at the non-custodial parent's capacity to pay child support. We look at that individual's net disposable income.
Senator Phillips: Providing she has no income.
Ms Giliberti: We look at the total family income to determine the capacity to pay of those individuals. We look at the expenditure data to determine those amounts.
Senator Jessiman: I received a few minutes ago a document entitled "SE96," and it is stamped at the top with the date January 22, 1997. I have another one dated June, 1996. Are there any in between?
Ms Brazeau: Yes. We have new ones every day. This comes from our computer at work. People are working on those guidelines and making comments and changes.
Senator Jessiman: We were given the ones dated June of 1996 a few weeks ago. Were they the latest you had at that time?
Ms Giliberti: Yes, those were the latest we had. We have just been to the drafters over the last month.
Senator Jessiman: This one has some blacked-in parts. I understand that when you put something blacked in, it is a change from the prior version. I am trying to check my June, 1996 draft, and there are many changes from there that are not blacked in. How are we supposed to know? We are here to pass this bill or amend it or not pass it, and you have not given us the documents to help us do that.
I have assumed that what I have here are the June, 1996 guidelines as amended, and the amendments would show in the black lines. That is how it is usually done. The black lines indicate that there is an amendment. I would have assumed it was an amendment from the June, 1996 version. Now you are telling me there are others in between.
Before I can consider this, I must have those versions. We are trying to go clause by clause here. This is ridiculous.
The Chair: These are guidelines.
Senator Jessiman: Notwithstanding they are guidelines, they will be part of the bill. I do not think the bill should be dealt with today. This is ridiculous. Now we do not know what the guidelines are.
Mr. Thompson: This is not the bill; these are regulations under the bill. We have been trying to make people aware of the proposed regulations that will be introduced when and if the bill passes. They are not being passed today. They are not being passed tomorrow. We have been meeting on an ongoing basis -- and in my view that is the whole point of the consultation process -- with provinces, with lawyers' groups, with everyone who has an interest in this, and obtaining their feedback. When they have had an idea that makes sense, we have made adjustments. We are not asking that these guidelines be adopted today.
Senator Jessiman: I do not disagree with any of that, but I will not consider these guidelines until I have read them. I have read the earlier draft, and I am now starting to peruse this. One of the clauses is very important to me, and I have talked about it with almost every witness. It is the issue of shared custody. It was in clause 7. It is now in clause 9. We have obviously added two clauses.
I have looked through this quickly, and I assume that "spouse" instead of "parent" is one thing you have changed. Medical and dental insurance is something you have added. I cannot be expected to review all this within minutes. I am ready to ask some questions about this now, but I am telling the chair that I am not prepared to go ahead to clause-by-clause study of this bill until I know what you think the guidelines will be. If this is the last version, I want some time to read it. I want some comparison made between what I have studied to date and what I have here.
Mr. Thompson: The intent was to be helpful to the committee -- to try to show you the guidelines we are working on as we receive feedback from all those who give us feedback. The experience with guidelines in other jurisdictions is that as you use them and receive feedback, you make changes. The point was to assist you by showing you the work which has been done since last June. These are the guidelines and the regulations that will come forward after this bill is passed, not before. The intent was to show you the thinking as of today, or as of January, rather than what we tabled last June. The intent was to be helpful, not the opposite.
I suppose every few weeks we could have brought you the new ideas with respect to the guidelines. We were attempting to make available to the committee the guideline development up to this point. I am sorry if we are creating confusion. Our intent was to make life easier rather than the opposite.
Senator Jessiman: It is certainly causing me a problem, and I will not solve it in an hour or two. Let me deal with it as I think it is being amended.
Senator Cools: They have never been tabled. Everyone, including the deputy minister, makes the statement as though they are before Parliament, but they have never been tabled.
Senator Jessiman: There is no intention to table them, and that is the difficulty.
Mr. Thompson: The intent is to take them through the normal regulatory process once the bill is passed. That is what normally happens. We have been trying to allow people to have a look at the guidelines that we hope to put in place after the bill is passed. That is the intent. Normally a bill is passed without having the guidelines or the regulations available at all. Normally that is done after the bill passes.
Senator Jessiman: Although you are calling them guidelines or regulations, they will affect individuals. I think any guidelines should go through Parliament. They should be passed in the House of Commons.
Mr. Thompson: They will be, through the normal regulatory process. They will not be brought forward as a bill.
Senator Jessiman: Do we get them before they are passed? Do we have an opportunity to change them?
Senator Pearson: If I may give an example of how this works, the Legal and Constitutional Committee, on which I sit, is to consider firearms regulations tomorrow. We passed that bill more than a year ago. I did not believe, when we passed the bill, that we passed the regulations at the same time.
Senator Cools: The regulations under that bill had a different objective, totally different from the objective under Bill C-41.
The Chair: Today, we have Bill C-41 in front of us. This is the bill that we are studying, which we expect to complete today. Senator Jessiman, the regulations are not before this committee. The bill is before the committee.
Senator Jessiman: Until we have a caucus meeting, I am not prepared to vote that we proceed to clause-by-clause study. Before that, I want know what is in these proposed guidelines and how we will deal with them. I am prepared to question you about this particular clause. It is very important, as far as I am concerned.
The Chair: You continue your questioning, and then we can go on.
Senator Jessiman: Sir, I would like you to look at the clause dealing with shared custody. It is on page 6 of the new document, clause 9. The version which I have been reading up to this point, and the one on which we have been questioning witnesses, states:
Where both spouses share physical custody of a child in a substantially equal way, the amount of the child support order shall be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought.
The words to which I took exception at the time we discussed this with various witnesses were "in a substantially equal way." I asked what that meant, and the answer I received from the witness at that time was that it meant 50 per cent. They would need 50 per cent custody before any consideration will be given to the non-custodial parent for whatever amount of time he might have custody of the child. If he kept the child 49 days out of every 100 and the custodial parent had 51, the information I received was that this section would not apply.
We heard witnesses, including lawyers and judges and others, who said no, that a substantially equal way would not necessarily mean 50 per cent. If it was 60/40, there is a chance, under some circumstances, that the court could come to the conclusion that it was substantially equal.
I was speaking with the department about this particular section and custody of the children, and I received a letter from them. I do not think I asked them this, but they gave it to me notwithstanding. In the second last paragraph of page 2 of a letter written to my secretary on December 5, 1996, it states:
In its January 1995 Report and Recommendations on Child Support, the Federal/Provincial/Territorial Family Law Committee had recommended that
where custody arrangements provide that each parent has physical custody of or access to the child for at least 40 percent of the time, the court should have the discretion to depart from the formula amount while considering the increased costs of such arrangements and the actual distribution of expenses between the parents.
That is what a committee of the provinces and the federal government thought should be the case.
We have also been told by Professor Finnie that, if someone would engage him or someone like him, they could provide guidelines similar to the guidelines that we have for child support payments so that if you had the child 30 per cent of the time, you went down to 30 per cent. Under 30 per cent, there may not be any consideration.
I was hoping that, if there would be some change from the substantially equal, we would be giving the court some discretion.
Now you have changed this to a new section which I received a few minutes ago. You have a section which indicates that where both spouses equally share overnight physical custody of a child, and I will ask you to tell me that means, the amount of the child support order is the difference between the amount that each spouse would otherwise pay for the number of children in the shared custody arrangement if a child support order were sought against each of the spouses. It then goes on to finally give the court some discretion, and hopefully you will explain this to me. It indicates that where the court considers the approach set out in subsection 1 to be inappropriate, it may increase the amount of the child support order -- not increase or decrease, just increase -- having regard to the ability of the spouses to assume the cost of shared custody arrangements.
Would you please explain that to me?
Ms Brazeau: I will start at the beginning. When the family law committee made their report in 1995, there was a recommendation on the 40/60 split. We felt strongly at that time that we should have a certain threshold, and after that threshold there should be compensation. We released the report publicly in 1995, and then we started wide public consultations. We heard from most legal organizations and lawyers from whom we received correspondence on a daily basis and the judges with whom we met and consulted that taking away that 40 per cent threshold would increase litigation.
Senator Jessiman: That is not what we are hearing.
Ms Brazeau: The CBA indicated that yesterday. If I may complete my answer: Not only would it increase litigation, but it would also increase conflict between the parents. The parents would be fighting -- do you not want me to continue?
Senator Jessiman: Can I not shake my head, for goodness sake?
Mr. Thompson: Senator, if I could speak to this: It is possible to develop a scheme whereby you have a sliding scale depending upon the amount of access. The model you spoke of and with which we started several years ago allowed for one of these variations. The simple fact is, and I feel strongly about this, that it does not work. There is research in the United States which shows these sliding scales produce difficulty and chaos. Someone comes a bit more often, someone has access but does not show up, various things happen with respect to how access is carried out, and then they are back in the courts trying to figure out how the sliding scale applies. You end up with a situation which is enormously complicated and produces tremendous debate between the parties. It also tends to produce litigation about access which is really about amount of support because the two are linked together.
We decided to deal with the true shared parenting situation and allow the undue hardship rule to deal with unique situations; otherwise, we would create situations where parties are spending time debating based on whether someone actually exercised their access or did not exercise their access, had an extra expense at the time of access, worked out a little informal access on the side, or, on the other side, the custodial parent would say, "I should get more now because you are not showing up as often." That does not work and defeats the whole point of the guidelines.
There is experience in the United States which was not alluded to this morning but which suggests that kind of problem arising. We felt for that reason we should not get into a sliding scale or different levels. We would be happy to continue talking to Professor Finnie or others about ways to avoid this problem; however, at this point, we feel it is not workable and would make things worse rather than better.
Senator Jessiman: We heard exactly the opposite from most of the people who attended before us.
Ms Brazeau: Professor Finnie indicated this morning that when he was considering this specific provision on shared custody, if we treated shared custody as we did split custody, that would be fine. That is exactly what we have done. We have adjusted for the fact that it is a different situation.
Senator Jessiman: I should like the opportunity to talk to Professor Finnie about this. I should like to study it more myself. I think I understand what clause 7 says, and I have read it now. This clause is stricter, as I read it. It says "equally shared," whereas the other one is "substantially equal." We were told that "substantially equal" might be as low as 60/40 under some circumstances. When you say "equally shared overnight physical custody," there must be more discussion about that particular section.
Mr. Thompson: If I could return to this broad issue about the guidelines, I want to be clear that on three separate occasions we have put guidelines out and indicated that they are draft guidelines and asked for feedback. We did it last June for the third time. We made it clear that we would be getting feedback and adjusting those guidelines, and we continue to do that.
We made those guidelines available today in response to a request this morning to see the latest guidelines. That is why we produced them, not because we are asking you to approve them today, but to give you assurance that we are listening to issues as they are raised and are dealing with such things as the notch effect. We are trying to make these guidelines respond to issues raised by you and others. It would be a major problem if we treated these guidelines as a proposal which needed to go through the full legislative process in order to be approved. That was not the intent. We are trying to give assurance that we are doing the things you asked us to do, sir.
Senator Jessiman: Do you not want the guidelines as well as the bill to be in effect by May 1?
Mr. Thompson: By all means we do. That is the whole point of this legislation.
Senator Jessiman: I would like to think that this Senate committee or the Senate will have some input into the guidelines.
Mr. Thompson: There is a process for the formalizing of guidelines, and we will follow that process.
Senator Cools: Does this department really want this bill today? I do not think so.
Senator Bosa: Mr. Thompson, Senator Jessiman has become very familiar with the guidelines which have been presented today. Does that mean that these will not be changed in two or three weeks from now, or four weeks now? Will you not make any improvements?
Senator Bosa: You say that you make improvements as you go along and as you get feedback from the people involved in these situations. You say that in your opinion the guidelines are improved. Is this the final version? Will there be no other improvements in this one?
Mr. Thompson: No, sir. I need to be very clear. There is a meeting of the federal-provincial-territorial committee that is going on today. We have created an advisory committee, and we will continue to talk with them. We are reading the transcripts of all these hearings. In other words, we are continuing to revise the guidelines. As we get to the point when they need to be finalized for the bill so that we can implement the legislation, ideally on May 1, we will have a fixed package. Even after that, it is our goal to read the case law and to learn and to change.
Senator Bosa: That is precisely my point.
Senator Jessiman, even if he became familiar with these guidelines, there will be amendments to them. It is a never-ending process if this committee has to deal with the guidelines.
Mr. Thompson: I want to be clear that you cannot introduce guidelines -- and this has been true in every jurisdiction -- unless you are willing to do so on the basis of ongoing review and adjustment as circumstances change. That we must do. If we ever said that this is the end of it and these are the final guidelines, we would create real problems in family law because that is what family law is -- adapting to circumstances.
Senator Cools: I appreciate that the deputy minister is talking about ongoing flexibility and his capability to respond. However, this is the initial spot; this is the beginning. In other words, we are here at the beginning of the process.
I am having enormous difficulty following the deputy because basically he is telling us that we have no obligation to examine these guidelines. The enabling part of the bill, page 13, brings the guidelines into existence. He is saying that he has an obligation to show it to everyone in the country.
Clause 11 of the bill amends section 26.1(1) of the Divorce Act and its eight subclauses outlining exactly what the guidelines are supposed to do. I understand the deputy minister to tell us that we, as a committee and a legislative arm of Parliament, really do not have much of a duty to review these guidelines before they go into effect. I think you must be mistaken. That is not the impression you were trying to create at all today. Certainly you are not trying to convince me or persuade me when you say you are allowing us to see them.
Mr. Thompson: Senator, to be clear, we are here to answer any questions you have on the guidelines. I thought I was being respectful and supportive of the work of this committee by bringing you today the most up-to-date version of the guidelines that exist. That was our intent. We did not want to prevent you from seeing them; we wanted to give you the opportunity to see these guidelines. It is not our desire to prevent you from seeing these guidelines; it is the exact opposite.
Senator Cools: I am not saying that you are attempting to prevent us from seeing them. I am saying that perhaps your department should think twice about bringing them to us at the eleventh hour before we embark on clause-by-clause consideration. If we are to give these guidelines serious consideration and read them cover to cover, we should have them.
I would also add that the June version we received only in December. Now I am hearing there are many versions and editions. Is it such an enormous problem to put copies in our hands at the same time you are putting them in the hands of all these concerned people across the country?
Mr. Thompson: We are not actually circulating across the country. We have only had three formal consultations.
Senator Cools: I was referring to those people across the country with whom you have been consulting.
Mr. Thompson: We have taken all the feedback we have received up to today, of which we are keeping a record ourselves, and we have produced today's copy which has been made available to you. We are not circulating this across the country. You are actually getting something that we are not making available.
Senator Cools: I was talking about your previous, consultative processes. I thought because we are a federal process, that you would be consulting with people representatively across the country.
Mr. Thompson: We have done that on three occasions, and we continue to consult. We consulted most recently on the 1996 June guidelines that we put out. That is the third set that we put out.
Senator Cools: In any event, Madam Chair, I would like an opportunity to read these with some consideration.
The Chair: Mr. Deputy Minister, it is my understanding that nothing in this bill says that the government -- your department -- must give these regulations to the House of Commons or to the Senate. It is a regulatory process; is that not correct?
Mr. Thompson: That is correct.
Senator Cohen: You mentioned that an advisory committee would be put in place to monitor the guidelines on an ongoing basis and that there would be a five-year, overall review of the changes. Many witnesses felt that five years was too long. They recommended a two-year, overall review or a three-year, overall review. One witness even suggested a six-month, overall review, which we realize is unrealistic. How do you react to that?
Mr. Thompson: It will take time to implement the guidelines. It will take time for the courts to consider them at the different levels of the court. Some of these issues will be debated in the courts. It will take time to do the kind of research necessary to make a broad review of the overall effectiveness of the guidelines. That will take a number of years. That is why the five-year period was chosen.
However, as I have said, this is an ongoing exercise. I stress again that this is the case in all jurisdictions that introduce guidelines. We will review them on an ongoing basis. The advisory committee will meet with us periodically and tell us if there are difficulties with respect to the guidelines, as will judges and others. We would be quite happy to have that feedback from you as well, if you wish to provide it.
These guidelines will not sit in stone for five years and then be suddenly reviewed. The review will be ongoing, but the formal report as a result of the research and implementation of the guidelines overall will be after the five years. That is why we picked the five-year period. Not just annually but more often, we will sitting down, learning from the guidelines and, potentially, changing them in response to problems.
Senator Cohen: But could there be a change at the end of two or three years? If you saw that one of the guidelines was detrimental, could that be changed before the five-year period of time?
Mr. Thompson: Yes. The reason we produce the guidelines in regulation form is to allow exactly that to happen. No matter how good a job we have done -- and there will be debate about that -- and no matter that we have gone through three broad consultations, we will likely learn things over the next year that will produce changes in the guidelines. That would be my prediction.
Senator Maheu: I am looking at the working draft issued in June 1996 versus the one we received today. I see there are two additional sections. I notice at the very beginning that you have simply renumbered some of the paragraphs which were not sections of the first draft. Is there some way of getting us, as soon as possible, the actual sections you renumbered? Have you specifically added another section?
Mr. Thompson: I apologize for any difficulty. We produced the most recent copy as soon as we heard you wanted to see them. We can go back to the June draft and then take this draft and produce an overview of every change since last June, as suggested by Senator Jessiman. That is no problem.
Senator Maheu: We would need the French copy as well. The French copy changes are not highlighted.
Senator Jessiman: What does section 9 mean to you? What are you trying to say here?
Ms Brazeau: Are you referring to the guidelines or the bill?
Senator Jessiman: I am referring to the guidelines and, in particular, the concept of shared custody. Is section 9 of the January version of the guidelines the same as the old section 7? In the guidelines we received dated June, it was section 7.
Ms Brazeau: It refers to shared custody.
Senator Jessiman: Was this section 9 formerly section 7 in June?
Ms Brazeau: Yes, but we have changed the content.
Senator Jessiman: Please explain what it means. I think I know what it meant under the old section 7, but I am not sure that I understand this one.
Ms Brazeau: This is where both spouses share the children in an equal amount of time. One of the reasons for taking away the term "substantially equal" was because we had mathematicians saying that you cannot share children in an equal amount of time. There are 365 days in a year and you cannot divide the year equally in two. There were difficulties in determining "substantially equal." They said that you cannot say "substantially equal." You must say "equal." You can then say one week and one week. It was an equal-time issue.
The difficulty was that the purists said that you cannot have a pure 50/50 split because of the 365 days. In discussing this with lawyers, we realized that, in the majority of cases, they do not share custody over one year; they share custody on a monthly or a weekly basis. That is the issue of equal sharing. We had the term "substantially equal" before and now we have "equally shared custody."
Senator Jessiman: Are you saying that this section does not apply? Let us deal with one week. We have seven days in one week. What do we do with Sunday? Do they have to share Sunday?
Ms Brazeau: That is where the second part will help. In the majority of cases, they will do one week and one week, or they will equally share it. After applying for one, if the court believes that there is an injustice and the approach does not work, they can change the amount.
Senator Jessiman: That is only if it is 50/50.
Ms Brazeau: If it is 40/60, it is not equally sharing overnight.
Senator Jessiman: Let us say that the non-custodial parent has the children for four days and the custodial parent has them for six days. He has his own home and bedrooms for each of the children. He incurs the same expenses as the custodial parent, except she has them for two extra days out of 10. You are saying that they should not get any extra credit?
Ms Brazeau: They may get it under undue hardship in those cases.
Senator Jessiman: They may be well off. That is not undue hardship. It is just that he is paying a lot more than he should be. That is so unfair. I cannot believe that you cannot accept that. Your own committee suggested that you do it.
Mr. Thompson: Our own committee suggested it and then took advice and no longer suggested it.
I must return to our original point. You can get into a situation in trying to develop a sliding scale based on the amount of time and the difficulties that are raised.
Senator Jessiman: I am not suggesting that it should be based on 10 per cent or 8 per cent of the time. Professor Finnie said that 30 per cent seemed like a reasonable amount. He can give you guidelines for that.
Ms Giliberti: He has already produced them for us. It is not like we have not had them. Professor Finnie worked with us on the development of many different options.
Senator Jessiman: He said he did not do them for shared custody.
Ms Giliberti: We looked at the option of having different amounts based on different amounts of time that the non-custodial parent would share with the custodial parent.
The experience in all other countries which have guidelines says that it is not working. People just argue. Do you include the time the child is in school in your calculation of the 30 per cent, when no one has the child? Who gets that time? When the child is sleeping, do you consider that time? These are the types of arguments that people are making.
Senator Jessiman: This is encouraging people not to continue with their parenting when they are separated. We should be doing exactly the opposite. We should be encouraging them to parent, even though they are separated.
What you have done here is say that each man pays the same. One man spends four days out of every ten with his children. He is parenting them. He pays the same amount as a fellow who does nothing.
Ms Giliberti: No. The first part of the provision says that if you have two children, you look at the table amounts for each party's income with two children. If there is a difference, that is the amount that is transferred. He is not paying the amount for two children. He is paying the difference between her capacity to pay for two children and his capacity to pay for two children.
Senator Jessiman: You did not understand me. Let me explain it again.
The Chair: Please give only one more comment.
Senator Jessiman: I do not care if we have to sit forever. This is very important.
You have one man and another man. They both have two children; that is, each parent has two children. They are separated. One man never sees his children; he pays a certain amount of money. The other man sees his children four nights and days out of every ten. He has a bedroom set up for them and he pays all the same expenses for those children; yet he pays exactly the same support as the man who does not do anything for his children. It is not fair.
Mr. Thompson: Under the present law, that type of situation is open to the discretion of the judge. The judge looks at it and says "yes" or "no" in terms of how much is paid. There is enormous variation in that.
Once you start to move to guidelines, there are always situations that fall outside the guidelines. How detailed do you make the guidelines to deal with every possible situation? Is it 30 per cent? Is it 25 per cent? Is it 30 per cent provided you show up?
How do you deal with the fact that the custodial parent's fixed costs for the child are the same whether or not the child is there in large measure? Instead of trying to develop a detailed formula for that, we developed the set guidelines based on ability to pay, tied to his income. We then allowed for the opportunity for him to come back to the court -- just as a non-custodial parent now can do so -- and say, "In my particular case, I feel it is unfair."
Having the set guideline with the right to raise unfairness when it particularly applies to that party is better than going into a detailed, complex situation which, based on the experience in other countries, produces litigation, a lot of debate and dispute between the parties, and not a better result for the children.
Having said that, I want parents to have access to their children. If it is not recognized, I would encourage a father in that situation to ask the court to look at it, but we need not develop a detailed, formulated system for dealing with that. That is why we took the approach we did.
Senator Jessiman: Why not put something in the act itself which says under circumstances of shared custody, if the court does not think it is fair <#0107> they might have increased the amount or decreased it, but it does not necessarily have to be 50/50 <#0107> it may exercise its discretion. I think you arbitrarily picked 50 per cent. It is just as difficult to determine whether it is 50 per cent as it is to determine whether it is 40 per cent. How do you determine that?
Mr. Thompson: That is the recommendation that came to us from the judges and the lawyers. You will find that those who will truly share custody will do it in a way that fits within these sections. They will have true shared custody. In a case of shared custody on a 30/70 basis, it will either be dealt with as an exceptional circumstance or the guideline will be applied.
Large numbers of people told us that was a better way to deal with it than to try to set out rules for different percentage levels. I can only say that it is based on the experience of other jurisdictions.
Having said that, this is a developing area. I am quite prepared to learn from our experience and to see how the courts apply this standard. My belief is that you will have more problems than you solve if you try to introduce a number of formulae to deal with this issue. That is why we took the approach that we did.
The Chair: Honourable senators, I have a request that we recess for 20 minutes and then return to look at the bill.
Mr. Thompson, I wish to thank you and your staff for being here diligently every day since we started.
The committee recessed.
Upon resuming at 3:50 p.m.
The Chair: We have before us Bill C-41, an act to amend the Divorce Act. We are ready to begin clause-by-clause consideration. I will entertain a motion to start.
Senator Bosa: In view of the fact that there is no general agreement on how we should proceed, I move that we adjourn this meeting until Monday at 2 o'clock to give us an opportunity to further consider what is before us.
The Chair: Is that agreed, senators?
Senator Jessiman: We do not agree.
The Chair: Will all those in favour of postponing this meeting until Monday at 2 o'clock, please raise your hands?
There are six senators in favour of the motion.
Will those who are in favour of continuing now, please raise your hands?
There are six senators opposed to the motion. The motion is lost because the vote is tied. Therefore, we will continue now with clause-by-clause consideration of Bill C-41.
Shall the title be postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Senator Jessiman: I wish to move an amendment to clause 1.
I move:
That Bill C-41, in clause 1, be amended by replacing lines 9 and 10 on page 2 with the following:
of illness, disability, to with --
This motion relates to the new definition of "child of the marriage" in clause 1 on page 2 of Bill C-41. The proposed amendment would delete the words "pursuit of reasonable education" from the definition.
This amendment also deletes from the present act the words "or other causes." I will deal with "other causes" first.
We think the courts have used that wording to give awards for children who are over the age of majority and who are enrolled in some form of post-secondary education. The purpose of the amendment is to ensure that persons who are of the age of majority or over and in pursuit of an education will not be considered children of the marriage for the purpose of the Divorce Act and thus require support for the reason that they are under the charge of both spouses or former spouse solely to enable them to pursue an education. A more compelling reason to be considered children of the marriage would be illness or disability.
The Chair: Can we stand this first amendment or do we move on with it? Senator Jessiman is waiting for clarification. We will move on, then.
Senator Losier-Cool: May we ask questions?
The Chair: Yes.
Senator Losier-Cool: Does your amendment remove only the reference to pursuit of reasonable education, senator?
Senator Jessiman: We have also moved that the words "or other cause" be deleted. The reason for that is we think the courts have used that phrase "or other cause" to make awards where children are over that age in respect to education. We want to know what other things the court has said. If they say something else that is reasonable, that is fine; we will put it in. We will leave it generally so that the courts, by themselves, can decide when they are within the marriage and when they are not.
Senator Losier-Cool: The reason why I am mixed up is because in French it does not read the same way. I do not see "or other cause."
The Chair: It is not in the French section of the bill?
Senator Losier-Cool: No.
Senator Jessiman: We want them to be the same.
The Chair: Senator Losier-Cool, are you asking that the French version be amended to accord with the English version?
Senator Losier-Cool: I understand from those in the department that when they write a bill, it is not exactly the same in both languages. They do it in French. They do it in English. They do not translate. However, the two versions mean the same thing. It must have the same meaning.
The Chair: Senators, is it agreed that we deal with the amendment and ask that the French version of this bill be corrected or clarified so that it means the same in both languages? Are there any other questions on the amendment?
Senator Bosa: Madam Chair, we are dealing with highly technical language here. The Deputy Minister of Justice is with us. Perhaps he could interpret the effects of this amendment for us.
Senator Phillips: We are not in Committee of the Whole, Madam Chair. We cannot have him do that.
Senator Bosa: Madam Chair, perhaps we should consider this in the committee as a whole in order to understand the full effect and purport of the amendments that are proposed.
The Chair: I have been given to understand that this has been done before. If the committee agrees, we will ask the deputy minister to explain this clause for us.
Senator Losier-Cool: Could I ask another question of Senator Jessiman? Is he moving that the words "or other cause" be deleted?
Senator Jessiman: Yes.
Senator Losier-Cool: That was never mentioned in committee with any of the witnesses to whom we spoke.
Senator Jessiman: We were told in committee that judges have made orders under the Divorce Act with the words "illness, disability or other cause."
They have made orders dealing with education, and they used "other cause." I am assuming that is where they got the jurisdiction to bring it in. Now you want to amend it to abide by what the courts are already doing. We are saying we do not know if the courts are doing that. We think it is wrong if the courts are doing it. Children of a marriage do not have those rights. Why should children of a broken home have those rights? Why should a court tell a separated couple that the custodial parent can determine what education a child over the age of majority will have and require the other parent to pay for it without any input?
That is what has happened with these court orders. We are saying that we assume that "other cause" brought that in. We are saying we do not want that there so that the courts can continue to do what they have already done. We are not going to put it in this bill because that will just solidify what the courts have been doing. We cannot think what the courts might do with "other cause" later.
It is only under circumstances where illness or disability are affected. If there are other things you can think of that are reasonable, fine, we can add those, too.
Senator Losier-Cool: That is why "other cause" was there.
Senator Jessiman: Then it is carte blanche and covers anything considered by some particular judge.
The Chair: Education was not in the act before, so the courts used "other cause" to award education support.
Senator Jessiman: Who knows what the courts might do? That is the reason. Let us vote on it.
Senator Bosa: Madam Chair, I had asked for consideration to have the deputy minister, who is here, give those of us who do not have a legal background, as does Senator Jessiman, the full purport of the meaning of this clause.
Senator Phillips: Madam Chair, on that point, the Deputy Minister is not a member of this committee. Second, when we want legal advice, we do not get it from the Department of Justice. We get our legal advice from our own law officers. The suggestion is totally out of order and I cannot agree to it for that reason.
Senator Losier-Cool: It is not necessarily legal advice. I want to know if the French means the same thing as the English. Only those who wrote it can tell me, because I see a difference.
The Chair: Senator Phillips, I believe there is precedent set to have the department answer questions when we are dealing with a bill.
Senator Phillips: It does not apply when we are dealing with it clause by clause.
Senator Cools: When we are in the debate on clause by clause, it would be very improper to entertain another person who is not a member of the Senate.
The Chair: Does any other senator have a question?
Senator Cools: You cannot do that. You have to make a motion to stop clause by clause and come out.
Senator Bosa: If we want to be really ticklish about the rules, proposed amendments should be in both languages. We have made exceptions before. If we cannot have the deputy minister appear before the committee when we are considering the bill clause by clause, maybe what we can do is revert into Committee of the Whole.
Senator Jessiman: They are in both languages.
Senator Bosa: We can then discuss and consider this matter in Committee of the Whole.
Senator Phillips: Committee of the Whole applies to the Senate.
Senator Bosa: But there are some questions.
Senator Jessiman: Not on the amendments. The questions are on the act itself as it reads now. We are not talking about that. We are talking about the amendments. We have given them to you in both languages.
Senator Cools: The issue before us is an issue to amend the clause.
Senator Bosa: Why do you want to rush this through? Why do you want to shove it down our throats? Some people do not understand it.
The Chair: Can you agree to hear the deputy minister?
Some Hon. Senators: No.
Senator Cools: I appreciate the senator's concern. She wants to see that the French is up to the standard she wants. It is easy for her to remove herself from the table to speak to our own law clerk to clarify the French.
Senator Losier-Cool: I am afraid you are going to vote while I do that.
The Chair: If there are no other questions --
Senator Pearson: I have a question regarding the proposal to take out "other cause." I can think of a case where you have a child in school who is in grade 12 and he or she turns 18; then suddenly the support stops because he or she is 18. Is that not what you are saying by the term "age of majority"?
Senator Jessiman: The age of majority in some provinces is 19 or even 21.
Senator Pearson: No, I think in almost all cases it is 18. Even if it is 18 in only one province, it creates a question.
The Chair: It has been the understanding of the witnesses before this committee that the parents have an obligation to pay child support for their children as long as they are in school.
Senator Cools: It will not stop because this has not come into force yet. Bill C-41 is not in force. The senator does not have to worry about anything stopping because Bill C-41 is not in force. Any agreements that have been made or any judgments that have been made until now are dealing with the old Divorce Act, so we do not have to worry about the implementation of a law that is not yet law.
Senator Pearson: You have to worry --
Senator Cools: There is no agreement under this law, so this is not affecting anything that is already in existence. It is not law yet, so we can amend it.
Senator Losier-Cool: It will be law. That is what we are voting on and I want to know so it is clear.
Senator Cools: But this does not apply to any agreement because it is not in force.
Senator Maheu: So what?
Senator Cools: So we need not worry.
The Chair: We would like to deal with the amendment, please.
Senator Bonnell: Could I ask my good friend from the western provinces about his amendment? How many amendments has he proposed? Is it just this one or just two or do we have three or four more coming up?
Senator Jessiman: I think we have four.
Senator Cools: I have two.
Senator Jessiman: I think it is six in total.
Senator Bonnell: I agreed with my friend Senator Phillips that I would agree with two amendments, but the rest you would have to vote yourself. I think the education part is one I could support, but if you are going to bring in four and she is bringing in two, then I do not know what to do.
The Chair: Wait to hear them. We have an amendment before the committee. Either there is a question for the senator who proposed the amendment or we vote.
Senator Forest: I would have one question of Senator Jessiman. We heard much about the reasonable pursuit of education. Many concerns were expressed about it which I understood. I am concerned about taking out "or other cause." That could put us in a straitjacket when it comes to some unusual situation. That is where I have my concern about that.
Senator Jessiman: We have some concern.
Senator Forest: It has never been expressed before. Now, all of a sudden, we will get six amendments.
Senator Jessiman: The thing we are concerned about is if you leave it in, then the courts will continue to do what they have been doing, and we do not think that is right. We do not think that children over the age of majority should be dealt with under the Divorce Act or under these maintenance acts. If you leave it in, you are saying, "We will not have it in the legislation; the courts will do it anyway."
Senator Losier-Cool: Why do you not remove "disability" then? If you are following the same argument, that should come out as well.
Senator Jessiman: Oh, no. Oh, no. If a child is sick or disabled, that is quite a different thing than providing an education. I think they are both very important. However, if the mother has custody of a child who is sick or disabled and over the age of majority, yes, that should apply.
Certainly when couples are together and the children are sick or disabled, they help them. They do not throw them out in the street.
When it comes to education, it is up to both parents to decide, and both parents should have a responsibility to pay, if they can, and the child should have some responsibility to pay.
Senator Forest: There are a number of senators who would agree with that as regards education. It is the "or other cause" which gives us a problem.
Senator Jessiman: The reasoning, though, is that the courts are interpreting that and using the "or other cause." By taking it out of the statute, it is notice to the courts that they cannot do this under this act. That is why we are taking it out.
Senator Bosa: Will you accept an amendment to an amendment?
The Chair: Yes.
Senator Bosa: I move that Bill C-41 in clause 1 be amended by replacing lines 9 and 10 on page 2 with the following:
Senator Bonnell: Are you moving that, Senator Bosa?
Senator Bosa: I am amending the amendment so the line would read:
-- of illness, disability or other cause, to with --
Senator Cools: Could we have copies of it?
Senator Bonnell: In both official languages.
The Chair: We have a subamendment to the amendment before the committee. Clause 1(2)(b) would read:
is the age of majority or over and under their charge but unable, by reason of illness, disability, or other cause, to withdraw --
This puts back in "other cause." Are you ready for a vote?
Senator Losier-Cool: I am still confused. I believe that it is not the same in French as it is in English.
Senator Jessiman: Are you speaking of the amendment or the bill?
Senator Losier-Cool: On the amendment of the bill. I am sorry, there was a subamendment.
Senator Cools: Madam Chair, I am still waiting for a copy of the subamendment.
Senator Maheu: Point of order.
The Chair: Order, please.
Senator Maheu: On a point of order: We cannot amend the French version because the words "other cause" are not there.
Senator Jessiman: Are they in the actual act? You will see that "or other cause" is in there.
Senator Maheu: It is not there in French.
The Chair: Whenever I have dealt with legislation, my understanding was that we would be required to amend the French version as well. If "other cause" is not understood in the French version, then your drafters must amend the French version to read the same as the English version, and then we would amend the amendment. The French version now, as the bill stands, is not clear.
Senator Losier-Cool: That was my first question. As a language teacher, I think that the words "cause notamment" which is there in French means "other cause." That is what I wanted to clarify at the beginning, and I was not permitted to do so.
The Chair: If you accept the subamendment first, we will ask that the French version be automatically amended to clarify it.
Senator Losier-Cool: I am ready to go on the subamendment.
The Chair: If you look at your amendment and add "other cause," you have the subamendment. Could I ask for a vote on the subamendment to the amendment, please.
Senator Cools: I have not received a copy of the subamendment. I would like to see a copy.
The Chair: There is no way, if we sub-amend all our amendments today that we can possibly have them in both languages. The subamendments are not prepared.
Senator Cools: I will just vote against it then. If I cannot see what it is, I will vote against it.
The Chair: We can sit and wait for it.
Senator Cools: Then forget it. I will just vote against it.
The Chair: We are waiting for copies of the subamendment.
You now have before you the subamendment to the amendment which reads "of illness, disability or other cause, to with-"
All those against, please raise your hands.
I see six hands.
Being tied, the subamendment is lost.
We will move to the amendment. I will put the amendment as you have it:
That Bill C-41, in clause 1, be amended by replacing lines 9 and 10 on page 2 with the following:
of illness, disability, to with-
This is an amendment to clause 1. All those agreeing with the amendment to clause 1, please raise your hands.
I see six hands.
Those against, please raise your hands.
I see six hands. The vote is tied. That amendment is lost.
Shall clause 1 carry unamended?
Some Hon. Senators: Agreed.
An Hon. Senator: No.
The Chair: All those in favour of clause 1 carrying unamended, please raise your hands.
I see six hands.
All those against, please raise your hands.
I see six. It is a tie. The motion is defeated.
Being tied, the motion to carry clause 1 is defeated.
Senator Bosa: I move the committee proceed now to consider the remaining clauses of the bill.
The Chair: Shall clause 2 carry?
Senator Bosa: Put my motion forward.
The Chair: Let us not confuse this. We were dealing with clause 1. Clause 1 had an amendment to subclause (2) and a subamendment; both were defeated. Then I asked if clause 1 would carry unamended. The vote was 6 for 6. A tie vote is a defeated vote.
Clause 1 of the bill has been defeated. Now I will ask if clause 2 can carry.
Senator Bosa: I made a motion that the committee proceed to consider now the 90 remaining clauses of the bill, all the clauses.
Senator Jessiman: I have an amendment to clause 2.
The Chair: Senator Bosa has made a motion that we proceed with all the remaining clauses, from clause 2 on, at this point.
The motion is that the committee proceed now to consider the remaining clauses of the bill.
Senator Bonnell: Madam Chair, now that we have defeated clause 1 --
The Chair: Order, please. There is still some confusion here.
We had an amendment to subclause (2) of clause 1. Then we had a subamendment to the amendment on subclause (2) of clause 1. They were both defeated.
Then I asked the committee, shall clause 1 carry unamended. We had a tie vote which meant clause 1 was defeated.
Senator Losier-Cool: What do we do with the definitions and all the other paragraphs? It disappears from clause 1?
The Chair: Senator Bosa will repeat his motion.
Order. We have a motion on the floor.
Senator Bosa: I move that the committee proceed now to consider the remaining clauses of the bill.
Senator Jessiman: I would like to ask a question. Can you explain the reason? We were proceeding with clause by clause. We dealt with clause 1. We were about to deal with clause 2 which is one of the clauses which you want us to consider.
Senator Bosa: I just want to formalize it.
Senator Jessiman: Will you do that each time?
Senator Bosa: No.
Senator Jessiman: I do not understand the reasoning.
Senator Cools: Why do we need a motion to do what we are doing?
The Chair: Under Senator Bosa's motion, he wants to deal with the rest of the bill at this time and to vote on the whole of the remaining bill.
Senator Cools: I would like to amend his motion by saying to proceed on each clause, one at a time, clause by clause.
The Chair: If his motion should pass, if the vote goes the same, then the motion to proceed is defeated.
Senator Cools: Is he asking us to stop proceeding?
The Chair: Order. We must all hear what is happening.
Senator Cools: My understanding of what Senator Bosa is saying is that we proceed to deal with all the causes as an aggregate? Is he proposing to do them one by one, clause by clause?
The Chair: He refers to the remaining clauses.
Senator Cools: I propose that we amend Senator Bosa's motion by inserting the words "clause by clause."
Senator Jessiman: I do not think that motion is in order.
Senator Cools: I do not think it is in order because we have already moved to do that.
Senator Jessiman: It was really a trick so that we would be out of here in a minute or two. If the motion was to proceed and we ended up with a tie vote, then we would be out of here because we could not proceed. I do not know what was behind it.
We were proceeding clause by clause. Let us continue to proceed clause by clause. I do not think that motion is in order.
Senator Bosa: Madam Chair, I put a motion. I think it is your obligation to put it to the committee.
The Chair: I will take some procedural advice on this motion.
Senator Cools: We need some parliamentary advice, not legal advice. I thought there was a motion before us to proceed clause by clause. We proceeded to deal with clause 1 and we only need to move on to the next one. That was my understanding.
I do not mind if Senator Bosa wants to re-emphasize that fact as long as we are crystal clear that when we are voting on this motion, that he intends and says it explicitly "clause by clause."
The Chair: I have to get some procedural advice on this.
We have a motion before us to proceed clause by clause, and this motion is to reverse that procedure.
Senator Jessiman: How does it reverse it?
The Chair: The motion is to discontinue this procedure.
Senator Jessiman: I want an explanation from the clerk.
Ms Jill Anne Joseph, Clerk of the Committee: The motion is that the committee proceed to now consider the remaining clauses of the bill. It is a positive motion because if it is negatived, you will be in the position of not being able to proceed on the remaining clauses of the bill. In effect, it will reverse the decision you made half an hour ago to proceed clause by clause.
Senator Jessiman: What if we agree? That is the question. Will he move something that he is will vote against?
Ms Joseph: That is right.
Senator Phillips: Madam Chair, on a point of order, the committee agreed unanimously to proceed clause by clause. This motion directly contravenes the earlier motion and is therefore out of order.
The Chair: Honourable senators, as chairman, I will take the responsibility that this motion is out of order and continue clause by clause.
Senator Bosa: You are saying that my motion is out of order.
The Chair: I will take the responsibility.
Senator Bosa: I appeal your decision.
The Chair: We will vote on the appeal then.
Senator Bosa moves that the committee proceed now to consider the remaining clauses of the bill. My ruling is that a motion was already agreed allowing us to proceed clause by clause. Therefore, I feel that Senator Bosa's motion is out of order.
Senator Bosa has appealed my ruling on the point of order, so we will have to vote on his appeal. He feels that I am out of order.
Ms Joseph: The Chair cannot vote on that.
Senator Cools: She can vote. The Chair never loses his or her vote. In the Senate chamber, all senators can vote. The Speaker can vote on his own appeal.
Ms Joseph: Right.
Senator Bonnell: What is the motion?
The Chair: My ruling is that Senator Bosa's motion is out of order. He has appealed. He says I am wrong.
Senator Jessiman: The Chair has already ruled on Senator Bosa's motion. He is appealing her ruling. If you can get a majority of senators to vote for it, then you are out of here. If you do not, we proceed.
Ms Joseph: We are voting on whether the chair's ruling shall be sustained.
The Chair: Honourable senators, shall the chair's ruling be sustained?
Senator Jessiman: That is not the vote.
Do you work for him or do you work for them? You are giving advice to this chair contrary to the rules.
Ms Joseph: They are telling me procedurally that that is the correct way to deal with the question. The effect of it is the same. We can throw that out.
Senator Jessiman: We are asking whether the appeal stands.
Senator Cools: Do you not need a seconder on the debate of an appeal?
The Chair: I should have someone else take the chair.
Does Senator Bosa's appeal stand? All those in favour?
Senator Bonnell: In favour of what?
The Chair: Of Senator Bosa's appeal standing.
Senator Cools: We are voting on whether we have confidence in what The Chair said. We are being asked here to decide whether we have confidence in our chairman.
Senator Jessiman: You are voting on whether Senator Bosa's appeal of The Chair's ruling shall stand or not.
Senator Bosa: Madam Chair, when you put the motion, you should ask "Shall the ruling of the chair be sustained?"
Senator Jessiman: No. That is not what we are voting on.
The Chair: Listen, this is very tricky. The way you word this means that if you have a tie vote, it is defeated. We have to word it very carefully. The fact is that Senator Bosa is appealing my decision. Do you agree with Senator Bosa?
Senator Jessiman: Put up your hand if you agree with Senator Bosa.
Senator Bonnell: That is not a motion.
Senator Jessiman: Yes, it is.
The Chair: All those who disagree, put your hand up, please.
Look, I am sorry, but you will have to speak one at a time.
I think this is very clear. I say that Senator Bosa's motion is out of order at this time and that we should proceed clause by clause because we had a motion on the floor to proceed. I say his motion is out of order, and he appealed my ruling.
Ms Joseph: I am told that procedurally the correct question is, "Shall the chair's ruling be sustained?" That is the correct question. The question is not whether the appeal is agreed to. The question is, "Shall the chair's ruling be sustained?"
The Chair: I understand that I must put the question this way: Shall the chair's ruling be sustained?
Senator Jessiman: Who says that?
Senator Pearson: That is the way it is done in the Senate.
Senator Phillips: Perhaps I could have a ruling on my point of order before we vote, please.
It is my understanding of the rules and the Senate practice that there is no appeal of a chairman's ruling in a committee.
Senator Cools: I always thought that was the case. Senator Bosa was proposing something that is not so.
Senator Bonnell: Let us get the law clerk in here and find out.
The Chair: Honourable senators, we will recess for 15 minutes until we get a decision.
The committee recessed.
Upon resuming at 5:15 p.m.
The Chair: Honourable senators, I hope that I can proceed so that you will all have this clarified and we will all understand where we are. I said that Senator Bosa's motion was out of order and Senator Bosa has appealed my decision. The question is: Shall the decision of the chair be sustained?
All those in favour?
Senator Lynch-Staunton: Before you proceed, I should like to raise a point of order. This committee has agreed to go into clause-by-clause study. There was a unanimous agreement of all the committee members. A motion is now being made during clause-by-clause study to change it into another form of study.
A set of rules apply to committee deliberations. Senate rules say that to overturn an original decision taken on the same subject, a two-thirds vote is necessary to overrule it. My point of order is that the two-thirds rule must apply in this case. Otherwise, we are at the mercy of the whims of a majority which can, during the course of proceedings, by using its majority, overturn what has been agreed to, in this case, unanimously.
The two-thirds requirement was brought in to offset the whimsical feelings of the majority to be invoked on too frequent an occasion.
I suggest to you, Madam Chair, that the vote on Senator Bosa's motion, which is to overrule a decision already taken by this committee, needs two-thirds support to be approved.
Senator Maheu: On a point of order, do we have the Rules of the Senate of Canada here and is it in there?
The Chair: Yes, it is.
Senator Lynch-Staunton: The rule book is there.
Senator Bosa: While they are looking, perhaps I can voice my opinion.
The matter was never put to a motion to proceed to clause-by-clause study. We just proceeded. An amendment was made and we proceeded that way. There were no formal motions made that we continue. I sustain that the motion that I made is perfectly favourable because no previous motion was made. Therefore, my motion does not have the effect of negativing a motion that had been made before.
Senator Jessiman: Are you going to vote for your own motion? It is a trick. You are putting a motion forward knowing that there will be a tie if you vote against it.
Senator LeBreton: Why did we discuss the first clause, then?
The Chair: I may have to get the blues out to look at that.
Senator Bosa: Senator Jessiman, do you bank on the fact that there will be a tie vote and, therefore, you want us to wait?
Senator Jessiman: I am asking you whether you will be voting for your own motion.
Senator Bosa: Call the motion and you will know.
Senator Cools: Something is a tad wrong, and I do not understand. If the intent of Senator Bosa's motion is to give proper form to a possible oversight on our part, then why is it necessary to call into question the confidence of the Chair?
The Chair: We may have to look at the blues.
Senator Cools: If Senator Bosa says that we went into clause-by-clause study without a formal motion, my understanding was very clearly that --
The Chair: Order, please!
Senator Bosa: I can respond to that. I did not agree with the motion, so I have the right to appeal the motion. Am I straying from the rules?
The Chair: I should like to tell you that Rule 63.(2) says:
An order, resolution, or other decision of the Senate may be rescinded on five days' notice if at least two-thirds of the Senators present vote in favour of its rescission.
Senator Maheu: That is an order of the Senate.
Senator Lynch-Staunton: But the Rules of the Senate of Canada apply to committees.
Senator Forest: Do we have a resolution?
The Chair: No. If we deal with the question, "Shall the decision of the chair be sustained," then we will deal with Senator Bosa's motion. If we feel that the rule is correct, then we need two-thirds majority to overturn his motion.
Senator Phillips: May I point out that before adjournment at noon hour, you laid out the agenda and you said that we would hear from the two witnesses this afternoon and then we would do a clause-by-clause study. That was agreed to by the committee.
Senator Bosa: It was never put forward as a motion. It was the order of things on the agenda. It was not approved. It was not put to a motion.
Senator Lynch-Staunton: It was a decision and it was approved.
The Chair: Honourable senators, I rule Senator Bosa's motion out of order.
Senator Jessiman: Let us proceed to clause-by-clause study.
The Chair: Senator Bosa appealed it, so we still must take the decision of the chair which he appealed. That must be dealt with first. I will put the question now.
Shall the decision of the chair be sustained so that we can move on to Senator Bosa's motion?
Senator Bonnell: Before you move that the decision of the chair be sustained, which seems to be in order, I do not know what Senator Bosa moved in the first place. Therefore, if you were to you rule that out of order, that does not give me a chance to understand.
Senator Jessiman: Could Senator Bosa explain to the committee the reason for his motion?
The Chair: Senator Bonnell said that he did not hear what I ruled out of order. Senator Bosa said, "I move that the committee proceed to now consider the remaining clauses of the bill."
Now, this totally reverses what we were going to do; clause by clause.
Senator Bonnell: Were you not going to do that anyway? Were you going to stop?
The Chair: This means that we vote on all the remaining motions at once.
Senator Cools: One shot on everything.
Senator Cohen: It means you will do the whole package instead of clause by clause.
Senator Maheu: That is not what it means.
Senator Bonnell: I understood we were going to do clause by clause.
The Chair: If this passes, we do not do them at all.
Senator Cools: I thought I said to insert clause by clause.
The Chair: That is what he said, and if it is defeated, it is over.
Senator Jessiman: What is the effect of that motion being defeated? I would like someone to tell me what the effect of that is. Can we then proceed clause by clause?
Senator Bonnell: Not if you vote against it.
Senator Jessiman: We will vote for it, but you will vote against it and it will be a tie and it will be defeated. So he is going to vote against his motion. It is going to be defeated.
Senator Bonnell: He is not going to vote for his own motion.
Senator Jessiman: He is going to vote against his own motion.
Senator Bonnell: How do you know that?
Senator Jessiman: Madam Chair, I thought you would ask the effect of having that clause defeated, so that we will all know.
The Chair: Why do you not let me take a vote on whether the decision of the chair shall be sustained? Then we will move to Senator Bosa's motion and you can ask all the questions you want.
Senator Bonnell: We had one motion on the floor and the chair moved a second motion. We now have a second motion on the floor. It seems to me that we should dispose of the first motion and then go to the second.
The Chair: Order, please. I want to put the question.
Shall the decision of the chair be sustained?
Will all those in favour so indicate?
There are six senators in favour.
Will all those opposed so indicate?
There are six senators opposed.
Senator Bosa appealed my ruling that this was out of order. We have voted and it has been lost. Therefore, I will put his motion. Once I put his motion, you can ask him all the questions you want.
Senator Bosa said:
I move that the committee proceed to now consider the remaining clauses of the bill.
Are there any questions?
Senator Jessiman: Yes. I want to know from the clerk, what is the effect of that motion being defeated and what is the effect of it being passed?
Ms Joseph: If this motion is negatived, you will not now proceed with the remaining clauses of the bill, which means you will have no business before you, and the meeting will be adjourned.
Senator Jessiman: Does this require a two-thirds majority?
Senator Maheu: You said the same applies to the Chair of a committee as to the Speaker. I cannot find that rule.
Senator Lynch-Staunton: Do you mean about the Speaker voting?
Senator Maheu: We do not need two-thirds for that.
Senator Phillips: It is rule 84, senator.
Senator Jessiman: It was our understanding that it required two-thirds majority.
Senator Maheu: No.
Senator Phillips: Rule 84 states:
The Rules of the Senate shall apply in Committee of the Whole with the following exceptions$
It refers to committees.
Senator Lynch-Staunton: Madam Chair, as I understand it, if Senator Bosa's motion is defeated, that means that the committee proceedings come to a halt.
Senator Bonnell: I would think so.
The Chair: Yes, sir.
Senator Lynch-Staunton: And therefore you adjourn to the call of the chair.
The Chair: That is correct.
Senator Lynch-Staunton: And no report can be made because we have decided to stop the proceedings.
The Chair: That is correct.
Senator Lynch-Staunton: That is if Senator Bosa's motion is defeated.
The Chair: That is so if the motion is negatived.
Senator Lynch-Staunton: What happens if the motion is accepted?
The Chair: Then we proceed.
Senator Lynch-Staunton: As we have been proceeding all along?
Senator Maheu: Senator Phillips, did you say rule 84?
Senator Phillips: Yes, rule 84 on page 85, Part X.
Senator Maheu: That applies to Committee of the Whole, does it not? We are not in a Committee of the Whole. We are in a standing committee.
Senator Bosa: Question.
Senator Lynch-Staunton: If the rules of the Senate apply, we need a two-thirds vote to sustain Senator Bosa's motion, because it is reversing a decision taken previously.
Ms Joseph: Rule 63.(2) reads:
An order, resolution, or other decision of the Senate may be rescinded on five days' notice if at least two-thirds of the Senators present vote in favour of its recission.
It does not refer to decisions of committees. It does talk about five days' notice. As well, notice is not required in committee. It has not been a practice of committees to need at least two-thirds majority to rescind votes. There has not been recision of votes in committee. I would have to look for precedents, senator.
Senator Lynch-Staunton: I think you should.
Senator Phillips: Our rules say that the Rules of the Senate shall apply in committee.
Senator Maheu: Where?
Senator Cools: Madam Chair, Senator Bosa says that there was no motion made to go into clause by clause when we began. Is a motion required for us to go to clause by clause?
The Chair: Yes. The first thing on the agenda says, "It is moved by the honourable senator," and I understood that Senator Bosa -- I looked at him when he sat down to pass that motion. I would have to look at the blues to see if --
Senator Cools: How did we get into clause-by-clause consideration without doing it? How did we get there? How did we get into clause-by-clause and actually have a vote on the first clause without getting there?
The Chair: Because we had a motion.
Senator Cools: How did we get there without getting there?
The Chair: We had a motion.
Senator Jessiman: You think you had a motion from Senator Bosa to proceed to clause by clause? That is good.
Senator Bosa: Madam Chair, before we sat down, I moved that we adjourn the meeting to Monday at 2 o'clock, and that motion was defeated. So you proceeded. You did not put the question again, "Shall we proceed clause by clause?"
The Chair: That is probably because you surprised me by bringing up that motion, Senator Bosa. I did not expect to return on Monday at 2 o'clock.
Senator Bosa: I do not want to betray any private conversations, Madam Chair, but I did mention to you that that is what I would do.
Senator Cools: Madam Chair, my understanding has been all along that this afternoon we were doing clause by clause.
The Chair: That is correct.
Senator Cools: And that we had agreed upon this. I believe the agenda reflects it. All day we were saying this. I am surprised and bedevilled to discover that I have gone somewhere that I did not know I was going. I have never had that happen. How did we get here without being here?
The Chair: This motion is in order and I would like to put it.
Senator Lynch-Staunton: Before we vote on it, I would like to ask Senator Bosa a question. This is a government bill which the government wanted passed before Christmas. It was very upset that a vote taken in this committee did not allow the bill to be passed. Why is Senator Bosa now moving a motion which would, in effect, depending on which way it goes, stop proceedings in this place and delay a bill which the government feels to be essential? Our side is willing to go into clause-by-clause study and finish proceedings. Senator Bosa is telling us, "Defeat my motion and things come to a halt."
We are not in favour of the bill, so I sense that perhaps we will support him. I do not understand why he is playing our game.
What is behind all this, Senator Bosa? Why are you telling this committee that there is a possibility that through your motion everything here comes to a halt and government priority legislation, which was essential as we were told before Christmas, can now be delayed indefinitely?
Senator Bosa: I take full responsibility for my actions.
Senator Lynch-Staunton: Could you explain them? Did you want the Deputy Minister of Justice to explain your actions?
The Chair: I still feel that this motion has to be put to this committee today.
Senator Bosa: Please call the motion.
The Chair: I am prepared to call it. Senator Bosa moves that the committee proceed to now consider the remaining clauses of this bill.
There are six nays and six yeas which means we are tied. Therefore, the motion is defeated and I adjourn the committee to the call of the Chair.
The committee adjourned.