THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, December 7, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-202, An Act to amend the Divorce Act (shared parenting plans), met this day at 10:33 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Good morning. Welcome, honourable colleagues, invited guests and members of the general public who are following this morning’s proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
This morning, we are starting our hearings and our study of Bill S-202, An Act to amend the Divorce Act (shared parenting plans).
This bill was brought forward by our colleague, Senator Cools, who will be speaking to us about the bill this morning.
Welcome, Senator Cools. Of course, you know the procedure very well since you have been a member of this committee for many years. I have had the pleasure of working with you on this committee.
The floor is yours this morning, Senator Cools.
Senator Cools: Thank you so much, chairman.
As Senator Joyal has said, I served with him on this committee for many years. I would love to take the opportunity to congratulate him on becoming its chair. I have every confidence that he will do the finest job possible. I have worked with him and have served with him very well.
Before us is my bill, Bill S-202, which has now been around the Senate for a little while. It is a very straightforward and clean-cut bill. It is not cluttered with anything other than a single point, which to include in the Divorce Act something which has been missing for quite some time. I will read to you the provision that will amend section 11 of the Divorce Act.
For those of you who happen to have the sections of the Divorce Act before you, section 11 describes the duty of the court. I will read subsection 11(1)(b) as it is:
. . . to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, . . . and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; . . .
Colleagues, I would like to share with you that the subject of divorce reform in Canada was begun in the person of then Minister of Justice and Attorney General Mark MacGuigan. He had very strong thoughts, and he brought them with him to the position of Attorney General his scholarship as a university person. I think he was Dean of Law, at some point, at the University of Windsor. He had a splendid mind. Many years ago, in 1984, in Canada he really began the movement for reform of the Divorce Act. Those of us who are old enough to know will recall Canada’s first Divorce Act was brought in, in 1968. Mark MacGuigan believed strongly that was the time for improvements and change.
This was all assisted by what was going on in all the provinces of Canada, led by the attorney general of each province, beginning with Roy McMurtry, the then Attorney General of Ontario. It began with the notion of sharing the matrimonial property. Ontario had the first, in 1978, what was called the Family Law Reform Act and is now called the Family Law Act. They broached the notion that upon the dissolution of the marriage or divorce, both husband and wife should have a share in the matrimonial property.
I knew Mark MacGuigan very well as a Liberal and, being the great man that he was, he then broached the idea that not only was it time to share the property, but it was time for us to look at sharing the children. I am sure that anyone who had a friend who was being divorced in those days would recall the horror of those divorces.
In any event, he put forth this little document to the country. I still have the original. It was issued by the Department of Justice called Divorce Law In Canada: Proposals For Change. You have to remember that he brought his bill forward in 1984. It was a very good, well-drafted bill. He was introducing some strong new concepts, such as each spouse should have respect for the other spouse’s parenting right and other notions; but the major one that he was bringing into law that articulated the law was called “the best interests of the child.” That term, colleagues, was coined in an 1893 case in the Court of Queen's Bench called Regina v. Gyngall.
Senator Joyal, I’m sure you appreciate the amount of work I had to do to discover where the term “the best interests of the child” first originated. I am sharing that with you.
This was the 1893 case of Regina v. Gyngall. It was the culmination or the reaching of the highest point in the late nineteenth century reforms in the condition of children and the improvement of the condition of children. In other words, that is where the term “the welfare of the child” was born. Those welfare improvements continued on many, many fronts.
I would like to read to you the two statements from that judgment. At page 251 of that judgment, Lord Justice Kay says:
So again and again in such cases, where the child was not of very tender years, the practice has been that the judge himself saw the child, not for the purpose of obtaining the consent of the child, but for the purpose, and as one of the best modes of, determining what was really for the welfare of the child.
Then, at paragraph 252, Lord Justice Kay says:
. . .the superintending power in respect of infants, which Lord Eldon said the Court of Chancery had always exercised by delegation from the Crown as parens patriae, must be exercised as the Court may think for the best interests of the child.
Colleagues, I must share with you the joy and pleasure when I was able to discover just where this expression first raised its head. I felt great joy, and I have held on to this for years and years and years in the hopes that it would be of use at some point in time.
To bring this back to the Senate, in 1998, the Senate undertook a joint study. It was created by joint resolutions in the two chambers, but it was called the Special Joint Committee on Child Custody and Access after divorce. I served on that committee, I would admit, with some zeal. We travelled the width and the breadth of this country. The committee’s work was widely supported all over the nation. The committee got a lot of media coverage.
Because there is not that much opportunity to share these things, I must share with you that wherever that committee travelled it was most unusual that in every hotel we stayed the rooms were crowded with people. It was standing room only. It was the first time I have ever seen a committee of the houses that would command such public attention and such public support. It was uplifting. The joint chairmen were from the House of Commons, Roger Galloway, and from the Senate, Landon Pearson. It was very well attended. In those years I could arrive anywhere in the country on two days’ notice and there would be a room of 500 people ready to discuss the hardships that were happening in divorce.
My bill does not look at all of the questions in the Divorce Act. My bill looks at one question, which is section 11. As you see, it’s a tiny bill and it focuses on one issue. The issue is section 11.
If you look at section 11(1), it says:
In a divorce proceeding, it is the duty of the court. . . to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage. . . and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; . . .
Any person who looks at divorce will very quickly see there is a deficiency here. If power is given to the court, to the judges, to stay the granting of a divorce if reasonable arrangements have not been made for the support of the children; but there is no coequal clause or section which says that the divorce should be stayed if there are not reasonable parenting arrangements, arrangements for parenting the children to be made.
This has been forgotten, overlooked, neglected, or however you want, for many, many, many years; but that was the issue that kept coming up during the joint committee’s studies.
It is a horrible, terrible thing to see families torn apart by divorce, but it is an even more horrible thing to see children destroyed because, for whatever reasons they don’t get full access to each parent. At the end of the day, the committee came to a conclusion that more than anything else, children should have continued and meaningful involvement and relationships with both parents. The committee was quite even-handed.
Therefore, my suggestion to senators and to the chamber is to add, after subsection 11(1)(a) on satisfying itself about reasonable arrangements for the support of the children, a new subsection (a.1) saying:
. . . to satisfy itself that reasonable arrangements have been made for the parenting of any children of the marriage, having regard to their best interests, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made;
In other words, I would say that my point of view is that children need their parents in most important ways. The law has a duty to put the affectionate relationship of the parent with the children on the same level as the financial relationship of child support.
Senator Joyal, I don’t think you were in the Senate yet, but when the child support guidelines were created they were very controversial. Our Senate amended that bill in very, very powerful ways. That Bill C-41 is a very famous bill. It was creating a regime where child support was determined by the salary of the non-custodial parent, invariably fathers, and not even considering the salaries or the incomes of the custodial parents. That bill took a huge step backward in respect of what was going on in the community.
However you cut it, that bill was amended in the Senate. Out of the struggle and the issues that were raised, the success the Senate had at the time was that the then Minister of Justice agreed to support a motion that would create a joint committee of the two houses to study the issues, because the issue by this point had reached such great length.
I don’t know how we want to proceed, but I am open to every possibility. I have had lots of experience with possibilities. It would please my heart if you would put a few questions to me.
The Chair: Thank you very much for your presentation, Senator Cools. Yes, I was in the chamber because I was appointed in 1997.
Senator Cools: You came into the midst of that.
The Chair: Absolutely.
Senator Cools: It was a good time for the Senate.
The Chair: I remember it very well.
There is, no doubt, interest around the table to ask questions. I understand, of course, that you would receive the questions.
[Translation]
Senator Boisvenu: Welcome, Senator Cools. Thank you very much for your work. It is always a positive thing when a senator takes the initiative to introduce a bill of their own accord. I do have a few questions, however, specifically about the federal and provincial sharing of responsibilities.
In Quebec, Ms. Tremblay introduced a bill at the time that clarified the sharing of responsibilities, specifically as regards assets. In Quebec courts, the child’s interests are often a priority in divorce cases. In producing this bill, what was your consultation process, especially for Quebec? I read about your process, but there were no Quebecers in the groups you consulted. It seems you consulted primarily anglophone Canadians. What consultations did you do in Quebec?
[English]
Senator Cools: I am under the impression that we went into Quebec. I could be wrong as it was a long time ago; but I do know that there was a sense among the Quebec members at the time that they had a very good divorce regime already under operation.
I remember at the time there was a concession in our heads to say, “If it is so good, we don’t have to tamper with it or worry about it.” In any event, most of the good that is done is done in the provincial setting. At the end of the day, divorce still remains a federal area of jurisdiction. There was much respect for the system in Quebec as it was operating at the time. Some Quebecers said they thought it was perfect.
[Translation]
Senator Boisvenu: Does your bill define what is in the child’s interests? That is a very broad concept. It often has to be interpreted by the judge himself who has the two parents, the father and the mother, in front of him. Does your bill define what is in the child’s interests or is that left up to the courts?
[English]
Senator Cools: No, the Divorce Act tells us what they think reasonable arrangements are. Basically, reasonable arrangements are those that satisfy the judge as being reasonable. The current Divorce Act in subsection 11(1)(b) says the court must satisfy itself. The act is very pointed and certain about who makes that judgment.
Coming back to the notion of “the best interests of the child,” that notion was put forth, as I said before, in a famous judgment on which the courts have relied for a century or more. I can read another statement which was taken from Gyngall but was applied in the United States of America by Mr. Justice Cardozo who says:
The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone. He acts as parens patriae to do what is best for the interest of the child. He is to put himself in the position of a “wise, affectionate, and careful parent” . . .
That again is from Regina v. Gyngall.
. . . and make provision for the child accordingly.
A key point here is:
He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights “as between a parent and a child,” or as between one parent and another.
Justice Cardozo continues:
He interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae.” . . . The plaintiff makes no pretense . . . He invokes the jurisdiction of a court to settle a dispute. Equity does not concern itself with such disputes in their relation to the disputants.
In other words, they are not concerned about the difference of the fight between the father and the mother. Their concern is solely for the child.
A whole scope and a whole range of possibilities have been left in the hands of the judge. I do not see anything wrong with that. I see that as desirable. Once a power is put where it should be put, we know that it has been dealt with and that there is a power.
What was going on in the early nineties is that there was such a wave of extreme, radical feminism that a lot of people lost their way for a brief period of time.
Senator Sinclair: Senator Cools, welcome. Having had the burden, and I call it that because it is always difficult to preside in divorce court many times as a judge, shared parenting was always in my view what we should be looking at as judges because I always thought it was primarily in the best interest of children to do that. The most difficult cases, of course, involve those in which domestic violence was a prominent issue, and in particular where violence toward the children was an issue.
I have looked through your bill and I see lots of room for the exercise of discretion by judges. I want to confirm with you, though, that it is not your intention to remove from judges their discretion in the best interests of the child not to allow parents to have contact with children in those situations where they deem it in the best interest of the child not to have such contact.
Senator Cools: You could say that I have great admiration for the challenges that face every judge daily. In my adult career as a senator, I have been fortunate enough to have been very close friends with many judges. I am thinking of one chief justice in particular. We served as mutual support quite often in helping each other to sort out difficult legal questions and issues.
You must be mindful that I am saying within the framework. The framework, as it is, gives that power to the judge as the representative of the King in respect of the parens patriae and all these other powers that have been handed to judges over the years. I don’t see that any of those powers should be disturbed.
Divorce can become an extremely ugly and dehumanizing thing. I am very aware that judges have to resort to their best judgment and do the best they can in the circumstances. In my mind, I hope that I am handing the judges another tool in this case.
Senator McIntyre: Thank you for your presentation, Senator Cools. Your bill provides for parenting plans.
Senator Cools: Yes.
Senator McIntyre: Does that mean shared parenting or equal shared parenting?
Senator Cools: I do not know what “equal parenting” means. I make no attempt to defend it or use it whatsoever. I know what “shared parenting” means because enough jurisprudence has been developed over the years in it; but I do not know what “equal” means, so I prefer to stay with “shared parenting.” I do not think the term “equal” has a role in helping us here. How does one define “equality” here? I do not know.
Senator McIntyre: I ask you this question because critics of the bill have been saying that equal shared parenting would be a breach of the principle of “the best interests of the child,” which is anchored in the jurisprudence.
Senator Cools: I am with you on that.
Senator McIntyre: I want to focus on the words “custody” and “access.”
The bill amends the Divorce Act to provide for parenting plans. As I understand it, a parenting plan may be included in an application for a custody or access order brought by one or both spouses under the act. Now, the words “custody” and “access” appear in many sections of the Divorce Act.
Senator Cools: Mostly around section 16.
Senator McIntyre: Bill S-202 does not amend the main access and custody provisions in the Divorce Act. It adds a new section that goes with the terminology.
My question is: Would this create confusion and inconsistency in the interpretation? I would like to have your thoughts on that.
Senator Cools: I consulted heavily with Professor Julien Payne at the time. He was another friend of mine. These are people I have worked with for years.
I did not think it would be wise for me to open up the total of section 16. I thought that I should limit myself to what a private member’s bill should do and leave the larger set of amendments to the Minister of Justice and to the Attorney General. It is something I feel quite strongly about in that way.
For whatever reasons, it would be nice if younger, newer senators coming along would pick up this torch and carry it on from where the committee left off, and where it didn’t move very much since the committee completed its study.
I had no interest in going into section 16. There are some beautiful things in section 16, for example, the “friendly parent” rule. Again, all this goes back to the time of MacGuigan. The “friendly parent” rule basically says that every parent should respect the other parent’s right to support their children and to parent their children.
The Divorce Act, as we have it, came through a few different ministers. It began with MacGuigan. That died on the Order Paper and it was picked up by Attorney General John Crosbie. He stayed largely with MacGuigan’s framework, and then he took it forward. Later on, again, by the time you came into the Senate, Mr. Rock has picked it up, and his changes were not as welcome as his two predecessors.
As a private member, I tend to think that I’m quite well read. I’m quite familiar with the law. I understand the law and I read a lot of statutes; but I really think we should stay with what we can manage. All that we’re putting forth is a private member’s bill with one very simple thing. I can tell you, Mr. Audcent worked with me very closely on that. He is a masterful draftsman. What we were attempting to do was to articulate the need for a parenting plan. I was quite happy and pleased to limit myself to that proposition.
If you want, we could go further. Anybody is free to amend this to do whatever they wish to do. A lot of study went into this bill, I can tell you that.
Senator Gold: Thank you, Senator Cools, for bringing this forward to us.
As you know, the United Nations Convention on the Rights of the Child notes that children have the right to have their views considered in any decision-making process that affects them. That is the thrust, as well, of a number of academic experts in the area of Canadian law. I am thinking of Nicholas Bala and others who have written in that regard.
In what respect or to what degree is that notion taken into account in your bill and in your conception of parenting plans?
Senator Cools: It is taken into consideration in that I rely on the same set of principles as articulated in Regina v. Gyngall, which was articulated again in the American cases by Cardozo. As far as I’m concerned, the law is there already and the powers are there already. All we have to do is to tweak one little issue to give the courts full authority.
I have spoken to many judges in divorce. Many of them have learned to dislike divorce cases, for whatever reason, because they find them too hard and too painful. The principles are already laid out in the parens patriaeor “the best interests of the child.” “The best interests of the child” is its own body of law. There is enough there that I didn’t have to go searching for more, and I prefer to leave that to others.
Senator Gold: Perhaps I didn’t ask the question quite appropriately. As I read the bill, the parenting plan that you suggest could be included in an order by a judge and not to be considered. It does not, at least explicitly, give a voice to the child’s or children’s views as to what arrangement they would like to see. As I said, there is a trend to encourage the law to recognize that children should have a voice in this process as well, not only the parents.
Senator Cools: Yes, but that is all laid out very carefully in Regina v. Gyngall which is the case that brings forward the notion of “the best interests of the child.”
If I didn’t, I should have, but I thought I had included a passage where the judges say that they must meet with the child; they must talk to the child. These were, in 1893, the highest and probably the most prominent judges the world has ever known.
To my mind, maybe I should go further. Maybe I should have made it a two- or three-clause bill; but I didn’t think it was necessary because I think the other work is there. It’s sound and it is intact. They are all saying, at all times, that they are there to look after the interests of the child, not the disputants, not the parents. They are not there to settle a quarrel between two parents. They are there to see that the child is looked after. They say, quite often, that they see the child and they talk to the child. Regina v. Gyngall was an exceptional case. Maybe I should have given more of the facts of the case.
At the time the child was 15 years old and had been bounced from pillar to post by the mother for many years. Then, after a long period of time, the parent decided that she wanted the child back. She tried to get back the child, and the child told her, no, she didn’t want to go back with the mother. The child said, “No.” She was very happy where she was. Gyngall was a woman who kept a boarding house. The child was going to school and doing very well in school, and so on and so forth.
The fact of the matter is that the judges looked at it and said no to the mother. They gave the child to Gyngall because the child was doing so well and had been doing very well for a long time. There is a case where the judges interposed. These were heavy hitters. They met with the child and came to their conclusion.
It is already there. That bridge was crossed. We don’t have to cross that bridge again. There is enough jurisprudence.
Senator Batters: Thank you, Senator Cools, for being here and for bringing this forward today.
I practised law in private practice in Saskatchewan for many years prior to coming to the Senate, and a major area of focus that I had was family law.
Senator Cools: Of course, so you’re familiar.
Senator Batters: Absolutely. In 1995, when I started to practise, major revisions were made to the Divorce Act, taking into account the more current situations that existed at that time. During the course of my 13 years of private practice, major practice changes occurred in family and divorce law in Canada.
Prior to a judge granting a divorce between the parties, my experience is that it’s actually a practice requirement, if nothing else, but definitely a requirement that those seeking a divorce must have satisfactorily dealt with the issues pertaining to children of child support, custody and access sorts of things prior to even granting the divorce. Otherwise they simply won’t grant the divorce.
Senator Cools: That is smart.
Senator Batters: Yes, absolutely, because it kind of holds that final thing out to make sure that the most important thing, when you’re dealing with the children, is that satisfactory arrangements have been made.
I want your comment on a couple of things. In my perspective, shared parenting is now very much the norm in Canada. Some 25 years ago it certainly wasn’t. The norm was sole custody to the mother and limited access to the father. Now I would say the vast majority of cases are shared parenting arrangements. Indeed, in many cases the judge’s presumption is that shared parenting should be happening. Certainly “the best interests of the child” continues to be paramount. I just want your comment on that.
My point is that, with the greatest of respect, I think the situation you’re seeking to implement here practically already exists in divorce courts in Canada.
Senator Cools: Thanks. I’m very close to this subject matter, and I did thousands of hours of work on it. The committee, in the process of travelling across the country, discovered that public opinion was with the committee. Public opinion was not with the naysayers or the radical ideologists.
I am not a person who follows posters and polls and those sorts of things; but I can tell you, as we were beginning to work on our report, that Conrad Black's Southam newspaper hired a pollster and did polls on this question. I was the most pleased person in the world when I opened the Ottawa Citizen in October/November and the headline was “Public backs fathers’ rights.” They said the public thinks fathers and children were getting short shrift in divorce and went on to break up their numbers and their analysis and so on. That is when I fully understood the sea change that was happening in the minds of Canadians with respect to this issue because there was just too much pain and anguish and too many tortured children and so on.
I look at all of that in a very positive way. I am pleased and happy that I was able to make some contribution to it. In a funny kind of way, I wish you to share my enthusiasm of 20 years ago.
Senator Batters: Yes, absolutely. I think, in large part because of the public interest and requirement for it, that’s why the law did evolve.
Senator Cools: That went through the courts.
Senator Batters: Absolutely.
Senator Cools: As I said to you, I have many judge friends. They shared the conversations at all the dining room tables with me and the sea change happened. Maybe it is just one of those things, and I was happy to help it a bit.
Senator Batters: Great.
Senator Cools: I appreciate people like you, I must tell you, and all of these numerous family law practitioners who are sometimes grappling with the most complex and the most difficult problems. Sometimes they think they are sinking. I always made myself available to comfort some of those people or to share with them some of my wisdom and experience in the field. I spent a lot of time counselling men and women who were fighting. I worked in the field of domestic violence and, I tell you, I would work with that couple till we brought them to peace.
Senator Pate: Thank you very much, Senator Cools.
Senator Cools: We’re kind of kindred spirits on some of this.
Senator Pate: I want to pick up on some of the previous questions, and in particular those of Senator Batters. The results of the work that you, Senator Pearson and others did more than 20 years ago really reflected the status quo at the time that often women were the primary caregivers. As Senator Batters has discussed, family law has evolved and in most of the cases we see joint custody arrangements, unless there are situations of violence or other issues.
I have a two-part question. How would violence impact the kinds of parenting plans you are talking about, both in terms of the issue that Senator Sinclair raised of the potential where children are at risk but also where the women are at risk where there are violence against women issues?
I’m curious as to what evidence you have of the current need for these changes? Because of the evolution, many of the things that you raised and that Senator Pearson and the committee raised more than 20 years ago have essentially been addressed.
What is the evidence that these changes are currently needed? How would you account for making those changes when they will likely increase costs to individuals who are often already struggling as they’re dealing with the dissolution of their marriage?
Senator Cools: I don’t think this would increase any costs to divorce petitioners, but it completes the circle, so to speak, of the powers the judges have to deny a divorce or not to grant a divorce. That is a very important power, an extremely important power.
I find section 11, which talks about the powers of the court and the powers of the judges, incomplete because it makes mention of the financial obligations that parents have to children but is silent on the issue of emotional relationships and affectionate obligations that they have to children.
I thought that sort of thing was a residue or a leftover from a previous era and that we should round it out by showing the same concern for the well-being of the children should be expressed on the emotional and affectionate side as it is for the financial support.
Remember, this was put into the Divorce Act at a time when the big concern was child support and nothing else. It was solely child support. It was very one-sided and so on. That era did a lot of good, but it also did a lot of damage.
Senator Pate: Do you have evidence of a current need for this?
Senator Cools: The statute itself reveals a need. There is an absence of it, in it. In other words, that section was put in at the period of time when the child support payments were redone. It was reflecting that interest, but the clock and the people in the population moved on to a more balanced place.
We just have to go into the statute to put it in, just to round out the situation. It should have been in a couple of years ago. I thought at first it would be a few months, but this bill has been sitting around and going through the committee for quite a few years now. I would have done it faster if I could have.
Senator Pate: My apologies for not being clear, but I couldn’t find anything showing that there has been a call for this currently, given the evolution in family law matters within the provinces and territories.
Senator Cools: There is always a call for justice issues to be clearly articulated, I think.
[Translation]
Senator Carignan: Thank you for your bill, senator, which considers the interests of the child. As you know, family law is in my family. Even though I do not practice, having a spouse who is an expert in family law makes me aware of the key issues.
In my experience, at this time of the year, the courts are full of requests for interim procedures and changes. People do not agree on who will have custody of the children at Christmas, on New Year’s Day, and while travelling. In December, the courts are completely bombarded with such requests.
I would like to pick up on something you mentioned in your plan. It is the dispute resolution mechanism for spouses on matters of interpretation. It is a mechanism to revise or update the plan. What is your understanding of this dispute resolution mechanism? Does it mean that the Superior Court would no longer be responsible for settling such disputes?
[English]
Senator Cools: No. If you think that, I would like to ask you to consider rethinking that.
All I was trying to do was to fill a gap that I perceived with respect to the need for parents to be able to speak to judges clearly about their plans to parent the children.
Certain judges and other people prevailed upon me to put in that long explanation because they were having difficulties in those areas. To the extent that the judge, on the pain of not granting the divorce has to show reasonable arrangements for child support, I thought gee, it would be wonderful if the same judge could ask for reasonable arrangements to parent the children. From then on it is with that judge.
They will be the persons who will sort out the substantial and substantive issues in the parenting plans, for example, if one parent wants to be away so many weeks a month or whatever. Those are the things that are left to the system and to your wife.
Senator Carignan: No, it is okay. Anyway, she’s doing more mediation now.
Senator Cools: Oh, good.
Senator Carignan: That’s part of my point. At (e), your bill talks about a process for revising or updating the plan and at (d) a process for resolving disputes between the spouses, the interpretation and implementation of the plan
Senator Cools: Yes.
Senator Carignan: What kind of process could we imagine would be in place in this type of situation? Is it to use a mediator?
Senator Cools: I think the parties should use whatever tool they can use. The interesting thing is to find a tool to get to a peace. The intention has to be there to get to a peace. If you try to resolve problems and even one of them isn’t interested in getting to a peace, then you have a problem. My intention here in all of this is to leave the hand open to the judges.
The people I’m really supporting here are not the families out there. It’s the system. It’s the judges. I think we leave a lot to them. When they have a hard time, we don’t know and they don’t say. I think we should leave the field to them because many of them are extremely experienced in the field of managing disputes.
Senator Fraser: Welcome, Senator Cools. I have two questions, both undoubtedly betraying my status as a non-lawyer.
Senator Cools: Okay.
Senator Fraser: As I read your bill, it says there may be a parenting plan and, if there is one, it should do X, Y and Z; but it doesn’t say there shall be a parenting plan. To what extent would a judge have the ability to require a parenting plan that meets the objectives you set out here?
Senator Cools: If the judge has two people before him who have no interest in reaching a parenting plan, I think the judge has a problem. Again, he will have to find some resources to invite them to get to the peace.
I am not trying to bind judges’ hands here at all. I am just trying to give a bit more scope to the range of skills they already have at their disposal and the range of possibilities. Very clearly, if a person is not interested in a parenting plan, they’re not interested in a parenting plan. All that happens is that the judge doesn’t grant the divorce, as is his choice to do.
Senator Fraser: My second question comes back to Senator Gold’s point because you’re expanding on the provisions in the existing Divorce Act. You’re putting in new stuff.
Senator Cools: But this one is very limited.
Senator Fraser: I understand, but you are doing that.
Senator Cools: Yes.
Senator Fraser: Why would you not at the same time include a provision that the child, if the child is old enough, has the right to be heard by the judge?
Senator Cools: The judges already have that power.
Senator Fraser: I understand that, but to the extent we change the law that supersedes jurisprudence, I think. It seems to me that it might be appropriate for a bill of this nature to include a specific reference to the views of the child.
Senator Cools: I have no objection whatsoever to any senator making an amendment. I am open. All I was trying to do is to open the door in this direction and then leave it to the judges.
Judges are interesting people. I know of a case some time back where the lawyer was so committed to the case that he was bringing more and more evidence. The judge called him over and asked, “How many more witnesses do you have?” The lawyer said, “Five.” The judge said, “Do you really think you need them?” The lawyer caught on,“Oh, I could reduce it to two.” The judge said, “That would be merciful.”
I say this to you to tell you that is one episode of many that I know of. The judge was saying, “I already know. I’m convinced. You don’t have to continue anymore. I’m there with you. I see what you’re seeing.”
All I am trying to do is to create a framework or to add to a framework that allows people to get to peace, the peace. That is my expression because I did so much work in the field of arbitrating disputes between men and women that I used to feel a need not to leave the situation until we had got to a peace. You’re looking at me with very sympathetic eyes.
[Translation]
Senator Boisvenu: I listened to all of my colleagues’ questions and the following came to mind: how will this bill improve the decisions that judges make in divorce cases? What additional tool can we give judges through this bill to help them make better decisions?
[English]
Senator Cools: It would allow them to fully withhold the granting of the divorce until certain issues are looked at and until certain things are put before the court. That is a great increase in power.
[Translation]
Senator Boisvenu: Do you think that, in 2017, judges speak out when considerations as important as the child’s interests are not decided in court? Do you think that judges make decisions today without regard for an agreement in the child’s interests? Does that happen at our courthouses?
[English]
Senator Cools: I am saying to you that the law, the statute, does not clearly give the judge an authority to stay the grant of the divorce, unless --
[Translation]
Senator Boisvenu: That is not my question. My question is about something specific.
[English]
Senator Cools: What is your question?
[Translation]
Senator Boisvenu: Are there currently judges who have made decisions in divorce cases without regard for the child’s interests?
[English]
Senator Cools: I wouldn’t say that I know of such cases. I wouldn’t say that, but you are posing your question in a negative way. I am trying to put a question before you.
[Translation]
Senator Boisvenu: The question I was asking is the following: does this bill provide an additional tool to help judges make better decisions? If we pass a bill, it has to improve a judge’s decision-making process. How will this bill give judges better tools to make decisions in the child’s interests?
[English]
Senator Cools: As I said to you before, it gives judges an additional power that they didn’t have before to stay the granting of the divorce if this thing is not done.
[Translation]
Senator Boisvenu: If we give judges a tool to stay a divorce, are there cases today in which judges have made decisions without regard for the child’s interests? My question is very clear.
[English]
Senator Cools: No, I don’t think so at all. I don’t think we should be that carefree as to even suggest that judges are making flawed decisions or that they are not listening to all the facts of the case or that they are not paying attention to children. Most of the judges I know are pretty respectful and respecting individuals.
All I am saying to you is that no judge is perfect because no statute is perfect. I have been trying to identify an imperfect spot in the statute. I have offered us an opportunity to make a correction in that one spot, not in every other spot in the bill.
As I have said before, I feel industrious about the fact that when private members go to do bills they should stay on the ground they are on and not tread into the ministerial sphere. As far as I am concerned, the broader issues belong to the Minister of Justice who has all the apparatus to study every issue, proposed idea, and so on. Mark MacGuigan’s proposals began with this little red book. It is a gem, and I have held on to it for 30 years.
I see this as a positive step forward. In matters where many hostilities may be entrenched between a couple for so long, I believe any time we can give a judge an opportunity to deal with it and to get at it in a legal way and judicial way we have done a good turn or we have performed a good parliamentary action.
I cannot consider every single eventuality in the world but, I tell you, I went into this having talked with many, many judges in private conversations. All of them gave me a little encouragement. Judges are neglected. I have to tell you that is why every time a change comes through for their salary, I vote for it.
The Chair: For the next budget there is a section in the budget implementation bill that we will receive later on in our work.
Senator Cools: I know and that is unusual.
The Chair: However, that is not the issue here this morning.
Senator Duffy: Senator Cools, I have followed your work on this for many, many, many years, as you know. It seems to me, on some of the questions about providing additional power to judges, wouldn't the actual effect of your amendment be that before a case gets before a judge, the lawyers for the parties involved would realize that this was another point on which they had to reach some kind of understanding before the matter went to court?
Wouldn't it, in effect, put the work on the shoulders of the lawyers for the two disputing parties? Would it not, in effect, perhaps have the beneficial effect of speeding up the process before the courts? They would know, coming forward, that if they hadn’t checked off this box, there is a parenting plan that has been agreed to and they’re not going to get a divorce. Isn’t what you are proposing a way to force lawyers to bring the parties to a decision or to reach a conclusion on an issue before it gets to the judge?
Senator Cools: It could have that effect. I wilfully looked at the section on the duties of the court which speak directly to the powers of judges. This is what I chose to do. It is entirely possible if, in choosing this, I have overlooked other possibilities. As I said before, I am trying to narrow my role to what a backbencher’s bill or private member's bill should be.
I didn’t go to other probably fantastic possibilities. I am retiring next August, so I don’t have the opportunity to even have the time to do this sort of thing. This is what preoccupied my mind at the time because I heard so much talk with judges of their difficulty sometimes in getting certain things pinned down.
The Chair: That concludes our hearing with Senator Cools on the bill for this morning.
Of course, Senator Cools, I want to reassure you that the steering committee has been looking into preparing a list of witnesses. I know that they sought contribution from you also. We will continue our study of this bill in our further sessions.
Thank you for your contribution this morning. It is very much appreciated, Senator Cools.
Senator Cools: I thank you, Senator Joyal, for your contribution to the law of this country. You go after these issues with a very fervent nature, which I think is a most desirable thing, but you know what I think of you anyway.
The Chair: Thank you, Senator Cools.
I would like to ask honourable senators to stay for a couple of minutes. We still have two administrative issues to deal with. The first is about a budget that we need to seek your approval for. As you know, this committee is very frugal. I would say it is one of the most frugal of all the sitting committees of the Senate.
I have a proposal to put to you that we request from the Internal Economy Committee the approval of an amount of $6,000 for the remainder of this year. I need an approval for that. It will be used to purchase the last edition of the Criminal Code, which is essential for new members around this table to have as a reference. It is not a Christmas gift at all; it is needed for work. I need a motion to that effect.
The Chair: Thank you, Senator Sinclair, seconded by Senator Boisvenu. It is agreed that a legislative budget application for the fiscal year ending March 31, 2018, in the amount of $6,000, be approved for submission to the same Standing Committee on Internal Economy, Budgets and Administration.
I see concurrence on that. Thank you, honourable senators.
As you know, honourable senators, because we have circulated it, we have received a letter from Senior Associate Chief Justice Robert Pidgeon who wanted to make corrections to the report Delaying Justice is Denying Justice. I need a proposal to append the letter of Justice Pidgeon to our proceedings this morning for everyone to see.
The Chair: Thank you, Senator White, seconded by Senator Gold. It is with the proviso that if in future we are requested to go for a second printing of our report, Delaying Justice is Denying Justice, we will ensure that the corrections will be included in the second edition.
Senator Fraser: Was this report adopted by the Senate?
Senator Batters: Yes.
Senator Fraser: In that case, would it be necessary to inform the Senate of this edition?
The Chair: I could report on that to the chamber.
Senator Fraser: Put it on the record.
The Chair: Yes, that it be put in the Hansard of the Senate. Of course, it will be in our minutes from today, but I could report on that. I would need a motion to that effect.
Senator Fraser: I so move.
The Chair: Supported by Senator Sinclair.
[Translation]
Senator Carignan: I have a supplementary question. If the committee were to decide to incur additional expenses in considering a bill, would we have to request a new budget? Just because we are submitting this budget, that does not limit us in our future actions and decisions. Perhaps additional budgets will be needed for Bills C-45 and C-46.
[English]
The Chair: Not at all, senators. Essentially, this is a specific request until the end of this year. However, if there would be the exceptional circumstance you are describing, in that context I would need a motion from this committee to report to the chamber and request the amount of money from the Standing Committee on Internal Economy, Budgets and Administration, as any committee.
As you will remember, on the Order Paper we read regularly that committees are requesting specific budgets for special studies or travelling. There is no doubt in that context we would need to request an approval. It doesn’t limit us at all from that perspective. On the contrary, this is the proper procedure to be followed.
Seeing no other issues, honourable senators, the meeting is adjourned.
(The committee adjourned.)