THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, December 13, 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 4:15 p.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Good afternoon. It’s my pleasure to welcome our first panel to the hearing on Bill S-202, a bill introduced by our colleague Senator Cools. We had the opportunity of listening to her presentation last week, so we will resume on the same wavelength.
I am especially very honoured to welcome the Honourable Roger Gallaway, P.C., former Member of Parliament, and one of the key players in the committee that reviewed the issue we will be canvassing this afternoon.
We also have Carey Linde, Lawyer, Law Offices of Carey Linde in Vancouver, and Barclay Johnson, Lawyer, Barclay Johnson Law Office
I will succinctly explain the rules. Each of you will have an opportunity to make a five-minute presentation this afternoon. Following that, there will be an open session of questions and comments by honourable senators around the table.
The floor is yours, Mr. Linde.
Carey Linde, Lawyer, Law Offices of Carey Linde, as an individual: I want to honour Anne Cools, who has done more for children in Canada over the decades than any other politician in the history of Canada. On behalf of the children of Canada, thank you, senator.
Others will sing the praises of her proposed amendment as unarguably being in the best interest of children. I want to take this opportunity to recommend the adoption of the proposed amendments to the Divorce Act for purely financial reasons.
Family courts today are plugged solid with parents thinking they can deny their children access to the other parent. Lawyers take their money and plead their case, even if it is clearly not in the best interests of the children.
Court administrators, politicians and judges are in constant complaint at the overcrowding of courtrooms, the delays and high costs of trials, and the emotional costs to parents in fighting over children, to say nothing of the children caught in the middle.
The proposed amendment, if made law, would decrease the number of litigants, thus freeing court time and space for deserving cases. Parents resisting sharing their children post-separation with the other parent would be told by their lawyer what to expect from a judge.
With this amendment made law, the lawyers will have to advise that the courts will have a strong presumption supporting fair parenting. Many, but not all, will be persuaded by that fact to negotiate, mediate or otherwise avoid court.
Evidence of this phenomenon can be seen in how the enactment of the rebuttable presumption of an equal division of family property transformed the court process. It used to be that the wife of the rancher in whose name the ranch was held, after 20 years of marriage, would have to commence an elaborate legal action in trust law to get a share in the ranch upon divorce. The logjam in the courts lessened remarkably when all the provinces enacted legislation giving both spouses an equal entitlement to family property.
A spouse wanting to prevent the other spouse from getting half the family property is ready to pay a lawyer a lot of money to litigate. The lawyer responds by saying, “Forget it. You only get half. That’s the law.” The result is less overall litigation over family property.
With the enactment of this amendment, the parent who goes into the lawyer’s office seeking to fight to keep the kids will be told to think twice, you have to share. The result will be less litigation of sharing children.
I am neither naive nor Pollyannaish. There will always be parents claiming more than they should and others ready to fight against it in court. However, word will get out into the public domain where these things get talked about. It will become known that sharing is primary principle that can no longer be ignored.
Every parent who avoids litigating custody as a result of this new direction to judges saves themselves and the justice system time and money, both of which are in short supply for Canadian families.
Thank you.
The Chair: I will now recognize Mr. Barclay Johnson, a practising lawyer in Victoria, British Columbia. We definitely have the West Coast’s point of view this afternoon.
The floor is yours, Mr. Johnson.
Barclay Johnson, Lawyer, Barclay Johnson Law Office, as an individual: I would submit it is the correct view. At any rate, I have been practising in this area for a while. I’ve been at the bar for 41 years. Most of my practice now is criminal law, but I still maintain a family law practice.
I’ve known Senator Cools for a number of years and have supported her in her efforts to try and draw attention to the need to preserve the most stable relationship that we know in Canada, the family relationship. At a time when we are looking at maybe 50 per cent of all marriages ending up on the rocks, something has to be done. I firmly believe that looking after children is key in that situation.
Unfortunately, under the Divorce Act, the Government of Canada and Parliament are way behind provincial legislatures in dealing with co-parenting concepts. We still have archaic principles in the Divorce Act like custody and access. Those are emotive terms that I don’t think are tolerated any longer by most people today.
To carry on from Mr. Linde had to say, yes, there is a need to have this legislation changed. Are we duplicating something that already exists at the provincial level?
We’ve gone through a serious change of legislation in British Columbia in the last couple of years. The attention was focused on parenting, getting rid of the words “access” and “custody,” and having both parties take more of a responsibility for raising children.
I find that the need right now, especially in the divorce area, is to give clarity to judges who don’t presently have enough objective criteria for making decisions relating to co-parenting.
Putting on top of that the need to have a parenting plan which is put together by the parties, with the assistance of the court, I think is the way to go. A lot of divorce actions are started as soon as the parties separate. In this country, most of you know that you can’t get a divorce uncontested, unless you meet certain criteria, unless you want to go through the matrimonial offences of adultery and mental cruelty. Nobody goes that way any longer.
You can start the action and, if you’re separated after a year, you can get your divorce. That would give most parties ample time to get together, especially with judges, to have a parenting plan drawn up.
The complaint I’ve heard was that this would impede people from getting divorces. It would be an unreasonable thing. Absolutely not. I don’t think it would work that way in the least.
We have, in our province, judicial case management. These are the types of criteria set out in this legislation that would be foremost on a judge’s mind at that hearing: introducing the parties to the need to have a co-parenting plan or a parenting plan, and reminding them that they could come back and the judge would be of assistance in helping that plan be formulated and made into law, ultimately by court order. I don’t see a big complaint being raised about this being oppressive to people who simply want a divorce.
There are sections in the legislation that permit judges to dispense with the parenting plan. That could be done, I suppose, under certain circumstances if the kids were perhaps in university, almost no longer children of the marriage.
The rights that we’re talking about today are children’s rights, not parents’ rights. I think that is the perspective from which Senator Anne Cools was approaching this legislation. In that respect, there’s one thing that really sticks out to me. In my view subsection 16.1(4)(d) sets out the child's right to be cared for by each parent.
That could be extended, with a judge, to sitting down with the kids in an appropriate circumstance to find out what the children want or what their expectations are, not necessarily to have their wishes followed but to have them as participants in the process. It’s really forward looking to do that.
I’m just about finished here. Does this legislation trump everything that currently exists in provincial law? It does.
Why are we concerned with a parenting plan? No legislature of which I’m aware has enacted a rule that there has to be a parenting plan in place. We have examples, in Alberta and I think now in British Columbia, where parenting after separation courses are mandatory before you can take any steps in court.
We see the movement toward mediation and conciliation. I believe that this legislation is really the ultimate when it comes to that process.
Thank you very much.
The Chair: I remind honourable colleagues, listeners and viewers that Mr. Gallaway was the co-chair with Senator Cools of the Special Joint Committee of the Senate and the House of Commons on Child Custody and Access after divorce. Its report, For the Sake of the Children,was well received and stimulated reflection and discussion throughout Canada at that time.
The floor is yours, Mr. Gallaway.
Hon. Roger Gallaway, P.C., former Member of Parliament, as an individual: There is this idea that Senator Cools was the Senate chair. She was not the Senate chair. She was simply a member of the committee.
The Chair: An active member.
Mr. Gallaway: Yes, an active member of the committee. Senator Landon Pearson was the Senate chair.
I am reminded today that it was 20 years and two weeks ago that both chambers, the Senate and the House of Commons, passed motions that constituted this rather peculiar beast called a special joint committee.
I don’t think I need to remind you that special joint committees are created to examine topics deemed to be very serious, and their reports are to be taken most seriously. We know that committees report on various topics, but the reports of special joint committees are to receive special attention because it’s the agreement of both chambers of Parliament.
In 1996, as I am sure Senator Cools has reminded you, the then Divorce Act was amended. Up until that time it was set out in subsection 15(8) of the then Divorce Act that both parents had an obligation to contribute to the support of the child. Then Minister Rock introduced what was called Bill C-41 which did away with that.
In fact, it created a regime whereby there were tables of child support guidelines that still exist today. It fell upon the non-custodial parent to pay. The income of the custodial parent, whether higher or lower than that of the non-custodial parent, wasn’t relevant. It was just the way it was.
It was Senator Cools and the late Senator Duncan Jessiman who went to the minister and blocked the bill in the Senate, and from that came the committee. He agreed that you couldn’t just play with one aspect of it, that that being payment, and not look at the other aspect. Out of that came this committee.
I must say this committee's hearings had the largest attendance of any committee of Parliament, it is said. For example, in Toronto, we had to have a ballroom at the Royal York. It was filled to overflowing with 500 or 600 people. We had to call in the RCMP to keep order in the hallways. Everywhere we went as we travelled across the country, there would behuge crowds representing both sides of the equation.
Out of this came a report, For the Sake of the Children. I will refer to a couple of its recommendations. Recommendation 5 said that it was time to change the vocabulary of custody versus access. Then came the term “shared parenting.”
I can tell you where that term came from. It was made up one evening when the committee was meeting and discussing. When I say “made up,” it was what we agreed upon, that we would do away with the terms “custody” and “access” and merge the relative aspects of custody and access into the term “shared parenting.”
The other recommendation I would refer to is recommendation 11. That is about parenting plans. The committee recommended shared parenting in recommendation 5, and recommendation 11 said, “Let’s have parenting plans.”
Parenting plans are not about joint custody or fifty-fifty. It’s to recognize that parents have respective roles and they must be allowed to play them and that at times one parent may have dealings with children 20 per cent of the time and the other parent has the children 80 per cent of the time. It was the way their lives were at that time when they weren’t divorced, but those can change. It’s the evolution of a family.
It was to recognize that both parents would have involvement in the life of children. It would be a defined plan. It would be written out. They would agree on how they were going to do it? They were splitting but they needed a way of dealing with their children, not your children or mine but their children.
It was out of this concept that Senator Cools was saying that if you look at the history of divorce, if you go back far enough in time, it was always the support of the children, the financial support and the affection of the parents toward those children.
Bill C-41 was all about support. That’s all that mattered in the life of this place and the life of the then Department of Justice. The business of affection to the children, that is the parental contact, was neither here nor there. Out of this, we have seen this business of serious warfare grow.
You can say that this is in the past and times are evolving, but I will end by saying that the bill before us is a reflection of what people want. People want a reasonable way to resolve their differences, and this is it. This is a very simplistic, in some ways, bill that will cut the warfare.
I tell people I am haunted by this report. Here I am 20 years later and I am here today. I live in Sarnia, way down south in Canada. I still hear from people. Last week, I had a call from a lady in Winnipeg. How did she find me? I don’t even have a listed phone number anymore, and she found me. There is still a huge problem.
I go back to what I said at the beginning. These were the largest hearings of any committee of this place. The issues have not gone away. They’re still out there. This is a wonderful way, as Carey Linde has said, to solve the problem without being Pollyannaish about it.
The Chair: To open the exchange with our witnesses this afternoon, Senator Dupuis.
[Translation]
Senator Dupuis: Thank you for your presentations. Mr. Johnson, you directed our attention to paragraph 16.1(1)(d) of the Divorce Act, which concerns the dispute settlement mechanism for spouses in the context of the interpretation or implementation of the plan. You related that clause of the bill to the fact that the judge may hear the children to ask them about their ideas, perceptions or reactions. The connection isn’t clear to me. I’m trying to see the link between this clause and the notion of interviewing the children. This bill is focused on the interests of the children and not the rights of the parents. It’s important to make it clear that the emphasis at the provincial level is on mediation and conciliation. In that way I don’t see how Bill S-202 includes the mediation aspect.
Clause 2 of the bill discusses concluding reasonable arrangements in a conflictual context. I can see that mediation and conciliation may help. And in fact, that is the reason why mediation is obligatory in Quebec. Can you explain the relationship you see between the two?
[English]
Mr. Johnson: When I referred to that section of the proposed bill it was interesting that the words “child’s right to know” are the only words that start off with anything to do with children. The rest of it starts off with parents. For the first time in legislative form we have an acknowledgement that the children are important in the process of resolving issues between mom and dad.
Judges would probably give effect to that. I can’t speak for the judiciary, but I have certainly argued enough cases in front of them to suggest that they would run with that idea. Not every judge would feel comfortable interviewing a child, depending on the age, the circumstances and what have youl but I think it’s becoming a little more accepted. In provincial court hearings that I’ve been involved in, the circumstances are such that the judge can request an in camera one on one, without the parents around, with the child or children. This is an important logical step which gives the judge, as I was saying, some objective reasons for taking that step.
Also you mentioned that the movement, certainly at the provincial level, was toward mediation. Maybe Mr. Linde has a better grasp of the statistics, but I believe the number of marriage-like relationships outweighs marriage by 1 to 3, at least in British Columbia. When all of those end, they come before provincial court judges for the most part. It’s not surprising that they’re jamming the courts with the numbers.
As Mr. Linde mentioned, we hope to save some time. Obviously, that doesn’t help with parents who are not married. This legislation does not deal with that, but I think it serves as a beacon. It serves as a way in which judges can approach things.
This is a conciliatory piece of legislation, in my view, even though you’re saying there’s a carrot and a stick here: If you deal with the parenting issues, I’m going to give you a divorce. It has never been done before. We leave it up to the parties to take these parenting courses. It’s not voluntary. Some people sleepwalk through these processes, and they’re not going to change their minds.
This addresses the issues. It’s the first time I’ve seen any legislation at the federal level give objective criteria to help people in a definite way, with going through the things that should be covered and coming up with a plan that should work.
There is one process in B.C., at least. A judicial case conference can be started right away. I don’t think there are any interlocutory motions that can take place until that the JCM, judicial case management, takes place. It’s a perfect opportunity for a judge to jump in.
If these judges are also dealing with non-divorce situations, you’re going to set a trend here. I really believe that provincial legislatures would likely try to emulate this at least at the divorce level.
I don't know if everyone has a copy of my paper that I handed out. I tried to deal with the issue of paramountcy. What happens if the federal legislation requires a parenting plan and the provincial legislation doesn’t?
Right now, at least in B.C., we have a real muddling going on about which legislation applies. How do we apply it? Is it federal or provincial? The provincial legislation is far down the line. I don’t know whether that’s something that needs to be redressed at the federal level, but as long as there’s a Divorce Act I believe there has to responsibility centred around, in my view, exactly what you raised, Senator Dupuis. We have to make sure that mediation is the first step, with objective criteria, so that judges are not prejudging but helping people through a process.
Senator McIntyre: My question has to do with the rights of grandparents under the proposed legislation.
As I recall, the B.C. branch of the Canadian Grandparents Rights Association expressed its concerns in a document dated 2012, The Child’s Right to Love. Bearing that in mind, the bill proposes to add a section to the Divorce Act. I draw your attention to proposed subsection 16.1(4)(e), which specifies:
(e) the child has the right to spend time with, and communicate with, other persons with whom the child has a significant relationship, such as grandparents and other relatives;
In your view is this proposed section an important addition to the Divorce Act? Even more important, should this be framed as a right that the children have to spend time with their grandparents?
Mr. Johnson: Mr. Linde, did you want to answer that or direct it toward me? I feel I am monopolizing things here.
Senator McIntyre: Anyone can answer my question.
Mr. Linde: Let me say that in my experience judges out here are not as cognizant or able to understand the pleas of grandparents in this regard. If the parents of one of the parents says, “We would like to have time,” typically it’s shuffled off by saying that the former husband and wife have time and the grandparents can share in their time. That’s an irritant, I would suspect.
It may sound a bit radical, but I would make it so that anybody could have time. For instance, I have come across some cases where the nanny is what the children really need and want, and the nanny, in some cases, is the better parent.
I don’t mean to demean grandparents in that comment, but anything which assists the child in having the broadest possible love afforded to him or her is good.
[Translation]
Senator Carignan: My question is addressed to all of the members, and it is about the amendment to subsection 11(1) of the Divorce Act. I will read it:
(a.1) 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;
“To stay the granting of the divorce” -- isn’t that a bit intense, as my children would say? -- when custody arrangements have not yet been made? If the whole custody plan is suspended although the couple is ready to divorce… The one-year delay before the divorce procedure is already an issue for couples. According to certain family law lawyers, that waiting period should be six months. Do you not think that this will throw oil on the fire, or force parents to make compromises that will not necessarily be in the interest of the child, in order to obtain the official divorce papers as rapidly as possible so as to be able to marry their new flame?
[English]
Mr. Linde: I think the honourable senator should get a reflection of what actually happens in the administration of all of this.
It is almost always the case that the actual divorce is the least important aspect of family law litigation. There are property issues and children issues. There is a provision now to shorten the actual divorce in cases where there’s a pregnant partner and they want to get married.
The point I’m making is that I don’t foresee the delay of a divorce. For instance, right now I have a situation where we submitted the divorce papers to the courts. They are coming back saying that the divorce is not going to be granted because they can’t understand how it is the client claims an income of so much, yet is paying for private school. The divorce is being delayed there because the judge is not satisfied that the financial requirements of the children are being adequately met, or there’s a question mark. In that case it’s a hindrance; it’s not a problem. These people have gone on and re-established their lives.
With all respect, I don’t see any actual denial of divorce. Besides, you have leave it to the judges. If they see that divorce is important, they’ll do something about it.
Mr. Johnson: There’s always room for an exception. If someone who is pregnant wants to get married, I think that could be handled.
The point I made earlier was that a year is a long time in which to get your affairs in order. That time starts running from the date of separation. Some people, who have been separated in their homes, will come in and say that they have been living in the basement or sleeping on the couch.
Isn’t that separation? Yes, it can be, but sometimes it’s an issue. Generally people are good about waiting the time, waiting that year. Their focus is not on the divorce. It’s more on the financial aspect. It should be more on working out the parental issues together.
It’s a good way, in my opinion, to heal some wounds. From my experience, getting the parties together to recognize they have an obligation that continues after divorce is something that needs to be addressed. No parenting plan being a document will be perfect. It will be changing. It has a life and there needs to be room for revisions as circumstances change. At least it gets the parents thinking along those terms.
As a practitioner, I could never understand the difference between status rights and contract rights. I prefer for my clients to say, “I have a right to this because we have an agreement in place.”
Everybody is promising one another, and the expectations will be fulfilled if they perform the obligations under that arrangement. If they sit back and say that they are married and have status rights, they’re unclear. This is where it gets people in trouble. They have misconceptions about what their spouse’s responsibilities or duties are.
In a situation where you have two parties, it’s much better to bring them together and make a deal. I’m not Donald Trump here, but the art of the deal is the parenting plan.
[Translation]
Senator Carignan: In the case of a dispute, what type of mechanism do you think should be included in paragraph 16.1(1)(d)?
[English]
(d) a process for resolving disputes between the spouses as to the interpretation or implementation of the plan;
[Translation]
What kind of mechanism? Should we withdraw the jurisdiction of the court to settle disagreements on the interpretation of the arrangements? Should there be a mediator, an arbitrator, to handle changes? How do you see that?
[English]
Mr. Johnson: I referred earlier, senator, to a process in British Columbia that you will see across the country where there is judicial case management and judges become involved in a process. It happens in civil litigation where they want an end point. They want to know if the parties can settle something. There’s an immediate concern over getting the parties together.
Under our rules of court is really where you find this. The rules relating to that process would be found in provincial civil rules.
Setting out what the judge can and cannot do in that kind of mediation or hearing is very important. It gives the judge an extra piece of authority to sit down with the parties and say, “Look, Parliament has spoken. This is something that needs to be addressed early. You’re not going to escape this. This is not something that you just slough off. Mediation is going to happen right now.”
When judges are involved in that situation, quite often they are not the judge who actually hears the case in the final result. They’re interested in bringing the parties together.
I hope that answers your question. I think that stays within the judicial realm. People are always free to get private mediation, which is an expensive process. In some cases it’s warranted, but my view would be to get judges involved in these judicial case conferences.
Senator Pratte: One of the clauses required for the plan is a process for resolving disputes between the spouses as to the interpretation or implementation of the plan.
I know there’s no parenting plan required by the act presently, but what kinds of processes do parents use presently? What could be envisaged, if the bill were adopted, as an efficient process besides, of course, going to the judge and asking the judge to solve the problem?
Mr. Johnson: “The best-laid plans often go awry.” If there’s an issue, these plans need to be revised. It’s not a perfect document by any means. It’s one that has to have some ability to change the circumstances to bring the parties back.
We see this in financial arrangements for spousal support or child support, where the parents exchange financial reports or disclosures every April or May so that they can adjust the amount to be paid up or down.
There’s no mathematical formula in these types of situations. Every situation is different, despite what we have here. All we’re trying to do in this legislation is to make it standard. It doesn’t mean it will always be applied the same way across the country.
If there is a dispute, you would always have recourse to go to court. You are not going to end up in a divorce action, being able to go to provincial court. They won’t be able to amend these types of agreements. They have to be done in Supreme Court in B.C., for example, or in the higher courts.
Will that mean more expense to the parties? Will that mean further delay? Will that cost more money than the divorce, depending on the fight?
We can’t eliminate all fighting between the parties. It’s not possible. I’ll give you an example that happened in my practice. The mother and father are living in Victoria. Mom meets a new person in her life. They want to get married but he lives in Vancouver. Now we have a situation where time with the children becomes an issue.
The plan says every second weekend or on certain days. Now we have mom saying that it will not work. There’s a ferry schedule that has to be adhered to. Who pays for the transportation?
Those things come up all the time. All you could hope for is that people will be reasonable and understand there has to be some give and take.
I don’t know if that answers your question. It doesn’t look good for people who want to fight. There’s always the opportunity of fighting.
Mr. Linde: The direct answer to the question is that there is nothing. You can start a divorce action or have a custody fight in British Columbia. You’ll meet with a judge at the judicial case conference. The judge can only make recommendations. There are no orders. If you have an obstinate parent, it will go to trial.
I would have liked to have been present when the attorneys general met 20, 25 or 30 years ago in the country and changed the law in each province with respect to property. There would have been people questioning that, and rightly so.
I want to make it clear. When you get married now, there’s a rebuttable presumption that there will be a fifty-fifty division of property. If a millionaire marries a pauper and they get divorced in six months, the pauper might get 100,000 bucks if lucky, but after 8 or 10 years it’s fifty-fifty.
When somebody comes into my office and says, “I don’t think she should get all this money. I’ve done all the work. She hasn’t worked. She stayed home. I want most of the assets,” I simply say, “Forget it. Next item.”
Years ago that would have been $20,000 and a week in court. If you put this forward, the perception in the public will advance to the point where they say, “I don’t know if I’m going to put myself out on that limb anymore.”
It’s the movement away over the last 40 years from the mother preference. I don’t want to brag about British Columbia, but I think in B.C., from what I hear about what’s going on in Ontario, we are more advanced and our family law act is pushing.
The sharp answer to the question is: There’s nothing there the judges really have other than suggesting a report or an expert or do this. In the financial aspect, or on the money side, there’s lots they can do. They can demand income tax returns. They can deamnd corporate returns. They can demand all kinds of stuff, but nothing about the kids.
All I’m suggesting is this will be a step in the right direction. We have to wait and see its effect.
Senator Pratte: It would probably be useful with time, if this bill were adopted, to develop tools to help parents if they have to find a process to solve the issue of how to interpret this plan. We’ll have to develop some tools. It’s not easy if you’re only two and you have to solve an issue in interpreting a plan.
Mr. Johnson: I agree.
The Chair: I’m looking at the clock. At 5:15, we will have to adjourn because there is a vote call. We are on the second round.
Mr. Linde: If senators go on the website, they willl find hundreds of parenting plans out there. There are people who make a profession of putting them out there. It’s not hard to develop a parenting plan if you’re told you have to do it.
Senator McIntyre: The preparation of parenting plans can require legal advice. Legal services can be financially unaffordable for many Canadians.
How can the bill’s proposed changes affect unrepresented parties?
I understand the Department of Justice provides online tools to help parents with developing a parenting plan of their own, but are those online tools sufficient to guide the parents?
Mr. Johnson: Perhaps I can answer that.
Mr. Gallaway: Go ahead. You’re doing fine.
Mr. Johnson: There are sufficient resources, especially on the Internet, as Mr. Linde stated. You can find just about everything you need.
Pro bono services are available and they’re excellent in British Columbia. The areas that are good. Apart from that, there are lawyers. I include myself in this to a limited extent. I can’t do it all the time, but a lot of pro bono work is being done, especially to help women who have gone through a recent separation. Most of that is related to violence issues or immediate financial needs.
Apart from that, I find that the parties are able to get through the sharing of responsibilities.
[Translation]
Senator Dupuis: I have a question for Mr. Gallaway. Clause 2 of the bill talks about ensuring that reasonable arrangements have been made. That is quite a vague concept, and there isn’t much information about it. In the report you prepared in connection with the committee’s work, did you discuss reasonable arrangements? What are the criteria that allow you to judge whether an arrangement is reasonable or not?
[English]
Mr. Gallaway: I’m not quite certain, senator, what you mean by reasonable. The courts have been interpreting reasonable and attributing what is reasonable for, dare I say, hundreds of years.
Your attachment to the word reasonable can be dealt with by the courts quite simply because they do it every day now.
[Translation]
Senator Dupuis: No, but something is unclear to me in clause 2 of the bill. I’m going to ask a more specific question, and I am addressing it to all of the witnesses who would like to reply.
If I understood correctly, in order to be able to obtain a divorce eventually, the court would require that reasonable arrangements be included in the parenting plan. If there is no clear explanation of the term “reasonable”, the ultimate criterion is the interest of the child in that connection. Nothing indicates that here, and this seems far from clear to me. Would you have anything to say to us on this matter?
[English]
Mr. Johnson: Although the provincial and the federal legislatures deal with the same concept, it is in the best interests of the child. That’s the hallmark. In British Columbia they’ve moved a bit beyond that. They take into consideration the children themselves and other interested parties such as an aunt or an uncle.
Situations can happen, for example, where one of the parents has a serious drug problem and the ministry is involved with apprehension. I don’t know whether this is an appropriate time to bring it up, but we have an epidemic in our province. I cite the statistics in my paper. They are old statistic, by the way. I believe it’s actually a worse situation.
In British Columbia, the total child population is 892,265. In 2016, 7,216 children and youth moved into out-of-home care. That is unbelievable. I’s a rate of 8.1 per 1,000 children. Anything that can be done to help parents address the issue of dealing with this joint responsibility to bring them together will help.
The word reasonable will include everybody’s involvement. It is not just the judges saying this is what’s reasonable under the circumstances, or this is in the best interests of the judge, or if the judge says so, it makes it so. That’s what used to be reasonable in the old days. I think that’s changing, I really do. I’m hoping it is.
Mr. Linde: If you take a bell curve and you say that on one side are the intelligent, rational parents who work it all out by themselves and share the children, and on the other side of the bell curve are the people with perhaps personality disorders who are going to fight no matter what, we’re talking about the mean, a large middle of good enough parents. It’s those people who can be prodded to move more toward the solution side of things.
The term reasonableness is what I’m facing right now with the financial child support issue. The judges have to make sure there’s reasonableness in looking after the children. As Roger Gallaway said, the courts have been looking at that particular word for centuries, and it’s working.
The Chair: Thank you very much, Mr. Linde from Vancouver, Mr. Johnson from Victoria and Mr. Gallaway from Sarnia. You’re always welcome to be part of our reflections and discussions.
Honourable senators, as you know, a vote is now being call to take place at a 5:45, so I would ask you to be back here by 6:15 for our second panel of guests.
(The committee suspended.)
[Translation]
(The committee resumed.)
The Chair: Honourable Senators, we will resume our meeting.
[English]
It’s my pleasure to introduce John-Paul E. Boyd, Executive Director, from the Canadian Research Institute for Law and the Family. Good afternoon, Mr. Boyd.
[Translation]
I am also pleased to welcome Marie-Christine Kirouack, the former president of the Association des avocats et avocates en droit familial du Québec. Welcome, Ms. Kirouack.
[English]
Also we welcome via video conference in Kingston, from the National Association of Women and the Law, Pamela Cross, Member.
We will start with Mr. Boyd. If you want to open our exchange this afternoon, you will have five minutes for your presentation, as will the other panelists. After that we will exchange views with senators in the form of questions and answers or comments.
Mr. Boyd, you have the floor.
John-Paul E. Boyd, Executive Director, Canadian Research Institute for Law and the Family: First, I will provide some context into me and where I am coming from.
I practised family law in Vancouver for 14 years as a litigator, a parenting coordinator, an arbitrator and a mediator, as well as a collaborative professional, before moving to Calgary to joining a social science research institute. Since joining the institute, my perspective on law has changed. I don’t know that I would be the same lawyer if I went back to litigating now.
My view has changed from the somewhat insular view of a lawyer practising day to day in the trenches, to one who has a broader view and a longer perspective.
I now see family breakdown as being not a breakdown but a restructuring. I see my job as a lawyer of taking the same constituent elements that supported a family while they were together, the economic and the psychosocial, and redistributing those same constituent elements to the family living in separate homes with the same parenting resources, the same economic resources and the same social resources.
Joining the Canadian Research Institute for Law and the Family has been a change in my life, giving me a much deeper and different perspective on family law than I had before. I now perceive the system of the family. I have a much greater appreciation of the relationship between parent and child and the attachment theory. I have a much keener interest in reducing and mitigating the effect of parental conflict on children which, as the science tells us, can have a multi-generational effect.
I was pleased to provide some comments on this bill. The bill has some positive qualities, from my perspective. It allows the court to encourage people to create parenting plans. From my perspective, anything that gets parents talking outside of court has the potential to reduce conflict and the potential to diminish the likelihood of litigation.
That being said, though, it imposes a new oversight obligation on the court which it does not presently have. It stands the risk of imposing further barriers to the ability of Canadians to access family justice. I worry that it ignores the realities of many families troubled by family violence, substance abuse, mental health problems, and by other issues that make some of the proposals perhaps unsuitable for all families.
I’ve taken a great many notes, which I am going to avoid, having listened to some of the previous testimony provided.
First, this regime affects only a small class of separating parents. It only affects parents who were married and then choose to divorce. Not all parents do. On the other hand, the legislation of the provinces and territories touches every class of parent: married or unmarried, married and separated, married and not pursuing a divorce, and married and pursuing a divorce.
Second, many of the provisions the bill provides with respect to the principles enunciated in proposed subsection 16.1(4) are laudable, such as the admonition for parents to always work toward the best interests of the children, to create parenting plans and interpret them in the best interest of children, and to guide their future actions in light of their children’s best interests.
However, there are other principles set out in that proposed subsection that I worry do not reflect the day-to-day lives of Canadian families. They are aspirational, in a sense. They are also value choices or choices between competing values and competing ideologies. I worry that some of the admonitions, such as that all children have a relationship with their parents that continues after separation, are frankly not true for all families and all circumstances. Sometimes family violence can make the continuation of relationships along those lines ill-advised.
These policy choices reflect only one potential set of values that could have been chosen to flesh out proposed subsection 16.1(4). You would be asking Canadians to subscribe to these values, failing which there’s the possibility under proposed subsection 11(1)(a.1) that even a simple divorce that’s proceeding on an unopposed basis could be held up.
The consequences of that, from the point of view of access to justice and the individual, is that we are now talking about provisions that would give the court a supervisorial authority over private contracting, which the court does not now have, that could potentially obstruct the granting of a divorce and prevent families from moving on with their lives.
The other aspect of this new supervisorial function has to do with the ability of courts to manage a frankly epic task they do not presently have.
When the child support guidelines were introduced in 1997, the Divorce Act was modified to include paragraph 11(1)(b), which gives the court the authority to stay the granting of a divorce until adequate support arrangements have been made. The difference between that and proposed subsection (a.1) is that you can resolve child support questions merely by having knowledge of the income of the payer and the number of children for whom support is being provided.
In most cases, but certainly not all, this is a simple matter of referring to the income information supplied by divorcing parents and looking up the information under the tables attached to the child support guidelines. That calculation is simple and straightforward. It’s often no more than a few minutes’ work to reference the amount.
This task, however, calls upon the court to examine the reasonableness of the parenting arrangements that separating parents have made. Subsection 16.1(3) requires the court to assess whether the principles listed in subsection (4) have been included. Subsection (5) would allow the court to inquire as to why they haven’t been included, if they have not been included.
If the court is to undertake a meaningful inquiry, the highly contextualized inquiry that the court is required to do when assessing parenting arrangements that are being made for children, this is not a matter that can be done lightly. It is not a matter that will be done simply by cross-checking to see whether the parenting plan includes the seven enunciated principles.
It’s the kind of thing that will require the court to undertake an investigation of its own into each and every case of a divorcing couple as to whether the couple has resolved their claims by way of a consent order, a separation agreement or reduced it to a parenting plan, as the section suggests.
What I’m concerned about is that, at present, the courts are widely seen to be overburdened, understaffed and unable to meet the demand that’s currently placed upon them. The delays right now until trial in Calgary, in family cases which get priority among the other civil cases, is now two to three years. The delays are slightly shorter but still longer in British Columbia, where I used to practise.
It is unacceptable, I submit respectfully, to ask a family dealing with a contested court application to wait for two years until the matters flowing from their separation are finally resolved. Those are the families who have so much trouble agreeing that they feel they have no choice other than trial.
I am pleased to say that the minority of family law matters are resolved at trial. The rate is between 4 and 8 per cent. The rest are resolved out of court through means of arbitration, mediation, cooperative dispute resolution processes and things of that nature.
But even though there is such a small number of cases going to trial, we still have enormous backlogs that are clogging up the courts in British Columbia and Alberta. Frankly, the tide of litigants proceeding without counsel is as high as 80 per cent in some provincial family courts, and those numbers show no sign of slowing down or diminishing.
In terms of the functionality of this, I have concerns about the efficacy of asking separating Canadian parents who are married to subscribe to a list of principles, some of which are mere value statements rather than empirical facts. Then I have concerns about how they’re going to be manifest in terms of accommodating access to justice and the already overburdened work of the courts.
Thank you.
Marie-Christine Kirouack, Past President of the AAADFQ and lawyer emeritus, Association des avocats et avocates en droit familial du Québec: L’Association des avocats et avocates en droit familial du Québec has existed since 1986. We have a membership of more than 500 attorneys, practising all through the province of Quebec, not only Montreal or Quebec City.
We took cognizance of Bill S-202 with definite interest but also with certain concerns. You were given a detailed analysis, clause by clause, of the actual Divorce Act, Bill S-202, the Civil Code of Quebec, and comments and case law as applicable.
Let me just surmise first. We have to realize that reading Bill S-202 in Quebec is a bit different because we’ve had joint parental authority since the reform of family law, which was a big reform to the civil code in 1980. It is going to be almost 40 years ago. Case law has made it pretty clear that whether you are under the jurisdiction of the Divorce Act or the civil code, i.e. unmarried people or those going for a separation, the principle of joint parental authority applies. It’s basically one of the foundations of the fact that we have a bijural system.
Second, the association favours the fact that the Divorce Act would talk about joint parental authority. It has been in our rules for almost 40 years. The problem we have, though, about which we’re a bit worried is: Does that mean the same factual situation for children in provinces, that the common law would give two legal answers that would be entirely difference since, as we know, the concept of joint parental authority is different in provinces or common law? As an association of practitioners in family law, that is cause for concern for us.
Furthermore, with respect, it’s not quite clear whether the parenting plans in Bill S-202 are compulsory, depending on the provisions you read. Maybe the interests of the children would be better served by the inclusion at section 16, and not an inclusion of proposed section 16.1, of the principle of joint parental authority, as case law in Quebec has basically decided anything and everything you could call a parenting plan directly or indirectly with regard to any decision, pertains to the children.
Also, as it is drafted right now, it is unclear whether the court could impose such plans of its own volition. Bill S-202 says one of the parties can basically bring a plan forward. We also know in the law that the court would have the power to vary it, if it’s not happy with what’s in it; but it’s not clear if the court could impose such a plan or impose what we would call attributes of parental authority, if you were in Quebec.
On that particular point, we feel it would be a good idea if that were either simplified or clarified.
Furthermore, the association is quite wary of paragraphs 16.1(1)(d) and (e), which provide that a parenting plan could include a process for resolving disputes between the spouses as to the interpretation or the implementation of the plan and, furthermore, a process for revising or updating the plan.
Does that mean that conventionally the party could decide they would withdraw from the power of the Superior Court on questions of public order? As an association, this worries us and I don’t think it’s in the best interests of our children.
There is a question regarding parental authority. Custody, access, choice of school, religion, health care and those types of things are questions of public order. We cannot, as an association, say it would be a good idea to permit people to privately use the parenting plan to withdraw the powers of the court on those particular issues.
Let’s be clear. We are not, as an association, against alternative means of dispute resolution. On the contrary, that’s why basically 90 to 92 per cent of our cases are settled out of court. On the question of public order, we feel that one or either parent should, at all times, be able to seize the court on those questions because it is the role of the court to protect our children.
Furthermore, arbitration is illegal in family matters in Quebec. That was made quite clear and it was underlined recently on January 1, 2016, when the new Code of Civil Procedure came into effect. Of course, based on that, we also have the same mise en garde.
On the variance order, it was interesting to note that nothing in Bill S-202 provides for a power to vary the parenting plan that would be given to the court under section 17. As we know, section 17 is the article that encompasses any type of variance a posteriori of the divorce judgment.
That is not the case. Actually, there’s nothing, save and except what the parties would provide for, that would enable a court or either parent in the dispute to seize the court and make a modification to the parenting plan. We feel that could also be something that would warrant a modification to definitely be included under the usual criteria in section 17.
I have one final comment before I close, because I know our time short before the question period. Quite a few elements in Bill S-202 reiterate the best interests of the child but, with all due respect, sections 16 and 17 already provide that all decisions taken by the court must be in the best interests of the child. It’s a criterion that is very similar to section 33 of the Civil Code of Quebec. As far as Quebec is concerned, it has been interpreted the same way.
We’re not sure it would add anything to have specific provisions that reiterate what is the power of the court and how it should be rendering decisions under the Divorce Act because that’s already provided for.
Lastly, certain things are deemed that should be included in a parenting plan. Again, with all due respect, we’re all here to try to achieve the best drafting. As I recall, subsection (4), in principle, provides that the parenting plan should expressly recognize certain principles.
A lot of them should really be a matter of law and not a matter of a document signed by the parents. The best interests of a child should be a matter of law. The fact that all decisions should be taken in the best interests of the child should be a matter of law.
We are not of the opinion that it should be done conventionally, which doesn’t mean, if the parties agree, that they would not rewrite the principles found in law. We feel those principles should be part and parcel of the wide parameters on which the law is grounded.
The Chair: I now have the pleasure of introducing Pamela Cross from the National Association of Women and the Law.
The floor is yours, Ms. Cross.
Pamela Cross, Member, National Association of Women and the Law: Good evening, and thank you very much for this opportunity to speak with you on the important matter of possible amendments to section 16 of the Divorce Act.
The National Association of Women and the Law works collaboratively with other women’s equality seeking organizations for the equality rights of all women in Canada. One important component of our work is law reform advocacy.
We oppose Bill S-202, as we have various other attempts to change the Divorce Act over the past two decades, because it does not reflect the principles of women’s equality.
In particular, these reforms would place women fleeing abusive relationships and their children at serious risk of ongoing abuse and violence by their former partners.
Family violence is a serious and entrenched social problem in Canada, as detailed in the fall 2016 report of Canada’s Chief Public Officer of Health. In that report, Dr. Gregory Taylor noted that the majority of victims of violence within the family are women. Just under nine million, or one in three, Canadians said they had experienced violence before reaching the age of 15.
The violence that thousands of women flee each year in the country does not end when the relationship ends. In fact, risk factors for abuse, including mortality for both women and children, escalate at the time of separation, just when many families are turning to family law to resolve their disputes. Legal bullying through the family court process is a common strategy used by abusers to try to maintain power and control over their former spouses at this time.
Those who seek to resolve custody and access issues as part of a divorce proceeding rely on the provisions of the Divorce Act which, as you all know, require such decisions to be made using the best interests of the child test set out in the current law in subsection 16(8).
Bill S-202 would introduce what amounts to a presumption in favour of shared parenting. This is not appropriate, as the correct use of the best interests of the child test is significantly dependent on the unique circumstances of each child and their family.
Case law has clearly established the inappropriateness of joint custody, where parents cannot communicate effectively or where one parent is fearful of the other. Creating a shared parenting presumption in the Divorce Act would create a different and less safe regime for women than is available to them under provincial and territorial legislation, most of which recognizes the unique realities of families where there has been a history of violence and abuse.
NAWL supports amendments to the Divorce Act that recognize and respond to the diversities and realities of families in this country, including the reality of violence against women and children in many of those families.
In particular, we support the following:
First, the elimination of the maximum contact provision in the current subsection 16(10) of the act, as appropriate contact with each parent should be determined by application of the best interests of the child test.
Second, we support the development of meaningful criteria for the best interests of the child test, including mandatory consideration of a history of any violence or abuse within the family, the impact of violence against women on children, the safety and well-being of the child and the mother post-separation and post-court order, the past history of parenting, and stability and continuity for the child.
We refer you to the British Columbia Family Law Act, in particular sections 37 and 38, for what we consider to be an appropriate approach to the best interests of the child test, including factors that relate to family violence and safety.
While not directly related to Bill S-202, NAWL also wishes to urge the federal government to increase its financial support for provincial legal aid family law programs to address the all-time high rate of family court litigants who are unrepresented.
Let me conclude with this thought. At the present time, with no legal presumption in favour of shared parenting, close to half of all custody cases across the country end with either an agreement or an order for joint custody.
Furthermore, parents who are able to co-parent after separation in a way that is positive for their children are not turning to the courts. They are establishing their own parenting regimes based on their mutual commitment to what is best for their children.
In other words, the amendments proposed in this bill are, in our opinion at best unnecessary and at worst harmful to women and children.
The Chair: Thank you very much, Ms. Cross.
[Translation]
Senator Dupuis: Thank you to all three of you. I am very impressed by the precision and concision of your comments. I have a few very specific questions to ask. I got the impression when listening to your presentations that you had read the series of questions I had prepared for you. There is one issue that concerns me, Mr. Boyd. Once Bill S-202 is adopted, will access to justice be jeopardized if the parents that are not in conflict do not have a plan? Could you be a bit more specific on that matter?
[English]
Mr. Boyd: As I read the bill, the proposed paragraph 11(1)(a.1) would require the court to examine the adequacy of parenting plans made by married separating parents and stay the granting of divorce until it’s satisfied that those requirements have been met.
It seems to me that the likely consequence of section 16.1 is that parenting plans would be the obvious way the court would measure the adequacy of the parenting arrangements that have been made, and embedded within section 16.1 are the principles that give the court a shortcut to examining the adequacy of those arrangements.
In fact, subsection 16.1(7) says:
In the absence of evidence to the contrary, the court may presume that a parenting plan that contains the principles . . . and that is agreed to by both spouses is in the best interest of the child.
Aside from the point that that’s not the rational inquiry demanded by section 11, the upshot of all of this is that parents who are seeking a divorce would be required to demonstrate the adequacy of the parenting plans they’ve made to the court.
At present, every province and territory in Canada have established a special procedure to allow people who aren’t engaged in highly disputatious conduct to obtain a divorce. It’s usually called something to the effect of the “desk order divorce” process. It’s called a “desk order” because the application materials literally go and sit on a judge’s desk. It’s at that point that the judge reviews to ensure the grounds of marriage breakdown under section 8 have been proven and that the judge has enough evidence to make an order severing the bonds of matrimony between the spouses.
This process requires the payment of the usual filing fees, although litigants may apply for indigent status and have those filing fees waived. Those forms have been made available through legal aid websites and public legal education websites at no cost, along with guides to filling them out, in most provinces and territories. This part of the uncoupling process is fairly simple. We have the forms and instructions on how to use them.
When a couple has children they are required to fill out some additional forms that give the court information about the parenting arrangements and about the income information for each parent. That’s necessary to satisfy the court’s obligation under paragraph 11(1)(b) to ensure that an adequate amount of child support has been prepared.
The concerns I have about access to justice are manifold. Parents seeking to divorce would be required to fill out additional, complicated new forms to express to the court what their parenting plans are. The concerns I have about that are the challenges that would necessarily be posed to people who are new to Canada, by people who have lower literacy levels, and by people who have cognitive disorders and are unable to manage the complexity of filling out these forms.
In British Columbia, the desk order divorce process costs roughly $350, all in, for the forms you have to fill out and the fees you have to pay to file the forms and obtain judgment. That’s not including the fee you have to pay to a lawyer or a notary public to execute the affidavit that gives the court the information it needs about the divorce and child support.
This is going to pose an additional problem for litigants trying to access justice who face an increasing likelihood of having to hire a lawyer to negotiate through a process that has been intentionally designed by most courts to be a simple matter of filing some paperwork and waiting a certain amount of time.
The other issue, though, is not just the additional paperwork and whether that will pose a barrier to people who have less fluency in the official languages. It also is the increased likelihood of having to hire a lawyer that flows from the complexity of the forms and the likelihood that there will be an increased amount of conflict as a result of the upset to plans that have worked quite well for parents, or a parent who is prone to conflict who sees the opportunity to gain an advantage as a result of the principles enunciated in subsection 16.1(4).
There is a fundamental access problem in terms of managing what these forms will look like and providing the evidence the court will need to make a sensible, rational, reasoned decision about the quality of the parenting plans provided.
The other part of access to justice is actually being able to get into the door of the courthouse. When a divorce claim is bounced because of a child support problem, the judge will usually make some notes. The courts have a pre-printed form with some check boxes that a judge checks off. Quite often, it’s a matter of filing a new affidavit with some additional information to explain the child support problem, or sometimes it’s a requirement to actually appear in front of a judge in chambers.
That step, the oral appearance, is quite daunting to many litigants who have never had experience with the court process, and most people who are involved in family court processes haven’t been involved in another form of court process before. Here they are, being required to speak to the judge in open chambers in a non-private setting to explain child support. This adds a whole new level of complexity.
The point about getting to the court doors is that we’re experiencing increasing delays in backlogs in courts all across Canada. Imposing this additional requirement will rob judicial resources from the front lines, the chambers hearing processes needed for all civil and criminal matters before Canada’s courts, as well as the trial time.
My concern is that already the delays are quite staggering in provinces like Alberta where you will not get a half-day appearance before a judge any sooner than six months down the road. Now we’re talking about robbing more judges from that essential hearing process, which will slow down the administration of justice for all who are involved, not to mention the people who now may have to wait a number of months to appear before a judge to explain what they mean by their parenting plan.
[Translation]
Senator Dupuis: If I understood correctly, Ms. Kirouack, you spoke of a certain number of clauses that did not seem clear to you. You listed them in your presentation. You wondered if the adoption of Bill S-202 could lead the courts to impose those plans.
Ms. Kirouack: Basically, the question I asked myself about what is being proposed concerns the fact that the court would have the power to change what is submitted to it, but what is not clear is whether the court would have the power to impose the arrangements. There is no inherent power in the bill as it stands to impose them, nor to modify arrangements under clause 17.
When one looks at the first paragraphs of new section 16.1, as proposed, subsections (a) and (b) discuss the child’s place of residence or residential schedule, and the allocation of time spent by the child under the care of each spouse. How does this affect section 16? Section 16 concerns the custody orders, the time spent with each one of the parents, whether we are talking about custody, access, or where the child resides.
In fact, before May 1997, when the federal and provincial guidelines were introduced, there were cases where custody was not discussed, but rather the time the children would spend with each parent. The percentages that were introduced in May 1997 caused a sort of plethora and polarization around the custody concept, which is new if you go back to the way things were before the May 1997 reform. We commented on this at the time when we appeared before parliamentary committees.
That is the other question I have as well, because when I look at the details of section 16.1, it overlaps with section 16 to some degree, and to some degree with section 17 as well. The other aspect in this regard -- and I think I’m going to agree totally with my colleague -- is that there are two strong presumptions in the bill, were parents are being asked to reiterate basic principles, that is to say that the child must have as much contact with his parents as possible, including with third parties. However, proposed section 16.1 does not contain the caveat which appears in section 16 and subsection 17(9), which specifies that contact must be compatible with the interest of the child. This is a general principle which is not accompanied by terms or conditions specifying that the interest of the child is primordial. There is a lack of clarity there.
Senator Dupuis: My last question is addressed to Ms. Cross. In your presentation, you insisted on the presumption in favour of shared custody. I would like you to explain your position on this. If I understand correctly, can that presumption jeopardize the interest of the child? Did I understand what you said correctly?
[English]
Ms. Cross: I’m not sure I understand your question. We oppose any presumption when it comes to the question of custody and access. At this point, in particular, I’m speaking in opposition to a presumption in favour of shared parenting.
Shared parenting, joint custody, seems to be clearly contraindicated in situations with a history of parental abuse, most often directed at the mother by the father. We could have a bigger discussion if we had more time than we do tonight about the notion of presumptions generally.
At this point I’m speaking specifically to the issue of the proposal that the starting point be a presumption in favour of shared parenting. That would mean that any parent who didn’t feel that was in the best interest of their child would have to argue back from that starting point as opposed to the present status in the Divorce Act and in provincial and territorial legislation, which is one where there’s no presumption at all. The test is simply, or maybe not so simply, the best interest of the child.
If we are now to interpret the best interest of the child by overlaying on it a presumption in favour of shared parenting, that’s problematic.
Senator Dupuis: That was my question. Thank you.
[Translation]
Senator Carignan: My question is about the tenor of the jurisprudence. The purpose of the bill is to establish the presumption that shared custody is more beneficial. That is what I understand from the bill. In Quebec, judges are increasingly opting for shared custody, or tend to grant quite open access, even if not in an actual shared custody context, which means that this presumption that shared custody is in the interest of the child is not really necessary.
Ms. Kirouack: If I may say so, I don’t see a presumption in favour of shared custody anywhere in the bill. I see clear presumption in favour of the joint exercise of parental authority, but the bill does not mention encouraging shared custody anywhere. There is a presumption that favours the interest of the child -- those are the conditions I mentioned earlier -- and, in fact, there is a presumption that contacts should be encouraged. However, in my opinion, there is no presumption in favour of shared custody.
As for the jurisprudence in Quebec, the courts have repeated on many occasions that there is no presumption in favour of shared custody in the jurisprudence. Even if, de facto, there were such orders when I was a young lawyer 25 years ago, the fact remains that the Court of Appeals and our superior courts have reiterated the principle many times. I would say that this jurisprudence is constant, but that there is no presumption in the jurisprudence.
[English]
Mr. Boyd: I agree with everything Ms. Kirouack has said. Once upon a time there was a presumption that only one parent should have custody of a child, and that was for the explicit purpose of preserving children from conflict. The belief was that if you had two parents trying to steer the boat, the child would be exposed to that conflict, and that would be contrary to the child’s best interests.
The 1985 Divorce Act, the current act, introduces the concept of joint custody at subsection 16(4), when it says that the court can award custody to one or more people. However, joint custody means the distribution of parental authority, the ability to make decisions jointly, or the right to have input into what decisions are. That’s different than shared custody, which usually implies an equal or near-equal sharing of the children’s time.
Like my colleague, I don’t read the legislation as calling for a sharing of time, but it sets out a list of principles which advocate for each parent’s continued involvement in decision-making after the divorce has been granted.
[Translation]
Senator Carignan: With regard to the bill as such, if we worked on it, and amended it -- since there seem to be several clauses that pose problems, in my opinion -- could we transform it into a good bill, or would it be preferable to simply eliminate it? I am trying to find something positive, but I am having trouble working up any enthusiasm. I am trying to see some usefulness in it.
If I search carefully, I think that the usefulness might come from the fact that there are more and more people who represent themselves in court, and the bill could be a mechanism or formula to force the parents to sit down together and look at the parameters. In short, can this bill be “saved”, if I may use that expression?
Ms. Kirouack: With all due respect, a child can’t be seen as undivided joint property, or a form. I have 25 years of practice. When I was a young lawyer, and did not have white hair, the children in our cases were in high school. I have seen them go from high school to primary school to daycare. Today, in some cases, they are still in their mother’s womb. I never saw that when I was a young lawyer. I am not an antique, but I do have 25 years of experience.
What I mean to say is that the children in the cases that are before the courts are younger and younger these days. Things were easier when they were 14 to 16. At that age they go skiing, they are familiar with religion, schools, and broad guidelines. Nowadays, parents’ decisions must necessarily be joint decisions, and the best form in the world will never be able to cover that. What do they do in high school? Will they go to academic sports camps? Will the little girl be a hockey champion? Will you have your child operated on at 8 because he has a kidney reflux problem, or will you wait until he is 12? The best form in the world will never be able to take all of that into account. In fact, worse than that, personally, I think it is dangerous.
Let’s not forget that parental authority is related to the important decisions we must make for our child. I’m not talking about bedtime or the right to go to a daycare friend’s party. I’m thinking more along the lines of issues such as do you let him drive the all-terrain vehicle at 8 years of age, or get a tattoo at 12? The first sexual relations, operations, will he go to private or international school; all of these are fundamental issues. They are important decisions. Such things can evolve during the child’s whole life, and that is a good thing, because the interests of the child evolve over time and in all kinds of ways.
If your child has a serious accident and needs special care, you will inevitably have to adapt. If your older child breaks his incisors and needs orthodontia, that’s another thing. This is why I have some serious reservations about the idea of a form.
Perhaps it is because I come from Quebec. You can point the finger at me if you like, but I experienced 40 years of joint parenting authority. Parents do it; we call it joint parenting authority. And if they run into disagreements, the Civil Code makes it possible to go to court with issues they consider very important.
In divorce agreements and cases that are likely to be more litigious, there are specific provisions to cover eventualities, over a certain period of time, regarding certain decisions that could arise in the course of the two following years, whether with regard to birthdays or where the child will go for the holidays, if this is likely to be controversial.
In all cases, children are covered from the age of 2 until they turn 18. And even if these decisions are made for them, until they reach the age of majority, the fact there may later be child support obligations around these issues seems a bit dangerous to me, all the more so since what is being proposed encroaches on section 15.
As for the criteria used to interpret section 15, which are the interest of the child and the caveats regarding access or custody rights, they must be in the interest of the child. I have the same concern about section 16, which replaces former sections 15 and 17, regarding custody, because all of a sudden, new criteria are introduced that do not include parameters to protect the rights of the child. As a family law specialist, I can tell you that this concerns me.
[English]
Senator McIntyre: Thank you all for your presentations. I have two questions.
My first question is directed to Mr. Boyd. I had the opportunity to read your brief on Bill S-202. Congratulations, it is well written and well drafted
As I understand, your research institute cannot support the adoption of this bill, at least in its present form. In other words, it needs to be better prepared or redrafted.
Your brief points to the fact that the Alberta Family Law Act and the British Columbia Family Law Act set out factors that can assist both the court and the parents in determining the best interests of children. Those factors are child-centred, as are the principles proposed in Bill S-202.
However, as I understand the difference between both acts, as opposed to Bill S-202, the acts consider objective facts. You talk about those objective facts in your brief.
Could you elaborate a bit on that, please? I found it very interesting.
Mr. Boyd: The point I was heading toward was that subsection 16.1(4) asks parents to subscribe to a list of principles. Some of those principles are principles stated in the Divorce Act, such as the imperative to act at all times in the best interests of the child. Others stray from that and adopt a flavour that is more ideological, to some extent.
I am concerned about the admonition that the dissolution of the parents’ marriage does not alter the fundamental nature of parenting, which remains a shared responsibility. That may not reflect the lives and they lived reality of the family while they were together. Why should that change after they separate?
I was pointing out that provincial and territorial legislation has traditionally treated matters concerning parenting after separation a great deal more voluminously than the Divorce Act, which essentially gets the job done in section 16 that contains a whopping 10 paragraphs.
That’s not a lot. The Divorce Act says that you shall only consider the best interests of the child. There’s nothing wrong with that, but it has been left to the courts to add embroidery to that so that we more fully understand what the best interests of the child mean.
Perhaps because of political exigencies or because they have more time, or perhaps because section 92 of the Constitution Act gives them authority to deal with matters of a purely private nature, the provincial legislation generally goes on at much more length.
The legislation of the provinces, with which I’m familiar, doesn’t stop at: You shall only consider the best interests of the child. It gives you a list of factors that you should consider in thinking about how those best interests are served.
For example, section 37 of the new B.C. Family Law Act doesn’t contain a list of principles that parents are being asked to buy into as the price of their divorce. To determine what is in the best interests of a child, all the child’s needs and circumstances must be considered. That is pretty much what the Divorce Act says at subsection 16(8).
Moving on, because the section applies to both judges and parents who are making decisions about the best interests of their child it asks them to consider factors like the child’s health and well-being; the views of the child, which is a requirement under the UN Convention on the Rights of the Child, Article 12; the history of the child’s care; and the child’s need for stability.
As my friend pointed out, for children who are three years old, the parenting plan will not work when they turn 5, 10 or 15. The child’s need for stability is a flexible concept that adapts to a child who has special needs and a higher demand for stability than a more well-adjusted 8-year-old does; to the ability of each person who is a guardian and who seeks parental authority; to the impact of family violence on the child’s safety and well-being; and to the appropriateness of an arrangement that would require the guardians to cooperate.
It’s a multi-textured, more complicated way of addressing it. It’s asking the parents not to buy into a list of values but to reflect upon their actual history together, the history of their parenting, and the real factors that play into parenting decisions. Some children who are eight years old can handle a shared parenting regime where they’re with one parent for a week and then with the other. But a child, for example, who has a disorder somewhere on the autism spectrum isn’t able to manage that, and neither is a child who has an anxiety disorder. Calling for that kind of contextualized analysis, and giving parents and judges a list of factors to think about, can clarify this. In fact, the parenting plans from states such as Idaho, or the parenting plan kit that’s available online from the Department of Justice, do ask for that kind of contextualized analysis of what is in the child’s best interests. The Alberta legislation that I cite says much the same.
Senator McIntyre: Should other provinces follow the Alberta and B.C. legislation?
Mr. Boyd: That’s a philosophical question I will attempt to answer, as briefly as I can. The hyper-brief answer is yes, absolutely.
Alberta and B.C. have explicitly rejected the polarizing language of custody and access, which has plagued the Divorce Act since it was first enacted in 1968 and, frankly, was borrowed directly from the U.K. Divorce and Matrimonial Causes Act, 1857.
We haven’t got much further than that. By rejecting ideas about custody and access in favour of larger, softer language that talks about presumptions of guardianship, you are able to wean parties from some of the conflict and the opportunity for conflict that “custody” poses.
This is not to say that it’s a one size fits all solution. Where a parent is plainly unsuited to be a guardian, or where there is a presence of family violence, mental illness, substance abuse, or all those other factors that make co-parenting impossible, the parent can remain a guardian; but those guardianship responsibilities and parental authority can be tightly constrained.
In my opinion, having practised in British Columbia under the old legislation as well as the new, the new represents a significant advancement from where we were under the old language when people fought about custody and access. Incidentally, the fighting about custody is why there has been such a skyrocketing rate of joint custody, even though joint custody doesn’t mean a sharing of the child’s time but a sharing of decision-making responsibility.
To say “I have joint custody” is not to say, “I’m an access dad.”
[Translation]
Senator McIntyre: Certain critics maintain that given the difference between civil law and common law outside Quebec, the bill might create a distinction regarding custody between children born of a married couple and those whose parents are not married. What do you think of that concept?
Ms. Kirouack: In Quebec or outside Quebec?
Senator McIntyre: Both, or rather, in Quebec.
Ms. Kirouack: Yes, because regarding the rest of Canada, things seem clear since there are two regimes.
As for Quebec, the question is what will the final version of this bill be like, and how will our courts decide to balance all of this given the two legal systems, that is to say sections 30 and 33 in the Civil Code, the sections that relate to parenting authority, and the Divorce Act. If clause 16.1 is adopted as it stands, there would be a concept that takes the interest of the child into account in clauses 16 and 17; there is one in the Civil Code, section 33, including the request that the child be heard and be allowed to make his choices known, under section 30; and then, clause 16.1 would introduce certain presumptions. As things are worded now, this seems problematic to me.
The Chair: Thank you for that short answer.
Senator Gold: I will be very brief, because Senator Carignan has already asked the big question.
[English]
Is this fixable or not? If so, how? I think I know the answers from all three of you. The other question was also about civil law.
[Translation]
I am from Quebec, but I studied common law in British Columbia, and so my ignorance of the Civil Code is a bit embarrassing.
[English]
You mentioned that the conceptions or the interpretations of joint parenting vary in the common law and civil law.
Can you give us a few examples of how it would be different?
Ms. Kirouack: Let’s backtrack. There was this very interesting article in the 1980s by Justice Mayrand. At one point, after enactment, all of a sudden the fashion in Quebec, even though we had joint parental authority, was to render orders where we had joint legal custody as opposed to joint physical custody. The justice wrote a fabulous article saying that we had joint parental authority in Quebec, which in certain common law provinces could be defined as joint legal custody, or the right to be in the decision process and not lose our status. However, as far as custody, we could not split the two concepts. Legal custody in the sense of common law does not apply to Quebec. We do not have that legal animal.
I don’t know if that clears it up a bit more. I’m not a specialist of common law but our civil code is very clear, regardless of whether custody is to either of the parents, or even a third party. If we look at the Supreme Court case, R. v. Finn, it was very clear that the right of the parent to be part and parcel of the decision process on major decisions remain.
In Quebec, it even goes further. Under the Youth Protection Act, the child might be on an order that security is compromised, but that does not in and of itself mean the parents are deprived of the exercise of parental authority.
On the contrary, the Youth Protection Act tries to favour that the parents stay in the decision-making process, which does not mean that the youth protection court may not suspend the exercise of part of it with respect to certain things.
[Translation]
Senator Gold: If I understand correctly, things are already complicated enough without Bill S-202.
[English]
The Chair: You don’t want to return to school, senator.
[Translation]
Senator Pratte: Ms. Kirouack, you mentioned that it is not clear in your mind and to your association whether under the bill, parenting plans could be mandatory. Indeed, the bill indicates that the court must ensure that reasonable arrangements are made, and in the case of the parent who is asking for the divorce, the request may contain a parenting plan. This creates the impression that the court could find itself considering a reasonable arrangement that is not a parenting plan as such, but could nevertheless be an arrangement the court would deem to be in the interest of the child, and perfectly acceptable.
Ms. Kirouack: I agree with you with regard to section 16. The difficulty arises when I read 16.1, which invents a new legal entity and says this: “Here is the new entity, it has to be included in the files, and this is the power of the court.”
Our association wonders if the parents will be able to come to an agreement that includes custody, holidays and so on. Will this be covered by proposed clause 16.1? Given the way which it is worded, we feel the issue remains unresolved, since the bill also seems to want to include a series of criteria in the parenting plan.
Senator Pratte: So this would create a type of presumption in favour of the parenting plan.
Ms. Kirouack: The fact remains that it is the parents who have to fulfil the request. In that regard, certain fundamental principles have to be included in the parenting plan. This means that contractually or conventionally, some principles of divorce law or common law must be included. It is in the interest of the child that the parents make joint decisions.
At the risk of repeating myself, when it comes to legal drafting and especially to legal interpretation, it is always difficult when different sections in the same act give rise to contradictions. With regard to section 16.1 and place of residence and time allocation, does section 16 have precedence, and to whom will the court’s power apply if the parents don’t agree? Or will it be section 16.1 that applies? In the bill as it stands, that is not clear.
Senator Pratte: Thank you very much.
The Chair: This is essentially a matter of harmonizing the provisions of the Divorce Act that basically deal with the same topic, which is how the child will fare in the context of the divorce, and how he will be protected by the decision made when parenting authority is called into question with regard to that child. Basically, that is the crux of the matter in this bill.
[English]
Mr. Boyd, as you know, in the path to reconciliation, considering your experience in British Columbia and Alberta where Aboriginal reality is an important one, are there any aspects of this bill that might impact the Aboriginal groups in Canada in relation to your own experience?
Mr. Boyd: The reality of many indigenous families is they have an extended kinship structure, especially those who adhere to a more traditional way of life. Beyond making that observation and highlighting, I suppose, the importance of extended kin as being parenting figures or guardians in the children’s lives, that is really all I can say.
There’s a provision that talks about the importance, and this is one of the principles I was mentioning, of the child maintaining a relationship with other people, and grandparents are specifically mentioned. The people who may assume the primary responsibility for raising a child in an indigenous family may be aunts and uncles, may be aunts and uncles twice removed, or brothers, friends or kin of that nature who are not necessarily as closely related as grandparents.
Grandparents play a significant role, but I suppose, if one were to think about this in more detail, it recognizes a web of parental contributions that are broader than merely those of the two spouses who are divorcing.
The Chair: Honourable senators, if there are no questions, I would like to thank Mr. Boyd, Ms. Kirouack and Ms. Cross. You’ve been very helpful to our deliberations this evening. Thank you very much for your contribution.
(The committee adjourned.)