THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, June 12, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, met this day at 4:15 p.m. to give clause-by-clause consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I am very pleased to welcome you this afternoon to continue our study of Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act.
[English]
Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Is it agreed, with leave, honourable senators, that the clauses will be grouped by groups of 10, when appropriate? As you know, the bill is rather long, and I would not suggest that we call all the clauses one after the other because that process would be very lengthy.
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators.
Shall clauses 1 to 10 carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Shall clauses 12 to 20 carry? On division.
Shall clause 11 carry? Because they are repeated. On division.
Shall clauses 21 to 30 carry?
Senator Batters: On division.
The Chair: Shall clauses 31 to 40 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 41 to 50 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 51 to 60 carry?
Senator Batters: On division.
[Translation]
The Chair: Shall clauses 61 to 70 carry?
Hon. Senators: Agreed.
[English]
The Chair: On division? I was waiting for —
[Translation]
Shall clauses 71 to 80 carry? On division; great.
[English]
Shall clause 81 to 90 carry? Agreed.
Shall clauses 91 to 100 carry? Agreed.
[Translation]
Shall clauses 101 to 110 carry? On division.
Shall clauses 111 to 120 carry? On division.
Shall clauses 121 to 126 carry? On division.
Shall Annex 1 carry? On division.
Shall Annex 2 carry? Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
[English]
On division.
Is it agreed, honourable senators, that the committee consider appending observations to the report?
[Translation]
Yes, thank you.
[English]
I will then ask senators who have drafted observations to the clerk to introduce them.
[Translation]
I will first ask Senator Dalphond, who is the sponsor of the bill, to please introduce them. Do all senators have a copy of the draft observations that Senator Dalphond sent us?
Senator Dalphond: You saw that there are still three pages of observations. Do you want me to go section by section? I added titles to make the work easier.
The Chair: The honourable senators will decide. We have time this afternoon, since it is the main part of our agenda. You can go ahead now, senator.
Senator Dalphond: Do I go ahead with the introduction? I know that, with the help of our analysts, you and the members of the steering committee will write a report that will be in the usual form, but that is the introduction to my presentation.
[English]
The Chair: Senator, after we have studied and debated your proposal, I will ask the analysts, the steering committee and myself to review the draft so that it fits within the constraints of the rules we follow in preparing the presentation of the proposal without altering the substance.
Senator Dalphond: That is good for me.
[Translation]
The Chair: Go ahead, senator.
Senator Dalphond: The committee welcomes the amendments introduced in Bill C-78, which modernize the Divorce Act by replacing the language of custody and access with new language focused on the parent-child relationship. The bill also provides greater guidance to courts and parents for the determination of the best interests of the child, addressing family violence, providing a framework for the relocation of a child, and simplifying processes for the recalculation and enforcement of family support obligations.
Senator Dupuis: Here’s my question for Senator Dalphond: on the first line, when you say that the committee welcomes the amendments introduced in Bill C-78, before saying “modernize”, could we add “which are the first review of the Divorce Act in 20 years” and “modernize the act”, and we would keep the rest of your text as is?
Senator Dalphond: Personally, that’s fine with me, so I’m going to leave it up to the committee.
[English]
The Chair: Any other comments in relation to the proposal of Senator Dupuis?
Senator Batters: Well, it isn’t really about Senator Dupuis. I wanted to make a general observation about the observations. The fact that we would have it as an introduction and then all these lengthy paragraphs is not generally how we have done it in my six years on this committee. To have as an observation that we welcome the amendments, that’s obvious. We just passed it on division. Usually observations are quite short and succinct and deal with specific things we’ve seen in witness testimony that need to be brought to the attention of the government rather than just general statements.
Senator Gold: I think there is some force to those comments in the sense that we are passing the bill. I don’t think we need to comment on our feelings about having passed the bill. Having looked at it quickly, there are many observations and recommendations that I think are important.
[Translation]
I think that making things lighter would be desirable.
Senator Dupuis: In response to Senator Batters’ concern, I think that, generally speaking, we could say that the important part is to make an observation about what the committee heard. I think this is an important update that had not been done in about 20 years. What we want to report is that a number of witnesses pointed out that this was an absolutely necessary and significant reform, without commenting on the amendments being made.
[English]
Senator Batters: I’m seeing this, as written, more in the form of a complete report about the bill, and that is generally not how we have done observations. What we usually do is the Library of Parliament provides us with a draft report, if one is necessary for a particular bill — it isn’t always done — and then we have specific observations. For example, there might be an observation about the ambiguity in the French definition of family violence if that’s something our committee agrees to. But to have more general comments and these lengthy observations is certainly unusual. We have not seen it, and I’m not sure it’s necessary in the observation. I think it’s more the subject of a complete report, which I don’t think the observations are meant to be.
Senator Dasko: Even given my short time in the Senate, one year, I have seen a variety of styles of observations in different committees. I’m not sure whether there is a particular style that must or should be adhered to in this committee, but I would observe that Senator Dalphond’s observations and the style in which they are written — I’ve certainly seen this style in other committees. That’s just my observation. They would be fitting in any of the settings where I have seen observations come forward.
As to the comment about welcoming the amendments, it would be very easy to change that phrase if that is the problem. We just might say, “The amendments introduced by Bill C-78 modernize the Divorce Act.” That would be very easy just to take out the word that might suggest that there is more support than there was. And if there are any other statements that are similar, those could be easily edited if that is a concern shared by others.
The Chair: That would certainly meet some of the concerns expressed by Senator Batters. If we keep that recital, I suggest that we accept the proposal of Senator Dupuis, which adds “qui constituent la première mise à jour depuis vingt ans.” I think it’s important for those who read those observations to understand the time frame within which they take place. It is, of course, the first time in 20 years that we are modernizing the Divorce Act, and they expect that it will be comprehensive. It would not just be touching this or that, but it would be a holistic — if I can use that word — look at the phenomena or reality of divorce.
[Translation]
Are there any objections to adding the following: “les modifications proposées dans le projet de loi C-78 qui constituent la première mise à jour visent à moderniser la Loi sur le divorce”?
[English]
That would be the French version, which in English would be amendments introduced by Bill C-78, which is the first review of the Divorce Act in 20 years. We will make sure that the right word is used in terms of reflecting the intent of the proposal.
Senator Dalphond: I agree with what was said and I agree with Senator Batters. Maybe the opening words “the committee welcomes” — we shall delete these words and start “the amendments introduce,” it was no intent of mine to impose it on you. You will find it’s a good piece of legislation.
[Translation]
Senator Dupuis: — “le projet de loi C-78 qui constituent la première mise à jour visent à...”.
The Chair: Yes, absolutely. As I have already pointed out, we will ensure that this is reflected in the wording, in the terminology that is normally used in bills. It could be just as Senator Dupuis mentioned, saying that “le projet de loi C-78 qui constitue la première mise à jour vise à moderniser la loi...”, since those are amendments.
Are there any other comments about the first paragraph, honourable senators?
[English]
Any other comments in relation to the first paragraph? Agreed?
[Translation]
The paragraphs under the heading “Family Violence”.
[English]
The paragraphs with the heading Family Violence. Would you start with the first paragraph?
Senator Dalphond: It reads:
The committee is pleased that Bill C-78 addresses the recommendation made by the Special Joint Committee on Child Custody and Access in its December 1997 report titled For the Sake of the Children: “Recognizing the impact of family violence on children, mediation and other non-litigation methods of decision-making should be structured to screen for and identify family violence.” Addressing family violence is always in the best interests of children.
The Chair: I will take it upon myself that we maintain the same process suggested by Senator Dasko, that we say that Bill C-78 addresses the recommendation. We do not need to say we are pleased or displeased. Do you agree, honourable senators? I don’t want to put it lightly, but we have to remain consequential in our approach. Agreed? Agreed.
Any comments on the substance? May I make one, Senator Dalphond?
Senator Dalphond: Of course.
The Chair: When we heard the witnesses, many of them referred to the Convention on the Rights of the Child that the amendments are called to reflect. If you are to say that it addresses the recommendations made by the special joint committee — because you don’t mention anywhere the Convention on the Rights of the Child, and it is the core principle that the bill enshrines. It seems to me that we should refer to the two conventions. Do you remember that when the minister was here, he mentioned the two specific conventions?
[Translation]
Senator Dupuis: A number of witnesses have pointed this out and we have pointed it out to the minister because the bill refers to and seeks to implement two international conventions, but it completely overlooks the United Nations Convention on the Rights of the Child. We asked him why it was not in the preamble, in order to clarify that this convention is the frame of reference. I feel that some very specific things were raised by the committee and by witnesses. We’d better talk about that somewhere here.
[English]
The Chair: I think it is an important element because if the observations are, to a point, to have didactic substance to them, we should mention that.
[Translation]
Senator Dupuis: I have a question about that. Shouldn’t that be under a separate paragraph dealing with the issue of family violence? Should the best interests of the child — which is at the heart of the reform — be highlighted, even before talking about family violence?
The Chair: As a first paragraph?
Senator Dupuis: As a first paragraph, under the introduction.
The Chair: Senator Dalphond, how do you respond to that comment?
[English]
Senator Dalphond: It could be said after the first paragraph. As stated in the international Convention on the Rights of the Child, the guiding principle should always be the best interests of the children. Why not have reference to the guiding principle, the best interests of the children and the reference to the convention?
The Chair: There is merit to the suggestion of Senator Dupuis to put that as an introductory paragraph under the heading “Family Violence.” It seems that is the context of the revision. The appraisal of family violence stems from the fact that there are two conventions that the Canadian government has accepted to introduce into its law, and when you are called to review the Divorce Act, those are the parameters in which the review takes place. I don’t want to be too logical, but there is merit to have that as the first paragraph and not at the end. I propose that it would be more coherent to have it at the beginning, but honourable senators are the masters of decision on this.
Senator Dasko: That’s a good point because the best interest of the child is the main consideration, and these are factors under which that is considered. So we have a list of factors, and violence is one of the factors.
The Chair: I’m not inventing this. That’s what we heard at the committee repeatedly.
[Translation]
Does that work, Senator Dalphond? We will create —
Senator Dupuis: We’ll add a paragraph.
The Chair: Yes, we’ll add a paragraph of a few lines.
[English]
It’s very factual. There is no elaboration on the substance of the convention except to say it has inspired the principle with respect to the rights of the child as fundamental elements of the bill.
We will have a neutral statement in relation to the international convention.
Senator Batters, you seem to be dubious. I want to extract a “yes.”
Senator Batters: I’m very set in my ways, apparently. I’m used to our Legal Committee observations not being in the form of a sweeping report, but usually specific observations that are meant to give advice to the government of what we heard in specific areas that they didn’t perhaps deal with in the bill. But they are things that they need to have brought to their attention, maybe for future legislation, maybe interpreting the legislation, that kind of thing. And it can also be helpful for courts.
When I look at a four-paragraph thing, much of which has been somewhat settled law for quite sometime — the best interests of the children and that sort of thing — yes, they are all important statements. Maybe I’m just too set in my ways, but it is not the type of observations I’m generally used to seeing here.
The Chair: Thank you.
Are there additional comments regarding the first paragraph? So agreed.
The second paragraph under the heading “Family Violence,” which would become the third paragraph with the introductory reference to the international convention.
Senator Dalphond: To an extent there would be some redundancy since we are now talking about the best interests of the child at the beginning, but I will read it nevertheless:
The capacity of Canada’s family law systems, in respect of which the Divorce Act is foundational, to promote safety and well-being for all family members depends on clear legislative guidance, which guidance in turn must be closely informed by research and experience. Witnesses, who welcomed, overall, the emphasis in the Bill on taking into consideration only the best interests of the child when making parenting or contact orders, pointed out that violence against women has a clear association with parenting problems, child harm and the safety of women and their children during divorce and after divorce.
As you know, I tried to incorporate some comments proposed by my colleague Senator Dasko, and if there are any questions, I’ll leave it to her to explain the paragraph. I wanted to make a summary that would include all the observations collected during the week.
The Chair: Any comments? Senator Dalphond mentioned it was an effort to include your —
Senator Dasko: I think it’s quite clear, but if anybody has any comments about it —
The Chair: That means then your first paragraph could be included in that one, the paragraph of your draft?
Senator Dalphond: Exactly the same.
Senator Dasko: It is the same.
The Chair: Any other comments in relation to this paragraph?
Senator Gold: No, I have something to say, but I would like to pick up on Senator Batters’ statement. Perhaps I’m a little set in my ways, too.
I wanted to suggest a possible way to accommodate this newer style for the committee because there is a lot in what we read so far, including the second paragraph, but it is important context, so I’m happy that it remains. But they aren’t necessarily observations. For example, when we get to the third paragraph, there is an important observation. We could, might I suggest, bold it, or even say “accordingly” or “as a result, the committee observes.” That way we highlight it. There are observations and recommendations that we want the government to take into account all the way through, but there is also context. Formatting might be a way to highlight the observations while still providing the colour that I think is helpful to the reader.
The Chair: You joined the comments of Senator Batters.
Senator Gold: I looked over and I didn’t see Senator Batters. But I do agree that it’s important to highlight the observations so that they are taken seriously. However, I like the context, so I thought maybe bolding and things like that.
The Chair: Thank you.
[Translation]
Senator Dupuis: Could we agree on a text so that, afterwards, the analysts can rework what is part of the context and clearly identify the part that says “the committee observes that, considers that, takes note that”? In other words, the idea is not to put the paragraphs in order this afternoon.
Since I visited the Charlevoix region and did a search in the dictionary on “grooming,” which is a term reserved for animals... You won’t mind if I don’t use that term, but I think one of the requests we could make to the steering committee is to review the order of the paragraphs.
The Chair: You will recall that when I first used that word, I mentioned that it was a term used by veterinarians. I fully understand the context in which the term is used, except that the French language evolves through usage, as you know, and Quebec helps the French language evolve through usage. You have certainly seen the latest words accepted by the Académie de la langue française. However, I’m not insisting on using that word, Senator Dupuis.
Senator Dupuis: Mr. Chair, I’m sorry but since you’re pointing this out, I’m almost disappointed to see that the language referring to animals is evolving faster than the language referring to women. Thank you.
The Chair: So there’s agreement that we keep the paragraph, which reads as follows:
[English]
The committee observes that the gender neutral drafting used does not obviate.
[Translation]
It should also be bolded to highlight observations that essentially relate to a description of the context or the entire sociological reality within which divorce occurs.
Senator Dupuis: Speaking of the evolution of language on women’s rights, Senator Dalphond, I have a question for you. In the third paragraph, which will become the fourth, in the one that says the following: “The committee observes that the gender-neutral drafting...”, would you agree that the statement “the gender-neutral drafting used in the Bill” should not overshadow the fact that the vast majority of women are victims of domestic and family violence and that the violence increases after separation or divorce? The minister acknowledged it in his June letter and witnesses mentioned it to us as well.
Senator Dalphond: In my opinion, the suggestion is appropriate, but I will turn to my colleague, Senator Dasko, since she is the one who proposed the text I consulted, and two of her observations are in paragraph 3. Personally, I would agree, but I will give her the floor.
[English]
Senator Dasko: That seems fine, Senator Dupuis. Could you repeat what you said?
[Translation]
Senator Dupuis: I must say that I read your observations, but I was not sure I saw that in the text. I would like us to make a clarification — because we observe that there is gender-neutral language, whereas a number of witnesses told us that they have a problem with gender-neutral language. The observation inserted after “used in the bill” should not overshadow the fact that women are overwhelmingly the victims of domestic or family violence, and that this violence increases after separation or divorce, a fact that has been overlooked.
[English]
Senator Dasko: I think that’s fine. It’s important to make the general observation that women tend to be the victims of violence, and the rest of what you said sounds fine to me.
[Translation]
Senator Dalphond: I think that’s the nature of Senator Boisvenu’s comments to the committee. That suits me very well and reflects what he said.
[English]
The Chair: Are there other comments on the suggestion made by Senator Dupuis and integrated by Senator Dasko in that paragraph? No? Is there any need to add some reference to statistics in regarding the fact that it’s mainly women who are the objects of violence?
[Translation]
I repeat: would it not be appropriate to refer to statistics that succinctly illustrate the fact that women are predominantly the victims of family violence?
Senator Dupuis: At that point, we should mention the... Is it in Annex 2 of the minister’s letter, gender-based analysis?
The Chair: Are you referring to Annex 2 of the minister’s letter?
Senator Dupuis: I think so, yes. We have statistics on separation, family status, income, family support, and the fact that women are more disadvantaged, that they are more likely to suffer more serious types of violence and more serious injuries.
The Chair: Let’s go directly to Annex 2 of the minister’s letter.
[English]
Since it has been appended to the minutes of the committee, it is a public document, and then referring to it in the observation is so anyone can have a more detailed picture of the reality. Agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Is it agreed that this paragraph be accepted with the changes that have been proposed? Agreed.
Next paragraph, Senator Dalphond.
Senator Dalphond: It reads:
In fact, as several witnesses have stated, direct or indirect exposure to family violence is child abuse, causing emotional stress and developmental harm to the child. Spousal violence is not only a matter between spouses; it is a form of family violence. This was acknowledged by the Justice minister in his letter dated June 11, 2019, in the following terms: “In the case of a child, any exposure to family violence is family violence in and of itself; in other words, exposure to family violence is a form of child abuse.”
The Chair: Are there comments or suggestions in relation to that paragraph?
Senator McIntyre: In support of that paragraph, Mr. Chair, we have heard strong evidence in that regard. For example, Ms. Del Rizzo made it clear when she said, “Family violence is very relevant to determining a child’s best interests and we commend the bill for including it in the best interest factors.”
We heard from Linda C. Neilson, Professor Emerita, University of New Brunswick, who had similar comments. Then John Paul Boyd, who appeared as an individual. He stated: “It is also past time that the federal statute discusses family violence to the extent that it does.”
We also heard from Suki Beavers, Project Director National Association of Women and the Law.
[Translation]
Serge Bernier, Vice-President of the Chambre des notaires du Québec, specifically supports the criteria for domestic violence.
[English]
The Chair: I would suggest that we say, “The committee notes, as several witnesses have stated, that direct or indirect exposure to family violence is child abuse,” if you want to maintain some kind of coherence in terms of approaching paragraphs, because normally it’s 1, 2, 3, 4.
As I said to Senator Dalphond, with, of course, the help of the analysts, we will make sure that the opening words of each paragraph reflect our approach to normally reciting the elements of observation.
Is it agreed, honourable senators?
Hon. Senators: Agreed.
[Translation]
The Chair: Please continue, Senator Dalphond.
Senator Dalphond: As you may recall, Senator Boisvenu and Senator Dupuis had pointed out the challenge with interpreting certain definitions in French, particularly the one for family violence. So I thought that an observation would be appropriate.
The committee stresses the importance of ensuring there is no ambiguity in both versions of federal legislation, especially in statutes like the Divorce Act that are of great importance for Canadians. There were questions raised by members of the committee as to whether the English and French versions of the definition of family violence have the same meaning. In Annex 1 of his letter dated June 11, 2019, the Justice minister stated that:
The legislative intent of the definition is that the reference to “pattern” in English or “aspect cumulatif” in French applies only to conduct that is coercive and controlling. It is not intended to apply to conduct that is violent or threatening or that causes fear for safety. This intent is important, as it is clear that a single act can constitute family violence if the conduct is violent or threatening or causes fear.
Both the English and French versions of the definition achieve this legislative intent. With respect to the French version, the repeated use of the word “qui” before the different types of conduct, along with the use of the word “ou” between them, makes it clear the “aspect cumulatif” applies only to coercive and controlling family conduct.
The explanation is simple. Departmental officials informed the minister of our discussions and of the ambiguity of the definition, and he chose to explain why there was no ambiguity. If there were ever a problem with the interpretation, I think it’s important to note that the committee recognized that the legislative intent was not to create that ambiguity.
[English]
The Chair: I will answer in English so our colleagues can follow our concern in relation to that. If we are to refer to the minister, I think we should be more precise. If the minister said that in the answer to a question — and I remember very well the discussion that took place between Senator Boisvenu, Senator Dupuis and other senators, and you, Senator Dalphond — I think we should refer to the testimony of the minister in the minutes of the committee. That way, as you say, if there is a problem of interpretation being raised in the court and the court wants to verify the intent of the legislator, they could go directly to the answer of the minister. We could refer in the text directly to the answer of the minister.
Senator Dalphond: I think that the answer was provided, maybe not by the minister, strictly speaking, but by an official from the department. Maybe Senator McIntyre, who seems to have a better recollection of the witnesses than me will know. But I am quoting here from the letter from the minister, which I assume the committee has accepted to put into the record.
The Chair: It is already in the minutes of the committee, but in referring to the letter in the observation, of course, it is in the minutes.
[Translation]
Senator Dupuis: I agree to such an extent that I would recommend, if I may, that the letter be quoted verbatim, that is to say the first paragraph on page 2 of the minister’s response dated June 11. It would have been too simple to do it as he wrote in his letter. In the English version, it says: “or, or, or”; in the French version, it says: “qui”, after a comma, and which introduces... That is why I talked about the educational aspect of a definition. In his letter, the minister states:
Any conduct that (1) is violent; or (2) is threatening; or (3) constitutes a pattern of coercive and controlling behaviour; or (4) causes a family member to fear for their own safety or for the safety of another person constitutes family violence.
I think, for educational purposes, that’s exactly the explanation we wanted. I would like to quote the first paragraph on page 2 of the minister’s letter.
The Chair: Do you have the same concern, Senator Dalphond?
Senator Dalphond: Absolutely.
The Chair: Okay.
[English]
We are going to introduce the substance of the letter at the top of page 2 in the French version.
[Translation]
Senator McIntyre: Of course, we have the letter from the minister about the ambiguity in French on the definition of family violence. Other witnesses also commented on it. For example, I recall Ms. Laberge saying that the Barreau would prefer us to find a term that is a closer equivalent to the word “pattern”, or to eliminate all reference to the cumulative aspect. The fact that someone does or does not try to display coercive and controlling behaviour towards a family member would indeed be something that a court should consider. We have heard the concerns from Senator Dupuis and Senator Boisvenu. Mr. Fafard also stated: “To supplement what the representatives of the Barreau du Québec mentioned, the brief of the Chambre des notaires also discusses the problems associated with use of the term aspect cumulatif”.
[English]
The Chair: If we would have had ample opportunity to amend the act, probably we would have amended the act. I see the words “maximum marginal note” and whatnot. We all know about this.
Since we are going to have this bill a certain number of months ahead of us, it is better to concentrate on how the minister has interpreted it as a base, in fact the signal that we give to the court and to the lawyers and all the practitioners to a divorce to stick to that understanding or interpretation of the word “cumulative” than to try to hope for a better word. There won’t be any better word until the bill is amended.
I suggest that we stick to the definition of the concept, as the minister stated in his letter, and his letter is official. It’s not something that we have extracted from him through a question-and-answer session. We all know that a minister who signs a letter in that context, that letter has been vetted by the department; it represents the official position of the department. That is the one they would plead in court, as Senator Dalphond would know. So I suggest that we keep the letter as being the essential element in relation to the uncertainty surrounding the word “cumulative.”
[Translation]
Senator McIntyre: That is a good way to proceed, Mr. Chair. I agree with you, but, like Ms. Laberge and Senator Boisvenu, I find that the words aspect cumulatif are not the equivalent of the English word “pattern”.
The Chair: Absolutely not. I am francophone and I have some knowledge of English. If I ask my instinct for English to react to the terms “pattern” and “aspect cumulatif”, I do not get the same reaction at all.
Senator Dupuis: I was resigning myself to accepting it because, on page 2, paragraph 3 of his letter, the minister states, as he did when he came to testify before us, that social science research has established — and these were the terms the minister used — that coercive and controlling behaviour in a family is domestic violence. These are well-established, commonly accepted terms now referred to in trials. We do not really have to go back and reword the concept. If we have to say something, and I am not sure that we do, it is that the case law is clear and that discriminatory harassment against women can be a single incident, but then we need to provide an interpretation for the words “qui dénote dans son aspect cumulatif”. In other words, we do not know how those words will be interpreted. Coercive and controlling behaviour is a concept that is now recognized in the social sciences, and we have to respect that. If we want to add something, it is that we do not want the interpretation by the courts to add to the difficulty of proving that someone is displaying coercive and controlling behaviour, that it is already recognized that harassment is a form of discrimination against women, and that a single incident is enough for it to be recognized as discriminatory harassment. However, I am not sure that we have to go that far.
[English]
The Chair: By referring to the letter of the minister, who recognized it as fact. It’s already there.
[Translation]
“The pattern refers only to coercive and controlling behaviour, which research demonstrates is predominantly exercised by men against women.” In my opinion, the minister’s letter contains sufficient explanation for those practicing divorce law, and for the courts. It will provide them with a source of correct information, information the decision-maker has in mind when he proposes those terms or uses them in the context of the bill.
Senator Dupuis: I am referring to the third paragraph on page 2.
The Chair: That is what I suggest to address this difficulty.
[English]
Is it agreed, honourable senators? I’m sorry for our colleagues who might find that discussion very semantic among French-speaking senators around the table, even though our colleague Senator Carignan seems to agree with what we are discussing, but I think it is a way to solve this.
Senator Dalphond, next is the paragraph titled “Marginal Note of subsection 16(6).”
Senator Dalphond: It reads:
Several witnesses raised concerns with respect to the “Maximum parenting time” marginal note for proposed section 16(6) of the Divorce Act. Although the provision itself focuses on the best interests of the child, witnesses expressed the fear that the marginal note could give the impression that it creates a presumption of equal parenting time. The committee takes note of the Justice minister’s commitment, in his letter dated June 11, 2019, to making an administrative change to this marginal note to remove the words “Maximum Parenting Time” and instead use wording along the lines of “Parenting time consistent with the best interests of the child.” The committee believes this note would more closely reflect the language of the paragraph and the guiding principle of section 16.
The Chair: Is it agreed?
Senator Dasko: Excellent paragraph, in my view.
The Chair: It is yours?
Senator Dasko: No, it’s not.
Senator Dalphond: No, but it does cover the idea that was raised by many witnesses, and I thought that the department —
The Chair: With the analysts, I will, if you want, rephrase the opening words. Instead of saying “several witnesses,” it will be, “The committee has a concern in relation to the implication of the Marginal Note,” something like that, so there is an introductory sentence.
[Translation]
Let’s move on, because I hear a bell ringing. Could you tell me the time the vote will be held? At 5:42 p.m? We could continue, then, because we are in the same building.
[English]
Senator Dalphond: It reads:
The committee takes note that several changes introduced by Bill C-78 aim to encourage the use of family dispute resolution processes. This is a welcome approach.
However, several witnesses have expressed concern about the use of family dispute resolution processes in situations involving family violence, because abused parents may be forced to cooperate with an abusive spouse and pressured to agree to dangerous resolutions. As stated in the 1997 report of the Special Joint Committee on Child Custody and Access, where there is violence by one parent toward the other or toward the children, alternative forms of dispute resolution should be used to develop parenting plans only when the safety of the person who has been the victim of violence is assured and where the risk of violence has passed.
The Chair: Comments? Agreed?
[Translation]
Senator Dupuis: Senator Dalphond, would you have any objection to our saying “only if and when”?
[English]
Senator Dalphond: “Only if and when”; that’s fine. It’s certainly the same idea but stronger.
The Chair: We will do that.
The analysts pointed out to me that there is a place in the paragraph where we should put a period, and then the committee can make sure that we link the opening with the development to make it more in sync with our approach. Take note of that and we will review it.
[Translation]
Senator McIntyre: We have a lot of testimony that backs that up.
The Chair: Yes, absolutely. That is why we suggest adding an observation and coming back to the committee. Shall we continue? I do not want to hurry you, honourable senators. I am trying to see whether we can move things forward before we go and vote.
[English]
Senator Dalphond: The next paragraph reads:
There were questions raised by some members of the committee with respect to bijuralism and Bill C 78’s compliance with the rules, principles and concepts of both the common law and civil law. The committee is reassured by the Minister’s letter dated June 11, 2019 that the Bill in its current draft does not raise any bijural drafting issues.
[Translation]
Senator Dupuis: Annex 3 in the letter?
[English]
The Chair: I feel that Senator Batters has a concern.
Senator Batters: It’s very out of the norm that we would say, “The committee is reassured by the Minister’s letter . . . that . . . it does not raise any . . . .” That’s out of the norm of what we would normally have for observations. I’m not very comfortable with that.
Senator Dalphond: Can we remove the first words, “The committee is reassured” and start with, “The minister’s letter dated . . . states that the bill in its current form . . . ?”
Senator Gold: “The committee takes note that . . . .”
Senator McIntyre: “The bill in its current form . . . .”
The Chair: Okay. Thank you. We will do that.
Senator Dalphond: “The committee takes note that the department officials . . . .”
The Chair: We have not dealt with that. We will redo the drafting of it.
Senator Dalphond: The next paragraph reads:
The committee is also reassured with the department officials’ confirmation that the factors relating to the best interests of the child listed in the proposed subsection 16(3) are consistent with those listed in the proposed subsection 10(3) of Bill C-92 (An Act respecting First Nations, Inuit and Métis children, youth and families), which relates to the best interests of indigenous children in the making of decisions or the taking of actions in the context of the provision of child and family services to an Indigenous child. Department officials noted that Bills C-78 and C-92 were drafted in tandem and that the factors found in Bill C-92 parallel those found in Bill C-78, although they were adapted for the child protection context.
This also addresses an issue raised by some of the witnesses.
The Chair: Comments? Agreed?
Hon. Senators: Agreed.
The Chair: Thank you. We will do the rephrasing of the opening sentence to make it more in sync with the usual procedure.
[Translation]
Senator Dalphond, will you continue with the next paragraph, entitled “Education” in English and Sensibilisation in French?
Senator Dalphond: The committee believes that an awareness campaign aimed at parents and all actors involved in family law is needed. The committee invites the federal government to collaborate with provincial and territorial governments to ensure awareness of the main changes introduced by Bill C-78, including the proper use of the family violence screening tool for legal practitioners developed by the Department of Justice, as described in the minister’s letter dated June 11, 2019.
The Chair: Any comments?
Senator Dupuis: Senator Dalphond, would you have any objection to an addition to “as developed by the Department of Justice?” One of the most interesting things in the minister’s response is that they developed the tool with the community organization called Luke’s Place. I think it would be worthwhile to point that out.
Senator Dalphond: Developed by the Department of Justice with the assistance of Luke’s Place?
Senator Dupuis: In collaboration with …
The Chair: Rather than the assistance of.
Senator Dalphond: Collaboration goes better in French.
The Chair: Can you continue with the next paragraph?
Senator Dalphond: Recognizing the importance of dealing with family violence as a crucial factor in allocating parenting time and parental responsibilities, and in making a contact order, the committee respectfully reiterates its invitation to the Canadian Judicial Council to incorporate issues relating to intimate partner violence, gender-based violence and the unique circumstances of indigenous women in the design of its judicial education seminars on family law.
The second paragraph follows the logic of what we added as an observation in relation to Bill C-337.
[English]
Senator Batters: Why do you say, “reiterates its invitation”? Was that specifically discussed at committee, or was it something that on previous occasions there has been such an invitation extended by this committee? Could you explain that to me, please?
Senator Dalphond: I think some witnesses mentioned, especially in terms of recognizing violence that many interveners in the system, such as lawyers and judges, were not properly informed or educated about these things and there was a need for it. The minister’s letter addresses that issue also. I also thought that Bill C-337, which that we reviewed last week, was addressing that issue also. I felt that maybe this report has a better chance to become appended to an official act of Parliament than the other one.
Senator Batters: So Bill C-337, but how it’s worded makes it sound like in the context of studying this bill or on this specific issue.
The Chair: I have the same concern as Senator Batters because the bill is not yet adopted. If the bill isn’t adopted — that’s not my wish and I want to be on the record — then it falls in between two realities. That is why I think the word “reiterate” at this stage is the problem. If the bill would have been adopted, then it would be part —
Senator Dalphond: I understand. The words “de nouveau” should be removed.
Senator Batters: Maybe we could just say, “The committee respectfully asks the Canadian Judicial Council.”
The Chair: That is what I would suggest.
Senator Dalphond: I fully agree with Senator Batters, once more.
The Chair: Number 6, Senator Dalphond, if you wish to carry on with the paragraph under the heading “Periodic review of the Divorce Act.”
Senator Dalphond: That’s an issue addressed by Senator Dasko and some other members of the committee to the senior general counsel of the department. The paragraph reads:
The committee is of the view that family law should reflect the actuality of family structures in society. The constant evolution of the family unit requires a periodic review of the Divorce Act. The committee invites the federal government to take measures to ensure the next review of the Divorce Act occurs within five years of the adoption of Bill C-78, and recognizes that a Law Commission could make an important contribution to this endeavour.
The reference to the law commission is, I will say, a matter of coherence with previous reports of this committee that have also highlighted the need for a law reform commission.
The Chair: I take exception to that, senator, because in our report on Bill C-75, which was tabled and adopted by the chamber yesterday — and I’m looking at Senator Carignan in relation to that — we mentioned a group of experts. We didn’t want to pronounce formally on the re-establishment because there is a debate over the law commission.
I would suggest that we remain more neutral because we know a law reform commission — that doesn’t mean that I’m against this. On the contrary. I have taken stands on that issue in other forums.
In relation to what we have concluded in relation to Bill C-75, I suggest that we have neutral terms to review that, if you agree.
Senator Dalphond: I’m very comfortable with that, and it is coherent with previous reports.
Senator Batters: I have a concern and issue about the law reform commission reference. I would feel more comfortable if it was removed.
The Chair: We agree on that. It has been the common position around the table, so if you agree, honourable senators, we will make the changes. Thank you.
Senator Dalphond: That concludes my proposals.
The Chair: We move now to the proposals of Senator Dasko.
Senator Dasko: Mr. Chair, I’ve decided to try to make this very easy for everybody since Senator Dalphond has already used a couple of paragraphs from the document that you received.
The Chair: He has picked and chosen.
Senator Dasko: Yes, he has picked and chosen very well. He has also addressed in his document some of the concerns that I had and that I had mentioned in mine.
To make it very easy for everybody, I have come with a shortened version of my observations that include only the items that are not covered by Senator Dalphond’s observations so we do not have to pick through them; no duplication whatsoever in this.
So this addresses a couple of extra items. This means you don’t have to look through the longer one and just use the short one.
The Chair: The French and the English are following one another?
Senator Dasko: They are together in the same document.
The Chair: Before you start, I’m looking at the clock because there is a vote at 5:42. In five minutes I will suspend.
Please continue, Senator Dasko.
Senator Dasko: These would be extra observations. If they were to be accepted, then we would decide or somebody would decide where they would go, either at the end of the other document or somewhere inserted in the middle of it. Let me read through it:
Given that as a practical matter it was not advisable for the committee to make amendments to the Bill, the committee calls upon the Minister of Justice to make amendments to the Act as soon as possible to give clearer direction on the application of the bill.
The committee recommends that s.16(3)(c) be removed because it operates unfairly, even dangerously, where family violence is present. It is based on the current s.16(10) of the Divorce Act. This provision elevates assertions of parental willingness, as compared to the more important matter of whether a child in fact has a positive relationship with a parent and the views of the child. There are many reasons why having a post-divorce relationship with a child may not be in the best interests of the child. In addition, it is documented that the provision has a silencing effect because women and children who allege parental behaviour that is not beneficial are, in turn (family violence being gendered), met with allegations that mothers are poisoning children against fathers, or for not facilitating contact with fathers. If the provision is not removed, the committee recommends that it be revised to ensure that the key factor is that the relationship must be in the best interests of the child.
This, and the following two paragraphs, are the result of many observations, many witnesses who came forward to express their concern in this case about section 16(3)(c). The suggestion here is that it be considered for removal as somewhere down the line as soon as possible. Obviously this is not an amendment because we’re not making an amendment. This is the status of an observation.
All the members here were present when many witnesses expressed concern about this section, this part of section 16. So this is for us to decide whether we want to include this, and in the observations. It’s a fairly strong recommendation, and I will leave it at that.
The Chair: In terms of the last paragraph adopted, there could be an introductory phrase saying, “In relation to the review of the Divorce Act . . . .” The next paragraph could express concerns of the committee, pending review of the act, so that we highlight some of the issues that should be reviewed. Because what you suggest is, essentially, that it should be either removed or it should be rephrased. So that would be part of the exercise of the review, of an analysis review.
Senator Dasko: It could be part of the five-year review but, of course, it would be better if such a review would happen sooner. One of the intents here is to try to highlight the concern and, if possible, to change this sooner than a five-year review.
I leave that open to committee members to consider.
[Translation]
Senator Dupuis: Should the committee not add an observation to the effect that it is concerned by the fact that a number of witnesses talked about this problem? They specifically did so with respect to paragraphs 16(3)(c), 16(3)(j) and 16(3)(i). Could we not add a more general observation saying that we are concerned by the comments we have heard about how it will be interpreted, and reiterate what is in the text by inviting the department to reconsider the matter? We may make a link to the revision of the act, or we may not. We should at least mention that we have heard the comments and that is very clear that people have concerns with all the criteria mentioned in subsection 16(3) and, more specifically, in paragraphs 16(3)(c), 16(3)(j) and 16(3)(i), which are particularly problematic in cases of family violence. We could just invite the department to…
[English]
The Chair: We will go to Senator Batters and I will suspend after that.
Senator Batters: I can wait until after.
The Chair: So you’ll be the first one when we come back.
There is a proposal of Senator Dupuis that we will keep on the table. I will invite senators to come back as soon as possible so that we can have time to complete our discussion of observations and authorize the chair to table the report on behalf of the committee.
We will suspend, honourable senators, to attend the vote.
(The committee suspended.)
(The committee resumed.)
[Translation]
The Chair: Honourable senators, if you would kindly resume your places, we can continue our study of the observations we plan to add to Bill C-78, an Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. Just as we suspended the session, Senator Dupuis was making a suggestion.
[English]
Maybe Senator Dasko can repeat that. When we suspended, Senator Dupuis was proposing to group those three observations. They were all dealing with section 16(3) of the act, so there will be a line expressing the concern of the committee about amendments or, as soon as possible, a review of that section to clarify its impact and interpretation.
Maybe we should hear you in relation to that so that we can connect those three paragraphs, which all deal with section 16(3), to the proper place in the recital of observations that we have accepted.
Senator Dasko: Sorry, I thought you were speaking to Senator Dupuis.
Did you want to go ahead?
[Translation]
Senator Dupuis: No, no, not at all.
[English]
Senator Dasko: Sorry, I thought you were speaking with her.
The Chair: I was just reiterating it in my own terms to get the ball rolling after that interruption to attend the vote. I was addressing you.
Senator Dasko: Thank you.
I went through the first one and I wondered if anybody had any comments on it. I think we have talked about how we might change it, as you just suggested, chair.
The second one reads:
The committee recommends that s.16(3)(j), particularly s.16(3)(j)(i) be revised to give primacy to the child’s best interests. The inclusion of the “willingness” of a parent who has engaged in family violence to care for and meet the needs of a child again elevates a parental assertion over and above the key consideration, which should be what the pattern of family violence behaviour establishes about a perpetrator’s parenting ability. “Willingness” is the wedge used to gain control over a child as a means of controlling a family.
Again, that idea has been expressed to us by a number of witnesses.
Finally, the next paragraph reads:
The committee recommends that s.16(3)(e) be amended to fully conform to the precise wording of the UN Convention on the Rights of the Child which weights the child’s views, not the age and maturity of the child.
That would mean a small change using the exact language of the UN convention, which changes the wording of that slightly.
The Chair: Thank you.
Senator Batters: On this part, I’m just wondering if it might be helpful in the first paragraph of this section to explain why it’s being said as a practical matter that it was not advisable for the committee to make amendments, perhaps saying that we only had so many meetings to study or because it’s June or something like that, to give a bit of context.
Also, when I look at some of these clauses and this willingness issue, frankly, as someone who practised family law for quite some time, I’m pretty alarmed to see some of these things, particularly the part that Senator Dasko was just reading out about this 16(3)(j)(i). I find it unfortunate that we’re in this time crunch now. That seems like the perfect kind of amendment to make because, yes, 100 per cent, I can’t believe the government actually put this in here to talk about the willingness of a person who is engaged in family violence to care for and meet the needs of a child. It’s kind of shocking, actually.
My major comment would be on the last part of 16(3)(e). It’s actually quite well settled case law on these types of issues, that age and maturity of the child in Canadian courts are important factors. I would hesitate to supplant or look like we are in any way that we’re trying to supplant that with the UN Convention on the Rights of the Child. There have been so many Canadian court decisions over the last 20 years where that has been given a significant amount of weight, and properly so in these types of matters. Without knowing more about that UN convention, I would hesitate to supplant that level of case law with that.
The Chair: May I react, senator?
First of all, you read my mind, because I was also going to suggest that we refer to the fact that the committee has had little time to review the act, considering that we are at the end of a session, as you expressed, and explaining that this led the committee to not amending the bill, because there were legal concerns in relation to the interpretation of certain sections of the act. And then we would recite those sections in proper introductory remarks.
As I said and — as you certainly concur with me — when people or a practitioner of law reads this, it would be helpful to recognize that we strongly felt that we would have amended the act if we would have had the time frame of Parliament sitting to do that. We reduce the impact of the legal weight of those comments if we don’t take a firm stand that the committee would have been willing to amend the act on that basis.
Senator Dalphond: Senator Batters and Senator Joyal, I agree with both of you. I’m uncomfortable with both of these paragraphs. I will start with the easiest one, the last one “the committee recommends that 16(3)(e) be amended to fully conform to the precise wording of the UN convention.”
As a matter of fact, both the Divorce Act and the convention say the same thing and the convention is the source of the Divorce Act. The convention, at article 12, reads:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
This is exactly the same concept that we find at 16(3)(e) where the bill reads:
In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including . . . (e) the child’s views and preferences, giving due weight to the child’s age and maturity unless that cannot be ascertained;
The Civil Code of Quebec says the same thing. It stated in the Code of Civil Procedure; exactly the same thing. I think the concept in the jurisprudence is well settled on this, that the source is the UN convention. We have implemented it in Canada.
The last comment is that I think the wording is not exactly in the same order, but the idea is exactly the same.
The previous comment is about deleting 16(3)(j) and 16(3)(j)(i), and it says: “. . . be revised to give primacy to the child’s best interests.” This is already given by the bill. Section 16(1) says: “The court shall take into consideration only the best interests of the child of the marriage . . . .” Primary consideration, section 16(2) reads:
When considering the factors list referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
So the idea is really covered there. I think one of the witnesses said it — I forgot who it was, but it was somebody from the department. They said the factors listed in subparagraph 3 of section 16 are all factors to be considered in all cases of parenting orders relating to sharing time and sharing responsibilities, and these apply to all the couples that are divorcing, whether there is violence or no violence. So that’s where it is an important principle to say that you should encourage and foster a relationship with both parents.
When there is violence, at the end of these factors, 16(3)(j)(i) refers to family violence and its impact among other things, on the willingness, the appropriateness of making an order. So then it’s the opening to say, yes, when there is family violence, these general principles will be superceded and this is even completed by subparagraph (4), which has a list of factors to be considered only when there is family violence. It says: “In considering the impact of any family violence, under paragraph 3(j), the court shall take the following into account . . .” the nature, seriousness and frequency of the family violence, et cetera. So that is being read by the courts, and I think I even wrote judgments along these lines. But other judges have also done that. When there is violence, the best interests of the child often means that there be no contact whatsoever with the offending or violent parent.
I see here there is a concern, but I think the concern is due to lack of familiarity with the way the wording is done in the Divorce Act and how it is implemented by the courts on a daily basis. I understand the concerns, but I think the concern has been addressed by the legislators in the order of subparagraph 2, subparagraph 3, the factors, and subparagraph 4, the additional factors.
I understand the concerns, but I’m not comfortable with the drafting.
Senator Gold: I confess to lacking familiarity with the jurisprudence in this area of law. I never had the stomach for it.
The Chair: It is never too late, senator.
Senator Gold: I know myself; it’s too late.
I wonder whether we might not find some middle ground. These observations and recommendations are expressed in quite strong terms. We have often taken the view that rather than urging and insisting or even recommending, we recommend that they consider or the government considers things along those lines. I’m not sure Senator Dasko if that is strong enough — it would give me greater comfort in light of my ignorance of the details. Details matter in these areas, so I just offer that as a thought.
I do agree, by the way, with the last one regarding to the UN convention. I think I’m satisfied with the explanation.
Senator Dasko: I think it’s just a word issue.
Senator Gold: It may be.
[Translation]
Senator Dupuis: My question is about the final paragraph of Senator Dasko’s observations. In the paragraph where we refer to the United Nations Convention on the Rights of the Child, could we not emphasize the article in the convention that deals with the criterion of the best interests of the child. We could also say that, in article 12, the convention refers to the age and degree of maturity and establishes that children have a right to be heard and to express their views. That is one thing we should do. That could lead us to make an observation that we see no incompatibility with paragraph 16(3)(a) of the bill, which deals with considering the needs of the child, including the need for stability, given the child’s age and stage of development. It goes without saying that the courts must hear from the child when dealing with parental orders.
As for the first two paragraphs, it seems to me that, for subsection 16(3), it would be in our interest to stress one of the points Senator Dalphond has just made.
As the minister explains it, the subsection starts from a general principal, the interests of the child. It provides factors that absolutely must be considered and specifies that other general factors are to be considered. In cases of family violence, four specific factors are added, and it says that previous conduct must not be considered. I feel that this would be an opportunity to put clause 16 back in context more clearly for those whom we may call lay readers. I believe that the government may have been somewhat lacking in its educational work on this bill, because it gives rise to doubts in interpretation. Our contribution is perhaps not only in raising questions, but also in saying what we have heard as explanations of the questions raised.
[English]
The Chair: Senator Dasko, do you have any comments on the suggestion made by Senator Dalphond to remove the last paragraph?
Senator Dasko: I think I agree with that. We really are talking about an issue of word order, from what you’ve said, Senator Dalphond, and that sounds fine to me.
With the other two, these are more important and they most definitely have been raised by many witnesses time and time again. I don’t work in this area, of course. I’m not a family lawyer, but I’ve been convinced that this is a concern, especially since we have not been able to put them into amendments. These are things we shouldn’t be noting in the conclusions instructions. Maybe there is a way, as Senator Gold suggested, to make it a little clearer in the wording of it, in the description of the concern.
It has been coming up again and again, grave concerns about the burden this places especially on women, in situations of violence, where they feel they have to express a willingness to maintain the relationship of the child with the ex-spouse. It comes up again and again, even to the very end, as I’ve been speaking with people in the last few days who are saying, “Well, is there a chance that we can do something with this clause in particular, 16(3)(c)?”
As Senator Batters noted just a few minutes ago, it is quite extraordinary to include comments about the willingness of a person who is a perpetrator to express his — I say “his” and maybe that’s unfair — the willingness of a person in this situation to be caring for a child.
I sincerely hope that we can include some strong comment about these two aspects, that we can find a way to do it. If this exact wording is not perfect, I think we should put it in a form so we can include it in these observations. I think it’s very important and I hope we agree to do that.
Senator McIntyre: There are four paragraphs. I echo the remarks of other senators regarding paragraphs 1 and 4. I agree with those remarks. I will not repeat what was already said.
I agree with Senator Dasko with respect to paragraphs 2 and 3. I think these are very strong and very good paragraphs, senator. The reason being that 16(3)(c) refers to, as you have indicated, parental willingness. These are very strong terms and obviously very dangerous for reasons that are well known. Also, 16(3)(j), which refers to, again, the word “willingness.” As you have rightfully pointed out, it is a wedge used to gain control over a child; no question about that.
Senator Dasko: Or an ex-spouse.
Senator McIntyre: Yes. I agree with those two paragraphs, except perhaps paragraph 2 should be redrafted and perhaps cut it shorter. But paragraph 3, not at all; I think that’s okay.
[Translation]
Senator Dupuis: Can I go back to the proposal I made, which is to work from the second and third paragraphs of Senator Dasko’s observations? We could say something like: “Committee members are particularly concerned by the many testimonies that the committee heard on how provisions 16(3)(c), 16(3)(i) and 16(3)(j) will be applied in cases of family violence. We invite the minister to carefully monitor how those provisions are enforced, from now until the act is reviewed.” In other words, it would be good for them to start that work now and to pay particular attention to those questions and to the way in which the act is enforced in real life, from now until the bill is reviewed. They must not wait until it is time to review the bill.
The Chair: That expresses Senator Dasko’s concern well.
[English]
There should be amendments more or less immediately or in the very short future. That’s what Senator Dupuis has just expressed.
[Translation]
On the second paragraph.
Senator Dalphond: I tend to agree with Senator Dupuis’s proposal and I am certainly aware of the problem. I heard the witnesses, and a real concern arose about a possible interpretation of the provisions as a whole, which would lead to contacts being maintained despite the presence of violence. That is not my interpretation, but I understand that some people have that interpretation, which I respect, but do not share. Paragraph 16(1)(j) does not begin at the small subparagraph (i) that talks about the ability and willingness of any person who engaged in the family violence to meet the needs of the child. It starts with these words: “any family violence and its impact on, among other things…” In other words, what the legislation is telling us is that, when violence is present, judges must ask themselves whether this indicates an inability to take care of the needs of the child, and consequently whether they must decide to deny shared parenting time. The provisions must be read all together. However, not everyone is a legal scholar and we will see how courts will interpret those provisions. The concern some have expressed comes from a reading of those provisions that I do not share, but that I understand. In that sense, an observation of the kind Senator Dupuis is suggesting would go a long way to highlighting the fact that the presence of violence is a contraindication to arrangements for shared parenting time. That is the principle behind it, but it is perhaps not clear as one reads the bill.
[English]
The Chair: Senator Dasko, I’m looking at the clock because I think we will have to leave the room at 6:30.
Senator Dasko: Senator Dalphond, you are suggesting that there may be a lack of clarity. But, at the same time, there is a great concern about this, and I think we have to communicate that there is tremendous concern.
Senator Dalphond: Yes.
Senator Dasko: Because we have heard consistent testimony around these points. You’ve been a judge, and you have a point of view based on vast experience looking at it through a very different lens.
Senator Dalphond: I agree that there is a concern there.
Senator Dasko: Yes.
Senator Dalphond: I propose that the solution may not necessarily be that one.
Senator Dasko: I’m hopeful that we can include a strong expression of the very real concern that has been conveyed. I’m very pleased that we have been able to incorporate other aspects. For example, maximum parenting time and those kinds of issues we have talked about, but these are also something that we should make sure we have. Senator McIntyre has agreed entirely with the wording of the third paragraph. Senator Dupuis’s suggestion of adding a comment about the committee suggestions, and a comment about reviewing it as soon as possible and reviewing the implementation of it. That’s a very good suggestion before the actual formal review of the legislation.
What we’re trying to figure out is what to do with the second paragraph, and how to change it to make it a little clearer and stronger. It’s strong now, but perhaps clarify it a little bit, and make sure that the concern is conveyed. That’s really what I’m hoping we can agree on.
The Chair: I want to make your case Senator Dasko, not to take exception to Senator Dalphond. There are not only judges in relation to family law. As you know, there are mediators and a lot of people who intervene. If the concern we have heard here is that there might be doubt or uncertainty about the impact of the interpretation, it’s quite justified for us to draw the attention of the department to that issue.
I’m trying to help you to make your case, not to contradict my colleague, Senator Dalphond, but essentially to relay what we heard at the committee.
I have taken note of the wording that Senator Dupuis has suggested. I hand-wrote what you said. We’re going to work on this to make sure that there are two aspects of it — to follow the implementation of that section, and then the need to review it when the opportunity will be there.
Senator Dasko: Express the strong concern in relation to these clauses.
The Chair: I think that would meet your concern.
Senator Dasko: The concerns are really about substance and what this means. We really have to convey that this is something that must be watched because we don’t know how these things are going to unfold. All the factors that relate to the interests of the child — there is no formula that says X per cent goes to this factor and X per cent is this factor.
The Chair: Each case is a story of the world.
Senator Dasko: Each case and each situation is judged — we don’t know how. When I look at this and I think about the balance of how these factors are going to be considered, I don’t think we know, do we?
The Chair: We hope for the best. Our responsibility is to make sure that the language is as clear as possible to ensure that there is a streamlined interpretation that keeps the coherence of the objectives of the act, which is to maintain the primacy of the interests of the child. As you stated, this is the foundational principle of this legislation. That’s what the judge or any conciliator or any person involved in the section of the act should keep in mind and never forget.
Senator Dasko: Yes, the bill is very strong on repeating the interests of the child.
The Chair: We’ll do that. I see a consensus around this table on this.
Senator Forest?
[Translation]
Senator Forest: A strong consensus.
[English]
The Chair: Honourable senators, do you agree that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations being appended to the report, taking into account consideration of two today’s discussion, and with any necessary editorial, grammatical or translation changes as required?
Hon. Senators: Agreed.
The Chair: Is it agreed that Bill C-78 be reported, with observations, to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators. That completes our work. Thank you so much for your contribution. I know that a drafting exercise is — I will not say painful — complex. I appreciate the cooperation of honourable senators and their dedication to this work, which is very important in relation to the work and responsibility of this committee.
(The committee adjourned.)