Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 64 - Evidence - June 5, 2019
OTTAWA, Wednesday, June 5, 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 2:33 p.m. to study the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I am very pleased to see you this afternoon and to welcome the Honourable David Lametti, Minister of Justice and Attorney General of Canada.
[English]
Welcome back, Mr. Minister. As you know, we have a heavy agenda. To explain my delay, I was introducing a report for which there were questions after. I had to be there to be able to intervene if needed. You are accompanied by familiar faces around this table —
[Translation]
— François Daigle, Associate Deputy Minister. Good afternoon, Mr. Daigle. We also have Laurie Wright.
[English]
She is also senior assistant deputy minister. Good afternoon.
We are considering 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.
The floor is yours.
[Translation]
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Mr. Chair, honourable senators, thank you for inviting me to take part in your study of Bill C-78.
This bill represents the first revision of federal family law statutes in 20 years, and it will make major improvements to our family justice system.
I am proud of this bill and of the objectives it will help advance, which are to promote the interests of the child, to help combat family violence, to assist in reducing poverty and to improve access to justice.
This bill has received the support of all political parties, as well as academics, practitioners and professional organizations.
I would like to acknowledge the work that our predecessors in the Senate and in the other place accomplished many years ago. In 1997, a Special Joint Committee on Child Custody and Access held 55 meetings and surveyed the views of more than 520 witnesses.
[English]
The Special Joint Committee made many recommendations, several of which are core components of Bill C-78: for instance, that parenting determinations be made on the best interests of the child with a list of criteria included; that property terms like “custody” and “access” be replaced with more child-focused terminology; and that parties have access to divorce proceedings in the official language of their choice.
I am proud to say that Bill C-78 brings these long overdue changes to the Divorce Act. Bill C-78 recognizes the importance of the child’s relationship with each spouse and that a child should spend as much time with each spouse as is consistent with the child’s best interests.
Some groups want an equal shared parenting presumption in the Divorce Act. However, as the special joint committee, the Canadian Bar Association, the Barreau du Québec and many others have argued, such a presumption risks displacing the best interests of the child as the only consideration in parenting matters.
Instead of determining what would be best for the child in each case, courts would have to impose a single model on all families unless a parent could prove that the arrangement would not be the best interest of the child.
[Translation]
It should also be noted that, where a parent is violent, such a presumption could be very dangerous. The other parent might lack the evidence to establish abuse or might be too afraid to produce it.
A presumption respecting the parental role could also undermine the ways in which the Divorce Act interacts with provincial and territorial acts.
The bill has been drafted based on Canada’s two legal traditions, and the courts have previously found that the current provisions of the Divorce Act work well in conjunction with provincial statutes.
A presumption risks disrupting this balance and would result in different rules for children based solely on whether their parents are married or not.
[English]
Most parents come up with their own parenting arrangements without going to court, based on what works best for their family. Courts are already ordering shared responsibilities for children in most cases of separation and divorce. It is therefore not only unwise, but also unnecessary, to impose a single rule on all parents instead of leaving discretion to courts and families to tailor the most appropriate arrangements.
[Translation]
The inclusion of provisions respecting family violence are another important means by which this bill aims to protect and promote the interests of the child.
I would like to note some aspects of these measures, which I know are particularly important for many senators.
The bill provides that the primary consideration must be the child’s physical, emotional and psychological safety, security and well-being. Furthermore, the courts would be required to consider any history of family violence in determining the child’s interests in making orders respecting parental roles, contact and relocations.
To assist the courts in this regard, the bill establishes an evidence-based general definition of family violence covering all forms of family violence. It also acknowledges the fact that exposure to direct or indirect family violence in itself constitutes a form of abuse.
[English]
A number of family violence experts have emphasized the highly gendered nature of intimate partner violence. In this regard the bill highlights a particularly dangerous form of family violence, namely, coercive and controlling violence, which research slows is predominantly committed by men against women.
[Translation]
Now let me point out some of the work that has been done by the House of Commons Standing Committee on Justice and Human Rights.
On the recommendation of the special joint committee, the committee has made a significant amendment, which is designed to enable the parties to choose the official language in which their divorce proceeding is heard at the trial level. We know that divorce trials are often difficult, and this measure will facilitate the proceeding and enable the parties to speak more freely. In Budget 2019, $21.6 million over five years was set aside, starting in 2020-21, to support implementation of these legislative amendments. This will support the investment, announced in Budget 2018, of $10 billion over five years, starting in 2018-19, and $2 million a year thereafter, in the Access to Justice in Both Official Languages Support Fund.
[English]
As you know, the bill also proposes a relocation framework to help families resolve disputes in this highly complex and highly litigated area. One component of the relocation framework is that parents must provide at least 60 days’ notice of their intention to relocate themselves or their child. The bill had provided that courts could waive or modify notice requirements in certain cases, notably where there has been family violence.
The committee in the other place, on the advice of experts, bolstered the protection this amendment would provide by specifying that parties may seek to waive notice in appropriate cases without advising the other party. In addition, some witnesses noted that it would be a challenge for parents, especially in remote areas, to bring a court application to oppose a move within the required 30 days. On the other hand, extending the response period might be unfair to the parent seeking to relocate.
The committee therefore amended the act to give parents the option of objecting through a standard form. If parents cannot come to an agreement after the non-moving parent indicates an objection, the parent wishing to relocate would then have to bring a court application.
[Translation]
I want to emphasize one final point before I take questions. The bill would amend the Family Orders and Agreements Enforcement Assistance Act to enable the federal government to transmit to a court information on the income of a party who fails to meet his or her disclosure obligations.
Failing that information, it is hard to establish fair and accurate support amounts, which may prolong court proceedings and cause families financial uncertainty.
In conclusion, I have met and spoken with citizens and experts in the field, and I am satisfied that this bill proposes major, practical and necessary amendments to improve the family justice system. I hope that, together, we can successfully pass this bill before the end of this parliamentary session.
Thank you.
The Chair: Thank you very much, minister. There is definitely a lot of interest in this bill around the table. First, I would like to invite Senator Dupuis, deputy chair of the committee, to begin the discussion.
Senator Dupuis: Thank you. Minister, needless to say, we are grateful to you for accepting the invitations we have sent you since you were appointed Minister of Justice to assist us in understanding the government’s bills.
My first question concerns the harmonization of federal law with the Civil Code of Quebec. Has the department conducted an analysis on this matter, as to whether Bill C-78, which amends the Divorce Act, actually harmonizes with Quebec’s Civil Code?
Mr. Lametti: The answer is yes and yes. Yes, an analysis has been conducted, and, yes, the bill harmonizes very well with the Civil Code. Of course, there is a division of jurisdictions under the Constitution of Canada, a division of powers, but the courts are already used to that because the Divorce Act has been around a long time. So there’s already a way of working, and Quebec’s superior courts have found very effective ways to harmonize them.
Senator Dupuis: There have nevertheless been some major changes in the Divorce Act compared to what it used to be in this case. If I may draw your attention to section 16, which concerns parenting orders, and section 16.1, regarding a family dispute resolution process, which states, subject to provincial law, that the order may direct the parties to attend a family dispute resolution process. For example, Quebec already has specific mechanisms that apply, and the court would be required to abide by those existing provincial mechanisms. Am I mistaken?
Mr. Lametti: Yes, and, more particularly, what the federal act legislates are divorces. Consequently, de facto unions in Quebec obviously aren’t affected by certain aspects of the legislation.
Senator Dupuis: I have a second question. In one of the sections, if I may draw your attention to it, in the same part of the act, section 16, subsection (6), which is entitled “Maximum parenting time,” I’m trying to see how the general principle can be reconciled with subsection 16(1), which states: “The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.” That’s clearly stated in the act. Some factors are listed. If you’re taking into consideration only the best interests of the child, when you get to subsection 16(6), which concerns maximum parenting time, you see that, in allocating parental time, the court will give effect to the principle that a child should have as much time with each spouse as is consistent with his or her best interests. I’d like you to explain to me how we can articulate the two concepts and then reconcile the content of subsection 16(6) with its title. In other words, I understand the intent — It seems to me the apparent intent is to allocate parental time to one parent or the other. We’re talking about maximum parenting time — and some witnesses raised this point — but we seem to be making presumptions based on a title I think is inappropriate. Can you reassure me on this issue?
Mr. Lametti: With pleasure. You have to consider the fact that the basic presumption you just identified is precisely that the child’s safety and welfare must be considered above all else. This is really the perspective, or the philosophy, that transcends every section of the act. There’s a non-exhaustive list of criteria. The courts may constantly interpret the various criteria set forth in the act in light of the child’s best interests.
Maximum time is one factor. That is to say that it is important that the child spend as much time as possible with each parent, but that’s determined at all times based on the child’s best interests, at all times. If there’s a violence issue, or if other factors apply, a judge may obviously reduce the scope of the section, or even exclude it, because it isn’t restrictive. The single overriding factor is the best interests of the child.
Senator Dupuis: If I correctly understand your answer, we aren’t expressing a presumption.
Mr. Lametti: Not at all.
Senator Dupuis: That’s what I wanted to clarify.
Mr. Lametti: Precisely, it’s not a basic presumption. I avoided using the word.
Senator Dupuis: It’s important to say that because this is a major concern. There is no presumption in favour of a principle for allocating equal time to one of the spouses or to both, or something like that.
Mr. Lametti: Precisely.
Senator Dupuis: Thank you.
Senator Boisvenu: I’m going to offer the same greetings as my colleague. I thank you for being here and thanks to your associates for coming with you.
I’m particularly interested in certain aspects of the bill, starting with the entire matter of family violence, courts that are swamped and delays that often cause an increase in violent incidents between couples. With respect to violence, many divorces are settled in very negative circumstances, and that’s unfortunate. The bill refers to a pattern of behaviour for the purpose of determining whether family violence has occurred. The act doesn’t define what a pattern of behaviour is. Tell me, is it up to the court to define what constitutes a pattern? Will that include various types of violence, such as sexual abuse, or will the pattern be escalating violence or episodic violence? How do you define this concept of violence?
Mr. Lametti: If my understanding is correct, it may be either one. It’s up to the court to determine that, and it’s a very flexible concept. That determination may be influenced by direct or indirect incidents because the experts now say that even violence between parents can have an impact on the child.
So a judge may consider all those factors in determining what constitutes a pattern of behaviour.
Senator Boisvenu: If I’m a judge and I determine that violence has occurred and that the child is therefore at risk, I can make that connection. If there is violence between the couple, there’s a risk that might have an impact on the child.
Mr. Lametti: Yes.
Senator Boisvenu: Why talk about a pattern of violence, and not simply violence? I’m having trouble with this. You adopted the same approach to Bill C-75, which presumes that the burden of proof must be reversed if a woman is assaulted twice instead of doing so immediately if violence occurs at all. Why does the bill still refer to violence against women, and why does it refer to a pattern of behaviour, which suggests that the behaviour is repeated? Why not simply refer to violence?
Mr. Lametti: First of all, that’s a good question. I would say this is an important factor that we wanted to identify and that had previously been neglected or overlooked. Once again, the philosophy is still to prioritize the rights of the child or to base the analysis on the best interests of the child. In this case, we want to avoid the negative impact of violence on the child, whether it be direct or indirect violence, and we wanted to emphasize that a pattern of violence could be just as significant. I should add that this is also a specific aspect of coercive and controlling violence, which may be non-physical and may form a significant pattern.
Senator Boisvenu: As you’ll understand, for a woman, there’s no such thing as a pattern when it comes to violence. Either there’s violence or there’s no violence. My other question concerns the increase you introduced in Budget 2018, the $77.2 million that was added for 2019-20. Unfortunately, 39 new judges were appointed in 4 provinces, but not in Quebec. That $77.2 million amount was to be allocated to the courts to reunify families. Quebec suffers enormously from delays in the settling of divorce cases. Why didn’t Quebec receive a share of that funding so we could have more judges in our courts?
Mr. Lametti: As Minister of Justice, I work to appoint judges. I appointed more judges for Quebec yesterday.
Senator Boisvenu: We’re talking about 39 new judges here.
Mr. Lametti: We encourage the establishment of unified courts. I just met some family law experts in Quebec, and they’re unanimous: They would like to have one. I said I was open to the suggestion, and I’d like to see how we can establish a unified court in Quebec. I have a good relationship with my counterpart in Quebec City, and you’re right, it would be good for everyone. For the moment, we’re waiting, but we’re offering encouragement. I appointed judges in Ontario, and I’m going to appoint judges in Alberta as soon as the province is ready. As you just saw, that will make a major improvement to the system.
Senator Boisvenu: Thank you.
[English]
Senator Batters: I practised family law in Saskatchewan for many years prior to coming to the Senate. As such, I consulted experienced family practitioners who continue to practise in Saskatchewan about their views on Bill C-78 and how it will impact Canadian families.
I heard some significant concerns about Bill C-78. One of those strong concerns was about your provisions around the relocation of a child. You briefly spoke about that in your opening statement, but what I am hearing is that experienced family law lawyers are worried these provisions will be a disaster. How does the average person respond to the provisions that you put in this bill? They say it is presumptive. What if a parent does not receive the notice? How is that receipt proven? They are also telling me that it forces people into court rather than, as we should often be trying to do, help people stay out of court. Their fear is that you will have to run to court to prevent a relocation by the other parent.
How do you respond to those concerns, minister?
Mr. Lametti: First, I would say that the majority of experts we have spoken with, the majority of lawyers we have spoken with, people affected by the processes and parliamentarians from both houses have been overwhelmingly in favour of the kinds of changes we have proposed in the act.
In general, most family law practitioners are on side even if I acknowledge that there are, as you have pointed out, a few that are not.
With respect to the relocation provisions, we understand this is one of the most complex and litigious areas. It is often one of the single-most difficult decisions either made at the time of the separation or divorce or later on when there is a modification and a move.
What we’ve tried to do is align the provisions with the parental decision-making authority, always in the best interests of the child. We’ve tried to align notice provisions so that both parents have adequate notice; added provisions that account for situations where there is violence and therefore maybe we have to soften the notice provisions; and added provisions to make sure where there is distance, the North being the prime example, there is a way to oppose effectively and efficiently within the notice period.
We are trying to balance a number of different things. Frankly, I think we have the balance right. There are provisions where we are trying to encourage people to use reconciliation and mediation before going to court so that perhaps we can solve these issues beforehand. Then there are presumptive burdens when there is litigation, which actually also help mediation. If you know which way the court will frame its analysis, it helps push the mediation process before it ever gets to court, and hopefully it won’t get to court.
We’ve tried to do a number of different things. I can go into more detail if you want.
Senator Batters: I have a second question.
Mr. Lametti: I figured that.
Senator Batters: Following the Supreme Court decision in Jordan on criminal court delays, much of the available court resources in Canada have been devoted to criminal courts to avoid serious criminal charges being stayed if a case takes too long to get to trial.
Unfortunately, as you must know, that has often led to family courts bearing a substantial burden with an overloaded court system.
You still have 45 judicial vacancies right now, as of June 1, across Canada, and that’s after 3.5 years in power. The length of time it takes to get to a family law trial is immense. Obviously everyone tries not to, but sometimes it is necessary. That often worsens, too, the relations between the parties.
Aren’t you concerned that the increased court applications, which could result from the types of issues I was just discussing in the family law courts from Bill C-75, particularly on relocation applications, could possibly worsen the family law court crisis?
Mr. Lametti: First of all, we think the ensemble of modifications we are proposing in this bill will help the family law system with more mediation and more conciliation before having to go to court. On that side, I think that is part of the picture.
Judicial appointments is another part of the picture. As I said, I made more yesterday. There are more in the pipeline. I understand the need to be on top of the judicial appointments file and to be sensitive to the needs of provinces when they tell us their superior courts need more judges.
We have pushed, as I’ve said to your colleague, the idea of unified family courts which also helps. Obviously, a number of you in this room have done a great deal of work on Bill C-75 on the criminal justice side, to hopefully make that system more efficient and better running. We really take an holistic approach to trying to address Jordan.
Senator Batters: Did you do a gender-based analysis on this bill?
Mr. Lametti: We did indeed.
Senator Batters: Can we see it?
Mr. Lametti: I can’t share that with you because of cabinet confidence. The GBA analysis of this was done with respect to the memorandum to the cabinet, so it’s covered by cabinet confidence.
That being said, I would be willing to share, if you wish, some of the major highlights from that GBA analysis.
Senator Batters: Maybe you could provide that to our committee.
Mr. Lametti: We could do that.
Senator Batters: Thank you.
Senator McIntyre: Thank you, minister, for being here to answer our questions.
I note that in the past five to ten years, the most significant development in custody law is an increasing legal protection for parents and their children from domestic violence.
For example, in the 1970s, the Australian legislature shifted the balance between protection and parental involvement toward greater protection against violence. Australia was not alone in making the shift.
Have you examined the legislative reforms of family law in other countries? If so, how do parenting arrangement trends in Australia and other countries compare with those in Canada?
Mr. Lametti: Before I turn it over to one of my colleagues to answer the specific detail because of the timing of this bill, let me say that my understanding is that we looked at other jurisdictions, in particular those best practices in other jurisdictions that put into relief the best interests of the child.
If there are more specific answers, I could turn it over to one of my colleagues.
Laurie Wright, Senior Assistant Deputy Minister, Department of Justice Canada: We certainly did look, for example, at changes in the Australian model. In Canada, as well, one of the benefits of a federation is sometimes provinces move ahead faster than we do. We have had the benefit of changes that were made, for example, in Nova Scotia and British Columbia. Those were good examples for us in terms of looking at changes that have been made. We drew inspiration from them as well.
Senator McIntyre: My next question has to do with international conventions.
My understanding is that Australia signed and ratified the 1996 Hague trial protection convention in 2003, while the United Kingdom signed it in 2003 and ratified it in 2012. In contrast, Canada did not sign the convention until 2017 and has not yet ratified it.
First, what obstacles, if any, prevented Canada from signing the convention at an earlier date? Second, what obstacles, if any, could still prevent Canada from ratifying the convention? Third, to what extent, if at all, do the provinces support the implementation of the convention across Canada?
Mr. Lametti: I have an ethical screen on The Hague Convention because of my wife’s long-standing work on it as an expert in private international law, so I will turn it over to Ms. Wright.
Ms. Wright: Certainly. These international private law conventions, as you have noted, implicate a lot of provincial jurisdiction. For us to be able to make a good national showing, we need some support from the provinces and territories. Part of our work has been working with the provinces and territories to garner support.
In addition, signing and ratifying is something that we don’t wish to do until our own law is in compliance with the convention. At the federal level, if Bill C-78 comes into law, we will be able to ratify the convention subsequent to that.
The provisions are there to allow the provinces and territories to come on side as their own laws are updated to reflect the convention.
Senator McIntyre: Signing is one thing; ratifying is another.
The Chair: I am sure the minister understands that. He might have taught that to his students in class.
[Translation]
Senator Dalphond: I want to thank the minister and the departmental representative for being here today. As the sponsor of this bill, I was fortunate to work at length with the departmental people and appreciated the quality of the answers I received.
My question is further to that of my colleague Senator Boisvenu regarding family violence. He wondered why violence had to be recurring for the provision to apply. The French definition of family violence is as follows:
S’entend de toute conduite, constituant une infraction criminelle ou non [...] qui est violente ou menaçante, qui dénote, par son aspect cumulatif, un comportement coercitif [...]
The “aspect cumulatif” doesn’t apply to the violent or threatening incident. It refers solely to coercive and controlling behaviour. I was wondering whether my understanding isn’t confirmed by the English version —
[English]
Family violence means any conduct that is violent or threatening or that constitutes a pattern of cohersive and controlling behaviour.
[Translation]
Unlike Bill C-75, in which repeat behaviour results in a reversal of the burden of proof for the purpose of obtaining release, no repetition of violent behaviour is required in this instance to conclude that a violent act was committed.
Mr. Lametti: Yes, absolutely. In this definition, we’re trying to include all types of violence that might occur within a family and that obviously would have a negative impact on the child, and to do so in a flexible way to avoid excluding other types of violence that might arise.
Senator Dupuis: I understand why the French was drafted differently from the English, but there’s a comprehension problem, unless you copy the entire English version and translate it literally. I’m thinking of people who will read the bill. In this case, the English version is very clear. There are three possibilities: it’s the first, the second or the third.
I understand that we want the French version to stand out because it’s drafted separately from the English version, but a bit more of an effort could have been made here. These are sensitive issues that involve gut-wrenching conflicts and ugly situations: in other words, family violence. In this instance, we should have specifically stated that there are three possible situations, only the second of which establishes a cumulative effect or pattern. Thank you.
Mr. Lametti: We’ll take note of that. Thank you.
[English]
Senator Dalphond: My second question will be about parenting orders, especially those allocating parenting time.
You said in your statement that the government or the department considered a presumption of what we used to call joint custody or equal shared parenting time. This was excluded because what has been kept is the concept of maximum time that is compatible with the best interests of the child.
By the way, I think I developed that concept in a previous judgment of the Court of Appeal. That being said, could you compare that with other jurisdictions like the U.S. and other countries?
Is this idea something new? We have received letters and submissions from people who say we should have a presumption of shared parental time. I am not so sure I will endorse it.
That being said, I don’t know that many jurisdictions have endorsed that model. I think it has been attempted elsewhere and has been rejected, but maybe my understanding is wrong.
Mr. Lametti: Let me say in terms of general comments that we did not want to have another presumption. The underlying presumption is the best interests of the child, period. An equal parenting presumption would have been a competing presumption.
That didn’t fit well. We wanted no conflict. It was considered and rejected on good advice. A number of bars and a number of experts said that we should not have an equal parenting presumption. We have maximal time, which fits. It’s always subjected to the best interests of the child, so that we can coordinate.
I will leave it to one of my colleagues with respect to other jurisdictions.
Ms. Wright: I would say that I think you’re going to have the benefit of officials more expert than I am on some of the international comparators in your second hour. Perhaps they will be able to provide you with a little more information on that.
My understanding is that the direction toward best interests of the child is more in line with where things are going generally.
Senator Dasko: I hate to burrow away at this topic, but I will ask a follow-up question to those asked by Senator Dalphond and Senator Dupuis.
This goes back to maximum parenting time. Why is the word “maximum” there? I know that different groups made representations, but this one word seems to be very vexing because it seems to imply the concept of equal, shared parenting time which is posing such difficulty.
If that one word were not there, there may not be much of a problem. Why is it there? Why did you not take it out? Why is it still there?
Mr. Lametti: This isn’t the first time this has been raised. The concern is a very legitimate one. Again, we want everything to fall under the very important umbrella of the best interests of the child.
I guess it is part of the analysis to give as much time to each parent as is in the best interests of the child. In that sense, it is the maximum.
You make a good point to say that is a redundant concept.
Senator Dasko: Or a problematic one.
Mr. Lametti: We’re trying to make it clear. It is in a marginal note and it’s not part of the legal body of the act as a way of saying best interests of the child are primordial.
At this stage it has become clear in the explanations that it isn’t meant in any way to be a presumption. I have avoided that word specifically in answer to previous questions. It’s there as an interpretive factor among many other factors.
I am not worried about it moving forward is the way I would put it. I recognize your concern, but I am not worried that this will have a negative impact.
Senator Dasko: As you’ve mentioned, many people support this bill. I think it’s a great improvement.
With reference to what you had mentioned earlier about the gendered nature of violence, there has been some criticism that the bill doesn’t recognize this in the effort to be gender neutral, which is considered to be a positive feature. Still, the bill doesn’t actually recognize this and pay more attention to this aspect of violence.
I wonder what is your feeling about that critique and how you would respond.
Mr. Lametti: I am sensitive to the concern. I think the concern is an exceedingly important one. There is in the act the idea of coercive violence and a pattern of coercive violence, which is in fact gendered statistically. We capture that, even though we are trying to use gender-neutral language. We actually capture the gendered nature of the violence in the specific definition of family violence.
I understand the concern. I think we have a wide enough term to capture it. I suppose it also respects both principles of neutrality while also appreciating that certain kinds of violence are quite gendered.
Senator Dasko: If amendments were to be proposed that might address some of these issues, what would your response be?
Mr. Lametti: I’ll be honest.
Senator Dasko: Please.
Mr. Lametti: This is my fourth time in front of this committee in very short order. I have always been, I think it’s fair to say, very open minded with respect to amendments and I work in good faith with amendments.
This timeline is the shortest. We are toward the end, so my response is based strictly on time. It is nobody’s fault. It is just the way it is.
This is the fourth one I am here for and not the first one I am here for. My priority is to get this passed. This is an important piece of legislation. Let me be honest again. It’s the most important one that I have been shepherding through the various stages since I took over this position in January.
I am a little more hesitant to be open to amending, simply on the grounds of expediency. I really want to see this passed before we rise.
The Chair: Thank you for your frankness, minister.
Senator Pate: On May 22 of last year, which was before your mandate, the department indicated in a press release that one of the objectives or one of the key issues the bill aimed to address was child poverty in terms of reducing child poverty by allowing for or strengthening the enforcement of family support obligations.
I have three subsets of one question. What percentage of the parents who are subject to these enforcement obligations are failing to pay? How many of those are failing to pay because of poverty-related issues or inadequate resources? I’ve been trying to look for where else they may be in the bill, but what other measures, if not just those, are you looking to within the bill to alleviate child poverty?
Mr. Lametti: My understanding is the main part is the financial reporting that will now be possible. Revenue Canada will make it much more difficult for people not to disclose. Non-disclosure is a big part of the child poverty picture.
To my understanding, and my team will help me with the statistics, the major element in non-disclosure is not poverty. Rather, it is trying to avoid payment or trying to avoid disclosing the full swath of one’s financial resources in order to reduce payment.
We’re making it easier to police that. We’re doing other things to work on child poverty as a government, which I would be remiss not to mention. This has been a priority across the board.
Ms. Wright: In terms of what else is in the bill, the change in terms of allowing administrative calculation of support is important, and not just recalculation. This means that people don’t necessarily have to go to court before they can have a situation where support becomes payable between the spouses.
Changes have been made to extend the period of time of life for a garnishment order to ensure that someone doesn’t have to go back to court after five years, given that the evidence shows the average life of garnishment is around 12 years. There are detailed changes which in some ways will make a difference to parties in order to more efficiently make sure they are securing their support.
The question of statistics is an area where we don’t have a lot of really firm data in terms of percentages of how much is outstanding or how many people are in arrears, partly because a lot of that information is held at the provincial level and not necessarily at the federal level.
We can undertake to provide to the committee whatever we have, but it’s not an area in which we have a lot of detailed information.
Mr. Lametti: Could I just add that administrative calculations help fight poverty too, in the sense that if one loses one’s job, one doesn’t have to wait to the end of the year before one can have the support order changed administratively and hopefully prevent poverty in that sense for one of the parties?
[Translation]
Senator Housakos: Minister, under clause 12 of the bill, the best interests of the child would be the predominant factor in making the order. It would amend section 16 of the Divorce Act and specify certain factors that must be considered. In particular, it would create subsection 16(5), which provides as follows in the part concerning factors pertaining to violence and past conduct:
In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Similarly, the Regroupement des maisons pour femmes victimes de violence conjugale recently suggested, in its recommendation 8, that this section be changed by amending subsection 16(5) to add paragraph (a), as follows:
“In determining what is in the best interests of the child, the court shall take into consideration all past conduct relevant to the exercise of parenting time, decision-making responsibility or contact with the child under a contact order.”
“(a) In applying subsection 16(5), the courts shall always consider family violence relevant, regardless of when it occurred, or its form, frequency and nature.”
Minister, can you tell us what your department wants in this regard? Why isn’t all previous conduct taken into account? What do you think of the recommendations made by the Regroupement des maisons pour femmes victimes de violence conjugale?
Mr. Lametti: Thank you for the question, senator. We sincerely believe we’ve drafted a definition of family violence that’s broad enough to include the violent behaviour that directly or indirectly affects the child based on his or her family situation. According to the experts and the people who conducted consultations, this definition is both adequate and effective. However, we will examine what you have presented to us and then we’ll see.
Senator Housakos: So you’re open to an amendment or suggestions?
Mr. Lametti: We’re always open, but we have to take into account our current timeframe, which is quite tight. Today is June 5. I don’t want to create any expectations, but all of this is important because it concerns children. So, if a problem has been identified and we think we’ve overlooked something, we’ll carefully examine everything.
Senator Housakos: You said you’re ready to consult experts and organizations such as the Regroupement des maisons pour femmes victimes de violence conjugale. It’s a highly credible organization that’s on the front line and knows a lot about this file.
Mr. Lametti: The committee in the other place took another look at these issues, in many instances, with the same stakeholders and arguments. It made a few amendments. However, if the same arguments are made, we’ll see what we can do.
Senator Housakos: Thank you, minister.
[English]
Senator Batters: The other place might have done something at committee, but this is the chamber of sober second thought. We will take that look, as I know you’ll appreciate.
Mr. Lametti: No one believes that more than our government. Don’t worry about that.
Senator Batters: Right. In that vein, is your government planning on bringing any government amendments at clause by clause on this particular bill? We have seen that with many bills.
Mr. Lametti: The time frame of this one leads me to believe that it is highly unlikely, but we’ll wait to see what you do. I am not going to preclude your conclusions will be.
Senator Batters: You don’t have any right now, but it depends on what happens here.
Mr. Lametti: I’ll be honest with you. I do not.
The Chair: Before going on to the second round, I have a question that I would like to ask. I will put on my Quebec hat as a senator.
The Divorce Act and family law overlap to a point, as you know, because they cover the relationship of a family. Has your department conducted an analysis of the principles and legal concepts that this bill develops in various federal legislation and the system as it operates in Quebec at this moment?
Did you do an analysis in the department of the operationality of this act with what exists in the province to see where there might be conflicts or uncertainty about what law should be applicable?
Mr. Lametti: My understanding is that we have worked in developing this piece of legislation with not just the nine common law provinces and territories in mind but also with Quebec. My understanding is that they are interoperational.
In Quebec one can choose not to get married and therefore not be subject to certain provisions of this act, but it is entirely consistent with protecting the child, particularly for those who choose to be married. My understanding is that they are completely interoperational.
The Chair: Do you have those analyses? Could you share them with us? I am sure senators from Quebec around this table, many of them, in fact. I don’t want to count them and give the impression we have the majority, but there is certainly that preoccupation.
As you know, in the Nadon decision of the Supreme Court, the Supreme Court expressed its concern about the important social values the Quebec Civil Code and the related acts of the Quebec legislature. When the federal Parliament legislates on issues whereby there is an overlap, we have to be mindful of the impact of what we are doing and how it will be interpreted by the courts.
Would you share those studies with us?
Mr. Lametti: I am not going to undertake to share anything that is covered by solicitor-client privilege. A number of memoranda and analyses would be covered by that.
What I will say, again, is that we can make a list of highlighted points that we took into consideration.
The Chair: Mr. Daigle wants to add something.
[Translation]
François Daigle, Associate Deputy Minister, Department of Justice Canada: Just to reassure you.
[English]
The process was really one of working with all the provinces including Quebec in developing this bill. We have a federal-provincial-territorial committee at the ADM level that has been regularly meeting for years, in which Quebec is very involved. On the operationality of the bill we have been talking to all the provinces including Quebec.
[Translation]
Minister LeBel is entirely up to speed because every province will have to take steps to ensure compliance and to ensure they make the necessary amendments so we can continue to work together. Consequently, they will necessarily have a period of time to prepare before the act comes into force. All these discussions have been ongoing for several years now. If it can reassure you, we’re working together. We didn’t prepare an analysis and then submit it to them and demand answers. It was really a piece of teamwork with the provinces.
[English]
The Chair: There is no analysis per se in the department.
[Translation]
There’s no specific analysis of the fundamental concepts of Bill C-78 or of the legal basis in Quebec in the context of family law statutes?
Mr. Lametti: If my understanding is correct, there are a number of analyses. In some cases, Quebec is addressed in another, more general document. There may also be some more specific analyses.
Mr. Daigle: We can see what documents we have.
The Chair: My colleagues, particularly those from Quebec, would be very interested in seeing those analyses. As we all know, one of our duties as legislators from Quebec is to ensure that federal jurisdictions are exercised, and divorce is a federal jurisdiction. However, as there is an overlap with the civil law, and more particularly with family law, our responsibility is to ensure, as far as possible, that the two legislative systems complement, not oppose, each other. We’ll wait and see what Mr. Daigle sends us.
Senator Dupuis: Similarly, I think our concern as senators is also to respond to what I see in the third recital of the preamble to the Federal Law — Civil Law Harmonization Act: “. . . the harmonious interaction of federal legislation and provincial legislation is essential and lies in an interpretation of federal legislation that is compatible with the common law or civil law traditions . . .” Paragraph 16.1(1)(b) provides that an order may be made providing for the exercise of parental time by a person, other than a spouse, who is a parent of the child or who stands in the place of a parent or intends to stand in the place of a parent. So I think this is the kind of exercise in which we don’t necessarily want to have confidential documents, but it is important to ensure that this kind of concept is compatible with what we see with regard to the exercise of parental authority under Quebec civil law.
Mr. Lametti: To give you a brief answer, we believe that, yes, this concept is compatible, and this was drafted together with civil law experts and people trained in common law.
Senator Boisvenu: Minister, I would like to go back to the “aspect cumulatif“ or “pattern” concept. We must ensure that the manner in which the bill is drafted, the way it becomes law and the differences between the English and French versions don’t become a defence loophole. As you know, I do a lot of work with crime victims, particularly women victims of spousal abuse, who have long called for changes to the Criminal Code, to adapt it to their situation so as to protect them and so that action isn’t delayed until after they’ve been murdered. Fifty women murdered in Canada as a result of spousal abuse, often in separation situations, and 15 women in Quebec: That’s the equivalent of one Polytechnique incident a year. You must be open to amendments to ensure the bill is adapted to the situation of violence that too many women endure. You know that many women will institute divorce proceedings after experiencing periods of violence, but without ever filing a complaint. The spouse will appear in court as an innocent man, but the woman will have experienced episodes of spousal abuse for five or 10 years. So the notion of a “pattern” or “effet cumulatif“ should be taken into consideration both at the time of the divorce and in the couple’s past or history of family violence. Failing that, the individual will say, “There hasn’t been a pattern, Your Honour; we’ve been in divorce proceedings for three months, and I haven’t touched my wife.” There may have been violent episodes in previous years without criminal charges being laid. He’ll be pure as the driven snow in court. The words “cumulatif“ and “pattern” are dangerous words in this bill. I think you should be prepared to find a definition more consistent with the circumstances of family violence. That’s currently not the case; and that’s regressive. That’s my opinion.
Mr. Lametti: Thank you. As I just told a number of senators, we will take your suggestions into consideration.
Senator Boisvenu: Thank you.
Mr. Lametti: In fact, this is a technical definition issue, especially regarding the difference between the English and French versions. I would note that, if this is a substantive problem, especially if this is a duplication of analyses that have previously been conducted, you might risk sinking the bill, and I sincerely believe it’s too important. When I studied law, it was 1985 and the Divorce Act had just been enacted. No major amendments have been made to the act for 20 years, and it’s time to do that.
[English]
Senator Batters: Another major concern I heard from family law practitioners in Saskatchewan is that you are creating a two-tier system of family law. One system is for parents who have been married and are thus covered under the Divorce Act and the particular changes you are making here. The other is for parents who have not been married, so they are covered under provincial laws like the Children’s Law Act in Saskatchewan.
The rights of the children are really what is important here. They shouldn’t differ based on whether or not their parents have been married. How do you respond to that?
Mr. Lametti: That has been the reality in Quebec for years, but we are working with the provinces, as we have said. British Columbia and Nova Scotia already have these concepts in place. We hope that other provinces will follow suit because it is in the best interests of the child.
Senator Batters: Saskatchewan has had that in place for 20 years. It is nice to see the federal government is catching up.
[Translation]
The Chair: Minister, my colleagues have expressed their gratitude that you have been available to attend the hearings of this committee, and we thank you for that.
[English]
You, of course, have a lot of work to do because we have sent back Bill C-58, Bill C-337 and Bill C-75.
Mr. Lametti: Thank you.
The Chair: We hope we will be hearing from you some time. It is done with the diligence and dedication of all the senators around this table on the very important issues they have to address.
We also appreciate the cooperation of departmental officials. They are professional and available. We appreciate very much their cooperation in the performance of our duties as legislators.
[Translation]
Thank you, minister, and thank you, Mr. Daigle. We await the information Mr. Daigle has to send us. As you hope the bill will soon move on to the House of Commons stage, I’m going to ask Mr. Daigle to provide it to us as soon as possible.
Mr. Lametti: Thank you.
The Chair: Thank you, minister.
I am going to suspend for a few minutes to allow the minister to leave the table and the departmental officials to take their places.
Honourable senators, we are continuing our study of Bill C-78, An Act to amend the Divorce Act and to make consequential amendments to other acts.
This afternoon, we welcome representatives from the Department of Justice. I’m smiling because I see only women. Both groups are usually represented. We are pleased to welcome Elissa Lieff, Senior General Counsel; Claire Farid, Senior Counsel and Manager; and Andina Van Isschot, Acting Senior Counsel and Coordinator.
[English]
Welcome. Do you care to make a presentation? You have heard senators asking questions in an exchange with the minister.
Elissa Lieff, Senior General Counsel, Department of Justice Canada: We would like to help in any way we can by responding to your questions. I am hoping to defer many of the questions to my colleagues so they have the opportunity to speak to you about the work we have all done on this legislation over a number of years.
There are some men working in our office, but they are not in management positions.
The Chair: Thank you so much.
[Translation]
Senator Dupuis: My questions will be technical and very specific. Subsection 6.3(1) concerns a child who is habitually resident, and it uses the terms —
[English]
— including undertaking research.
[Translation]
If my understanding is correct, the idea was to adjust the English and French versions and to use the word ordinary rather than “habituelle.” Who would you please explain to us what you had in mind from a legal standpoint with regard to habitual residence rather than ordinary residence?
Claire Farid, Senior Counsel and Manager, Department of Justice Canada: In the current wording of the bill, we use the concept of “résidence habituelle” in French, whereas we say “ordinary residence” in English. There isn’t really any substantive difference between the two concepts. The concept of habitual residence is used in the provinces and territories and internationally. The idea is really to use a more standard terminology.
Senator Dupuis: May I ask a second question?
The Chair: Of course.
Senator Dupuis: Subsection 16(5) concerns past conduct. We discussed it in committee with the Minister of Justice. Can you help us understand this? We’re talking about the fact that courts don’t take past conduct into account, except if it’s related to the exercise of parenting time.
Would you please tell us what type of past conduct would not fall into the category contemplated in section 16?
Ms. Farid: The reason why this concept was included in the Divorce Act a number of years ago was to preclude the courts from considering cases in which, for example, adultery had been committed, which is not necessarily related to the interests of the child.
Furthermore, since the bill contains several provisions respecting family violence, we feel, from an interpretation standpoint, that the court would clearly consider this type of conduct.
Senator Dupuis: My final question concerns clause 26, under which the Department of Justice may conduct activities “including undertaking research.” That’s clause 26, which adds section 25.2 to the act. Why are you specifically including that in the act?
Ms. Farid: The department conducts a lot of research in the family justice field, and that sometimes requires it to gather personal information. This provision authorizes us to gather this kind of information as part of our research.
Senator Dupuis: Perfect, thank you.
[English]
The Chair: I would like to come back to this very point that the bill called “past conduct.” It shall not take into consideration the past conduct of any person.
Perhaps I could give you a case I heard on the radio last night because there is a lot of interest about the condition of the child, child keeping and foster families. In the case of a foster family one of the foster parents was consuming a lot of drugs. The Directeur de la protection de la jeunesse, or the DPJ, thought that this child should not be left there because that child was exposed to foster parents or guardians whose behaviour was not helping the child.
According to this section, what would happen?
Ms. Farid: I don’t think we can obviously comment on a particular case.
The Chair: I don’t name anybody, but what would be the interpretation of the court in relation to this section of such conduct?
Ms. Farid: If the behaviour of the parent is linked to their parenting and their ability to parent the child, that would be taken into account by the court. The past conduct rule is trying to eliminate the courts taking into consideration behaviour which, in the past, was considered not morally correct. For example, adultery was used in the past to look negatively on someone’s ability to parent. That’s why that provision was included originally in the Divorce Act.
That provision is not intended to impact on the court looking at any behaviour that is directly relevant to a person’s ability to parent a child or take care of a child.
The Chair: In other words, they could not invoke that paragraph to say to the court, “It’s not your responsibility to look into that.”
Ms. Farid: That’s not the intent of that provision. If you look at the list of best interest criteria, subparagraph 16(3)(h) says:
. . . the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
Something like substance abuse, where it is linked to parenting abilities, would fall within that type of consideration.
The Chair: There would be an ability for the court to have a broader perspective of the conduct of a person in the context of his or her responsibility to the child.
Ms. Farid: Yes. I mean the concept of best interest gives the court the ability to look at the entire child situation to determine what parenting arrangement will be best for that child.
The Chair: Thank you. I know it’s of interest for the senators.
[Translation]
Senator Boisvenu: I have a very simple technical question. Paragraph 16(5)(b) refers to “a pattern of coercive . . .behaviour” in English and to “un comportement coercitif” in French. The word “coercitif” is rarely used in divorce case law. The term “comportement abusif” is used instead. Consequently, instead of using the French expression “comportement coercitif,” which seems to me a translation of the English, shouldn’t we say “comportement abusif,” which is much more frequently used in the case law than the word “coercitif”?
Ms. Farid: Four types of behaviour are included in the definition of family violence. I’m just going to refer back to the French definition. There is violent behaviour, threatening behaviour, coercive and controlling behaviour — this is the pattern aspect — and behaviour that causes a family member to fear for his or her own safety or for that of another family member. There are four types of conduct that constitute family violence.
Senator Boisvenu: Why did you distance yourself from the case law, which refers more to an abusive attitude than a coercive attitude, particularly in divorce cases?
Ms. Farid: What the definition —
Senator Boisvenu: That’s not my question. Why did you distance yourself from the case law, which has always referred to abusive behaviour? The word “abusive” is much easier to understand than the word “coercive,” which is much more complicated to apply. A coercive episode isn’t at all an abusive one. These are completely different concepts of violence. When you say marital violence, you’re talking more about abuse than coercion.
Ms. Farid: If you look at the list of examples of types of family violence, you’ll see physical abuse and sexual abuse. Here you have an example employing the concept of abuse. The reason why the concept of coercive and controlling behaviour is used is that it’s an important concept in the social sciences in understanding family violence and how it is manifested. It’s a very significant type of violence in the context of family violence.
Senator Boisvenu: So we’re completely dissociating ourselves from the case law in this field? We’re no longer using the word “abuse” in the bill, and, more particularly, we’re no longer using the word “coercion”?
Ms. Farid: No, but that’s only one type of family violence.
Senator Boisvenu: I see.
Ms. Farid: Several types of violence are stated in the definition, and there are specific examples, including, for example, physical abuse, sexual abuse and harassment. Several types of abuse are included, and the list of types of behaviour isn’t exhaustive.
Senator Boisvenu: Thank you.
[English]
The Chair: I don’t want to plead the case of Senator Boisvenu, but he has a point. “Cœrcition” means to push somebody to do something. That’s the normal understanding of “cœrcition.” “Abus” is not at all the same. It’s a total different reality. I think that is what Senator Boisvenu is trying to explain to you in relation to the interpretation of the clause.
Ms. Farid: We’re trying to explain that the definition isn’t only focused on the concept of coercive and controlling behaviour. There are four different types of family violence or types of behaviours. It’s violent behaviour. It’s threatening behaviour. One act of violence, one threat, would constitute family violence. There’s a pattern of coercive controlling behaviour, or there is behaviour that causes someone to fear for their safety or the safety of another person.
Then there are specific examples given of family violence, such as child abuse or physical abuse. That list is non-exhaustive, so it’s important to look at the concepts contained in the proposed definition.
[Translation]
The Chair: Senator Dupuis, do you have a question?
Senator Dupuis: May I ask a brief supplementary question? You referred to the concept of constraint, of coercion. It seems to me there’s a major difference between constraint and excess, and thus abuse. In this case, we’re referring to the social science concept, which means compelling someone to do something without necessarily rising to the level of abuse or excess. So these are two very different concepts.
[English]
The Chair: That’s why I raised that question with the minister this afternoon. Are the principles or the legal concepts of his underpinning of the bill in sync with the legal concept applicable in the Quebec legislation as much as family law is under the provincial jurisdiction?
This is an example of a concept whereby you have to adjust the two systems.
Ms. Farid: I don’t think there’s any incompatibility. You’ll have other witnesses either today or tomorrow who will speak to you about the law in Quebec and their views on the bill.
Certainly, in terms of the types of behaviour that are recognized in definition are found in case law across the country.
Ms. Lieff: As our associate deputy minister mentioned earlier as well, I previously and my colleague now co-chaired a federal-provincial-territorial coordinating committee of senior officials on family justice. They were consulted extensively on the proposed legislation.
That also adds to our comfort level in terms of interaction across the country but particularly addressing whether or not there might be any distinctions between the Civil Code approach to this and our proposals in the Divorce Act.
The Chair: Thank you for your answer.
Senator McIntyre: Thank you for being here today to answer our questions.
The concept of parenting orders replacing custody orders is proposed in the new section 16.1 of the Divorce Act. This proposed new section specifies who can make an application for a parenting order, for example, an order regarding the exercise of parenting time or decision-making authority in respect of a child. It includes a person who intends to stand in the place of a parent.
Who is the bill referring to when it mentions a person who intends to stand in the place of a parent and who would be entitled to parenting time or decision-making authority for the child?
Do you believe this provision could lead to litigation between several people claiming rights in respect of a child?
Ms. Farid: The provision is intended to identify different categories of people who would want to be in a parental role with respect to a child.
For example, there could be a situation, for whatever reason, where there has been a divorce situation and there are issues between the parents. For example, the child has a very close relationship with a grandparent who wants to take on that parental role in relationship to the child. That person would need to seek leave of the court. It would be an exceptional type of application, but it would be possible in that type of situation.
This is relatively consistent with the approach under the current Divorce Act which allows any person other than a spouse to make an application for custody or access. Right now, any person could make an application for either custody or access.
Senator McIntyre: It would be up to the courts to clarify.
Ms. Farid: Absolutely. It is on a case-by-case basis.
Senator McIntyre: I have another question that has to do with the definition of terms. The bill introduces new section 16.93 of the Divorce Act, which establishes a shifting burden of proof in relocation cases, based on the amount of time that the relocating parent spends with the child.
I note that the new provisions employ the terms “substantially equal” and “vast majority” to categorize the amount of time a parent spends with the child. These terms have been described as rather vague. Why would the terms “substantially equal” and “vast majority” be favoured over the more precise terms “equal” and “majority?”
Ms. Farid: The approach in the relocation provisions is generally intended to identify or reflect patterns in the case law where the parents relatively equally share custody. It’s generally more difficult to argue for relocation. Whereas, in comparison, when you have a situation that has been characterized as having a primary caregiving parent, it is more likely in those cases that a relocation would be permitted. That’s why those two burdens of proof were identified.
The terminology of “substantially equal” and “vast majority of time” was used and not a particular percentage of time because there is a policy concern about encouraging litigation around a precise amount of time, taking the focus away from the best interests of the child and trying to identify the particular arrangement that is best for the child.
Senator McIntyre: Once again it would be up to the courts to determine what qualifies as a substantially equal amount of time or the “vast majority of the time” in any given case.
Ms. Farid: Yes. If the matter were to go to court, then the court would determine in a particular case if the circumstances fell within one of those categories.
The Chair: If you take the French version of the same article, 16.93(1) at line 39 in the French version, it states:
[Translation]
(7) L’ordonnance peut prévoir une autorisation ou une interdiction de déménagement important de l’enfant.
[English]
In English, on line 37, it says, “the party who intends to relocate the child.” There’s no important qualification to relocation in English, while in French there is an important relocation.
Ms. Farid: That’s a very interesting point. There was no legislative equivalent that we could find in Canada for the term “relocation” in French. “Déménagement important” was the term that was identified as being the concept most equivalent to the concept of a relocation, in comparison to the concept of a simple change in residence that does not meet the definition of relocation. It’s a relocation versus just a change in residence.
The Chair: There is more than just the territory involved. There are the conditions under which the life will take place.
Ms. Farid: That’s right. The definition of “relocation” looks at whether the move would have a significant impact on the child’s relationship with a person with parental responsibilities or a person who has contact order. It’s a relationship-based definition.
Senator Dalphond: The jurisprudence makes a distinction between moving out of the city to another province and another city and changing from a street to a street three streets away or five streets away.
That’s why the concept was difficult to translate into French. There are two ideas. Changing streets and moving out of the province are two distinct concepts for judges.
The Chair: As I said, there is the concept of territory and then the concept of the condition under which the life takes place. There are two elements in “relocate” that are difficult to express in a single term in French.
Senator Dalphond: Because the child will be moving to a different environment, you are breaking the normal environment.
[Translation]
As regards the best interests of the child, Senator Dupuis previously asked a question about the harmonization of Quebec law with federal law. I mentioned I was pleasantly surprised to see that the federal legislation exactly reflected the French-language terminology of the Civil Code, notably in Article 33, which provides that every decision respecting custody must be made in light of the child’s best interests and provides a list of factors that must be considered, which are repeated in subsection 16(3) of Bill C-78, which is much more detailed than the Civil Code but comes from the same source.
Am I correct in thinking that, in both cases, both the Civil Code and the federal act are based on an international convention?
Ms. Farid: Yes.
Senator Dalphond: Can you explain to members of the committee exactly why we have the same concepts and that they aren’t incompatible?
[English]
Ms. Farid: That would be the UN Convention on the Rights of the Child, which focuses on decisions about children being made on the basis of the best interests of the child.
[Translation]
Senator Dupuis: I was somewhat surprised by the fact that there is no reference to the UN Convention on the Rights of the Child in the preamble. It seems to be taken for granted that these documents are known and even mastered by people in the legal field, especially family law experts and the judiciary. It’s always surprising to see how poorly known this instrument is. Since it’s a source for the interpretation of Canadian law, would you please tell me what led the department to decide not to include a preamble on the subject in the bill? We’re implementing two international conventions, which raises the prospect of integrating international law into Canadian law. Have you had any discussions on that subject?
Ms. Farid: The main reason is that this act makes amendments to existing acts. It will not exist on its own, and its preamble will disappear when the amendments are made to the other three acts.
Senator Dupuis: I see.
[English]
The Chair: We just adopted Bill C-337 on Monday evening in which there are nine “whereas” references in the preamble. The act essentially amends the Judges Act and the Criminal Code.
What you are telling us is that it was a good exercise in writing but might not have an impact on any court to give interpretation to the section on the basis of the preamble.
[Translation]
Senator Dupuis: But you could tell us that Bill C-337 didn’t go through the Department of Justice.
Ms. Farid: Yes, there’s a distinction between the two.
[English]
Ms. Lieff: When you have an existing law, at this point we wouldn’t be developing a preamble. Because it is federal legislation, in all the work we do we are very cognizant of the responsibilities that exist under the UN Convention on the Rights of the Child.
[Translation]
Senator Dalphond: Since I see my first question met with some interest, with your permission, I’ll move on to the second one. Another legal concept that is indeed part of Quebec’s civil law concerns the distinction between custody of the child and parental authority. In Quebec, these are completely separate concepts that courts have developed by rendering judgments, but, in the common law provinces, my understanding is that “the custody brings the authority.” Consequently, for the first time, the federal act will draw a distinction between child custody and parental authority by making orders that address, on the one hand, parental time, that is to say, time physically spent with the child, and, on the other hand, decision-making orders that are addressed under another provision of the act. Consequently, from now on, parents may have specific decision-making authority in certain matters and joint authority in others, as a result of which the rest of Canada will join Quebec in doing what it’s been doing for a long time.
[English]
Ms. Farid: I’m not quite sure. I guess what I can say is that parenting orders distinguish between the decision-making concept and the parenting time concept.
[Translation]
Senator Dalphond: Which wasn’t the case under the former act.
Ms. Farid: No. That’s true. The current act combines the two concepts.
Senator Dalphond: Which Quebec wasn’t doing because of the Civil Code.
Ms. Farid: True.
[English]
Ms. Lieff: That goes back to the comments with respect to the need to ensure the law is harmonized.
The Chair: We will have witnesses this afternoon who will come to testify on that.
[Translation]
Senator Dalphond: I have a final question regarding the fact that the bill provides that the court shall not consider past conduct. As you’ll remember, divorce was originally based on fault, and that concept was amended to become no-fault divorce in 1985, except where people didn’t want to wait a year. So they had to prove adultery or mental or physical cruelty or to be separated on a de facto basis for one year. Judges accordingly don’t take adultery or past conduct into account because some men argued in 1985 that support should be reduced or not awarded to the woman because she had gone off with another man. Judges initially accepted that until the appellate courts reversed the judgment and held that divorce should be no-fault divorce. I understand that this is the concept referred to here and that it was well known to the courts.
As for mental cruelty, that concept is used by people who don’t want to wait for a year. Am I right in thinking that the reasons you give in the factors that must be considered for the purpose of determining whether coercive and controlling behaviour has occurred correspond to those that the courts developed with respect to mental cruelty?
Ms. Farid: The two concepts are compatible. It’s true.
Senator Dalphond: So there’s nothing new here; we’re codifying developments in the case law.
Ms. Farid: Yes.
[English]
The Chair: Are there any other questions? I apologize for intervening, but I am looking at the clock at the same time.
[Translation]
Senator Dupuis: The part of Bill C-78 respecting the Family Orders and Agreements Enforcement Assistance Act, starting at clause 42, refers to the term “information bank director,” which “means a person who is designated by the regulations as the information bank director for a given information bank.” This is followed by the French definition of “directeur de fichier.” Can you help me clarify this? The bill provides that this bank, this designated authority, will be defined by regulation. Can you tell me more specifically what is contemplated here?
Andina Van Isschot, Acting Senior Counsel and Coordinator, Department of Justice Canada: Yes, of course. The current act contains a list of information bank directors. Under Part 1 of the act, an application may be made to the Department of Justice to locate a debtor. When such application is made, we search federal banks and thus work with various partners such as the Canada Revenue Agency or Employment and Social Development Canada. The term “information bank directors” refers to the directors of those agencies, of those partners.
What the bill proposes is that the list of information bank directors be transferred to the regulations so that, in future, we can add other federal partners should we want more information at our disposal when required to conduct searches.
Senator Dupuis: Thank you for your answer. A bit further on in the bill, clause 45 provides that section 5 of the act be replaced by a subsection that appears on page 57 of the bill, which states:
5.1 (1) The Minister may, on behalf of the Government of Canada, enter into an agreement with any police force in Canada for the search for and the release of information under this Part.
Ms. Van Isschot: Yes. What the bill provides is that agreements may be entered into with police forces to provide the latter with access to federal information banks so they can locate someone they’re seeking in a case where a child has been abducted by a parent.
Senator Dupuis: Thank you.
[English]
Senator Dalphond: My question is about the First Nations children.
I want to make sure that we are properly addressing the section 16 factors to be considered in parental orders regarding First Nation children and that we mirror Bill C-92.
Ms. Farid: I will pull out Bill C-92. Certainly, in the list of criteria in Bill C-78, there is a criterion that requires the court to consider the child’s cultural, spiritual, linguistic and religious heritage, including their Indigenous heritage and background.
That’s quite consistent with Bill C-92 in terms of the overall objectives of the bill. You’ll also see, if you look at the criteria in Bill C-92, that many of them parallel the criteria in Bill C-78, although they are adapted for the child protection context.
Senator Dalphond: The drafting was made with the knowledge that there were two bills not written in silos but in convergence.
Ms. Lieff: Exactly, to the extent they apply in different areas.
Senator Dalphond: With the proper adjustments.
Ms. Lieff: We don’t deal with child protection.
The Chair: Canada is a signatory to the UN Convention on the Rights of the Child, but the implementation of it, outside the Divorce Act and the related acts, fall under the jurisdiction of the provinces as Senator Batters mentioned.
Could you inform us of the status of the convention in terms of implementation at the provincial level?
Ms. Lieff: We wouldn’t be in a position to be able to determine that. Not at the provincial level, no.
The Chair: In other words, we do not have an idea of how far the principles included in the convention have been entrenched into corresponding provincial legislation in the areas of provincial competence.
Ms. Lieff: No.
The Chair: Thank you Ms. Lieff, Ms. Farid and Ms. Van Isschot for your participation. You may wish stay in the room to have the benefit of the wisdom and experience of our next panel. They will certainly touch on issues that have been raised with the minister and with yourselves. Thank you so much.
[Translation]
I would ask our next witnesses to approach the table. We have the representatives of the Canadian Bar Association, the Barreau du Québec and the Chambre des notaires du Québec. Please come forward and take your seats at the table.
We are continuing our study of Bill C-78, An Act to amend the Divorce Act and to make consequential amendments to other Acts.
This afternoon, I have the privilege of welcoming people we have had the pleasure to hear from during our study of the various bills that have been referred to our committee. It is only fitting that I should begin with the veteran experts we will be hearing in this committee.
[English]
I would like to introduce Gaylene Schellenberg, welcome, on behalf of the Canadian Bar Association. She is accompanied by Melanie Del Rizzo, President. Welcome, Ms. Del Rizzo.
[Translation]
From the Barreau du Québec, we welcome Valérie Laberge, Member of the Family Law Committee; and Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs. We had the pleasure of welcoming you a few days ago. From the Chambre des notaires du Québec, we have Serge Bernier, Vice President; and Antoine Fafard, Notary, Legal Services and Institutional Relations.
Since you had a chance to hear part of the discussion with Minister Lametti and the departmental representatives earlier this afternoon, you no doubt understand the circumstances of our study of this bill.
I would ask Ms. Schellenberg or Ms. Del Rizzo to make the first presentation.
[English]
Gaylene Schellenberg, Lawyer, Advocacy, Canadian Bar Association: Thank you for inviting the Canadian Bar Association to present our views on Bill C-78 today.
The CBA is a national association of over 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It’s that aspect of our mandate that brings us to you today.
Our submission on Bill C-78 was developed by our family law and child and youth law sections, with input from other sections. The Family Law Section represents specialists in family law from across Canada, lawyers who represent all parties in family law matters.
The Child and Youth Law Section consists of lawyers practising in different areas of law, with particular expertise in children’s rights and in applying the UN Convention on the Rights of the Child to Canadian laws.
With me today is the chair of the Family Law Section, Melanie Del Rizzo from St. John’s. She will outline the substance of our brief and respond to your questions.
Melanie Del Rizzo, Chair, Family Law Section, Canadian Bar Association: Our section’s original submission contains 45 recommendations, which are intended as suggestions to make the bill better from the perspective of lawyers that practise in this area.
We have many ideas for improving the bill. As you can imagine, with a bunch of lawyers taking a look at a bill, there will be many ideas expressed for improving it. I want to stress that we strongly support the passage of Bill C-78 in its current form.
Much of the bill addresses long-standing CBA concerns, including that the best interests of children must remain paramount consideration in determining parenting arrangements.
We are pleased that several of our concerns were addressed by changes made by the House of Commons. While other suggestions we made are not included, we believe the current bill represents a significant improvement in this area of the law and, as such, we support its timely passage.
Our submission highlights the importance of recognizing Canada’s obligations under the UN Convention on the Rights of the Child, ratified by Canada in 1992. The convention offers a foundation for a perspective shift in Canadian family law to focus on the rights and interests of the child. We have suggested in our submissions specifically referencing the UNCRC in the Divorce Act.
Bill C-78 presents a significant opportunity for the government to continue to demonstrate its international human rights commitments to children. One of the most important parts of Bill C-78 is its confirmation that the best interests of the child remain in the pivotal test in any parenting determination. We have consistently opposed presumptions in the area of custody and access, which only muddy and detract from what must be the primary focus, which is children’s best interests.
Equal time with both parents is always an available option when that arrangement is in the children’s best interest. The proposed heading, “Maximum parenting time,” could suggest that a maximum amount of parenting time for each parent is always the desired outcome.
These provisions and headings need to be clear and very explicit that there is no presumption of shared parenting, especially given the number of unrespresented litigants in the family courts.
This can be achieved by changing the heading of this section from “Maximum parenting time” to a more neutral “Allocation of parenting time” and adding a no-presumption clause to the bill.
We support the list of factors relevant to determining the best interests under subsection 16(3). We have made in our submission suggestions to further improve and clarify identify those factors. We also support the bill’s focus on the use of parenting plans but think it should be clearer that they are not to be mandatory.
The bill could also be clearer on how courts could assess parenting plans to ensure they are in the child’s best interests, particularly when both parents have presented a plan on consent to the court.
Family violence is very relevant to determining a child’s best interests. We commend the bill for including it in the best interest factors. We offered some suggestions to strengthen the family law proposals in our submissions.
We appreciate and have also long called for a list of factors in considering relocation applications, and those are included in the bill. We recommended a few additions to the list of our submissions.
We also support the changes to subsection 16.9(2) dealing with the notice form to be provided for in relocation applications. We support the shifting burden of proof proposed in the bill and that a move be presumed to be in the best interests of children who have little to no relationship with the non-relocating parent.
However, we note that children can have significant attachments to both parents even without equal parenting time. As such, the CBA sections recommend that the onus be on the relocating parent to prove that the relocation is in the best interest of the child when it would likely damage the attachment to the left-behind parent.
Finally, I note that adequate funding must be available to ensure that federal, provincial and territorial governments can provide many services contemplated by this bill, such as mediation, supervised access services and communications between various levels and jurisdictions of courts about civil protection orders. I welcome any questions you may have on our submission. Thank you.
The Chair: Thank you, Ms. Del Rizzo, for a presentation that was succinct and to the point.
[Translation]
Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec: Mr. Chair and members of the committee, the Barreau du Québec thanks you for inviting it today to speak with you about Bill C-78.
My name is Nicolas Le Grand Alary, and I am a lawyer with the Secretariat of the Order and Legal Affairs of the Barreau du Québec. I am accompanied by Valérie Laberge, who is a member of the Family Law Advisory Committee.
The mission of the Barreau du Québec as a professional order is to protect the public and the rule of law. The reform of the Divorce Act involves issues pertaining to the promotion of the best interests of the child and to the protection of the vulnerable persons who call upon the barreau as it carries out its mission.
From the outset, the Barreau du Québec welcomes the reform of the Divorce Act. Putting the child at the centre of the debate, adopting terminology and modernizing the Divorce Act to make it more consistent with the family situations of today are challenges that legislators have taken up in the context of this bill.
Generally speaking, the Barreau du Québec welcomes the bill and wishes to submit comments to you for the purpose of improving it.
First, the barreau wishes to note that certain provisions of the bill seem to violate the principle of parental authority as defined in Quebec legislation.
Quebec’s civil law provides that parents exercise joint parental authority and that a person other than a parent may fully exercise the attributes of parental authority only in exceptional cases. However, a parent who holds parental authority may delegate certain responsibilities, such as custody, supervision and the education of a child, to a third person, but that parent nevertheless retains parental authority.
We therefore find that sections 16.1 to 16.5, which provide for the possibility that third parties may intervene in decisions concerning the child, constitute a major violation of the principle of joint parental authority. We believe that these decision-making powers must continue to be exercised by the holders of parental authority and that permitting third parties to interfere in this regard is contrary to Quebec’s civil law and could run counter to the best interests of the child in certain circumstances.
Paragraph 16.1(1)(b) is particularly problematic as we do not know to whom the legislator is referring where it states that a person, other than a spouse, who intends to stand in the place of a parent of the child would be entitled to parenting time or have decision-making responsibilities in respect of that child.
Under current law, the person who intends to stand in the place of a parent may not be a person acting in loco parentis, based on the tests established in the Supreme Court’s judgment in Chartier. To qualify in that capacity, that person must already be acting as a parent, and that fact must be clear from the child’s interactions with that person.
Furthermore, under Chartier, that person must be one of the spouses, which is specifically excluded under the wording of subsection 16.1(1). To whom, then, does this provision refer? Parliament must clarify this point.
I now turn the floor over to Valérie Laberge, who will continue our presentation.
Valérie Laberge, Member of the Family Law Committee, Barreau du Québec: In a different vein, the Barreau du Québec agrees with the proposed amendments to the act’s terminology. We consider terms such as “parenting orders” and “parenting time,” as proposed in Bill C-78, less pejorative than previous terms, and the barreau views them as a step forward.
We also reaffirm that we are also in favour of the bill’s restatement of the cardinal principle of the best interests of the child, which appears in section 16 of the bill, particularly as regards matters pertaining to the custody of children.
We also welcome the initiative of including in the bill a list of factors to be considered, which may definitely give litigants a clearer idea of the factors that must define this concept of the best interests of the child, which is at times considered vague.
However, it is our view that the first factor stated in paragraph 16(3)(a), which is the child’s needs, should be viewed as one factor among many. However, we believe it should underlie the analysis conducted of the best interests of the child under section 16. We therefore suggest that it be incorporated in subsection 16(2), which precedes the enumeration of the other factors.
Another factor that raises questions in our minds is the duty of legal advisers to inform their clients of the possibility of reconciliation without their being able to maintain discretion in the matter. The barreau is concerned by the possibility that a legal adviser, deliberately or otherwise, might put pressure on the parties to reconcile, wrongly believing that he or she is discharging a duty under the act. We believe that situations could arise in which a discussion about potential reconciliation might be unwelcome, particularly in cases where violence has occurred.
Lastly, the barreau notes a problem with regard to section 22, which refers to divorces granted outside Canada. This section provides that a divorce granted by a competent authority shall be recognized under the act. However, in some countries, such as France, where the conditions of the prevailing statute are met, the parties may sign an out-of-court agreement and file it with a notary rather than settle the matter in court.
French notaries will not verify whether such agreements are consistent with the law or serve the best interests of the child. In the Barreau du Québec’s view, Canadian law should permit divorces that are consistent with the law and Canadian values to be recognized, even if they have not been granted by a judicial authority, but some control should be exercised to ensure that is in fact the case.
Once again, we thank you for allowing us to share our thoughts on the bill, and we will now be pleased to answer any further questions you may have.
The Chair: Thank you, Ms. Laberge. Now, from the Chambre des notaires du Québec, we welcome Mr. Serge Bernier. You have the floor.
Serge Bernier, Vice President, Chambre des notaires du Québec: Chairman Joyal, Deputy Chair Dupuis, Deputy Chair Boisvenu and honourable members of the Standing Senate Committee on Legal and Constitutional Affairs, first, I would like to thank you sincerely for inviting the Chambre des notaires du Québec to take part in the hearings you are holding as part of your study on Bill C-78.
This is a first for our 350-year-old profession. We represent the oldest professional legal order in North America.
My name is Serge Bernier, Vice President of the Chambre des notaires du Québec and a notary in Matane, and I am still practising after 40 years in the profession. I am here with you today replacing our president, François Bibeau, who is attending the one hundred and fifteenth Congrès des notaires de France. With me is Antoine Fafard, a notary with the Legal Services of the Chambre des notaires and principal lawyer on this matter. Mr. Fafard was secretary of the Citizens Commission on Family Law, which the Chambre des notaires established in the spring of 2018 and which everyone has heard about.
The Chambre des notaires is very pleased to be attending this meeting today to present its recommendations on Bill C-78. Notaries are legal professionals, legal advisers who have specific family law expertise. They work with many citizens in the various phases of their lives directly related to this field of the law. One need only think of the drafting of marriage contracts, the celebration of marriages and, since very recently, the submission of joint applications for draft divorce or physical separation agreements.
Notaries are specialized experts in preventive law, and they also act as mediators in family mediation cases. Quebec’s notaries have long been witnesses to a variety of problems experienced by Quebecers in the family law field. This situation has led our professional order to support the overall reform proposed by the advisory committee on family law, launched by the Government of Quebec in 2013 and chaired by Mr. Alain Roy, distinguished notary and full professor at the Faculty of Law of the Université de Montréal.
In a rigorous, well-documented report, the advisory committee found that our family law was no longer suited to the circumstances of our citizens. The Chambre des notaires recently established the Citizens Commission on Family Law. In September 2018, that commission published its report, which also attested to an urgent need for a reform of Quebec’s family law, which no longer addresses the needs or concerns of Quebecers.
From the outset, the Chambre des notaires welcomes Parliament’s intention to make the best interests of the child the central focus of the new provisions contained in Bill C-78. In establishing exhaustive criteria that the courts must consider when rendering decisions respecting divorce, custody and support orders, the bill provides the courts with the necessary tools for the ultimate purpose of preserving the interests of the child. The Chambre des notaires particularly supports the criteria respecting family violence, since the absence of such criteria was frequently criticized by individuals and organizations during the hearings of the Citizens Commission on Family Law.
The Chambre des notaires also welcomes the fact that the term “avocat” in the Divorce Act has been replaced by the term “conseiller juridique.” This amendment acknowledges the role played by all legal advisers recognized by their province for this purpose in cases involving family law and, in particular, the notaries of Quebec.
We believe that this terminological change is also consistent with Parliament’s wish to promote mechanisms for settling family disputes, in particular family mediation. As notaries are preventive law experts, our professional order can only welcome this desire to move toward a more accessible justice system and to promote amicable solutions between the parties where such agreements are possible.
However, we are of the view that, to truly achieve the objective of accessibility, divorce proceedings must be diverted from the courts in cases where there is an agreement between the parties. While the Chambre des notaires feels it is very important that the parties be advised by qualified professionals during a separation, we believe that, where matters are proceeding on an amicable basis, the parties should not be required to appear in court. In our view, measures should be contemplated that guarantee the parties’ legal security and that are efficient and less costly for litigants and the justice system.
In conclusion, once again, I want to thank the members of the Standing Senate Committee on Legal and Constitutional Affairs for inviting our professional order to present its comments and recommendations on Bill C-78. Our order is very active across the province as a result of its work with the legislator on social issues that concern protection of the public. Our order also actively participates in public debate to advocate the values on which Quebec’s legal system is based: equality, fairness and individual and collective responsibility.
Consequently, the Chambre des notaires du Québec intends to continue playing a central role in family law issues. We therefore offer Parliament our full cooperation in implementing the recommendations proposed in our brief on Bill C-78.
We would also like to be invited to take part in developing and implementing future legislative measures introduced by federal authorities that have an impact on public protection and notarial practice.
Honourable senators, thank you for hearing me. I notice that, given my venerable age, you didn’t have to slow me down. Mr. Fafard is here to answer any questions you may have regarding our brief.
The Chair: Thank you very much, Mr. Bernier. As we used to say, I think you kept up the pace. I now invite Senator Dupuis, deputy chair of our committee, to begin the discussion with our guests.
Senator Dupuis: My first question is for the Canadian Bar Association. I would like to know your position on the family violence issue. I believe you suggested that subsection 15(2) be amended to recognize evidence of family violence as a factor to consider in assessing entitlement to spousal support.
Would you please clarify your position on that subject?
[English]
Ms. Del Rizzo: The information that we reviewed in providing our feedback on this bill can affect the ability of spouses to support themselves after they leave relationships. I think there’s some social science that supports that.
If there is a history of family violence in a relationship, upon leaving the ability of spouses to support themselves going forward can be affected. We made the suggestion that it was something that could be added to the bill.
[Translation]
Senator Dupuis: My question concerns your recommendation that subsection 16(5) should be revised with regard to past conduct. You propose that past conduct be taken into consideration in assessing the risk of future harm to the child. Would you please clarify your position on that subject?
[English]
Ms. Del Rizzo: As it stands, the Divorce Act only looks at previous conduct in relation to the ability to parent. We wish to include in section 16.5 that a court shall consider the person’s conduct to the extent it has or may affect a factor in relation to the best interests of the child, which is subsection 16(3) or family violence.
Those were our suggestions with respect to that. Again, we wanted to clarify that past conduct would be relevant to assess future risk of harm to a child and to predict a parent’s ability to put the child’s best interests first.
[Translation]
Senator Dupuis: Thank you, that answers my question.
I have a question for the Barreau du Québec. We asked the minister whether a compatibility analysis had been conducted, whether the degree to which the federal act harmonized with the concept of family law in Quebec had been examined. You seem to suggest that there are inconsistencies regarding certain elements of the act, more specifically concerning parental authority, but also the issue of divorces granted outside Canada. Would you please outline more specifically your concern about divorces granted outside Canada?
Ms. Laberge: With regard to foreign divorces, which was our major concern — and this is roughly what I said — these are divorces that are granted out of court in certain other countries and aren’t subject to judicial review. So, in our view, it’s often problematic to execute those decisions without validating that they are consistent with the law and the best interests of the child. That’s our biggest concern.
I know there’s a short paragraph in our brief — I don’t know whether that’s what you’re referring to — that states: “Second, we would note that a constitutional conflict might arise . . . “ Is that your question?
Senator Dupuis: That’s exactly it. You understand my concern.
I see nothing in Article 3167 of the Civil Code that refers to that or to the specific problem of what constitutes an amicable divorce that’s filed with an officer of the law — in this case, with a notary in France. I was trying to determine the nature of the conflict.
I have a sub-question: Were you involved in the consultations that were conducted by a task force or group of committees of federal and provincial deputy ministers on reforming the act? Was the barreau consulted as part of that operation?
Ms. Laberge: I’ll let my colleague answer since he works for the barreau.
Mr. Le Grand Alary: I would say we weren’t consulted by that committee.
Going back to the issue of constitutional jurisdiction, we want to draw attention to the fact that both Quebec, based on its provincial jurisdiction under the Civil Code, and the federal government, exercising its jurisdiction in the Divorce Act, have provided for rules for recognizing foreign divorce judgments or foreign divorce decisions because they concluded that those judgments and decisions were not necessarily subject to judicial review. That therefore means that, in their implementation and application, contradictory decisions could be made based on the same facts, depending whether they refer to section 22 of the Divorce Act or to Article 3167 of the Civil Code. We simply wanted to draw attention to that fact, which is just a brief comment that concludes the brief.
Senator Dupuis: The wording in the Divorce Act and in Article 3167 of the Civil Code, which are ultimately quite similar, is a matter of interpretation of the jurisdiction of the foreign authorities; it concerns the authority in question. A notary’s authority would thus be recognized. Thank you.
Ms. Laberge: I think you had—
Senator Dupuis: Pardon me.
The Chair: Go ahead, Ms. Laberge, if you want to add something.
Ms. Laberge: I noticed you had another question.
Senator Dupuis: Yes, for the Chambre des notaires.
Ms. Laberge: I thought you had another question for the barreau, to highlight the inconsistencies regarding parental authority.
Senator Dupuis: I decided to focus more on —
Ms. Laberge: That’s fine.
Senator Dupuis: Did you have something in particular to say about parental authority?
Ms. Laberge: Yes, if you’ll allow me a brief moment.
Senator Dupuis: Certainly.
Ms. Laberge: You have to bear in mind that the principle of parental authority in Quebec is that it is shared by both parents at all times. That’s a problem for us — perhaps even in constitutional terms — because, in our view, the concept of “a third party,” a person who wants to stand in place of a parent of the child, is not clearly defined. However, from the moment you confer the right to exercise parental authority on a third party, we feel that very clearly stands in opposition to Quebec law. It may even raise a constitutional problem.
Senator Dupuis: I thought I had understood this argument, which I felt was very clearly expressed in your brief. Thank you for clarifying it.
My question for the Chambre des notaires is as follows. Bill C-78 refers to a legal adviser who represents a spouse. Did I correctly understand your remarks? The Chambre des notaires may represent two spouses because there is an agreement and you can represent them both, not just one of the two spouses?
Antoine Fafard, Notary, Legal Services and Institutional Relations, Chambre des notaires du Québec: So just to give you some context, Mr. Bernier told you about the Citizens Commission on Family Law. The Chambre des notaires du Québec has been calling for family law reform in Quebec for a long time. During the work of the Citizens Commission on Family Law, which was done during the summer of 2018, we noticed that there were problems with family law, with the rules of law and access to the justice system. We realized that litigants don’t feel involved or listened to and that they find it difficult to navigate the intricacies of the judicial system.
The approach the Chambre des notaires chose, given notaries’ preventive law expertise, focuses on all alternative settlement methods, including family mediation. We are of the view that the bill’s wording gives the impression that mediation is useful only when two parties are in conflict and plan to resolve their situation in court, which is not always the case, nor is it always desirable.
We think Bill C-78 also provides that alternative methods should be promoted for settling family disputes.
We’re of the view that, in emphasizing that a legal adviser will take charge of a proceeding between the two parties, we should also emphasize the legal adviser’s impartiality. We think that clarifying the wording of the bill won’t necessarily provide better access to justice, but we’re emphasizing other ways of settling cases and other ways of settling family disputes.
Our impression is that this spirit has guided the legislator in the bill, and that also corresponds to what we’ve heard on the ground and what appears in the report of the Citizens Commission on Family Law regarding access to justice. We also noted — there are supporting statistics, but I don’t have them with me — that people like family mediation and see that it works.
When a separation or divorce occurs, situations are often highly emotional. Consequently, emphasizing alternative methods may be beneficial to all parties.
We had also heard that the confrontational or “winner-loser” aspect of the judicial system could stoke those emotions and thus the conflicts related to the separation. That’s the frame of mind that motivated us, and that’s why we are proposing these amendments to the bill’s wording.
Mr. Bernier: Senator Dupuis, I wanted to point out to you that, since amendments were made to the new Code of Civil Procedure, notaries may now file a joint application for physical separation and divorce. It’s now permitted.
Senator Boisvenu: Welcome to everyone here today, particularly the people from Quebec City. It’s always a pleasure to welcome you here in the Senate. My first question is for the people from the Barreau du Québec. I refer you to paragraph 16(4)(b) on page 14 of the bill. Earlier we had a discussion with the minister about the wording of this provision, which seems to be different in English and French, particularly as regards the term “aspect cumulatif,” which appears in the French text but not in the English. That text reads as follows:
[English]
(b) . . . a pattern of coercive and controlling behaviour in relation to a family member;
[Translation]
Whereas the French states, “b) le fait qu’une personne tende ou non à avoir, par son aspect cumulatif, un comportement coercitif et dominant...”
The words “son aspect cumulatif” are not reflected in the English text. If I’m the accused or the person who has a violent past, my lawyer will rely on those terms. If I’m a crown prosecutor, I may use the English text instead. We asked the minister whether he was open to proposed amendments, and he was open to amendments of a literary nature for the purpose of clarifying matters. Do you concur in my reading of those two texts? I’m not a lawyer, but I have some knowledge of linguistics, and I think there may be a distinction between these two versions.
Ms. Laberge: I want to be very certain I understand you. Do you have a preferred version?
Senator Boisvenu: I have the version the Senate has provided me.
Ms. Laberge: Between the English and French versions?
The Chair: You think the French version is more problematic?
Senator Boisvenu: It’s the French version that I don’t like. If I were a woman who had a violent spouse, and if I were pressing charges and were in the midst of a divorce trial and a violent incident had occurred, I wonder how one might define “aspect cumulatif.”
Ms. Laberge: What you’re saying is that, in your mind, a behaviour that is coercive and controlling in relation to a family member would be enough of a concern?
Senator Boisvenu: Every form of violence is a concern in any case. If I read the English and French texts, I don’t see the words “aspect cumulatif” reflected in the English.
Ms. Laberge: That’s not the equivalent of “a pattern.” I understand what you mean.
Senator Boisvenu: Exactly. A pattern is a behaviour that someone exhibits, one that may be a coercive and controlling behaviour, but, when you say “aspect cumulatif,” it’s as though there’s a dual meaning in the English text.
Ms. Laberge: The barreau would prefer a term that’s more consistent with the word “pattern” or that the “aspect cumulatif” concept be removed so that the text instead states that the fact that a person is attempting or not attempting to exercise coercive and controlling behaviour in relation to a family member is a factor that the court should take into account.
Senator Boisvenu: That’s exactly my view, and I thank you for confirming it.
Mr. Le Grand Alary: In its assessment, the court will always have discretion to determine whether a coercive or controlling incident is part of a pattern or an isolated instance. Consequently, even though you don’t necessarily see a word corresponding to a French translation of the word “pattern,” I think the idea is there, as Ms. Laberge said.
Mr. Fafard: 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.” We are of the view that a single death threat or violent act may constitute family violence. What we propose is that the expression “ou non” be added to the wording. That would be consistent with what Mr. Le Grand Alary said about the interpretation of the court, which may decide whether all the facts that have been submitted to it are indeed consistent with family violence.
Senator Boisvenu: During the committee’s meeting on Monday, we adopted a very important bill concerning sexual assault training for judges. I’m going to read you British Columbia’s Family Law Act, subparagraph 245(1)(e)(ii) of which reads as follows:
[English]
(ii) requiring that a family dispute resolution professional who does not have the training, experience and other qualifications required under subparagraph (i) ensure that the parties to the family law dispute are assessed for family violence by a person who does have the required training, experience and other qualifications . . . .
[Translation]
So it seems to me the act will be based on the resolution of disputes by mediation. Shouldn’t the act provide, as we did in Bill C-337, that people who work in mediation have a duty to have family violence training? I think the experience of lawyers who embrace this career in the mediation field is more in commercial or institutional mediation. Family violence mediation is completely different. Those lawyers don’t have training and, in many instances, won’t have the necessary qualifications to manage separation conflict or a situation involving assault between a couple. That’s a very complex situation to manage.
Shouldn’t the act provide for a duty to have specific training? I’m going to put that question to Mr. Bernier, who is our dean.
The Chair: Ms. Laberge wanted to answer that question.
Ms. Laberge: We’ll probably say the same thing. You’re currently required to have completed 60 hours of training to be an accredited family mediator in Quebec. That’s basic training, six hours of which is devoted to family violence awareness. So mediators devote nearly a full day to screening.
Senator Boisvenu: Is that mandatory in order to work in mediation?
Ms. Laberge: Yes, it is mandatory. It’s stated in our regulations for people working in family mediation in Quebec.
Senator Boisvenu: Is there a divorce act in Quebec?
Ms. Laberge: Quebec administers the Divorce Act and the Civil Code of Quebec.
Senator Boisvenu: Does the Civil Code contain specific divorce provisions? Or is divorce governed more by regulations that the barreau has established?
Ms. Laberge: The regulations stem from Quebec’s Code of Civil Procedure.
The Chair: Mr. Bernier, I imagine the same provisions apply to the Chambre des notaires?
Mr. Bernier: We confer the title of mediator on notaries. It’s very specific training that must be followed by a number of specific cases, and notaries are accredited once they have completed that training.
Senator McIntyre: Thank you for your presentations.
[English]
My question is on relocation and is directed to all three sections. I draw your attention to three new proposed subsections of the Divorce Act: 16(3), 16.92(1) and 16.93.
Proposed new subsection 16(3) of the Divorce Act includes factors to be considered in determining the best interests of the child, and proposed new subsection 16.92(1) of the Divorce Act includes additional factors to be considered in relocation situations.
My question is this: To what extent, if at all, does the shifting burden of proof in relocation cases constitute a departure from the current law as established by the Supreme Court of Canada in Gordon v. Goertz.
As we know, that decision sets out factors for the court to consider in assessing the child’s best interest, but it does not establish priorities among the listed factors and has been criticized over the years for generating uncertainty in relocating cases.
Ms. Del Rizzo, do you wish to go ahead?
Ms. Del Rizzo: Yes. It’s a difficult area of the law, and that’s why the CBA has long wished for these sorts of provisions to be put in the Divorce Act and in different provincial acts.
We may have some differences of opinion on wait times and some other things that are in our brief, but the Gordon v. Goertz decision really does not give any predictability in this area of the law whatsoever to people who want to relocate. It also puts a heavy onus and people who want to move with their children and maybe have a parent who is not involved at all in the care of the child but can keep the child in a location pending a very lengthy litigation process.
We very strongly support the changes that this bill has provided with respect to giving a framework for judges to be able to apply some presumptions with respect to relocation cases. It provides some guidance to the courts in moving forward, so that’s what we want.
Again, we have some differences of opinion with respect to waiting times, forms and those sorts of things, but we’re quite happy to see that.
Senator McIntyre: To what extent, if at all, will the new section 16.93, which establishes a shifting burden of proof in relocation cases, reduce litigation?
Ms. Del Rizzo: It will give some predictability. For one thing, if you have notice and somebody does not respond, there would be the ability to move without having to commence a lengthy litigation process. Also the shifting burden of proof would then provide a better ability for people to settle matters.
If you know that the move will be presumed to be in the child’s best interest, for instance, then the parties can go to an alternative dispute resolution process to work out the details of how access will be worked out or parenting time will be worked out for the left-behind parent. It will be very helpful to reduce litigation.
Senator McIntyre: There’s a kind of a shifting burden. On the one hand, we have the best interests of the child. On the other hand, we have the best interests of the parent in relocation cases. It can get confusing at one point or another, but I think the courts will be able to sort that out one way or another.
Ms. Del Rizzo: I agree.
Senator McIntyre: The Barreau du Québec, do you wish to add?
[Translation]
Ms. Laberge: I’d briefly like to add that the Supreme Court rendered its decision in Gordon v. Goertz in 1996. Perhaps there was less joint custody at the time than there is today. It’s as though the analytical framework was based on an older reality. For us at the Barreau du Québec, this idea of a presumption may clarify matters a little more, but it’s consistent with what we see in the case law, which is that, in most cases, the custodial parent is authorized to move in with the child. In the case of joint custody, on the other hand, since the child has equally strong relationships with both parents, the court will theoretically consider the child’s environment and attachment more often than all other factors. So, for us, this is quite consistent with the outcomes we see in the case law, and it also clarifies matters.
Senator Dalphond: Thanks to the people from the Barreau du Québec, the Canadian Bar Association and the Chambre des notaires for being with us. I saw that the barreau essentially had three points, two of which overlapped and concern the definition of the third party that the bill seeks to add to the picture.
My easiest question concerns section 22 of the Divorce Act and Article 3167 of the Civil Code of Quebec, which you mention at the end of your brief. Isn’t it true that the Court of Appeal held in 2017, per Judge Dufresne, that there was no incompatibility between Article 3167 of the Civil Code of Quebec and section 22 of the Divorce Act, citing, in particular, a judgment that I had previously rendered? That’s why I’m familiar with the decision.
The Chair: We don’t think you’re trying to impress us in the least —
Senator Dalphond: I was wondering whether the issue you anticipated hadn’t been resolved, for the moment, by the Court of Appeal.
Ms. Laberge: That’s an excellent question.
Senator Dalphond: It seemed to me that the issue might exist only in theory for the moment.
Ms. Laberge: Which would be very good; so much the better.
The Chair: May I speak to the same topic, senator? Now it’s me asking you for permission. Was this issue addressed in Alain Roy’s report on the family law review? Did he make a recommendation or observation on the definition of parental authority, with respect to the review of the concept of parental authority? I don’t mean to take you by surprise with this question, but I read the newsletter of the Chambre des notaires, Senator Dalphond.
Ms. Laberge: That’s a very interesting question, to which I don’t have an answer. It’s not ringing any bells, even though I read and studied it, but I may have forgotten.
The Chair: But you get the gist of my question. If he had determined that the definition was too narrow relative to the evolving social situation we’re dealing with, he could have commented, saying that the definition of parental authority should be interpreted more extensively, more broadly, than that of two biological parents, legal parents.
Mr. Le Grand Alary: I seem to remember, from what we understood of the report of the departmental committee chaired by Alain Roy, when we studied it and drafted comments on the subject, that there was a willingness on the part of the committee, and the barreau as well, to acknowledge that stepparents had a certain status, in other words, to introduce the concept of a person who acts in loco parentis. That was considered in the report, but the Chambre des notaires may want to add to my remarks. There was an openness. Quebec not so much, and it was more the parents whose names appeared on the birth certificate who exercised parental authority. I think the Roy report called for a certain openness with regard to stepparents, two persons who act in loco parentis.
Ms. Laberge: Not with regard to the exercise of parental authority, but rather as regards contact because, from the standpoint of the interests of the child, we don’t want the child to stop having contact with that significant person. I’d be extremely surprised if they recommended that a third party be allowed to exercise parental control.
Senator Dupuis: I was wondering whether Mr. Le Grand Alary remembers the barreau’s appearance before our committee on Bill S-202 about a year ago. You appeared as a witness, and Professor Roy did too. I seem to recall that we discussed this issue but mainly from the standpoint of maintaining and expanding a right to contact.
The Chair: Go ahead, Senator Dalphond. Your answer to that question won’t subtract from your allotted speaking time.
[English]
Senator Dalphond: I’m not really concerned about that. I know you are fair, Mr. Chair.
[Translation]
I want to go back to the second issue that Senator Joyal finally addressed before me, which concerned your second point, parental authority, which is addressed in sections 16.1 to 16.5, which in fact follow from paragraph 16.1(1)(b). If I understand correctly, and I don’t want to be too technical for anyone watching us, subsection 16.1(1) reads as follows:
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
(a) either or both spouses; or
(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
I see from the Department of Justice’s explanatory notes that increasing numbers of children are growing up in reconstituted families.
That’s what we were alluding to a few minutes ago in referring to “beau-papa” and “belle-maman,” for lack of terms that actually correspond to the situation. Under the Civil Code, the “beau-père” and “belle-mère” used to be in-laws, married people and the parents of the other spouse, but today they are terms used to describe new family relationships between children and stepparents. This section merely enables the court to grant a request by a person who has developed a specific emotional tie to the child to be granted rights, particularly with respect to the exercise of parenting time. I find it hard to understand why you see a problem with this aspect.
Ms. Laberge: The first problem is the person who intends to stand in the place of a parent. As you yourself said, the child might have developed a connection with that person. That’s an initial question. Perhaps the situation involves an unborn baby, and people want to reserve someone’s rights in that case. The bill states “a person, other than a spouse.” We find it hard to understand who that might be.
Senator Dalphond: The editor’s notes state that this concerns persons who play the role of new parents in reconstituted families.
Ms. Laberge: Who would intervene in divorce?
Senator Dalphond: Here’s an example: A woman’s spouse, who has been living with her for 10 years and has developed serious ties with the child, separates from the woman; could he secure a right of access to the child in order to maintain contact with the child? That’s what this provision contemplates? Is that a problem for the Barreau du Québec? If so, why? I’m trying to understand why, in reconstituted families, when two spouses separate, the one being the biological parent of the child and the other emotionally connected, the latter could request a right of access to the child.
Ms. Laberge: We have no problem with that. The barreau has no problem with the idea that the stepparent, who is a third person, may have developed ties and might have a right of access to the child. However, the bill nevertheless states, “stands in the place of a parent.” So it is taken for granted that there may be three parents, because “stands in the place of” is somewhat synonymous with “instead of.”
Senator Dalphond: I think the department’s explanatory notes refer to the one who has gotten involved in the child’s life and who is the equivalent of a parent, the one the child might call “stepdad” or “Dad.”
Ms. Laberge: The Barreau du Québec believes the case law may accommodate this. There’s no problem. However, the wording of the provision may not be the most appropriate. The issue of intent to “stand in the place of a parent” was also a major concern.
Senator Dalphond: This is especially a concern for you, not with regard to the concept, but rather the way it’s drafted.
Ms. Laberge: It’s a problem with the concept, not the concept of exercising parental time, but, when I read subsection 16.1(1), I see “a court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility,” and that’s where the barreau has a problem.
Senator Dalphond: I won’t argue, but I’ve read a lot about this, and I have the same questions as you. For example, what is contemplated here for the stepfather who went skiing with the child on weekends and continues to do so after the separation is that the judge might say he’s the one who will exercise parental authority on weekends when he skis with the child. Consequently, if the child is injured, he’s the one who will take the child to the hospital —
Ms. Laberge: To make day-to-day decisions.
Senator Dalphond: Exactly.
Ms. Laberge: That’s logical, but, at the same time, I think you have to be cautious. I’m not saying we should avoid that at all costs, because I think the way you explain the situation is very appealing. Will the stepfather, who has been granted access rights by judgment, call the parents every time he wants to take the child skiing or to the movies? You have to be careful. You have to consider this question carefully because there are risks in disputed cases. If the child goes for a haircut with the stepfather, and that wasn’t planned, you can imagine the scenarios that might become problematic.
Senator Dalphond: Or if he changes the colour of the child’s hair.
The Chair: The conventional wisdom is that keeps growing.
[English]
Senator Dasko: I’m going to keep it to one question.
Mr. Bernier, I very much appreciated your comments about the law. I think you said the law was no longer related to the reality of our lives, our situations or something like that. I think that was a very good comment.
I want to ask a question of everybody. This legislation hasn’t been changed since 1985. We have social change. We always have social change. Our world changes. Our values and situations change. We should never be in a situation again where we are waiting so long to change a law because you get these cumulative issues and end up with legislation. Here we are at the very end of a process, and we don’t have time to make some changes that we think are important.
Could you suggest how long we should wait? Given your vast experience in this area over many years and being realistic because legislators can’t go at these issues every year, what is a reasonable time? Given social change, given circumstances and given your experience, when should the Parliament of Canada look at this again?
Is it a number of years? Is it decisions? Is it cumulative? Give me your thoughts. I’ll ask the Canadian Bar Association first.
Ms. Del Rizzo: I can give you my personal opinion and not on behalf of the CBA.
Senator Dasko: That is what I am looking for.
Ms. Del Rizzo: I can only speak to the submission, but this is a significant change that we are welcoming. That’s why we want to see it happen. I imagine there will be tweaking of this over time, and there should be. It should be looked at over time and re-evaluated. I absolutely take your point and agree 100 per cent.
Maybe every five years maybe take a good look or ten at the outside. Gordon v. Goertz, 1997, doesn’t seem very long ago to me, but it really was.
Senator Dasko: I was looking at that year; 1997 is a long time ago.
Ms. Del Rizzo: It is. I believe we should not have waited as long as we have to put these kinds of changes into effect.
The discussion of parenting time and even just the terminology part of this really deserve a change. The focus on the children and living up to the obligations under the UNCRC are very important to our sections and are very important to us as lawyers in this area.
This bill goes a long way. We are saying we would like to tweak this and we would like to tweak that, but if there are changes they can happen over time. Perhaps every five years we could take a look at this or maybe a bit longer.
Senator Dasko: Are there any other opinions?
[Translation]
Mr. Le Grand Alary: Briefly, I’d say that, generally speaking, the barreau didn’t state an opinion on the matter in its brief. Without wanting to impose a deadline, I’d say that important instruments such as the Divorce Act and Bills C-78 o C-75 on Criminal Code reform are major societal matters that should undergo periodic non-partisan review. It must be understood that Bill C-78, if passed, will evolve with the case law. Lawyers, judges and notaries will continue to discuss it, and it will all evolve.
However, I think the important point for the barreau is to ensure that appropriate and varied reforms are made. The idea of starting a review of those instruments by a non-partisan organization or by other organizations may be a good one.
Mr. Bernier: Senator Dasko, it’s amusing to see the extent to which our legal systems work together in some instances and diverge in others. I’d like to note — perhaps some of you aren’t aware — that there’s an institution in Quebec, one that resembles marriage, that we call the civil union. It’s a carbon copy of marriage and may be dissolved by common consent by going before a notary, not a judge.
The law advances at varying speeds. In Quebec, since our Civil Code system is different, we have found original ways to streamline the legal system. I’m the oldest director of the Chambre des notaires du Québec, and, for 20 years, we’ve been offering our assistance to Parliament to simplify the process, particularly in cases where there is an agreement. We are pleased to have attended this meeting today, and we hope action is taken quickly. Thank you.
Mr. Fafard: I’d like to go back to a question that was asked earlier. I want to draw parallels with the situation in Quebec, where calls for reform have been made for a very long time. Everyone says that family law is anachronistic. It hasn’t changed since 1980. The reality in Quebec is that de facto spouses represent nearly half of all spouses. That’s how they experience their conjugal relationship. We’ve observed that inequalities exist because their situation isn’t recognized by the Civil Code of Quebec. In future, I think the Chambre des notaires would like it if we didn’t have to go this far, given that notaries are preventive law experts. Perhaps a non-partisan committee should be struck, without necessarily having a date or specific period by which a review should be done. It would also be important to engage in a democratic exercise to determine what the issues are on the ground, how people view the matter and how the act applies to their actual situation so we can take the pulse of the citizenry. Then we could institute the necessary reforms. I think a kind of interconnection has to be established to ensure that Canadian law — and the law of the provinces — actually reflects people’s needs and realities without causing situations of inequality or injustice for litigants. More especially, litigants must not have to bear the burden of those reforms by going to court and paying a lot of money to assert their rights. We believe that Parliament must be proactive in the context of these basic reforms for democratic life.
[English]
The Chair: Do you have a question, Senator Dasko?
Senator Dasko: That’s fine for now, chair.
[Translation]
The Chair: As time is passing, I’d like to ask the same question I put to Minister Lametti earlier this afternoon. Has the barreau conducted an analysis of the underlying legal principles and concepts of family law in Quebec that would identify, in Bill C-78, as currently drafted, legal situations that might represent potential conflicts? As I told Mr. Fafard earlier, that would help prevent citizens from having to bear the burden of clarifying concepts that initially seem to contradict the principles and operation of family law in Quebec.
Ms. Laberge: You’ve clearly understood all the reservations we have regarding parental authority.
The Chair: I understand. Are there any others?
Ms. Laberge: That’s the only one we’re thinking of.
The Chair: All right. Mr. Bernier, do you have any comments? No. That’s fine. Have there been a number of case law precedents since 1980? That’s when the Divorce Act was last revised or adopted. Have there been any conflicts in interpreting Quebec law and the federal Divorce Act?
Ms. Laberge: No. The Court of Appeal clarified this aspect quite early on. As far as I know, the two harmonize quite well. I sincerely think there haven’t been many problems in that regard. The two have been quite compatible to date.
The Chair: Very well. Thank you very much for your testimony.
[English]
It is my pleasure to thank Ms. Schellenberg and Ms. Del Rizzo who appeared on behalf of the Canadian Bar Association. Thank you for your reflections.
[Translation]
Messrs. Le Grand Alary, Bernier and Fafard and Ms. Laberge, thank you and we hope to have the pleasure of seeing you in this committee again.
We will continue our meeting as part of our study of Bill C-78.
[English]
It is my pleasure this afternoon to welcome a person that we appreciate very much for his contribution to our work, Professor Nicholas Bala, Faculty of Law, Queen’s University. I understand, professor, that you will appear on behalf of the Ontario Chapter of the Association of Family and Conciliation Courts, but we will not distinguish between that, your competence and your mastership of the issue of family law. In fact, we will benefit from your two wings of long experience. It is with great interest that the committee will listen to you.
We have also by video conference, Linda C. Neilson, Professor Emerita, University of New Brunswick. Welcome, professor. Thank you for making yourself available this afternoon.
We will have later in the session from John-Paul E. Boyd, Principal, John-Paul Boyd Arbitration Chambers, to whom we will try to connect for a video conference.
I do not want to delay the session, so I invite Nicholas Bala and then Ms. Neilson to make their presentations.
[Translation]
Nicholas Bala, Professor, Faculty of Law, Queen’s University, Ontario Chapter of the Association of Family and Conciliation Courts: It’s a pleasure to be here with you.
[English]
I have been a professor of law for almost 40 years and have long been working around issues of family law. In fact I was here at your hearing on Bill S-202. It was very encouraging to see at that time that there were concerns raised that the government and the Parliament had come back to address these issues again.
As was mentioned, I am here both in my own capacity but also as a member of and on behalf of the Ontario Chapter of the Association of Family and Conciliation Courts. T
The international organization of the AFCC-O has 5,000 members from all over the world, including judges, mediators, mental health professionals, lawyers, academics and counsellors. We also have an Ontario chapter with over 400 members, and I am on the board. We have discussed and put forward the brief which I think has been submitted to you. I would emphasize that there are judges who are members of the organization and some civil servants who in no way participated in that discussion.
Today, I am focusing on the issues around parenting. As I think you noted, other parts of the bill deal essentially with economic issues and with the child protection convention that are also very important.
Some issues have been raised about federal-provincial cooperation. I am aware of the work that has been done between the federal government and the provinces. The provinces are very enthusiastic about having this bill implemented, not only for the parenting parts but also for the parts that will facilitate dealing with support enforcement and will reduce the cost of support enforcement.
In general, the AFCC-O and I really urge rapid action starting with the minister, as has been pointed out in many of the comments here. It has been far too long since we looked at the Divorce Act. It is deeply out of the date. The broad consensus is that there is a need for change. Unfortunately, it’s a bit like a professional basketball team. We have been playing for a long time and now we are down to the last few minutes. I would urge Parliament in general to get this bill through whatever it requires.
The bill, as was discussed earlier today, deals with many issues. One is to try to encourage people to settle cases outside the court system. That’s very important through mediation and also through negotiation led by lawyers. It’s important to recognize that the family courts have an important role. Indeed, as mentioned earlier, our family court judges were shifting toward unified family courts. Many of the judges who are now dealing with these cases were experienced family lawyers. They are problem solvers. They are often actually mediating the cases in court and have an important role in that.
As well, on the issue of family violence, the courts have a critical role in cases where there is family violence in terms of providing appropriate protections. The issue of the UN Convention on the Rights of the Child has been mentioned. It’s very important that this bill specifically recognizes the importance of the views of children.
When looking at this bill, it’s important not to compare it to perfection but to compare to what we have now, because if the bill is not enacted we’re going back to what we have. It does not mention domestic violence. It does not mention the views of the child. It does not deal with relocation. It would be unfortunate if we don’t get this bill enacted.
I will be happy to answer questions. I have written a number of papers on relocation, as have others, that urge the kinds of changes that are here. One can discuss exactly what one would like to see. Are these the perfect words? Maybe not. At least in my view they are not the perfect words, but they are much better than what we have now.
I know that tomorrow you have accomplished witnesses. We want to emphasize two points in response to that. First, there are equal parenting groups. I should say that questions were asked about the international context. There are few jurisdictions that have equal parenting provisions. Some of them like Australia that moved in that direction have moved away from them. They are particularly problematic for domestic violence and in the case that they are the most likely to be litigated.
The bill encourages more involvement of both parents. We call that shared parenting or co-parenting, but not equal shared parenting. There are issues around domestic violence; I know Professor Neilson will address them.
Again, this bill is a massive improvement on what we now have. It recognizes that the primary consideration is the safety of children. Certainly we recognize that family violence is a highly gendered social issue. However, we would have concerns about specifically mentioning it in legislation in that the whole message here is that each case has to be decided on its merits, considering the specific nature of the life of the child and the family.
The reality is that some mothers are violent. They are more violent than the fathers or are the only ones who are violent. From a social point in terms of services we almost only have shelters for women. We have some shelters for men who come with their children, by the way. That is why putting that into legislation would be problematic.
A final matter of concern that has been raised is the marginal note to proposed section 16.6, the maximum parenting time provision. I have never heard a very good explanation of why it says, “maximum parenting time,” other than a historic reason. The present section 16(10) of the Divorce Act has the words “maximum contact.” I think somebody said, “Oh, we’re changing the concept of contact to parenting time. Let’s just stick in the words parenting time.” First, I think the words “maximum parenting time” are not an accurate summary of what is there at all. Second, they are highly misleading and potentially dangerous, depending on how they will be interpreted.
Arizona has the words “maximum parenting time” in their legislation. That has shifted them very strongly to a presumption of equal parenting time, which is not what is intended. There are no presumptions but then there is the title. Hopefully, our judges will be wise and not go in that direction, but I think the title is very problematic.
This raises an interesting question: Can you amend the title? I think you have heard that the title is not part of the legislation. Who amends it? Where does it come from? You have legislative counsel who may address that. Frankly, you could just drop the proposed section 16.6 altogether. It adds nothing to the legislation, which already focuses on the best interests of children.
If you wanted to amend the legislation to open up the question of the title, instead of “allocating parent time,” you could replace the word “allocating” with the word “scheduling.” It is an interesting question.
I understand that the legislative counsel only amends the title if there is a substantive change, although there is a good question as to where and why that is. Can you write a letter saying you have the wrong title? As I say, I didn’t hear a good defence of why the word “maximum” was there. I heard a good defence of the substantive provision. That’s something you will have to deal with. I wouldn’t want to see the legislation actually delayed because of that.
I think the title is very problematic. I have significant confidence in the judiciary looking at a case decided a number of years ago, Young v. Young, that would deal with that.
In conclusion, we certainly support the legislation. We have seen a lot of change in the family justice system. How judges and lawyers deal with these cases is in some ways reflected in this. There are significant changes here. Certainly it was mentioned that there was a need for review research. The Department of Justice should be, and I hope will be, monitoring the implementation to bring this back to Parliament.
Inconsistencies between federal and provincial laws were mentioned. Provinces will have to change their laws and will have to see changes in the rules. Some of the questions raised about how this will be implemented are good. They are largely matters of provincial responsibility. In Ontario, we will have to see change. I think the provincial governments are well aware of that.
This bill is not a panacea. It’s not like people will stop phoning their senators and MPs to say, “I have no trouble with the justice system if you enact this.” There will continue to be problems, but this is a major improvement. We would urge Parliament to get this through before the election. Thank you.
The Chair: Thank you, Mr. Bala. We will now ask Ms. Neilson from New Brunswick to share with us her reflections on Bill C-78.
Linda C. Neilson, Professor Emerita, University of New Brunswick, as an individual: In looking at proposed changes to the Divorce Act, I am speaking from a family violence and family law perspective. Much of my career has been devoted to trying to improve legal system responses in these cases. That is really the context of my comments.
I wrote a brief for the Senate on Bill C-78. I believe you have a copy of it. I noted in that brief and now that the bill makes positive changes that will benefit Canadian families. I also noted, however, that the bill could be improved in three areas: gender equality, protection of women from gender-related violence, and obligations to children pursuant to the UN Convention on the Rights of the Child.
While ideally all of these problems could be addressed, and the brief sets out some suggestions on how that might be done, my comments today are directed to a few changes: first, changes to best interests of the child provision in paragraph 16(3)(c); second, rewording the best interest factors to consider in family violence cases in paragraph 16(3)(j); third, including a clear statement in the definition that family violence in a child’s home is a form of child abuse; and, fourth, a minor rewording to the child views provision to make it consistent with the UN convention.
First, let’s begin with paragraph 16(3)(c), which says:
. . . each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
We all agree that no parent should undermine a child’s positive relationship with the other parent. The problem is that this provision, as currently worded, can cause harm to women and children in family violence cases and in other cases where the child does not have a dependable, supportive relationship with the other spouse.
Supporting the development of a child’s relationship with the other spouse after divorce is not always in the best interests of the child, for example, when the spouse has not been involved in the child’s life, is violent, abusive or engages in parenting practices that harm the child. The provision encourages non-acceptance of responsibility or the notion, “If I failed to develop a positive relationship with my child, it must be my spouse’s fault.”
The other concern is that it will silence abused women and children and prevent them from seeking restrictions when relationships are not beneficial. The concern is not merely speculative. It’s happening now. The negative implications of courts punishing women and children when children resist contact are now being documented.
My preference is removal. The alternative, in my view, is changing the wording to:
. . . each spouse’s willingness to support the child’s relationship with the other spouse to the extent that the relationship is in the best interests of the child;
This change could protect children while reducing some of the negative potential implications of that provision.
Second, paragraph 16(3)(j) is inappropriately framed. Considering a perpetrator’s willingness to parent as a best interest factor is contraindicated in a family violence context. Perpetrators are very willing to seek extensive parenting responsibility. Why? It is because control over responsibilities enables control over the family.
From a research-informed point of view, the central concern is what the family violence tells us about a perpetrator’s parenting ability. The best interests of the child factors in a family violence context should be framed in terms of children’s interests, not a perpetrator’s willingness. You can find suggested rewording at pages 7 and 8 of the brief.
Third, a clause in the definition to identify family violence as a form of child abuse would help to correct erroneous assumptions in the legal system that domestic violence harms women without direct harm to children. The addition of that simple clause could go a long way to correcting misconceptions and to ensuring an appropriate focus on the needs and interests of children in family violence cases.
Fourth, paragraph 16(3)(e) should be revised to make the wording consistent with the UN Convention on the Rights of the Child. Bill C-78 requires due weight to be given to the child’s age and maturity. The convention, on the other hand, requires due weight to be given to the child’s views in accordance with age and maturity.
In other words, Bill C-78 waters down children’s rights to have their views given due weight. Making the provision consistent with the wording of the convention would require merely a minor change in wording.
I want to thank you for your time and wish you many best wishes in your important work.
The Chair: Thank you very much, Professor Neilson. Stay tuned. I am sure my colleagues will want to exchange views on your proposals also.
[Translation]
Senator Dupuis: My question is for Professor Bala. I’d like to go back to one of the points you raised and to your recommendation concerning the title of subsection 16(6). I think many people have a problem with “Maximum parenting time.” Thank you for providing context, which stems from the present provision and introduces a new reality, perhaps even a new concept of maximum parenting time.
I’d like you to clarify further the other possibility that you raised, of dropping subsection 16(6) altogether, not just its title. You said that it changes nothing and adds nothing and that you think we could even delete it entirely without compromising the objective of the bill. Did I understand correctly?
[English]
Mr. Bala: Thank you for raising that question. Starting particularly in section 16.1 and running throughout this bill, the only factor that should be considered is the best interests of the child. I don’t think this adds anything.
I very much appreciate what Professor Neilson said. I probably have a slightly different view, but it’s interesting because the present subsection 16(10) links the question of “as much time with each spouse as is consistent with the best interests of the child” to the willingness of each person to support that relationship in deciding the best interests.
This bill divides that into two. In fact, it somewhat reduces the weight of that second, so-called friendly parenting provision. The words of Professor Neilson are actually very good for amending paragraph 16(3)(c) to specifically again refer back to the best interests of children.
I think it’s appropriate to have something like paragraph 16(3)(c) in there to support the relationship with the other parent. There are always trade-offs in the sense that there are clear cases where there is so much significant violence and threat that the relationship must be suspended.
Conversely, there are many situations where there is not a threat of violence and the parents are busy undermining each other’s situation of alienation. The tension is we have alienation, abuse and violence. If we only had one it would be easy to say, “Well, just go all on one side.” You need something in that balance.
It’s good that the bill as drafted talks about the concern about conflict and the harm of conflict. It also says that conflict and violence are not the same thing. Certainly violence can involve conflict, but there’s also conflict without violence. It’s really on some level the responsibility of both parents, their professional advisers and the judges to try to help them reduce conflict and focus on the interests of the child.
The bill moves significantly in that direction. As I say, I don’t read section 16.5 as actually adding anything to section 16.1.
[Translation]
Senator Dupuis: I’d like to ask Professor Nielsen the same question, but worded differently. Professor Nielsen, you recommend adding the following to paragraph 16(3)(c): “to the extent that the relation is in the interest of the child.” Do you see a potential problem between paragraph 16(3)(c) and subsection 16(6), which we just discussed?
[English]
Ms. Neilson: On the whole, I would endorse Professor Bala’s comments on section 16.6. One of the difficulties we encounter in the research is the section is often interpreted in a way that it is not intended. It’s often interpreted as a presumption.
We need our courts to be looking at the individual circumstances of each child and designing the best outcome for the child without any presumptions. As long as we have some guidance in the bill as to what judges and lawyers should consider when thinking about what is optimum for the children, I agree with Professor Bala that removing the section would not be a negative problem.
[Translation]
Senator Dupuis: I’d like to ask a supplementary question, Mr. Chair.
In my opinion, the presumption in subsection 16(6) is a problem. If we say in subsection 16(1) that the dominant criterion is the best interests of the child, and we consider only the best interests of the child, then, by proposing subsection 16(6), are we not creating a guarantee of the parents’ rights that is not necessarily compatible with the interests of the child?
In other words, in subsection 16(6), we are creating a guarantee that each spouse will have a minimum amount of time. Do the best interests of the child guarantee each of the spouses a minimum amount of time with the child, particularly in circumstances of family violence? One can even imagine it might be impossible to guarantee a relationship with a violent parent.
[English]
Ms. Neilson: Yes, that provision has created problems in family violence cases. Often the courts will look at family violence when deciding custody. Then what happens is that the focus shifts to maximizing contact. What can happen, then, is that the courts are not paying sufficient attention to the safety and welfare needs of the children in connection with access.
Yes, the provision causes problems in family violence cases.
[Translation]
Senator Boisvenu: Welcome to the committee. My question is for Mr. Bala. Everyone will agree that the legal framework of unions, whether they be between two persons of the same sex or of different sexes, has evolved quickly in the past 20 years. Conventional marriage as we knew it at the start of this century is less and less the path that two persons choose in order to form a couple.
In Quebec, conventional marriages are now in the minority as compared to free and civil unions. This causes considerable unfairness when couples separate, particularly for women. We have seen quite dramatic cases in Quebec, where women find themselves in very tough financial situations after 20 or 30 years of living with a spouse without formally legalizing the union by marriage. We think that, in another 20 or 30 years, a very small minority of people will choose marriage as their way to form a union.
The Divorce Act may therefore affect a minority of people. Will we confer on the provinces, through the common law and the Civil Code, responsibility for legislating in the field of unions, be they free or civil? Shouldn’t the federal government conduct a much more thorough review of the Divorce Act and call it instead the Separation Act so that all couples living together for 10, 15 or 20 years have a legal framework within which to protect their rights and those of their children?
[English]
Mr. Bala: You raised a couple of important issues. First, there is a tension between how provincial governments are dealing with those who have not married and those who are married and are getting a divorce. That exists and has existed in Canada in many provinces except Quebec. There’s significant recognition of the rights and obligations of unmarried partners. In fact in a number of provinces they’re treated identically.
Quebec is an outlier. I know the Roy report and others that were referred to and others have been talking about changing it. There was a case that went to the Supreme Court of Canada which narrowly upheld the distinction in Quebec between married and unmarried partners. It was a 5:4 decision. The view was that it is really up to the Province of Quebec, the legislature there, to decide how it wants to deal with that. I’ve written a bit about it. I certainly support the kinds of changes that Professor Roy has been advocating.
I don’t think we’re ever going to see the disappearance of marriage in this country, but we will have to see. We’ve certainly seen a significant decline in rates of marriage. At this point it would be a constitutional problem in terms of sections 91 and 92 of the Constitution Act for the federal government to try and legislate with regard to unmarried couples.
Certainly, it would be inconsistent with maybe some fine-tuning of this important but relatively small amendment. If you said, “Let’s deal with unmarried couples,” at this point I think you would open up a huge number of issues. It’s an important issue, but I don’t think this is the way to deal with it.
[Translation]
Senator Boisvenu: I think this bill will refresh an act that hasn’t been updated in 40 years. As I said, it’s almost as old as I am. Shouldn’t we introduce an amendment to the present act providing that it be reviewed every five years instead of every 30 years? Our society is evolving quickly. Changes that used to occur over 50 years now take three to five years. Social changes are very rapid. Shouldn’t we say we’ll review the Divorce Act every five years?
[English]
Mr. Bala: Yes. One of the things I worry about, and you alluded to this earlier, is that family law is an extremely important area of law. It affects many people. Criminal law is also very important, but if you look at it in terms of numbers of people it actually affects fewer Canadians than family law.
Understandably, probably for political reasons, Parliament focuses on criminal law and family law gets put to the side, including issues of resources, research and parliamentary attention. When the Senate Committee was dealing with Bill S-202, it was commendable that it had some significant positive impact. I would personally support putting something in here. This should be at least reviewed after five years. I think that’s very healthy, particularly for a law that affects many people in such a profound way.
I very much appreciate the words of the minister saying that of all the bills you have been dealing with, this is the priority. In terms of the number of people and the effect on children and our future, that is probably right. It is invidious because it’s important, but in terms of the number of people affected this would be the greatest impact.
Senator Dalphond: I do not have a question. I am quite happy with the answers.
I was going to ask a constitutional question. Unfortunately, civil law is a matter of provincial jurisdiction. Exceptionally, the Fathers of Confederation thought that divorce and marriage should be federal. That was the exception, and the rest was provincial.
The Chair: Since you’re the sponsor of the bill, could I invite you to make comments on the proposals Professor Neilson has made to some specific sections of the act?
Senator Dalphond: Thank you for being here again. I think we organized a conference with you in March when you spoke to a few senators. Your comments are well appreciated.
I understand that we could do some fine tuning, but I understand from your brief that if it compromises the bill, we should go for the bill instead of playing roulette. That’s what I understand is your message on the front page of your brief.
The Chair: Professor Neilson, did you hear the comments made by Senator Dalphond?
Ms. Neilson: Were you asking me to respond to that?
Senator Dalphond: Yes. I was wondering if I correctly summarized your views.
Ms. Neilson: I would like to see some amendments made to the bill. It’s important to take the opportunity now to improve the bill. On the other hand, I don’t want to see the bill fail.
There’s a tension here. It’s a tension that I can’t resolve. My preference, as I say, is modification to deal with some of the shortcomings of the bill, partly because we end up with such lengthy time periods between the times when we look at the bill. If we don’t make the changes now, we might be stuck with some problem areas for many years to come. It’s a tension for me.
Senator Dalphond: Maybe it does illustrate once more that we need law reform commissions for something to be done. Unfortunately, we had one that was doing good work but was abolished to save a few dollars.
Mr. Bala: We’ve disbanded two law reform commissions federally. I would observe that it’s a very interesting moment in Canadian democracy, in that it’s clear the Senate has a role. On some issues, I think it places Professor Neilson and I in invidious positions because we don’t know what kinds of discussions you have with your colleagues in, as they say, the other place.
This is a moment when it may be possible to achieve some amendments in this and other pieces of legislation. The Senate has effectively already done that on some bills, but it requires discussion certainly beyond my competence to tell you where that is going to go.
Senator Dasko: I think the issue we have is a lack of desire to change in the timeline we are in right now. Some of us would like to see change. If we were even successful at making amendments at this committee, going back to the other place and then coming back here, given the time we have left, unfortunately, we’re between a rock and a hard place. That’s the issue. I don’t know if anybody has any comment about that.
I want to get back to the question that asked previous witnesses. I want to be a little more specific about when we might review legislation because we haven’t done this since 1985. We have social change that happens rapidly. These arrangements are ones that have changed very dramatically. I was trying to get a sense from the previous panel.
You both have vast experience in this area. What would be a time frame that would be reasonable yet responsive to social change going forward? I am not sure if you have any thoughts about the amendment process. I think that’s really our problem, but we have to try to judge it, too, because we don’t want to lose this either.
Mr. Bala: There were a number of attempts and bills introduced to reform the provisions of the Divorce Act. I think it was mentioned there were some problems with the major study by the committee in 2018. Actually, a couple of times bills have been introduced.
There are many professionals, whether they are judges, lawyers, mediators or counsellors who say they have been here before. In fact, everybody on the outside is saying, “Oh, they’re never going to get this. They’re running out of time.”
There have been attempts before. That’s why many people are saying, “If the choice is this or nothing, take this.” Just as readers of the newspapers, it seems there is actually some flexibility. It’s like a basketball game, as I said. You’re really in those last 15 seconds, but it’s a very close game. I don’t know what your options are.
In terms of how soon you should be revising things, many bills have a five-year review. In fact, the child support guidelines had a five-year review in 1997, which makes a lot of sense. It’s more than one Parliament but it’s not an infinite amount of time. What is good about a review is that when it’s in the legislation the Department of Justice has to start studying from day one.
They’re not here now. I want to emphasize how hard working they are and so on. If we don’t have to add on that and if we don’t have a review provision in there, it’s not a priority. In looking back, family law is always the poor second cousin in the justice system. Fortunately, progress has been made. Unified family courts is a major issue.
In fairness to the government or those who are responsible, family issues can be very controversial. Sometimes the reason they don’t get addressed is that there’s too much controversy, so we’ll go for something that is less controversial. Hopefully, I will live to see another round of review and looking at how it is.
A lot of the concerns raised are valid, but we will have to see how the courts apply them. We will have to see how the provinces implement them, what kinds of resources they will have and what kinds of legislation they will have. A five-year review would be appropriate.
The Chair: Professor Neilson and Professor Bala, maybe this is a joint question to both of you.
Regarding the concern that you have expressed, Professor Neilson, we are in a dire situation where we are damned if we do or we are damned if you don’t. Would it be possible for us to raise in observations the concerns you have expressed in relation to paragraphs 16(3)(j) and 16(3)(e)? We could ask the department to give their position in relation to your interpretation.
This committee could add some observations to suggest that when there is interpretation to be given to those sections, here is the intention of the legislators and at least your concern would not be lost. Parties that find themselves in a court of law or in front of a mediator or an arbitrator would at least have some kind of base on which to argue or answer some of the uncertainty you have identified. That could help and be kept as a reference in any further initiative to review this legislation.
In other words, what this committee could add or append in its remarks could be helpful for consideration of the courts or for future consideration of those who are responsible for the legislation at the department.
As you know, Professors Neilson and Bala, you might even be associated in your respective provinces when there is a meeting of federal and provincial ministers of justice or deputy ministers of justice in relation to the point. That could be raised as a concern of the Senate and of legislators.
That could be helpful to address a dire situation. In this case, the best is the enemy of the good. I am trying to reflect with you on how we could address this to make sure the valid concerns you have expressed could be addressed by the honourable senators around this table.
Mr. Bala: I am sure I am going to say the same thing as Professor Neilson, or maybe I am not. Again, that’s a good compromised move forward. It’s important to note that historically the Canadian courts have said that they don’t care what the politicians are saying. Certainly, what the committee says may be significant in your conclusions, to the extent you can quote the minister. In a lot of the things, by the way, he was saying how this legislation should be interpreted, for example, maximum parenting. Those quotes could be very significant. You have a transcript and so on, so I would encourage you to think about that as a possibility.
The Chair: I am sure the officials of the Department of Justice are in the room. I asked them to stay in the room so they could be called to the table to react to the proposals and the comments we hear from you because you’re the experts in the field.
Ms. Neilson: I think that could be helpful. It’s not as ideal as a change to the wording in some of the sections, but I think taking that approach could be helpful.
The Chair: Especially because you have suggested alternative wording that might clear up the intention of the legislators. That’s what we’re trying to do here. We’re trying to put in legislation a way of addressing the principle of the UN Convention on the Rights of the Child.
That’s what we want to make sure, that the bill reflects quite clearly. It is fundamental to the drafting of the bill or conceptual principle of the bill. Maybe, in attaching your suggestions in the context of the way the bill should be interpreted in sync with the international convention, that could be helpful for those who will be using and referring to this bill to address the situation it is supposed to help solve.
Ms. Neilson: Yes, I think that could be helpful.
The Chair: Thank you very much. Unless Professor Bala wants to add more to this.
Mr. Bala: No. It has been a privilege to be here with you and to share time with Professor Neilson. Thank you for listening.
The Chair: To both Professor Neilson and Professor Bala, I wish in the very near future the Senate could continue its study, reflection and contribution to the improvement of family law. There is no lack of interest on both sides of the chamber in relation to this situation.
As you said, it is probably one field of law where each one of us has a stake unless we live alone on an island like Robinson Crusoe. Even he found Friday. We all have to face that situation at one point in our life. Thank you for making yourself available today and for contributing to our reflections.
Ms. Neilson: I thank the Senate very much for taking a good look at this issue.
The Chair: Thank you so much.
(The committee adjourned.)