Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 22 - Evidence
OTTAWA, Wednesday, May 9, 2007
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-252, to amend the Divorce Act (access for spouse who is terminally ill or in critical condition), met this day at 4:12 p.m. to give consideration to the bill.
Senator Art Eggleton (Chairman) in the chair.
[English]
The Chairman: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology. Our meeting this afternoon will be dealing with Bill C-252, to amend the Divorce Act (access for spouse who is terminally ill or in critical condition), which we will hear more about in just a moment.
One of our colleagues down at the end of the table, Senator Consiglio Di Nino, is the Senate sponsor of the bill. Rick Casson, who is also here, is the bill's sponsor in the House of Commons and the originator Bill C-252.
From the Department of Justice, we have Lise Lafrenière-Henrie, Senior Counsel, Family Law Policy, and Claire Farid, Counsel, Family Law Policy, for any questions you may have. Then we will have clause-by-clause consideration of the bill, if we have time.
I will ask Senator Di Nino to start off. As part of his brief comments, perhaps he can introduce the member of Parliament who is the bill's sponsor.
Senator Fairbairn: He is my member of Parliament, I might add. He is a fine fellow.
Hon. Consiglio Di Nino, sponsor of the bill: I wanted to put on the record that I asked our colleague if she voted for Mr. Casson.
The Chairman: We are all waiting with bated breath for the answer.
Senator Di Nino: Thank you for the opportunity to present this bill to you. The sponsor of the bill in the other place, Rick Casson, M.P., is here with me and he will make most of the comments.
You have heard my commentary in the chamber. I would like to open the meeting by saying that this is a very important bill, which deals with one of the most difficult human situations — a relationship between a parent and a child when there has been a breakup in the normal relationship due to a separation through divorce. In cases where there is a terminal or serious illness, the bill seeks to make sure that the presiding judge, if altering the order of custody, would take into consideration the fact that the other person is terminally ill or has a serious illness.
Many of us have had to deal with a similar type of situation, although not necessarily due to the breakup of families. The opportunity to move on after a loved one has gone is one of the most important things — particularly for the surviving person. Although this bill does not make it mandatory, it reinforces the issue with the judge. In considering the best interests of the child, through this bill, the judge would take into consideration those two important components in order to have an opportunity, if it is in the interests of the child, to reconcile differences that may have happened.
With that brief commentary, I will turn it over to Mr. Rick Casson, the sponsor of the bill in the other place.
Rick Casson, M.P., sponsor of the bill: Thank you Mr. Chairman. It is always a pleasure to see you. It is certainly good to be here to be able to present my comments on what I believe to be a worthwhile endeavour.
It is an honour to be here to speak to you about Bill C-252, to amend the Divorce Act. This bill seeks to ensure that divorced parents who are terminally ill or in critical condition are granted access to their children to say goodbye before passing on.
This bill passed third reading in the House of Commons by a standing vote of 302 to zero. Establishing unanimous consent as parliamentarians is difficult and rare. However, this bill is one example of what can be achieved when the opinions and critiques are voiced and acted upon.
This bill also exemplifies the value of cooperation, which, in this case, is based on a mutual recognition of the issues at hand — important family bonds and the best interests of children.
I do not feel it necessary for me to explain the prevalence of divorce in our society today. It is an unfortunate reality that has impacted most families in one way or another. In remarks during second reading, Senator Trenholme Counsell eloquently spoke of the enormous responsibility placed on society, especially the judicial system, when the family ceases to be the cradle of love for its youngest members.
This bill is aimed at this exact sort of situation where marital bonds are severed by the implosion of a marriage and the nucleus of a family and the parents go their separate ways. In December 1998, the Special Joint Committee on Child Custody and Access released their report, For the Sake of the Children, in which they recognized that parents' relationships with their children do not end upon separation or divorce.
This might seem to be a point of common sense but it is an important supporting principle of this bill. Whatever the circumstances surrounding the divorce, the natural bonds between child and parent continue to exist as they ought to.
Much like life, there is a beginning and an end to these relationships. There is a happy event of saying hello and the sad and painful event of saying goodbye. This bill seeks to ensure that both parent and child have that opportunity to say the last good-bye when a divorced parent is terminally ill or in critical condition and such access is judged by a court to be in the best interests of the children or the child involved.
This bill is about one proposed amendment to the Divorce Act. The bill has evolved through stages of debate where there were real questions posed about the Divorce Act and how issues of access and custody are weighed.
These questions have highlighted several important facts. First, this bill addresses but one set of circumstances. It is focused and concise and aims to establish one incremental yet important amendment to the Divorce Act.
Second, there are many more sets of circumstances of a similar nature that require our attention; however, these other sets of circumstances will have to wait for another bill to be remedied. The brevity of this bill serves as a means of maintaining a focus in the pursuit of a remedy for a specific set of circumstances.
I first considered undertaking a private member's bill after hearing of an unfortunate situation in my riding involving a young family fractured by divorce where one parent became terminally ill. As is often the case with divorces, there are two sides to this story. I do not undertake this bill because one person was right and one person was wrong. This was not, and is not, a decision for me to make. I recognized, however, that something was wrong and I was faced not with the question of who was right, but what is right. I believe it is right to ensure that children are allowed to say goodbye to a parent who is terminally ill or in critical condition unless such contact between parent and child is not in the best interests of the child.
In closing, I would like to thank Senator Di Nino for spending the time to work with me on this and for sponsorship of this bill in the upper house. I also wish to thank the parliamentarians who debated the bill and voted unanimously in favour of Bill C-252. I would like to thank the officials from the Department of Justice who have appeared before the House Justice Committee and are here again to answer questions on Bill C-252.
Senator Fairbairn: Mr. Casson, I know how long and hard you have worked on this piece of legislation. During your efforts to get to where you are today, have you had much in the way of a negative response, and if so, under what conditions?
Mr. Casson: Just off the top of my head I cannot recall one. I would not consider debate in the House as a negative response. I am thinking more of the public input I received from across the country. There was not a lot in favour, but I do not recall any opposed to it.
During the debate, I knew the end result I wanted; I was not concerned about the wording in different sections of the bill. We were flexible as it went through the House and committee and then we came back to work with officials and colleagues to amend it so that it was acceptable to all. That is what we ended up doing with unanimous support in the House. If there was anything of concern, we tried to adjust the wording, sometimes in very small ways, to alleviate those concerns. In the end we were able to do that, as we saw with the result of the vote.
Senator Di Nino: I too can say with comfort that certainly from the Senate, Senator Trenholme Counsell gave a marvellous speech where she raised valid issues. I know that Mr. Casson has dealt with those.
The fact that the bill was amended in the other place speaks highly of Mr. Casson's interest in this issue and the interest that other individuals had. As a sponsor of the bill in this chamber, I had a number of people talk to me and none of them expressed a negative opinion on this issue.
Senator Pépin: There is one thing that bothers me that I do not understand. I always thought that when parents divorced and one parent had full custody of the child, the other parent still had access to the child. If that person is so sick that she is dying and she cannot see the child, what is the reason why she lost completely? I do not understand that. If one parent has full custody of a child, does the other parent not have access to the child?
Mr. Casson: Each custody order provided by the courts is looked at separately. Sometimes the custody is shared, sometimes not. There is a balance of how much one parent gets to see the child over the other.
In the case of the dying parent, however, the children were removed from her and her situation was such that she died shortly thereafter. When the family brought this to my attention we looked at the Divorce Act and we felt we needed to make this one of the conditions that the judge would consider among all the things that they would consider, but always with the best interests of the child in mind.
Without that clause in there I would not support it myself; it had to be in the best interests of the children. As for how a situation gets to a point where one parent cannot have any access to the children, the circumstances of such situations are all different, and unfortunately in some cases that is what happens.
Senator Pépin: I do agree there is no problem to put that amendment and pass the legislation. I am divorced myself and I never thought that one parent could prevent the child from visiting the other parent; it never occurred to me. I will do everything to ensure that never happens again.
Senator Di Nino: I think it is probably good for all of us to remind ourselves that the authority of this bill will probably only be used on rare occasions. Most custody orders are shared orders and generally speaking I think most parents would agree. However, there are situations where that is not the case. We all know of some; I know of a couple that are very sad.
What really struck me about this and made me take it on, on behalf of Mr. Casson, was the fact that when there is that kind of separation it usually is something that leaves scars not only for the parents but also for the child. Perhaps this addition to the Divorce Act can mean that the child — who in this situation is the living person — can have an opportunity to put closure to an issue, which would allow him or her to go through life without that scar or with less of a scar than he had before.
You are absolutely right, senator. I do not expect that this will be used often. Mr. Casson's comments on that were also very strong.
Senator Munson: I have one brief question for Mr. Casson. In our society today, in 2007, why has it taken so long to travel such a short but important distance?
Mr. Casson: We can philosophize or try to imagine why. Senator Di Nino's comments are right on. This is something that does not pop up every day. It takes a tremendous amount of effort to get to this point, as you know. Perhaps no one thought this was something that needed to be addressed because it did not affect many people in this country.
When I saw pictures and heard the stories and got involved in this issue at the local level, it just did not seem right to me. The issue was not how many people are affected or how many times this will be used in the future. The issue to me was that it was wrong that these children were not allowed to see their mother, and we needed to rectify that. By doing so, we are on the right track.
At some future time, the Divorce Act will have to be looked at as well as the other peculiarities that are involved. If we can get this provision through, it will be there for whoever needs it.
Senator Trenholme Counsell: Thank you for appearing. Mr. Casson, I know you have read my speech. I am very supportive of the bill, but, as a physician and as a legislator, I do have some questions.
Most of my questions are for the officials from Justice Canada. They will be appearing and we will have a chance to question them. I read word for word all of the committee hearing transcripts in preparation for the speech I gave. I said that this was no simple matter of legislation, and it is not. If one reads only the bill, one would think that it is simple.
I have been hearing around the table that some people may sense that this means automatic access of the non-custodial parent to the child. It does not. It is still the judge's decision. What kind of custodial agreement would not allow a judge to do justice in the present law? Maybe we have to ask the Justice Canada witnesses. I know of cases, as I am sure we all do, where people are constantly going back to the court to get another variation or to get something clarified. Maybe this bill would allow the process to move faster.
Hearing the debates that took place over several meetings, I started to wonder what had happened with this bill. I will raise this question, and you may want to answer or perhaps the Justice Canada officials will answer. There was a question as to where the bill came from. Was it from the department? Who wrote it? "Grey areas" and "problems," are words that were in the debate. When you read the bill, it is evident that its construction was not smooth. The wording was changed two or three times and the bill was revised.
The other matter that I want to ask about would also be for the Department of Justice officials. The wording is "terminal illness or critical condition." As I mentioned in my speech, terminal illness does not mean the person will die tomorrow or next week or next month. Lou Gehrig's disease, or ALS, for example, is a terminal illness that might go on for 14 years. There are many conditions that in the language of medicine would be called terminal illnesses.
What kind of latitude does this bill give the courts?
The term "critical condition" is another issue. Many conditions are critical. They may be critical for 10 minutes or an hour or 100 hours or whatever period of time. I am looking at this from a medical standpoint.
Your motivation for this bill, and the ultimate outcome, is to serve humanitarian purposes; there is no question about that. In the end, it is our system of justice that decides. There is nothing automatic about this.
As I said in my speech, if, for the most difficult imaginable reasons, a child has not seen a dying parent let us say for 10 years, and then a request is made and the child who does not know a parent is forced to go and see that person in extremis, very close to death — most of you have seen those conditions and know what I mean — is that in the best interests of the child? Then again, it is for the judge to decide, not us on the committee, and that is the condition.
These are the thoughts that came to my mind. It is not a simple piece of legislation. It is profound and it has far-reaching complications for children, especially, and parents, secondarily. I look forward to asking some of these questions of the officials.
Mr. Casson: I appreciate the comments, senator. When I read your speech, I fully realized that you did look into this issue in great depth and read the transcripts and tried to understand what transpired.
Regarding the issue of the bill morphing and changing as we went along, I was not at any point, as the sponsor of the bill, ready to jeopardize its movement forward in some form or another. By keeping the end goal in mind and working back from that, we were able to move forward.
The Department of Justice officials will be able to answer some of the other issues. To have this provision in the Divorce Act, for this to be one of the conditions or one of the considerations a judge would take into account in changing a custody order, was our target. Certainly there will be the issues of the medical profession and how they will classify a terminal or critical illness. The time frames are important. The underlying cause is the best interests of the child. We have judges who routinely make decisions that they feel are in the best interests of the child, based on the evidence given to them. I would hope that that would continue, with this being yet another avenue for judges to take.
Senator Di Nino: I do not believe there has been any jurisprudence established on this issue. I think that we can take some comfort from the fact that a judge will, case by case, look at these issues, and I would imagine that a certain amount of medical evidence would be required to satisfy him or her. As Senator Trenholme Counsell has properly stated, we will not be making that decision; it will be a judge who will be evaluating whether this is in the best interests of the child.
I suspect that, over the years, this will create some jurisprudence. This may help, in effect, move it along in future years. There is no question that the introduction of this amendment to the Divorce Act will be an additional reminder, if you wish, to the judiciary that these are serious considerations enacted into law by the Parliament of Canada that should be considered. It gives it that extra added push, which would be helpful.
Senator Cordy: There is usually a story behind a bill such as this. It is interesting to hear your story. It is nice when someone has such a story and takes the bull by the horns and says, "Yes, I can do something about it."
You have explained it very well. As other questioners have said, legislation is never simple. You think you are solving the problem and are hopeful that you are not creating others.
The bill indicates that the court shall make a variation order in respect of access. Senator Trenholme Counsell said that certain terminal illnesses or conditions could go on for long periods of time, but in fact there are other terminal illnesses or critical conditions that can happen suddenly, where a person is diagnosed and gone or has an accident.
When a court deals with access to a child, we cannot tell it to hurry up, but do you feel assured that a decision would be made in a timely manner? Is there anything we could put in the bill to do that? Do you feel that this is sufficient, that if need be the decision would be made quickly?
Mr. Casson: We do not know that. The timing of court hearings and appearances varies, even between areas of the country, I would imagine. It is my hope that when it becomes obvious that the situation does exist and a judge is approached for a variance order, that the fact that the time frame is short in some cases would be taken into consideration. Other than that, I do not think there is any way we could put a time frame in the bill where the court must deal with one of these situations in, for example, two days. I do not see that happening.
I would hope that the courts and all those involved would understand. In some of these cases, it will be urgent that it happen quickly.
In the issue of how long a terminal illness or critical condition would last, acting where you are not sure that it will be a short period of time is better than not acting at all. That may be a way to get around that one. If it is terminal, it may last for four months or four years, but let us make sure that this happens at some point in time.
Senator Nancy Ruth: Let me make a few statements first, if I may, Mr. Casson. I read your speech to the House of Commons, and phrases that struck me a great deal were "to guarantee parental rights" and "any custody order must be based upon the best interests of the children." This is about the weighing of a balance. You said that divorced parents who are in their last hours of life should be guaranteed access to their children, and that that "is a right that every parent, divorced or not, deserves."
I do not disagree with those statements, but I have made an assumption that we are talking here about fathers who do not have custody and who are therefore making this application. Even though the bill deals not with custody but with access, it does raise a concern for me, especially in the case of a terminal illness such as Parkinson's disease, which could go on for years. That is not a situation where one will die next week. It raises a few alarms for me around access, which is how it reads, but the next step could be custody. That is a concern for me.
One of my questions to you is why the language "shall" rather than "may" was used in the bill. I would ask everyone to look at the text, because I have reworded it to put my flavour in, and I want you to comment on that on. I suggest that the bill should read as follows:
For the purposes of subsection (5), a former spouse's terminal illness or critical condition may be considered a change of circumstances of the child of the marriage, and the court may take this into consideration in making a variation order only in respect of access, provided that it is in the best interests of the child.
Mr. Casson: In this instance, it was a mother who passed away. That points out that it could be one way or the other as far as which parent it is.
Senator Nancy Ruth: That is not true statistically.
Mr. Casson: I am seeking here to make the courts and judges act. The judge must make an order in respect of access. It does not say the judge has to make an order to give access. The judge must consider the terminal illness or critical illness of the parent as one of the issues when he or she looks at access. It is asking the judge to make a determination. If you say "may," then the judge does not have to, one way or the other. It is in respect of access, not to change it; we want the judge to consider this new situation as he or she looks at the custody orders. Perhaps the Department of Justice officials will be able to be clearer on that. That is why I wanted it to be the way it is worded here.
Senator Nancy Ruth: Can you to tell me whether the family bar associations of your province have had a chance to look at this bill, or the family bar associations of any other province in the country?
Mr. Casson: They have not, as far as I am aware.
Senator Nancy Ruth: I know this bill has not been before them in Ontario.
Mr. Casson: I would not know at all what the provincial situations are province by province.
Senator Di Nino: I wanted to add, it is not just the judiciary. To apply for a change, one would likely go through legal counsel. Legal counsel can look to the wording of this bill and give it that extra strength in his or her appeal to a judge to ask for a change in order. The word "shall" is an important component of it, not only for the judge to consider but to give some additional force on behalf of the family for legal counsel who would be representing them. I agree with Mr. Casson. "May" means that a judge could decide not to consider this.
We want to ensure that we strengthen that particular part of the Divorce Act to make this one of the things that the judiciary will have to consider when looking at potential change.
Senator Keon: I, too, want to talk to the people from family law when they come forth, but I was enthusiastic about this bill when I saw it because I have been confronted with this situation quite often. I have had patients talk to me on an emergency basis, two or three hours before they went into the operating room, or sometimes the night before surgery. The legal system was not capable of intervening in those circumstances.
This bill would make the legal system capable of intervening, but I want to ask the legal people about the timing of that. I am not asking a question; I am making this comment for clarity when they come. It is important that there be clarity in the Divorce Act that expedites the legal process, and it is certainly not there now.
The Chairman: The case that motivated you to act was a woman who was dying and who had lost custody of her children. Was that because of her illness? I cannot understand why, if she lost custody because of her illness, access would have been denied. Perhaps you could clarify that.
Mr. Casson: Mr. Chairman, throughout this exercise I tried not to focus on the situation that motivated me because, as I said in my comments, there are two sides to every story.
In this case, the mother was ill and there was a shared custody arrangement. The children were taken out of her home by the father one or two days before she passed away, in accordance to the custody order. He did have access to them and he accessed that right to take the children for that weekend or that day. The mother was unable to get them back for the last two or three days.
The Chairman: Thank you to Mr. Casson and Senator Di Nino.
Claire Farid, Counsel, Family Law Policy, Department of Justice Canada: I am counsel with the family law policy unit of the family, children and youth section of the department. With me is Lise Lafrenière-Henrie, senior counsel and coordinator of the family law policy unit. We would like to thank you for inviting us to participate in these committee proceedings. We are here to provide you with background on the technical aspects of the Divorce Act and Bill C-252.
As you know, family law is a shared area of constitutional responsibility. The federal government is responsible for the Divorce Act and the custody and access issues that arise in the divorce context. Custody and access issues that arise absent a divorce are within the responsibility of the provinces and territories.
Original orders in respect of custody and access are made under section 16 of the Divorce Act. Pursuant to subsection 16(8), when a court makes an order in respect of custody and access it must consider only the best interests of the child.
The court is required to look at all of the circumstances of the child and make the order that is best for that individual child. The wording of 16(8) requires the court to look at the "condition, means, needs and other circumstances of the child."
[Translation]
The act emphasizes the importance of a child's relationship with each parent. Subsection 16(10) provides that the court must give effect to the principle that a child must have as much contact with each spouse as is consistent with the best interests of the child, and must take into consideration the willingness, or lack of willingness, of the person who is applying for custody to facilitate contact with the other spouse.
[English]
When a child's circumstances change so that an original order is no longer appropriate, a variation of that order can be obtained. Section 17(5) of the act currently sets out the conditions for the variation of an order for custody or access.
Before a court can make a variation order, there must have been "a change in the condition, means, needs or other circumstances of the child" since the making of the last order. The Supreme Court of Canada has determined that there must be a material change in the circumstances of the child that has impacted the child's needs or the ability of the parents to meet those needs in some fundamental way.
A significant change in the life of the parent that is relevant to the child could be considered a material change in the circumstances of the child. For example, there is case law under the Divorce Act in which the terminal illness of a parent has been considered to be a material change in the circumstances of the child.
Once it has been established that there has been a material change, the court must then determine what is now in the best interests of the child. In determining the child's best interests, as under section 16, the court must give significant weight to the importance of the child's relationship with each parent. Because both original and variation orders in respect of custody and access are made on the basis of the child's best interests, the court has broad discretion to make an appropriate order.
Bill C-252 would add proposed new subsection 17(5.1) to the Divorce Act and would apply in circumstances where a former spouse has a terminal illness or is in critical condition.
There are two aspects of the proposed provision. First, proposed subsection 5.1 would provide that "For the purposes of subsection (5), a former spouse's terminal illness or critical condition shall be considered a change of circumstances of the child of the marriage . . ." This deems the terminal illness or critical condition of a former spouse to be a material change in the circumstances of the child. Therefore, where a former spouse proves through medical evidence that he or she has such a terminal illness or critical condition, the threshold requirement of subsection 17(5) will have been satisfied and the court would go on to determine what is now in the best interests of the child. This is a substantive change to the current law.
Proposed subsection 5.1 then directs the court that it "shall make a variation order in respect of access that is in the best interests of the child." The variation order must be in the best interests of the child and, as a result, the court would be required to consider all the circumstances of the child to determine the appropriate order. For example, the court would be required to determine how frequent the visits should be and if anyone should be present when the child is with the parent.
As you are aware, the Standing Committee on Justice and Human Rights examined this issue. During that hearing, a government amendment was brought forward to replace the previous wording of the bill, which read: "the court shall then ensure that the former spouse is granted access to the child as long as it is consistent with the best interests of the child." The new wording, as I have mentioned, states that the court "shall make a variation order in respect of access that is in the best interests of the child." The word "ensure" could have been read to give the impression that somehow the court was guaranteeing that access take place, or was somehow involved in the execution of the order. The current wording is more consistent with the wording that is currently used in the Divorce Act.
I hope that this information is helpful and we would be pleased to take your questions.
Senator Trenholme Counsell: I was listening and trying to learn. The Divorce Act and the first determination of custody and access are federal. Did I hear correctly that variations thereafter are provincial?
Ms. Farid: The division of constitutional powers in Canada is such that orders in relation to divorce are within federal jurisdiction. However, orders in the non-divorce context — for example, for common-law couples or couples who are married but do not divorce — would be within provincial jurisdiction.
Senator Trenholme Counsell: You probably heard my speech, but why was there this mild negative undercurrent of discussion at the committee concerning who wrote the bill and where it came from? As I said in my speech, in the House of Commons committee a rather worrisome discussion arose as to who drafted the amendment, where it came from and whether it was from the Department of Justice officials. Some of this uncertainty was spoken of as "some grey areas where there may be some problems."
A senior counsel from the Department of Justice said at the House of Commons committee, "I just want to clarify the fact that it is not the department that proposed this. We proposed different options to be considered."
Lise Lafrenière-Henrie, Senior Counsel, Family Law Policy, Department of Justice Canada: In terms of the mild undercurrent, unfortunately we are not aware of what that might be. Perhaps there were discussions at the political level. In terms of who drafted the bill, there is always a big group of people involved in drafting any type of legislation at the government level. We work as a team, so there is no one person drafting anything. Ultimately, it is a recommendation to the minister and the minister decides what amendments are proposed. That would basically be the response. The minister's office makes the decision —made the decision, in this case — as to what amendments would be proposed.
As to clarifying the fact of what the position was for the department and the support for the bill, again, it is not appropriate for the department to take any position on these bills. That was the context in which this comment was made. The department cannot speak to that type of issue. Any recommendations with respect to the legal aspects of the bill were made to the minister and those were then shared with the member.
The Chairman: I want to insert something here because you asked this and I did not hear an answer. You said at the committee that "we proposed different options to be considered." What were they?
Ms. Lafrenière-Henrie: As officials, we give advice to the minister and then the minister considers the advice and makes the decision. As I am sure the members know, we cannot talk about any advice that has been given to the minister. This is just for debate.
Senator Trenholme Counsell: There are two things. The first is Senator Nancy Ruth's suggestion that "shall" be changed to "may." I would like to hear some discussion from the legal point of view on the significance of that change. I think I understand. I am not saying whether or not I support it, but I think we should have a discussion with the legal experts on this.
The other thing is that, to me, "acute" means something. Is there some way that something could be put into the bill so that an illness that will last for one year, or 10 years or whatever, is not necessarily used as a basis for a variation order? In other words, they have used the phrase "critical condition" — I guess critical condition, to use common language, could be a nervous breakdown. Is there is some way to refine those terms further — terminal illness and critical condition?
Ms. Farid: On the first question, with respect to "may" versus "shall," there are two places where "shall" is used in the provision. I understood that Senator Nancy Ruth was referring to both of those; is that correct?
Senator Nancy Ruth: Yes.
Ms. Farid: If the provision were to read "the former spouse's terminal illness or critical condition may be considered a change of circumstances," it would no longer be a deeming provision such that in all cases once a critical condition or terminal illness was proven, it would be a material change in circumstances. That is a policy question for the committee as to whether you feel that is an appropriate change, but it would be a substantive change in the provision.
Similarly, to change "shall make a variation order in respect of access " to "may make a variation order in respect of access" would make it not a mandatory requirement; it would be more discretionary.
Also, the wording of that provision could be problematic because there would be the question of whether it was discretionary, whether the decision had to be made in the best interests of the child. It would read "the court may make a variation order in respect of access that is in the best interests of the child." Therefore, there is an issue there. To ensure that the best interests of the child was the test, there would have to be more rewording than simply substituting "may" for "shall." Again, those are policy questions for the committee.
The other question, in terms of "acute" versus "critical" condition, is different terminology. I do not think we would be prepared at this point to give you an answer as to which term would be more appropriate. The question would be what the policy objective is that you would be trying to achieve and whether that is something the committee wants to discuss further.
Ms. Lafrenière-Henrie: Currently in the Divorce Act, the court has the discretion to make this type of order. As Ms. Farid mentioned in her initial presentation, the court has already in the past determined that an illness has been a material change in circumstance. That possibility is there.
This amendment would provide greater clarity, and possibly help a parent who is already in that situation to at least reach the threshold of material change more quickly. Once the decision is made, the court again has discretion — always using the same test, which is the best interests of the child — to determine the best access provision to make in that situation. It might be that the parent needs to continue seeing the child with some assistance of someone because they can no longer see the child on their own. It provides that greater clarity.
However, in terms of how you define illness, the court already has discretion now. To go into definitions could limit in some cases where you might not want to limit. It is probably best to leave it to the court, but to have this principle apply.
Senator Nancy Ruth: I understand compulsion in the word "shall."
Do you have some sense of what a terminal illness is and how the courts usually define this phrase?
Ms. Farid: There is a case under the Divorce Act where the court found that a terminal illness was a material change in circumstances. In this case the mother was diagnosed with terminal cancer and had a certain amount of time to live so the court made that determination. There are other examples where the courts have applied the concept of terminal illness in terms of family law cases of custody and access.
Senator Nancy Ruth: They have applied it in both access and custody?
Ms. Farid: The cases I am speaking of were cases in respect of access and whether access should be varied or whether a parent should be able to take a child on a holiday when the other parent had a terminal illness.
Senator Nancy Ruth: Was that terminal illness something that was within 12 months or an unknown and undefined time?
Ms. Farid: I do not recollect at this point what the length of time was in that particular case.
Senator Nancy Ruth: What tests are used in the provinces for balancing a parent's right against a child's right?
Ms. Farid: In all jurisdictions in Canada, the test is what is in the best interests of the child.
Senator Nancy Ruth: Is this the only place in the Divorce Act where a variation is being sought around the circumstances of the parent rather than the traditional test of the concern only for the circumstances of the child? Are there any others?
Ms. Farid: I think the best interest of the child requires you to look not only at the circumstances of the child but also at any circumstances of the parent that would have an impact on the child. That is inherent within the concept of the best interests of the child. If there is something relevant to the parent that will have an impact on the child, it is part of something the court would look at.
Senator Nancy Ruth: Is there law other than case law? We are being asked to put this into the Divorce Act. Is there any other place in the Divorce Act where the circumstances of the parent are, in law, being asked to be balanced against the test of the best interests of the child?
Ms. Farid: There is no specific mention elsewhere in the Divorce Act of the specific circumstances of the parent, but it would be a factor considered in terms of the best interests of the child.
Senator Nancy Ruth: Have the family law bars been consulted across the country? They are the ones who will have to fight this on both sides.
Ms. Farid: Not that we are aware of.
Senator Nancy Ruth: Is that usual for the Department of Justice when it lies within federal jurisdiction?
Ms. Farid: This is not a government bill; this is a private member's bill.
Senator Nancy Ruth: What does that mean in terms of consultation?
Ms. Farid: This is not a bill that has come from the Minister of Justice so the Department of Justice does not have responsibility for this bill in the same way it would have responsibility for a bill that comes from the department.
Senator Nancy Ruth: Therefore, you do not ask. Is that what you are telling me? You would ask us to create law that you have not tested which you would normally if it was a government bill? I am a new senator so I do not know these things.
Ms. Lafrenière-Henrie: When a private member's bill is tabled, the department is involved after the fact. Once it is tabled there is no opportunity to consult except perhaps to hear different issues, but there is no opportunity for the department to consult prior to the tabling of the bill. That is usually what is done. The ideas or the opinions are usually expressed before on policy direction.
Senator Nancy Ruth: It seems to me it is just an email and two minutes to consult the chairs of the family bars.
The Chairman: They are not the proponents of the bill.
Senator Nancy Ruth: I understand that. Some family bar people have some concerns.
Senator Keon: Would you tell me how this bill will accelerate the process for a family that has a problem? In my experience, things happen quickly in families. A member is fine one day, and the next day they are confronted with death, sometimes in hours, sometimes in days or weeks. The courts move slowly. Will this bill expedite the movement of the courts? If it will not, would some addition to it accomplish that?
Ms. Lafrenière-Henrie: The court process is part of the administration of justice which is under the jurisdiction of the provinces and territories. In terms of what we can do federally, this does help in the sense that the material change in circumstance will be more easily met and therefore less time will be spent on that aspect of getting it through than might be the case at the moment.
In terms of the time it takes to get before the judge, maybe the urgency of the family situation can already be used as a reason to maybe move more quickly with an urgent motion, but in this type of legislation, this is not how it will address the bigger issue of any delays in the court system. It certainly will be one step toward making it easier and faster, but I am not sure we can go further than that.
Senator Trenholme Counsell: I think you maybe hinted at the answer when you said that this is not a Department of Justice bill. In no place I see did the minister speak to this bill in either the House or committee.
Ms. Farid: I do not think so.
Senator Trenholme Counsell: The parliamentary secretary did, but not the minister. If it had been a parliamentary bill, would the minister automatically have spoken?
Ms. Lafrenière-Henrie: For a government bill it is not necessarily the minister either; the parliamentary secretary does speak for the minister.
The Chairman: I take it the parliamentary secretary spoke in favour of it and would have access to Department of Justice officials in terms of advice on this?
Ms. Lafrenière-Henrie: Yes.
The Chairman: He received the kind of advice you cannot tell us about here today, and he came out in favour of it. I can put two and two together.
Are there any other questions of the officials? Okay, thank you very much.
Honourable senators, we are in a position of going to clause-by-clause consideration. We can do that one of two ways. You can make some general comments first and then go clause by clause or we can go clause by clause and we can make whatever comments you want in the course of clause by clause. Either way it works the same.
Senator Cordy: There is only one clause in the bill.
The Chairman: That is true. Shall I go clause by clause?
Hon. Senators: Agreed.
Senator Nancy Ruth: I want to read my stuff in; I am willing to give them "shall." This compels the court to do it, but I really have many concerns about it and I am certainly not voting for it in the chamber.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried. Is it agreed that the bill be adopted?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: On division. Is it agreed that I report this bill to the Senate with no amendments or observations?
Hon. Senators: Agreed.
The Chairman: Carried. That is it. It is back to the Senate on third reading.
The committee adjourned.