Divorce Act—Family Orders and Agreements Enforcement Assistance Act—Garnishment, Attachment and Pension Diversion Act
Bill to Amend--Second Reading--Debate Continued
April 2, 2019
I was completing one of four points on Bill C-78.
Bill C-78, importantly, adds new and specific direction to judges on what to consider in deciding on the best interests of the child. Proposed subsection 16(3) provides an extensive list of 11 factors for judges to consider when making parental orders. For example, proposed section 16 requires a judge to consider a child’s views and preferences, to take into account the history of care of the child, to take into account the child’s cultural and linguistic heritage, including Indigenous heritage, and to take into account any family violence, among several other factors listed. I support this approach completely, as it addresses the ambiguity inherent in the current legislation.
My second point is that proposed new subsection 16(6), titled “Maximum Parenting Time,” is not consistent with the purposes of the bill. I argued earlier that we should not have an explicit presumption of equal shared parenting when it comes to parenting orders or custody. However, this section, as currently drafted, creates an implicit presumption of equal shared parenting.
How do we know that equal parenting would be presumed? We know it because it’s already happening. In the current Divorce Act, the predecessor section, subsection 16(10), using a very similar title and words, has been interpreted as imposing joint-care parenting presumptions and supporting contact in all but the most extreme cases. Courts have ignored the direction to take into account the best interests of the child in allocating time. This undermines the best interests of the child and may also diminish issues of family violence.
The bill before us does not adequately fix this problem. However, the problem can easily be solved. We can simply remove the short subclause 16(6) from Bill C-78, or we can simply remove the word “maximum” from the title.
My third point relates to the topic of family violence. Bill C-78 represents a historic and substantive shift that we should welcome: For the first time, it makes family violence visible. The question is whether the proposed amendments go far enough in incorporating what we know about family violence. We know that the understanding of family violence is very uneven across the large family law system, including the courts. We are not yet at the point where all Canadians have access to specialized unified family courts.
Consequently, the bill should fill the dangerous vacuum that exists today, and explicitly tackle myths and preconceptions that we know arise in the application of the Divorce Act by judges and others. We should also avoid putting women and children to greater risk of violence through the design of the system.
Canada has a family violence problem. We have to work with the whole of what we know. Looking at self-reported data from the Statistics Canada 2014 GSS, women and men say they experience overall equivalent rates of spousal violence, at 4 per cent. However, that same survey establishes clearly that women are more severely harmed: 34 per cent of female victims report severe forms of spousal violence compared to 16 per cent of male victims.
The 2016 data on intimate partner violence reported to police show that the vast majority — 79 per cent — of reporting to police were women. Specifically, women accounted for 8 in 10 victims of violence by a current spouse, former spouse, current dating partner and former dating partner. Intimate partner violence was the leading type of violence experienced by women in 2016, and make no mistake about it: Family violence in a children’s home is child abuse. Also, separation is known to be a time of increased danger for women and children.
The parliamentary record on this bill already contains well-founded and articulated proposals on the need to recognize how family violence is experienced when looked at through gender, diversity and Indigenous lenses. The definition of “family violence” in Bill C-78 should recognize the gendered and intersectional nature of violence and flow that through provisions.
I question how the new paragraphs 16(3)(c) and (i), relating to parental willingness and ability to communicate and work together, and proposed subsection 16.2(2), relating to day-to-day decision-making, will apply when there is family violence present. The government’s failure to provide a GBA+ analysis of Bill C-78 is particularly troubling when considering the family violence provisions of the bill.
I see Bill C-78 as a significant test of our willingness not just to talk about substantive equality for women and children in all their diversity, but to deliver on it, however challenging that may be.
My fourth and final point relates to the provisions in clauses 7.3 and 7.7 of the bill. These place obligations on legal advisers to parties to encourage —
I’m sorry, senator. Your time is up.
Is it agreed, honourable senators, to grant five more minutes?
Thank you very much.
Although both provisions include a reference to appropriateness, that reference is vague and does not include adequate standards. As drafted, these could cause disregard for family violence or other laudable provisions of the bill.
In closing, I remind honourable senators that there was a time, as late as the 1960s, when senators themselves had to adjudicate individual divorces for Canadians in some provinces. The Senate Standing Committee on Divorce kept itself very busy looking at between 400 to 500 divorces per year.
Thankfully, we no longer have that responsibility, but we do have a responsibility to look closely. Bill C-78 is significant. We do not open the Divorce Act easily or often. Its provisions are fixed for generations of Canadians to come.
I look forward to the work of the committee. Thank you very much.
Do you have a question, Senator Lankin?
Would you accept a question, Senator Dasko?
Yes, I will.
Thank you very much, Senator Dasko. That was concise and informative. That’s an art — a talent and an art — that I don’t have.
I would like to ask you this: Your comments about weaving the gender analysis through — I couldn’t agree with you more — but have you looked at the provisions of the bill to understand how that would work or what you would recommend specifically? I’d like to get down into the weeds a little bit, from your thinking. I realize we’ll hear more at committee, and that’s the place we will be able to discuss it further, but your answer to that would be helpful to me.
Thank you, Senator Lankin. In looking through the testimony that was given by various witnesses in the House of Commons committee, I think there are a number of different ideas there as to how to weave it through the bill, especially the provisions around violence and the kinds of language that would be useful.
I think the witnesses there had different specific things to say but very useful. I can’t describe all of those here, but I can refer you to the testimony of those witnesses. You’ll see a lot of different ideas there, united by theme but different ways to approach the issue of gender recognition, especially in the violence part of the bill.
The best place is to take a look at those proceedings and get a sense of what they have to say. I don’t think I can do justice to what they said. Thank you.
Honourable senators, I rise to speak to 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, which I will refer to as Bill C-78.
The bill is the first major reform of federal family law in over 20 years. Canadian families have changed significantly during this time, and Bill C-78 is a welcome and desperately needed update to an area of the law that deeply impacts the lives of Canadians going through divorce and especially children of divorce.
The former Minister of Justice identified four main goals of the proposed bill when speaking in the other place: promoting the best interests of the child, addressing family violence, reducing child poverty, and improving the efficiencies and accessibility of the family justice system. Senator Dalphond expertly outlined these goals in his speech a few weeks ago, so I will not address each one again. Instead, I would like to discuss one of these goals — family violence and, particularly, violence against Indigenous women, two-spirited persons and individuals who do not identify within a male/female gender binary.
Bill C-78 proposes a comprehensive but not exhaustive definition of “family violence.” This proposed definition recognizes that family violence manifests itself in many forms, including physical assault, threats, and patterns of coercive and controlling behaviour. It recognizes that exposing a child to these behaviours, either directly or indirectly, also constitutes family violence.
However, as Senator Miville-Dechêne indicated in her speech on this matter, this definition fails to recognize that those who experience family violence overwhelmingly identify as women. The statistics regarding family violence against women are unsettling. According to a 2014 Statistics Canada survey, while approximately equal numbers of men and women reported family violence, women were twice as likely to experience severe forms of violence, including being sexually assaulted, hit, choked or threatened with a weapon. In addition, the survey indicated that family violence is more prevalent after a relationship has ended. Women reported that they experience family violence far more often after a relationship ended than those who reported experiencing family violence in a marriage or common-law relationship. Almost half of these women reported that the violence they experienced increased in severity after the relationship ended.
The statistics I have outlined indicate that Bill C-78’s proposed gender-neutral definition does not adequately capture the reality of those who most often experience family violence. But I understand that the purpose of a gender-neutral definition is to acknowledge that men and nonbinary individuals also experience family violence. To exclude them from the definition would deny their experiences and exclude their voices. Yet, as Leighann Burns, Executive Director of Harmony House and a family lawyer with over 30 years of experience advocating for survivors of violence, testified in the other place, “using gender-neutral terminology — has the impact of erasing and obscuring the most pervasive form of violence that continues to be a cause and consequence to women’s inequality.” It is important that these issues be further analyzed at committee.
Colleagues, as I have outlined, men, women and non-binary persons have different experiences with family violence, and, as a result, family violence should be analyzed through a gendered lens. This lens must also be intersectional, as we’ve just heard. Women and non-binary persons are more vulnerable to family violence because of the intersections of their gender identity with other characteristics, including economic status, race, sexual orientation, gender expression, disability, religion, Indigenous identity, citizenship, age and geographic location. In Canada, Indigenous women and Two-Spirited persons are especially vulnerable to family violence.
In fact, the Statistics Canada 2014 survey indicated that Indigenous women were over three times as likely to report experiencing family violence than non-Indigenous women. In addition, half the Indigenous women reported being injured because of family violence, compared to 39 per cent of non-Indigenous women. Of these Indigenous women, over half reported experiencing severe forms of family violence. In addition, a recent study by the Department of Justice found that while 6 per cent of non-Indigenous mothers reported experiencing this, 16 per cent of Indigenous mothers had experienced it. Finally, almost one quarter of Indigenous women who participated in another study cited by the Department of Justice experienced post-separation family violence compared to 7 per cent of non-Indigenous women.
As Leighann Burns testified at committee in the other place, many of the ways that women experience family violence falls outside what might come to mind when one thinks of formerly used terms such as “domestic abuse” or “intimate partner violence.” She testified that these tactics include monitoring and regulating activities of daily living, particularly activities associated with women’s roles as mothers, homemakers and sexual partners. These targets of regulation and control may include access to money, food and transport and how women dress, clean, cook or perform sexually. According to the Statistics Canada survey, one quarter of Indigenous women reported experiencing emotional or financial abuse by a current or former spouse, and those who experienced physical violence almost always experienced other forms of violence. A study cited by the Department of Justice also found that Indigenous women experience more coercive control than non-Indigenous women. A failure to adequately acknowledge these less stereotypical forms of violence therefore means a failure to adequately respond to the needs of Indigenous women who experience it.
The evidence indicates that Indigenous women often experience coercive control, especially regarding their finances and economic security. Family violence thus contributes to economic marginalization, which, in turn, thrusts them into situations that increase their vulnerability to family violence. As the Native Women’s Association of Canada explains, “Violence is present through the cycle of poverty as a cause, result and barrier to escaping poverty.” In a round table discussing the organization’s Poverty Reduction Strategy, women recounted where they had to stay in situations involving family violence because of economic dependency. Ending the cycle of poverty for Indigenous women and their children thus requires addressing the prevalence of family violence they experience.
The vulnerability and high levels of violence Indigenous women experience in Canada is not a new conversation. Indeed, it is currently the subject matter of the National Inquiry into Missing and Murdered Indigenous Women and Girls. As family violence is the most frequent form of violence Indigenous women experience, Bill C-78 is an important opportunity to begin ensuring Indigenous women are protected from further victimization and receive justice for the family violence they have already experienced. We simply cannot wait another 20 years for an intersectional gender-based analysis of family violence.
Without such an analysis, we run the risk of excluding the voices of Indigenous LGBTQ2I and Two-Spirited communities. As the Native Women’s Association of Canada explains, these groups exist “at the intersections of homophobia, transphobia and colonial racism,” making them highly vulnerable to violence. Unfortunately, there is not a lot of research available in this area. However, 80 per cent of participants in a 2010 study in Winnipeg conducted by Janice Ristock and Art Zoccole reported they had experienced some form of family violence, so they should be given the opportunity to voice their experiences and perspectives.
Colleagues, to conclude my discussion of the need for an intersectional gender-based analysis of the family violence in the proposed Bill C-78, I would like to bring to your attention an amendment proposed at committee in the other place. This proposed amendment, put forward by the National Association of Women and the Law and Luke’s Place, was endorsed by 31 additional organizations, including feminist legal organizations and organizations representing individuals from various groups vulnerable to family violence. They proposed the bill be amended to include a preamble acknowledging the diverse experiences and backgrounds of those who experience family violence. This preamble, they testified, would provide guidance to courts on how to interpret the legislation and understand the nuanced nature of family violence through an intersectional gender-based analysis. According to Leighann Burns, without such a preamble Bill C-78 will not go far enough to address family violence experienced by these women. I therefore urge the committee who studies this bill to consider the proposed preamble and invite the National Association of Women and the Law to provide more details on its efficacy.
Honourable senators, one of the responsibilities of the Senate is to give a voice to those who are often rendered silent in our legal system. Bill C-78 provides us an opportunity to ensure those voices cannot be ignored. I therefore support moving this bill to committee for further study and encourage my colleagues to do the same. Thank you. Meegwetch.
