Moved third reading of Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act.

He said: Honourable senators, I am pleased to rise today to speak at third reading of Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act.

Bill C-78 is a very important piece of legislation for all Canadian families, especially those in the midst of separation or divorce. The Minister of Justice has indicated in his remarks that this bill is a priority for his government. Witnesses appearing before us at the committee also stressed the importance of passing this important bill.

This reform of federal family laws is long overdue. It will improve the family justice system in significant ways and have a beneficial impact on many Canadian children and families.

Witnesses emphasized that even though improvements could be made to certain elements of the bill, this should not be a barrier to moving it forward, and they urged the Senate, the other place and the Minister of Justice to cooperate to make sure that we pass this bill before the end of this parliamentary session. I’m proud to be the sponsor of this bill and pleased to say that it has my full support and that of the committee.

I would like to start by acknowledging the excellent work done by the chair and members of the Standing Senate Committee on Legal and Constitutional Affairs in the study of Bill C-78. I would also like to thank the witnesses for sharing their views and those of the different groups they represented before the committee during the study of this bill.

As experts on this subject, their opinions were very valuable to us because we wanted to ensure that Canadians’ voices, especially the voices of children, were heard and reflected in the bill.

The needs of Canadian families have changed drastically since Parliament last amended the federal family laws over 20 years ago, dealing at the time with child support and taxation. The Divorce Act provisions on the care of children have not been amended in over 30 years, and the current law is silent on a number of challenging issues, such as relocation and family violence.

This bill offers the opportunity to modernize the family justice system by amending the Divorce Act and related federal legislation to better reflect the realities of families and better respond to their needs.

Bill C-78 is a key milestone in the Parliament of Canada’s efforts to improve the lives of Canadian families. Separation and divorce are a reality for many Canadians, as over 2 million children live in families with separated or divorced parents. We all recognize that the impact of separation and divorce can be wide-reaching, especially when children are involved.

The Minister of Justice indicated that the government has carefully monitored the views and perspectives of the public, family justice professionals and witnesses in response to the bill and has considered the recommendations that were received, some of which led to amendments to the bill in the other place.

I would like to touch upon some of the comments that were made throughout the course of the committee hearings and, in so doing, reiterate the objectives that Bill C-78 aims to achieve.

Several committee members and some witnesses expressed concerns about harmonizing the bill with provincial and territorial family laws and, in particular, with the Civil Code of Quebec. I would like to point out that federal legislation must reflect both common law and civil law traditions, in both official languages. Canadians must be able to read federal laws and regulations in the official language of their choice and be able to find the terminology and wording that reflects the concepts, notions and institutions specific to the legal system of their province or territory. This is how we give full effect to the principles of bijuralism and bilingualism.

Since family law is a shared jurisdiction, the Divorce Act must harmonize as much as possible with all provincial and territorial family laws. The two legislative systems must complement each other and not contradict or oppose each other.

To that end, the provinces and territories were consulted extensively in the development of this bill. Our chamber also asked the necessary questions to make sure this happened.

Bill C-78 proposes to update the terminology around parenting. The terms “custody” and “access” would no longer be used. Instead, all those involved in family disputes will now speak of “allocation of parenting time” and “decision-making responsibility.” Although not unanimous, most witnesses have applauded this proposed change towards more child-focused terminology. I would also point out that this was one of the recommendations made by the Special Joint Committee on Child Custody and Access over 20 years ago, by this Parliament.

However, concerns were raised at committee regarding the compatibility of the provision dealing with the allocation of parenting time and decision-making responsibility in respect of a child to an individual other than a spouse, particularly with respect to the provisions of the Civil Code of Quebec. It should be noted that the current custody and access provisions under the Divorce Act allow someone other than a spouse to obtain a custody or access order.

The bill provides that parenting orders may be made for those individuals who have or seek to have a parenting relationship with the child. This means that a non-spouse can apply for a parenting order, but he or she must first seek the court’s permission. For instance, grandparents could apply for a parenting order if their own child, who is one of the spouses, were incapacitated. This type of application would be exceptional, but would be possible if a court found that the application was in the best interest of the child, and only in the context of a divorce proceeding, which would avoid multiple parallel proceedings. In other cases, one would have to defer to the provincial law given that the Divorce Act does not apply, for example, in the case of the separation of unmarried spouses under provincial law.

One of the bill’s key objectives is to promote the best interests of the child as the primary consideration in all decisions relating to children. It is about always putting children first to ensure their security and well-being.

Throughout the parliamentary process, witnesses commended this legislation for its focus on the children’s best interests. Bill C-78 takes a child-focused approach and emphasizes the need to consider the best interests of the child in all parenting decisions. A non-exhaustive list of criteria is included in the bill to help all persons — parents, lawyers, social workers and judges — to determine what is in the best interests of a particular child. In determining the best interests of the child, courts will be required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Bill C-78 recognizes the important role that both parents can play in a child’s life. The bill also reflects social science evidence that it is generally of benefit for children to spend time with each parent after separation or divorce where the relationship with each parent is a positive one. The bill would require courts to consider effects to the principle that the child should have as much time with each parent as is consistent with that child’s best interests. The last words of this provision are key: “. . . as is consistent with the best interests of the child.” The child’s interests, including the primary consideration, are paramount.

Following concerns raised before the committee in the other place about how it was to be interpreted, the bill was amended to move this provision into the section on the best interests to further clarify this principle.

In their committee testimony, several witnesses raised concerns about the marginal note reading “Maximum parenting time” for subclause 16(6). They say the note could suggest a presumption of equal parenting time despite the fact that the clause itself emphasizes the best interests of the child.

To address that concern and make it clear that the child’s best interest is the only factor to be taken into consideration in any decision about that child, the Minister of Justice sent the chair of the Standing Senate Committee on Legal and Constitutional Affairs a letter in which he promised to make an administrative amendment to the marginal note to replace the words “maximum parenting time” with wording to the effect of “parenting time consistent with the best interests of the child”, which more accurately reflects the legislative intent behind the provision.

At committee, while a small number of witnesses expressed support for the addition of a presumption of equal shared parenting in the Divorce Act, most of them were strongly opposed to it.

Such a presumption would impose a one-size-fits-all model that does not work for all families and, as such, would go in many cases against the bill’s intention to promote the children’s best interests. Given that every family’s circumstances are unique, courts need the flexibility to tailor parenting orders to the needs of each particular child. It is also important to emphasize that when a parent is violent, such a presumption could be dangerous to children and would force the other parent to engage fees and efforts to rebut the presumption, imposing an unnecessary burden on the non-violent parent and otherwise would benefit the violent parent.

In keeping with its child-focused approach, Bill C-78 instead preserves the best-interests-of-the-child test as the only consideration for parenting orders. In so doing, it keeps the child at the centre of all decisions.

Addressing family violence is another important objective of this bill. The concept of family violence is currently absent from the Divorce Act. The family violence provisions in Bill C-78 aim to improve the response of the family justice system to family violence and to protect the well-being of children and the non‑violent spouse.

Though most cases of separation or divorce do not involve violence, those that do must be treated extremely seriously. The addition of family violence provisions has received undisputed support.

Family violence takes many forms, and the proposed definition of “family violence” demonstrates the complex and pervasive nature of such violence. Family violence is defined as:

. . . any conduct . . . that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person . . .

The proposed definition is intentionally broad. It includes not only single acts that are violent, threatening or cause fear but also acts that, by themselves, may not be considered violence but that would constitute violence when they form a pattern of behaviour aimed at controlling a family member. I want to emphasize that the term “pattern” in the definition only applies to coercive and controlling behaviour.

I would also like to emphasize that research demonstrates that coercive and controlling violence is predominantly exercised by men against women. By referring to this form of violence, the bill is highlighting a particularly dangerous and gendered form of family violence. This is in addition to the broad definition, which captures violence against any family member.

The definition also recognizes the particular vulnerability of children and the negative impacts of family violence on them. The definition states that in the case of a child, any exposure to family violence constitutes family violence in and of itself. In other words, the definition recognizes that exposure to family violence is a form of child abuse.

When making an order for parenting or contact, courts would be required to consider any family violence and its impacts, along with other orders, proceedings or measures relating to civil protection, child protection or criminal matters that are relevant to the best interests of the child. As previously mentioned, the primary consideration for courts would always be the physical, emotional and psychological safety, security and well-being of the child.

One suggestion raised during the committee’s study of Bill C-78 was that family law practitioners should be screening for cases of family violence. For screening to be effective, however, lawyers or other professionals involved in family disputes need training both on screening for family violence and on what to do with information about family violence obtained through screening. Provincial and territorial law societies are responsible for training requirements for lawyers. Therefore, it would not be appropriate for the federal government to put such a requirement in legislation.

I am pleased to report that the Department of Justice is undertaking a number of initiatives aimed at raising awareness and understanding of family violence in the context of family disputes, particularly among family law lawyers. For example, it is currently developing a new online course on family violence and a family violence screening tool for family law practitioners, both of which will assist lawyers to identify and respond effectively to evidence of family violence.

As you know, the bill also proposes a relocation framework to help families resolve disputes in this highly complex and litigated area. This issue requires a delicate balancing of interests, which, in my view, Bill C-78 has achieved.

The framework provides guidance to parties, lawyers and courts in relocation cases, which should facilitate resolutions of disputes based on relocation issues. The Canadian Bar Association and other witnesses expressed their approval with respect to the overall approach.

The Senate committee asked whether a gender-based analysis plus had been undertaken during the drafting of Bill C-78. The Minister of Justice said that an analysis had indeed been done to assess the potential impacts of the bill on diverse groups, such as women, men, people with other gender identities, as well as other factors such as use of official language, culture and income.

The analysis showed that men and women experience separation and divorce in different ways. Many of the parents involved in the family justice system are single parents and have limited funds to pay for legal assistance. Family breakdown has a greater than average economic impact on women, who run an especially high risk of experiencing financial difficulties as single mothers. On the other hand, more men than women pay child support.

According to Statistics Canada data, 96 per cent of support recipients registered in provincial or territorial maintenance enforcement programs are women, and 4 per cent are men. Men therefore tend to be more economically affected when the child support amount does not reflect their actual ability to pay. The amendments proposed in the bill take this analysis into account. This brings me to the other two key objectives of the bill, which are to reduce poverty and to make Canada’s justice system more accessible and efficient.

The risk of poverty after separation or divorce can be mitigated when parents and children receive the financial support to which they are entitled without delay. Obtaining fair child support is a key factor in reducing the risk of poverty, including child poverty. It has been proven that the sooner a fair and accurate amount of child support is established after parents separate and payments are made, the better the outcomes are for the children.

Parents have a legal obligation to provide financial support to their children. From now on, parents will also have an obligation to provide complete, accurate and up-to-date information to establish child support amounts. The information is also required by law to ensure that children continue to receive fair child support amounts based on up-to-date income information.

The bill also proposes amendments to the Garnishment, Attachment and Pension Diversion Act in order to allow for earlier garnishment of the wages of federal public servants where possible, so that families can receive the garnished money more quickly.

By increasing the efficiency of the support enforcement system, Bill C-78 will help address the feminization of poverty and help ensure that children receive the child support to which they are entitled in a timely manner.

Bill C-78 will also improve the Divorce Act framework for the recalculation of child support by allowing recalculation to occur upon request, rather than simply at regular intervals.

When the service is offered by a province, this measure will allow payors, who are predominantly men, who have a reduction in income to request a modification of the child support amount to reflect their actual ability to pay without having to go to court, thereby avoiding the accumulation of arrears.

Several measures are also included in this bill to provide additional guidance, information and tools to help parents better navigate the family justice system. The bill focuses on family dispute resolution processes, such as promoting the use of mediation, negotiation and collaborative law, which will make the family justice system more accessible and help divert people away from the courts, thereby saving time and resources for cases that require judicial intervention.

This legislation recognizes that family dispute resolution may not be appropriate for all families, as may be the case where there has been family violence or where there is a high level of conflict. Bill C-78 was carefully drafted to promote the use of the family dispute resolution mechanisms only when appropriate. I wish to add that I can hardly conceive when a mediation could be appropriate when the other spouse is violent or has adopted a highly conflictual approach.

Legal advisers, including notaries in Quebec, will need to evaluate each situation and each client’s circumstances, including whether there is violence or a power imbalance, before encouraging their client to use a family dispute resolution.

The last amendment I want to talk to you about is the one about official languages. The right to use either official language in divorce proceedings was proposed during the hearings of the Standing Committee on Justice and Human Rights and adopted in the other place. The bill will enable the parties to use either official language in all proceedings before the trial courts under the Divorce Act.

All parties will have the right to testify in the official language of their choice, which should be the norm not only in criminal law, but in all areas of Canadian law. The parties also have the right to be heard by a judge who speaks their language and to receive any judgment or order in the official language of their choice. This important amendment will improve access to the family justice system for francophone communities outside Quebec and New Brunswick.

I hope that, one day, First Nations families engaging in divorce proceedings will have access to a judge who understands their language. People going through divorce experience intense emotions that they would prefer to express in their mother tongue.

Honourable senators, in conclusion, we can all support the objectives of Bill C-78. These will significantly improve the lives of Canadians, especially for the benefit of children who must contend with their parents’ separation or divorce.

We heard divergent points of view from senators on some of the proposed amendments, but all were unanimous on one thing: Bill C-78 is an important piece of legislation that fills significant gaps in the area of family law.

Parliamentarians in the House of Commons from all parties, experts, family law professionals and witnesses all expressed support for Bill C-78. They have all asked us to work together to ensure that Bill C-78 is passed before Parliament rises.

The bill also received support from all provincial and territorial ministers of justice and public safety, including the Quebec Minister of Justice. It is now time for Canadians to benefit from this comprehensive and responsive federal family law amendment.

Honourable senators, I hope that you will join me in supporting Bill C-78 so that it can become law as quickly as possible, and thus benefit all Canadians.

Thank you, meegwetch.