Honourable senators, I rise to speak to the objectives 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.

I commend the government for bringing this bill forward. Opening the Divorce Act for significant reform is rare. This is only the fourth time in 50 years that we have taken this step.

Before delving into the specifics of this bill, I urge honourable senators to take a step back from the words on the page. Bill C-78 is a point on an arc, a continuation of fundamental shifts in how we understand and approach marriage and its break down.

Marriage and divorce provide an excellent mirror of the changing social values that have changed Canadian society forever. As late as the 1960s, marriage was seen as a lifelong unbreakable bond, with strong religious sanctions. Divorce was rare and difficult to achieve. While this institution provided comfort and stability for many, for others it meant a life of unhappiness and entrapment.

But all of that was about to change as a result of two revolutions. The baby boom generation and its values — those being suspicion of authority, desire for personal fulfillment and a desire to control one’s destiny — eventually came to dominate, and traditional marriage as we knew it was doomed.

The second revolution, the movement for women’s equality, demanded fairness for women and an active recognition of women’s contributions to society.

Who can ever forget the story of Irene Murdoch, the Alberta farm wife who was told by the Supreme Court of Canada, in 1973, that she did only what was expected of a wife, and that her claim for a share of the family ranch had no merit. Her case was a catalyst for family law reform and substantial changes to marital property laws in virtually all provinces in the following years.

At the federal level, the 1968 Divorce Act was the first major step ending state protection of marriage. It made divorce equally available to husbands and wives. It established a no-fault ground for ending a marriage, introducing the concept of permanent marriage breakdown as a ground for divorce. The 1985 revisions to the Divorce Act continued changes to the grounds for divorce, as well as to spousal support. The 1997 revisions focused on child support.

In 2005, Canada became the fourth country in the world to legalize same-sex marriage, and same-sex adoption is legal in all provinces and territories under varying rules.

We have other considerations as well. Over the course of the last 50 years, the rights framework has been enhanced in major ways. We must understand and apply international rights obligations, including the 1979 Convention on the Elimination of All Forms of Discrimination against Women, and several Hague conventions concerning the rights of children. We must understand and apply our own Constitution and its Charter of Rights and Freedoms.

We have learned a great deal about families and family law in these decades. Our society has changed and our human rights obligations have changed. I think we are now in another sweep of social change that involves confronting violence in all its forms, which brings me to Bill C-78.

I thank the Honourable Senator Dalphond for his excellent overview of Bill C-78. I fully support the objectives of the bill, which are to promote the best interests of the child, to address family violence, to reduce child poverty, and to make our family justice system more accessible and efficient.

Honourable senators, we can build on these important objectives. We can improve the bill, particularly with respect to addressing family violence and the related harms to women and children. And since the Divorce Act is our most used federal law, it behooves us to make it as good as we can.

I bring my own experience and knowledge to this and note that I am a director of the Women’s Legal Education and Action Fund, an organization with expertise on women’s equality rights.

Thank you.

In reviewing this bill, however, I am puzzled by two omissions with respect to gender equality and analysis.

First, the Charter statement tabled by the Minister of Justice on May 22, 2018, with respect to Bill C-78 is silent on how it meets section 15 of the Charter, the equality rights section. Thus, we do not have the benefit of the government’s analysis on how Bill C-78 addresses substantive equality.

Second, the government has not provided any GBA+ analysis of Bill C-78. We cannot continue to talk about the importance of gender and intersectional analyses and then fail to do these analyses, let alone fail to act on what they tell us.

I urge the committee studying Bill C-78 to take particular care to consider the extent to which the bill meets or does not meet our Charter obligations, as well as our international obligations mentioned earlier.

The Divorce Act creates a framework for the overall system. It provides direction for judges to apply in specific cases. Most couples decide for themselves how they will share parenting of their children after marriage breakdown. Although the Divorce Act is the most used federal law, litigation of parenting rights is relatively rare. However, the most complex and high-conflict cases are often decided by judges. It is our job to make sure that the governing legislation gives clear direction to the system overall and to judges in deciding specific cases.

Honourable senators, I propose that there are four ways we can ensure that Bill C-78 meets its objectives. My first point is that we should fully uphold and protect the primary direction set out in the bill. Clause 12 of the bill adds a new section 16 to the Divorce Act:

The court shall take into consideration only the best interests of the child of a marriage in making a parenting order or a contact order.

Our colleague Senator Dalphond has noted that this is a foundational legal principle in both Canadian and international family law. The strength of this test, which we have had since 1985, is that it clearly puts children, not parents, at the heart of the decision.

Senator Dalphond has pointed out that the bill does not include a presumption in favour of joint custody, as it is sometimes called, or a presumption in favour of equal shared parenting. I fully support this decision to reject introducing such a presumption.

If we went the route of presumption of equal shared parenting, in every case parents would share parenting and parenting time equally, unless one of them could show that there were reasons why the other parent should not have equal entitlement. This would make the best interests of the child secondary. The dynamics between parents would drive the court’s focus, time and resources.

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 parenting orders. For example —