Honourable senators, I rise today to support the broad principles of Bill C-78, An Act to Amend the Divorce Act and other related acts. First of all, I applaud the main principle of this bill. In any divorce process, the court will take only the best interest of the dependent child into account. This principle is already generally applied by the courts, but what is new here is that the bill codifies it and makes it central to the analysis, as the Civil Code of Quebec already does. This means that the amount of time the child spends with either parent will be determined on the basis of the best interests of each child. Nothing is automatic, which is a very good thing.

Society has evolved. Fathers are more involved in the lives of their children. There is still real inequality in the division of duties and responsibilities between fathers and mothers, but every divorce is different. It is high time that absolute respect for the best interests of the child is set out in law as a determining factor to guide judges, regardless of the arguments of the parents who, in acrimonious divorces, tend to put their own interests first. These laws have not been amended in more than 20 years despite calls for reform. Major responsibilities come with having children. From my perspective, there is no doubt that the well-being of those we bring into this world comes before our own. I am insisting on what may seem obvious to some, because all too often in my life I have seen cases where divorced or separated parents have put their own interests or their freedom before the interests of their children.

Let’s be clear, it is not always easy for a judge to determine what is in the best interests of the child, based on the information provided. This is a subjective notion. However, clause 16 of the bill makes a real effort to define this notion, calling on the court to give primary consideration to the child’s physical, emotional and psychological safety and well-being, based on more than 20 factors set out in the bill.

I now want to talk about the new terminology in the bill. After careful consideration, I more or less agree with most of the proposed terminological changes in this bill. They are confusing at first glance, but they are meant to be more inclusive, at a time when the definition of family is changing and, especially, more neutral terminology is being used. The idea is to avoid having the terminology reinforce the adversarial relationship between parents and consider children as objects. For example, instead of saying, “the child’s mother or father has custody or visitation rights,” the courts will now use terms that reflect the responsibilities of parents towards their children. The terms parenting order, parenting time and decision-making responsibilities will be used. The terms may seem a bit disembodied and we will have to get used to them. There is certainly a risk that they will be misunderstood in the beginning.

According to the Barreau du Québec, the “decision-making responsibility” of parents, a new term used in Bill C-78, is better defined than the concept of parental authority in the Quebec Civil Code. These responsibilities pertain mainly to the following issues, which are set out in Bill C-78: the child’s health, education, culture, language, religion, spirituality and significant extra-curricular activities. According to the Barreau du Québec, this limits the potential debate on the subjects over which parental authority can be exercised. We must make a serious education and outreach effort if we want this terminology to be understood by people going through a divorce who are already under a lot of stress.

I would now like to talk about family violence and another major concern that I have. Bill C-78 includes a detailed definition of family violence, which is cited as a factor to be considered in a decision. Of course, violence is a difficult subject, but it must be openly addressed in every relevant context, and divorce is one of them. The proposed definition is not an exhaustive one. It gives nine types of behaviour and begins as follows:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, 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 — and in the case of a child, the direct or indirect exposure to such conduct. . . .

Here are some numbers that explain why this definition is in the bill. Ninety-five thousand victims of family violence have been reported. That includes 17,000 children, 10,000 of whom were abused by a parent. Family violence most often affects women and girls. In 2017, women remained over-represented among victims of conjugal violence, accounting for almost eight out of 10 victims. Intimate partner violence was the most common type of violence perpetrated against female victims of violent crime in 2017. We are talking about 95,000 victims. Here again, Indigenous women are disproportionally affected by this type of violence.

What these numbers tell us, and what is missing from the bill, is that family violence is gender-based, and women and girls are more at risk than men. In fact, because the bill has to be inclusive — and I understand the need for that — it talks about persons and spouses, but never fathers and mothers, because the makeup and realities of families change.

Several advocacy groups for victims of domestic violence, including the Quebec Federation of Women’s Shelters, have asked that the notion of violence against women be included and defined in Bill C-78. One would think that the legislator intended to include domestic violence in the concept of family violence and to take it into account, but it is not stated in so many words, and the triggers for violence against women are specific and may have an impact on behaviour during divorce proceedings and after a separation.

On that topic, I want to highlight some concerns expressed by groups that specialize in fighting violence against women, concerns that I share. First, in determining the best interests of the child, the court must consider the ability and willingness of the spouses to communicate and cooperate with one another. A woman who has experienced domestic violence cannot cooperate and communicate with her ex as though nothing happened.

Second, in determining the best interests of the child, the court must consider whether the family violence is directed toward the child. Why overlook spousal violence as a factor, when it definitely has an impact on the child? Keeping mothers safe is another way to protect children.

Third, a woman who is a victim of domestic violence cannot participate in mediation with her ex, because she is too vulnerable, and the two parties would not have the equal footing needed to ensure successful mediation.

Lastly, violence and harassment do not end with divorce. A history of violence must be taken into consideration, even if the individual was never convicted, especially given that the risk remains significant after separation. Obviously, many judges already take history of violence and gender-based violence into account, but in order to spread that mindset, the terminology in the bill must emphasize violence against women and its distinct features.

Yesterday we had the opportunity to hear from Linda C. Neilson, a professor emerita and expert on domestic violence from the University of New Brunswick. Incidentally, I want to thank the bill’s sponsor, Senator Dalphond, for organizing this video conference. Dr. Neilson said that this bill is certainly a step forward, but she lamented the fact that it ignores the inequality between men and women and still makes the woman responsible for proving the father’s violent behaviour. Dr. Neilson said that spousal violence can’t be reduced to a mere relationship problem, since it has consequences for the whole family. She believes that we need mechanisms around the divorce process to assess the real risks of violence and to provide the necessary support when the victims do not report the problem. She said that domestic violence must be clearly defined as child abuse, as mistreatment.

In the same information session, Mona Paré, a legal expert from the University of Ottawa, also questioned whether Bill C-78 puts enough emphasis on the child’s opinion, in light of international agreements. She said that it is important to not only make sure that the child is heard during the proceedings, but also to indicate how the child’s opinion should be factored into the court’s decision on the arrangements.

Family law is a shared jurisdiction between the federal government and the provincial and territorial governments. For example, in Quebec, support payments are collected automatically. The changes proposed by Bill C-78 to make it easier to seize amounts owing under federal family law are welcome. However, there is also a major sociological difference between Quebec and the rest of Canada, which means that Bill C-78 will have less of an impact in Quebec.

My province is actually the champion of common-law relationships, not only in Canada but in all industrialized societies. Two thirds of Quebec women aged 34 and under, which means most young women, are common-law partners, not wives, and 63 per cent of children in Quebec are born outside marriage, which is a very large number. Just like marriages, these unions are not stable, and 50 per cent end in separation after 12 years.

Therefore, Quebec has a major challenge, and the new government of François Legault has promised to launch a process of reform. It is high time, because common-law partners and their children do not have the same protections as married spouses in the event of separation or divorce.

When a common-law relationship breaks down, children often suffer economically because legal protection for the lower-income partner is lacking. Three quarters of single-parent families are headed by women, and most of these families are the result of divorce or the breakdown of a common-law relationship. One quarter of families headed by single mothers live below the poverty line. In my opinion, the more vulnerable partner — typically the woman, but sometimes the man — should not be alone in bearing the burden of the couple’s decision to separate. The children’s well-being is at stake.

In conclusion, once my colleagues have voted on Bill C-78, the committee must study it thoroughly. Thank you for your attention.

Absolutely.

No, it’s not.

It’s not. It’s interesting enough that you’re noting it, because Quebec on some fronts is at the forefront of some issues.

I am going to continue in French because there are a lot of technical terms. Sorry about that. Quebec has not re-examined the issue of common-law relationships in a long time. Although we were pioneers on some issues, we haven’t been able to reach a social consensus to reopen this issue in a long time. The idea is that because these men and women chose to be in a common-law relationship, no rules would be imposed. There are rules governing child support, of course, but there are no rules about any kind of compensation for the lower-income partner, which means that many end up living in poverty.

Several other provinces, such as British Columbia, have made changes to their family law. A common-law relationship is not quite the same thing as marriage, but the investment each partner made is calculated so that neither partner loses out. That is a major sociological problem in Quebec. Even feminists are divided on the issue. Some say they don’t want to touch common-law relationships because that is their way of remaining free. Family assets are divided for married couples in Quebec. That is very important. Many women do not want to get married because they want to remain free, but this so-called freedom is causing serious poverty.