moved second 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 lead off the debate on 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.

Family law is a shared jurisdiction among federal, provincial and territorial governments. Parliament is responsible for marriage and divorce. We can therefore set the rules regarding shared custody of children and child and spousal support payments after a divorce.

The provinces and territories are responsible for married couples who choose to separate and not divorce, and for common-law families. In all cases, the provinces and territories manage issues connected to the division of property. The provinces and territories are also responsible for administering justice; providing family law services, including mediation; and enforcing child support obligations.

On July 1, 2017, over 14 million Canadians were living together as married couples and 3.5 million others were living together in common-law relationships. In total, 21 per cent of Canadian couples chose not to get married, a number that has been growing over the past 20 years. In Quebec, 40 per cent of couples are not married. In Nunavut, it is 50 per cent. In the Northwest Territories, it is 37 per cent, and in the Yukon, it is 32 per cent. However, the Divorce Act is still extremely important legislation since most couples are married.

As its title indicates, Bill C-78 proposes to amend three federal family related laws.

I will start with the amendments to the Divorce Act. The focus of many of the proposed amendments is on ensuring that parenting arrangements are based solely on the best interests of the child, which is a foundational legal principle in both Canadian and international family law.

The bill would ensure that the courts give primary consideration to the child’s physical, emotional and psychological safety, security and well-being when making any decision affecting a child.

The bill would also include a non-exhaustive list of factors to guide parents, family justice practitioners and judges in determining what is in the best interest of a child in a particular case. The list includes the child’s needs, the child’s relationship with parents and other family members, any plans for future care, the child’s views and preferences, where applicable, and the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations heritage.

The list also includes the ability and willingness of each parent to care for and meet the needs of the child and to communicate and cooperate with the other parent on matters affecting the child, along with the willingness of each parent to support the child’s relationship with the other parent.

Finally, courts would have to consider the existence of any family violence.

This bill does not introduce a presumption in favour of what it is often called joint custody. In 1998, in its report entitled For the Sake of the Children, the Special Joint Committee on Child Custody and Access noted that a presumption in favour of a particular parenting arrangement would not be in the best interest of any particular child. Bill C-78, therefore, does not contain any such presumptions, allowing the courts to tailor-make parenting arrangements on a case-by-case analysis to ensure each child’s best interests.

That being said, Bill C-78, like the current Divorce Act, recognizes that it is generally in a child’s best interests to maintain a close relationship with both parents.

The bill proposes the principle of maximum parenting time with each parent that is compatible with the best interests of the child. For example, studies have shown that it is never in the best interest of the child to be under the care of a parent who is violent with another parent or the child.

As a former Quebec judge who spent a lot of time dealing in family law, I’m pleased that the bill takes a similar approach to the one developed through Quebec case law under both the Civil Code of Quebec and the Divorce Act.

The changes made to the terminology regarding parental roles are yet another example of the important changes proposed in Bill C-78 to ensure the best interests of the child. In 1998, one of the main recommendations made by the joint committee that I mentioned earlier was to replace the terms “custody”, or “garde” in French, and “access right”, or “droit d’accès” in French, with more child-focused terminology.

The terms “custody” and “access right” give the impression that one parent is the winner and the other is the loser when the courts give orders regarding parental roles, which can often fuel debate between the parents about the best arrangement for the child. What is more, the terms “custody” and “access right” reflect the fact that, in the past, the law treated children as the property of their parents.

From now on we will talk about “parenting orders” instead of custody and access orders, “parenting time” and “decision-making responsibility”. This terminology acknowledges that parental responsibilities are acquired as soon as the child is born and survive the separation of the parents. Parenting time is the time a child spends with a parent. Decision-making responsibility means the exercise of parental authority.

The bill recognizes that, in principle, it is up to both parents to make important decisions regarding the child, such as those involving the child’s health and education.

In addition to parenting orders, Bill C-78 would allow grandparents and other important people in a child’s life to ask a court for a “contact order,” setting out specific times for them to spend with the child. While in most cases, parents facilitate contact between their children and other special people in their children’s lives, during one parent’s parenting time, these orders would be available as an option in situations where this is not possible. Of course, decisions about contact orders would also have to be based solely on the best interests of the child.

It is interesting to note that in 2016, 6.3 per cent, or 2.2 million, of Canadians were living in private households in a multi-generational household, where at least three generations of the same family live together. The number of these types of family households is constantly rising. Children growing up in these households are especially likely to develop close ties with their grandparents, and we must consider how best to preserve these ties in the event of divorce.

Another area of the law that has called out for reform is that relating to the relocation of a child after divorce. Relocation is a heavily litigated area of family law. In a 2016 survey of lawyers and judges, over 98 per cent of respondents indicated that family disputes are harder to settle when relocation is involved.

Bill C-78 proposes a new framework for changes in residence and relocations. It would require that if someone with a parenting order wants to move with the child, they would have to notify other people with a parenting order or contact order for that child. There would be different notice requirements depending on the significance of the proposed move. However, a court would be able to modify or dispense with the notice in particular cases, such as where there is a situation of family violence. These provisions would promote the safety of family members, especially the parent who wants to move in cases of family violence, often the mother.

The bill will give the non-relocating parents the alternative of indicating their opposition through a prescribed form. If the non-relocating parent chooses to reply by form and the parties could not come to a resolution, it would then be up to the parent seeking to relocate to bring a court application.

Requiring that notice be provided using a prescribed form and allowing for the use of a form to respond rather than a court application should ensure better access to justice, simplify the procedures and reduce costs. It will also promote clarity and reduce the frustrations that come with the late notice.

The framework also provides that, as a starting point, if a child spends relatively equal time in the care of each parent, the parent proposing a relocation will have to prove why the move is in the best interests of the child. On the other hand, if the child spends the vast majority of the time in the care of one parent who is proposing to relocate, the other parent would have the burden of proving to the court that the relocation would not be in the best interests of the child. Again, these burdens of proof would be a starting point only when the parents do not agree, and a judge would ultimately have to decide whether the proposed move is in the best interests of the child.

Honourable senators, I will now turn to another key objective of Bill C-78, which is to address family violence. Unfortunately, family violence is a devastating reality of life for many Canadians — too many. According to Statistics Canada, in 2014, approximately 760,000, 4 per cent, of Canadians living with a current or former spouse or common-law partner reported having been physically or sexually abused by their partner in the preceding five years.

Research clearly shows that separation and divorce can exacerbate an already violent relationship, and the period following separation is a time of heightened risk, particularly for women. According to Statistics Canada, again from 2007 to 2011, a Canadian woman’s risk of being killed by a legally separated spouse was nearly six times higher than the risk of being killed by a legally married spouse. Separation brings a rise in the violence.

Moreover, children who experience family violence can suffer profoundly — physically and psychologically — from this violence. The trauma that comes from being a direct victim or just witness to family violence can impair a child’s brain development and negatively affect them for life.

For example, a longitudinal study by McMaster University, which will be published in the March issue of the American Journal of Public Health, found that the prevalence of childhood physical abuse among Canadian inmates was 48 per cent, and the prevalence of childhood emotional abuse was 52 per cent, with no significant differences between male and female inmates. In simple terms, about half of Canada’s inmates were abused as children.

Clearly, family violence is highly relevant in the family law context, particularly in relation to decisions about how the parenting arrangement that should be made. However, the current Divorce Act is silent on the issue of violence. Bill C-78 would remedy this through a number of important measures.

First, as I said, Bill C-78 would require judges to take into account family violence when deciding on parenting arrangements that are in the best interest of the child.

Second, the bill defines family violence as 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. As such, cases where the child is not the direct target of the act of violence would be covered by the proposed definition. This is very important because, according to a 2014 Statistics Canada study, 51 per cent — over half — of the victims of spousal violence said they believed their child had seen the violence take place.

Bill C-78 would impose a duty on the court to consider whether any orders relating to criminal matters, civil protection orders, or child protection order, including orders restricting communication, are pending or in effect before issuing orders for financial support and parenting time.

Another aspect of Bill C-78 that is designed to protect children are the provisions that could help to prevent parental child abduction. The most common form of child abduction is by a parent. Thus, in addition to the relocation provisions that I have already outlined, the bill provides that judges could require that parenting time or the transfer of a child from one parent to the other be supervised. Judges could also include a non-removal clause in a parenting judgment or in a contact order that prohibits the removal of the child from a specific geographic area without the consent of the court or of specified persons.

With respect to amendments to the Divorce Act relating to access to justice, I want to focus on proposed amendments concerning official languages.

The House of Commons approved an amendment, which was adopted by the Standing Committee on Justice and Human Rights, that explicitly recognizes the right to use either official language in the lower courts in divorce proceedings.

Inspired by the Criminal Code, the new provision will allow either party to file pleadings under the Divorce Act, to give evidence, and to be provided with the lower court’s judgment in the official language of their choice.

There are many other proposed amendments to the Divorce Act that are aimed at improving access to justice. This is critical considering the number of Canadians directly affected. A 2016 report by an NGO called Canadian Forum on Civil Justice found that in a given three-year period, 5.1 per cent of Canadian adults — that is over one million Canadians — will face a family law problem. Given the rising costs of legal actions and the reduced access to legal aid for middle-income families, more and more Canadians are forced to face the often complex family justice system by themselves. Based on the limited provincial and territorial statistics available, Justice Canada estimated in 2012 that between 40 and 57 per cent of parties involved in family disputes self-represent and appear before a court without legal assistance.

Bill C-78 proposes various changes to alleviate this burden. For example, the bill would promote the use of family dispute resolution services instead of court, which are less expensive and less time-consuming than court proceedings, and often help parties to come to an agreement with less conflict.

Bill C-78 would also make family justice more accessible by enhancing the ability of administrative services to perform certain tasks that are otherwise performed now by the courts. It would permit provinces to enter into agreements with the federal government to authorize a provincial child support service to establish the initial child support amounts administratively instead going to a judge.

Bill C-78 would also address certain operational challenges that currently exist with respect to administrative recalculation of child support, for example, by providing rules allowing for the deeming of income if a parent refuses to disclose income and an annual periodical readjustment by provincial services instead of by a judge.

Bill C-78 proposes various changes to two other acts to improve the tools available to enforce child support orders and ensure that families receive the support they are entitled to.

In 2016, nearly two out of 10 children aged zero to 14 were living in single-parent families. Eighty-one per cent of them lived with their mother and 19 per cent lived with their father. It is important for all those parents, especially in single-parent families, to get their child support payments.

Lastly, the bill would amend the Family Orders and Agreements Enforcement Assistance Act to allow the Government of Canada to release information about a person’s income to a court to establish or vary a support order.

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In Alberta, for example, 30 per cent of the morning family chambers docket at the Court of Queen’s Bench is related to income disclosure issues. These situations overburden both the family justice system and the families. Bill C-78 proposes a simple measure to lessen that burden with administrative communication of information on an automatic basis.

Bill C-78 also proposes to amend the Garnishment, Attachment and Pension Diversion Act, also called GAPDA, to enshrine into the act the priority of child and spousal support payments over any other debts except for Crown debts. This priority is already a matter of government policy.

These amendments aim to improve the effectiveness and efficiency of both the garnishment and pension diversion processes under GAPDA. For example, the bill would amend GAPDA to allow for the earlier interception of federal salary so that support recipients can receive the support to which they are entitled more quickly. The bill would also improve the process by which provincial enforcement programs submit an application for pension diversion on behalf of a support recipient by eliminating the requirement that a certified copy of the support order be submitted with the application. This would eliminate the costs and time incurred by support creditors to obtain such a document.

Before I conclude, I would like to note briefly that Bill C-78 is the federal implementing legislation for two international family law conventions: the November 23, 2017 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, and the October 19, 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

Although Canada has signed these conventions, it is not yet a party to either. Aligning federal family laws to conform with the conventions is an essential step towards Canada becoming a party. Further steps towards implementation of the conventions within Canada will be taken in collaboration with the provinces and territories in light of the fact that the conventions will apply only in provinces and territories that have amended their own laws to be consistent with the conventions and have asked the federal government to have the conventions applied to them.

Honourable senators, I look forward to our discussions on Bill C-78 that will affect the lives of millions of people. At the same time, I strongly urge you to support this legislation, as did all the political parties in the other place. I have every confidence that the measures set out in Bill C-78, which aim to promote and protect the best interests of children and address family violence, make the family justice system more accessible and efficient, and help to reduce poverty that will lead to better outcomes for Canadian children and their families.

Thank you. Chi meegwetch.