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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, March 27, 2003

0905

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Hon. Martin Cauchon (Minister of Justice)

0915

0920

The Chair

Mr. Jay Hill (Prince George—Peace River, Canadian Alliance)

0925

Mr. Martin Cauchon

0930

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Mr. Martin Cauchon

0935

Mr. Richard Marceau

Mr. Martin Cauchon

Mr. Richard Marceau

Mr. Martin Cauchon

Mr. Richard Marceau

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

0940

Mr. Martin Cauchon

Mrs. Marlene Jennings

Mrs. Virginia McRae (Senior General Counsel, Family, Children and Youth Section, Department of Justice)

Mrs. Marlene Jennings

Mrs. Virginia McRae

The Chair

0945

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. Martin Cauchon

Mr. Lorne Nystrom

Mr. Martin Cauchon

Mr. Lorne Nystrom

Mr. Martin Cauchon

Mr. Lorne Nystrom

Mrs. Virginia McRae

0950

Mr. Lorne Nystrom

Mrs. Virginia McRae

Mr. Lorne Nystrom

Mr. Martin Cauchon

The Chair

Mr. Jay Hill

Mr. Martin Cauchon

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

0955

Mrs. Virginia McRae

Mr. Paul Harold Macklin

Mrs. Virginia McRae

The Chair

Mr. Richard Marceau

Mr. Martin Cauchon

Mr. Richard Marceau

1000

Mr. Martin Cauchon

Mr. Richard Marceau

Mr. Martin Cauchon

The Chair

Mr. Pat O'Brien (London—Fanshawe, Lib.)

1005

Mr. Martin Cauchon

The Chair

Mr. Jay Hill

1010

Mr. Martin Cauchon

The Chair

Mrs. Marlene Jennings

Mr. Martin Cauchon

1015

Mrs. Marlene Jennings

The Chair

Mr. Richard Marceau

Mr. Martin Cauchon

Mr. Richard Marceau

Mr. Martin Cauchon

Mr. Richard Marceau

Mr. Martin Cauchon

Mr. Richard Marceau

The Chair

Mr. Paul Harold Macklin

Mr. Martin Cauchon

1020

Mr. Paul Harold Macklin

Mr. Martin Cauchon

The Chair

Mr. Jay Hill

M. Martin Cauchon

Mr. Jay Hill

Mr. Martin Cauchon

Mr. Jay Hill

1025

Mr. Martin Cauchon

Mr. Jay Hill

Mr. Martin Cauchon

Mr. Jay Hill

Mr. Martin Cauchon

Mr. Jay Hill

Mr. Martin Cauchon

Mrs. Marlene Jennings

Mr. Martin Cauchon

Mrs. Marlene Jennings

Mr. Martin Cauchon

1030

Mrs. Marlene Jennings

The Chair

Mr. Richard Marceau

Mrs. Virginia McRae

Mr. Richard Marceau

Mrs. Virginia McRae

Mr. Richard Marceau

Mrs. Virginia McRae

The Chair

Mr. Paul Harold Macklin

Mr. Martin Cauchon

1035

Mr. Paul Harold Macklin

Mrs. Virginia McRae

The Chair

Mr. Jay Hill

1040

Mr. Martin Cauchon

The Chair

Mr. Jay Hill

M. Martin Cauchon

Mrs. Marlene Jennings

1045

Mr. Martin Cauchon

Mrs. Marlene Jennings

Mrs. Virginia McRae

The Chair

Mrs. Virginia McRae

The Chair

Mr. Jay Hill

Mr. Martin Cauchon

Mr. Jay Hill

1050

Mrs. Virginia McRae

Mr. Jay Hill

Mr. Martin Cauchon

The Chair

Mr. Jay Hill

1055

Mr. Martin Cauchon

The Chair

Mr. Martin Cauchon

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 028

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, March 27, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): Good morning. Bienvenue.

I call to order the 28th meeting of the Standing Committee on Justice and Human Rights. Today we'll be introducing Bill C-22, an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act, the Judges Act, and other acts in consequence.

To open up this exercise, we have before us today the Honourable Martin Cauchon, Minister of Justice, and Virginia McRae, senior general counsel with the family, children, and youth section of the Department of Justice.

I understand from the minister he will be presenting for approximately twenty minutes. That will give us ample opportunity to engage in dialogue following.

Welcome, Mr. Minister. Please proceed.

[Translation]

Hon. Martin Cauchon (Minister of Justice) : Thank you very much, Mr. Chairman.

Good morning, colleagues, I am very pleased to be with your today to discuss Bill C-22, as the Chairman has just mentioned, which is the Act to Amend the Divorce Act and Other Acts in consequence thereof. This morning, I would like to examine with you the approach this legislation takes to certain fundamental issues facing families affected by a separation or divorce.

As you mentioned, Mr. Chairman, I am accompanied today by our Senior General Counsel for the Family, Children and Youth Section, Ms. Virginia McRae, who will be taking part in the question period following my short statement.

Every year, a great many Canadian children are affected by the separation and divorce of their parents. The Government of Canada wants to help these children and their parents come through that difficult period.

Last December, I announced the Child-Centered Family Justice Strategy. It is the cornerstone of the Government of Canada's commitment, announced in the 2002 Speech from the Throne, to modernizing the family justice system in Canada. The three pillars of that strategy are : family justice services; expansion of unified family courts; and, legislative reform.

With respect to family justice services currently in place, funding will be provided to the provinces to allow them to maintain and expand services where required. These services--for example, mediation and information about the judicial process--are of tremendous assistance to families.

Also, with the expansion of unified family courts, all family law cases will now be decided by a single jurisdiction, and access to support services will be facilitated. This will not only improve the system but reduce conflict by offering a more user friendly environment, where procedures are simplified and therefore less adversarial.

Finally, we are proposing to amend the Divorce Act by reiterating the principle that the best interests of the child are paramount, while at the same time eliminating the kind of terminology that fosters a winner-loser mentality. These changes once again emphasize that the needs of the children are and must continue to be the top priority in cases involving separation or divorce.

Taken together, the three pillars of this strategy will help parents focus on their children's needs and ensure that the best interests of the children are the primary consideration.

I would now like to deal specifically with Bill C-22, which represents the legislative component of this broad strategy.

During the debate on the Bill at second reading, some comments were made to the effect that we had not adopted a presumption of shared parenting. In my view, presumptive shared parenting or any other such presumption is not the answer. If we go down that path, it is quite possible we would be facing a whole new set of problems.

The concept of shared parenting has become associated with a legal presumption that only parenting arrangements that meet the following conditions can be considered valid: first of all, that the child spends an equal amount of time with each parent; and second, that both parents jointly make decisions about the child. Imposing shared decision-making on parents unable to deal with each other without experiencing conflict can, in my view, lead to even more conflict. That is certainly not ideal for the children, and certainly cannot be deemed to be in their best interests. It is quite the opposite we are seeking.

[English]

Canadian families are diverse, and we should not undermine that diversity by presuming that any one type of parenting arrangement is better than another. Rather, these reforms provide both parents and the courts with the flexibility to make parenting arrangements that are unique to children's best interests without imposing one type of arrangement on every family in every case.

We should not talk about parents' rights. Instead, we should talk about parents' responsibilities. Children must come first. Every child's situation is different, and we must strive to help families find workable solutions without imposing one regime on every child and every family. As I have said before, one size does not fit all.

Having said this, colleagues, let me emphasize again that the proposed reforms clearly allow parents and the courts to allocate parental responsibilities equally to both spouses where appropriate.

I've also heard people ask why the maximum contact principle was removed. Let me explain.

All of us agree that children deserve the love and attention of both parents, and where appropriate both parents should be involved in the decision-making and upbringing of their children. Currently the Divorce Act states that the court is to take into consideration only the best interests of the child, but then it singles out one factor--the maximum contact principle--that is relevant to the best interests of the child. This is problematic, because even as worded under the current act, the maximum contact principle is not absolute, but is subject to the best interests of the child.

Under the proposed legislative approach contained Bill C-22, a list of best interests criteria has been developed that parents and the courts would consider in determining the best interests of the child. It maintains the best interests of the child as the only test for making an order relating to parenting arrangements and includes a new list of factors for the parents, legal professionals, and the courts to consider in determining the best interests of a child in each case.

One of these criteria is in proposed paragraph 16.2(2)(b), which requires the court to consider

The benefit to the child of developing and maintaining meaningful relationships with both spouses, and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse.

It highlights the importance of each parent in the child's life. This criterion is similar to the existing maximum contact principle and also encompasses the friendly parent rule. Therefore it only makes sense to place it under the best interests criteria for the court to consider. As with all the other best interests criteria, this criterion will be given a weight that is appropriate to the individual circumstances of the child.

Another point that has been raised during the debate in the House of Commons is the valuable role grandparents often play in children's lives. Bill C-22 acknowledges this important relationship in proposed paragraph 16.2(2)(i) by making them one of the factors the court must consider when determining parenting arrangements.

¿ (0915)

[Translation]

Mr. Chairman, colleagues, it is important not to lose sight of the fact that the primary objective of the Divorce Act is to resolve issues directly related to divorce. Consequently, Bill C-22 will continue to require that persons other than the ex-spouses receive the authorization of a court of law before obtaining a contact order affecting a child.

With respect to the criterion set out in sub-paragraph 16.2(2)(c), which relates to the history of care for the child, we believe that the courts should also give consideration to this factor, given its importance in determining the child's best interests. Indeed, it is a way of ensuring the children will continue to benefit from the stable, uninterrupted care they require during a particularly painful period in their lives, which is absolutely crucial in ensuring that the best interests of the children are considered. This criterion will require a court of law to consider all the persons who have a relationship with the child. For example, if an aunt, uncle or grandparent has taken an active role in caring for a child on a daily basis, it is important that the court be aware of that in determining who will be covered by the parental order or contact order.

In addition, the government is fully aware of the fact that children who witness or are themselves victims of family violence suffer serious harm. That is one of the reasons why the court will be asked, as set out in sub-paragraph 16.2(2)(d), to consider any family violence in developing its parenting order.

Although the case law recognizes that this is a relevant factor, in actual practice, court decisions have been inconsistent in cases involving family violence. Under the changes proposed to the Act, this factor will be considered as part of the criteria for determining the best interests of the child. Because we are aware of the importance of allowing the court to exercise its discretion and providing it with the necessary latitude to satisfy the interests of the child in every case--and at times, because of the seriousness, persistent nature or effects of family violence--the court will be able to make this a prime consideration in making a parenting order that ensures the safety and well-being of the child.

However, in other situations, the Bill does authorize the court, to look at the nature and incidence of violence--for example, if we are aware that exposure to violence against other members of the family could be as harmful to the child as being the subject of abuse. So, the court will have to weigh that factor in relation to other important considerations in determining the best interests of the child and can, therefore, decide to impose restrictions on parenting time by ordering supervision during a parental visit, for example.

[English]

I would like to highlight one last criterion in the best interests list, specifically paragraph 16.2(2)(l). This criterion directs the court to consider any court order or criminal conviction that might be relevant to the safety or well-being of a child. This provision addresses the concern expressed by the honourable member for Red Deer in his private member's bill, as the courts would have to consider both criminal and civil orders when determining parenting arrangements.

Even in situations where the order or criminal conviction does not directly concern the child, such as when an individual applying for a parenting order or a contact order has a criminal conviction for a sexual offence against a child who is not a member of the family, it will be considered relevant by the court, as it touches upon the safety or general well-being of the child. I thank the honourable member for bringing a situation like this to light.

As I alluded to earlier in my remarks, Bill C-22 removes the terms “custody” and “access,” terms long viewed as contributing to a winner-loser mentality. We have adopted a new approach, based on allocating parental responsibilities, which will help parents focus on the best interests of the child. It will also provide greater clarity to parents about their respective roles after separation and divorce.

This bill would also amend the Judges Act and provide resources for 62 additional judges for unified family courts. Expansion of the unified family courts as a means of delivering centralized and specialized decision-making is expected to reduce confusion and stress for families and facilitate timely long-term resolution of family law matters.

One judge will have jurisdiction to hear all issues affecting the family and will be able to provide a consistent and holistic approach to their resolution. Easier access to family and justice services, along with increased funding, would also provide greater support for families undergoing the trauma of separation and divorce.

Ladies and gentlemen, while our time here today is dedicated to the discussion of Bill C-22, I would be remiss if I did not say that in developing new legislation, it is important to recognize its limits and to have reasonable expectations about what it can accomplish. The proposed amendments to the Divorce Act are only part of the government's much broader approach to family justice. That is why the federal government has committed $163 million over the next five years to the child-centred family justice strategy to support the objectives of this legislative reform through funding for family justice services and expansion of unified family courts.

Canadians are eager for us to enact this bill and move on to the important implementation stage. As Minister of Justice and as a parent myself, I believe in the importance of putting children first. I am committed to supporting this legislation, which will have long-lasting benefits for Canadian children.

I ask members of the committee to work together to renew the family justice system and ensure that it is fair and more effective for all Canadians.

[Translation]

Mr. Chairman, I believe this reform strategy will allow us to build a better, less adversarial justice system that will provide significant benefits to both children and their families. Focusing on the best interests of the child and parental responsibilities, rather than on parents' rights, promoting cooperation between parents, reducing conflict and ensuring the safety of Canadian families will be our main priorities as we pursue our efforts to achieve positive outcomes for children going through a family break-up.

I sincerely hope that Bill C-22 will make a positive contribution to meeting the needs of Canadian families.

Mr. Chairman, members of the Committee, thank you for your attention. I am, of course, available to answer your questions.

[English]

Thank you very much, Mr. Chairman.

¿ (0920)

The Chair: Merci, Monsieur Cauchon.

To Jay Hill, for seven minutes.

Mr. Jay Hill (Prince George—Peace River, Canadian Alliance): Thank you, Mr. Chairman.

Thank you, Mr. Minister, for your presentation this morning. I'd like to say at the outset that we all agree with some of the stuff you've said. We would probably like to agree that, in your summation, Bill C-22 will result in a wonderful contribution to fairness and equity in the situations families find themselves in when they go through a divorce. I guess that will remain to be seen.

One of the things I can agree on is that the new thrust of any changes to the Divorce Act should not talk about parents' rights; rather, we should focus on parents' responsibilities. Certainly that's something we can all agree on.

I've voiced my problem with this before, and I know you heard my comments and noted them in debate during second reading in the House. It seems to me and to many people out in the real world outside of Ottawa who were so looking forward to the changes that would be brought about by these amendments to the Divorce Act that you and the justice department, in drafting Bill C-22, have not listened to the recommendations of the joint committee on the fundamental principle of shared parenting that's included in the report “For the Sake of the Children” and is enshrined throughout that report. You've alluded to that in your remarks here this morning.

I remember what you said in the House of Commons in response to a question from me on the issue in question period. You felt that to have shared parenting included in any way in the act would be confusing. I would argue that it would do the exact opposite, and bring greater clarity. You said at the end of your statement this morning that you were looking for greater clarity.

With that as a background, I'd like to start at the beginning. The first two recommendations of the 48 recommendations included in “For the Sake of the Children” begin with a preamble. It notes the adherence of our country, when we signed onto the United Nations Convention on the Rights of the Child, to the fundamental right of the child to have contact with both parents. I believe it says under article 9:

Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis....

This is very similar to what we had before. The so-called maximum contact principle or rule you mentioned has been dropped in Bill C-22 and has been replaced with paragraph 16.2(2)(b), which uses the phrase “meaningful relationships with both spouses.” I would argue that is dramatically different. Meaningful relationships with both spouses can be taken by the courts and by a judge to mean almost anything, and that is certainly different from direct contact with both parents on a regular basis.

Why was the decision made to not follow through on the recommendations of the report “For the Sake of the Children”, specifically where it deals with a preamble that would set the tone for the act itself and enshrine the concept or principle of shared parenting and equal responsibilities, which you said you wanted?

Why specifically was the maximum contact rule dropped when it is so dramatically different in its language, tone, and the direction it would send to judges and courts? There's a dramatic difference between “direct contact with both parents on a regular basis” in the UN Rights of the Child and “meaningful relationships with both spouses”.

¿ (0925)

Mr. Martin Cauchon: Mr. Chairperson, I'd like to thank the member for raising those very important points. Of course, those points have been raised in the House of Commons, including by the honourable member who's asking the questions this morning.

The first question is in regard to the notion of shared parenting, which we've had a lot of discussion on. Before I start, I would just like to tell you that when you look at the bill itself, we've accepted in principle most of the recommendations of the joint committee. When you talk about the notion of shared parenting, the aim and goal of this bill is to put in place a new philosophy to make sure that we're going to have a system that is seen to be less adversarial, making sure that both parents can come together, have access to mediation services, and prepare and agree on parental arrangements. In a nutshell, this is the philosophy of the bill.

While we know that the notion of shared parenting has been accepted in other countries, including Australia and the U.K., it is seen today from a legal standpoint as creating a presumption of equality of rights, and therefore as being more adversarial. According to what we have seen, it means spending more time in courts. So we've decided to move ahead with the notion of parental responsibility because, as you said, you like the fact that people have responsibility vis-à-vis the child. We're not talking about rights, which both you and I support.

The notion of parental responsibility sends a strong message to both parents. At the end of the day, it doesn't mean that after discussion between both parents, or after they have had to proceeded to court, they won't end up having equal responsibilities vis-à-vis the child. So the door is open for this result as well. But we do believe the notion of parental responsibility is more flexible and less adversarial. This was key for our department, and key for us following the discussions we've had with some people.

Now, regarding the convention you have raised, the basic principle of that convention is to be defined everywhere in the bill. You know that the basic principle is the best interests of the child. It was there before, and it is still there in Bill C-22. It is really the cornerstone of the bill, and I guess all people are supporting this.

As for the question about the maximum contact, the big difference today is that this notion has been incorporated in the list of criteria to be taken into consideration in the bill. You have referred to that section of the bill. Even though the principle was drafted differently before, it was more or less the same principle. As I said in my speech, even before, the maximum contact principle had to face some limits as well. Each and every time you apply such a principle, Mr. Chairman, we have to take into consideration the best interests of the child.

So in taking into consideration the best interests of the child today, if both parents can talk to each other they will have to go through a list of criteria, including what you have alluded to, which is to say the principle now to be found in proposed paragraph 16.2(2)(b) of Bill C-22. I would just like to be clear with the committee that the list of criteria in proposed subsection 16.2(2) is not exhaustive. So depending on the facts and circumstances in every case, Mr. Chairman, the courts could use other criteria as well.

I thank the member for those very important questions.

¿ (0930)

The Chair: Monsieur Marceau.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much, Mr. Chairman.

Minister, thank you for being with us this morning. I'm afraid we are going to have to skip rather quickly from one topic to another, given that your time this morning is limited, and the subject area, very broad.

To begin with, I would like to talk about unified family courts. The Constitution gives the provinces a prominent role with respect to civil law and the administration of justice. Were it to be adopted in Quebec, the unified family court approach would practically mean transferring powers currently exercised by the Court of Quebec to the Superior Court, thereby removing much of the Court of Quebec's jurisdiction. In 1997, the federal government made a similar proposal that was rejected by Quebec.

What I would like to know is whether a province that decides not to adopt your proposal for unified family courts and prefers to keep its current system would be penalized monetarily. For example, if Quebec decided not to adopt this approach, would it still receive a proportionate amount of funding, based on its population?

Mr. Martin Cauchon: That is an important issue, Mr. Chairman. We are moving forward with the unified family courts approach for a number of reasons. We began quite modestly, but the results were quite conclusive. Services will now be organized within a single court. The judges assigned to those courts will be experts in the field and be fully familiar with the services that can be recommended to families facing particularly difficult circumstances. It should also be mentioned that these services will be delivered by the provinces.

Through this legislation, we are aiming to create 62 new positions in the unified family courts. As the Member just mentioned, approximately 75% of those 62 positions will be assigned to judges currently with provincial courts who will be transferred to higher courts, or, superior courts, as they say in Quebec.

When all of that is completed, all of Canada will be covered, except for the province of Quebec which has not requested to be part of the unified family courts. It is important to realize that the provinces must make the request in order to access the program.

As for the monetary issue, funds will be allocated to all provinces. A province that decides not to participate will not be penalized. The current mechanism is quite a simple one. I would just like to repeat the figures, because they are important. Over the next five years, $163 million will be invested in this initiative. Of that amount, $68 million will go to the provinces and territories or non-governmental organizations. Of that $68 million, $63 million will go directly to the provinces. So, the provinces will receive their share of the $63 million as a matter of course. Then there is an amount of $47.3 million for the unified family courts. We are talking about 62 new positions.

So that is the situation with respect to the unified family courts. When an investment is made in a new position, the money made available to the province must be reinvested in the family law system, and $47 million will be used by the Canadian government to implement the reform and fund not only research but various family law pilot projects across the provinces.

So, all the provinces will be treated equally and appropriately. When the system of unified family courts has been completely implemented, only one province will not benefit from that system, not because it doesn't want to, but because I believe the request will not be made, although we maybe shouldn't be making assumptions about what will happen.

As for the jurisdictional question, the Superior Court has jurisdiction to handle divorce cases, including the whole matter of child support when parents divorce--previously the terms “custody rights” and “visiting rights” were the terms used--and the Court of Quebec is responsible when people who are living common law decide to separate, or when married couples decide to separate without asking for a divorce. So, constitutionally, jurisdiction in that area is shared between the two courts.

¿ (0935)

Mr. Richard Marceau: We'll come back to that. I want to cover a couple of other points with you.

In Bill C-22, some significant changes are made to the Criminal Code, including proposed clause 282, which relates to child abduction. Some people have said that the wording you are proposing would impose significant restrictions on the opportunities for prosecution in actual cases of child abduction. Is this something you specifically looked at in deciding to change the wording? Section 282 of the Criminal Code, as it is currently worded, operates relatively well and would only require minimal changes, in order to be consistent with the new Bill C-22. Why are you proposing such significant changes to section 282?

Mr. Martin Cauchon: The question you have raised is an important one and essentially relates to clause 17.1. What I can tell the Committee is that we are currently working with all the provinces to develop terminology that will allow us to meet the objective you have referred to with respect to the Criminal Code. All I can say today is that we are currently in discussions with the provinces. We are perfectly aware of the issue raised by the Hon. Member. So, the basic issue is dealt with in clause 17.1. We are, as I say, now working with the provinces to try and refine the terminology so that it is consistent.

Mr. Richard Marceau: So, you are open to changes.

Mr. Martin Cauchon: Yes, absolutely.

Mr. Richard Marceau: Thank you very much.

The Chair: Ms. Jennings, you have seven minutes.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Mr. Chairman.

Minister, thank you for your presentation. I intend to focus my comments and questions on one particular aspect of the Bill.

When a court order grants physical custody of a child to one of the parents, it happens that the other parent, who has visiting rights, will abduct the child and leave Canada. I have seen three such cases in my own riding. Fortunately, the three cases resulted in a positive outcome for the children and for the parent who had custody of the child, thanks to the assistance of the federal Department of Justice and the Ministry of Justice in Quebec. But in all three cases, Canada had no treaty with the country of origin of the parent who had abducted the child. In those countries, custody of a child is never granted to a women, as long as the father is alive. In both cases, the mother had custody of the child, and in the other case, the father had custody. So, the parents with custody submitted the court orders, but they were not considered.

What provisions are there in the Bill to penalize or sanction parents who abduct a child from the home, where custody has been determined through a court order? I even know of one case where the mother who had abducted the child faced criminal prosecution. It took three years for Interpol and the RCMP to finally locate the woman outside of the country. She was brought back to Canada, where she was acquitted by a criminal court, and then went back to family court to challenge the order giving custody of the child to the father.

¿ (0940)

Mr. Martin Cauchon : Well, you are basically asking two questions.

The first one has to do with abduction and what is currently provided for under the Criminal Code. The second relates to The Hague Convention, which is intended to ensure that children can be sent back to their country of origin when an abduction has occurred, which is precisely the circumstance you were referring to.

As for the Convention, we are also in discussions with the provinces about this, because the Convention relies on such concepts as custody and visiting rights. We are now working with the provinces to ensure that the terminology we have used in Bill C-22 will be consistent with the Convention, so that we can fully benefit from the principles it upholds. We are very much aware of the issue you have raised. And I just want to say that this is an important question.

So, there are two parts to this : the Criminal Code and The Hague Convention. We're working on the terminology, in order to continue to benefit from both the obligations and principles set out in the Convention.

Mrs. Marlene Jennings : With respect to treaties we've signed with other countries recognizing court orders or decisions in the area of family law and child custody, I would like to know whether we have concluded any such treaties with countries governed by Islamic law?

[English]

Mrs. Virginia McRae (Senior General Counsel, Family, Children and Youth Section, Department of Justice): There are several countries that are parties to the Hague Convention, including Canada, and we have arrangements with those countries to ensure that children are returned to the country with which they have the greatest connection in order for those domestic courts to resolve the issues about who should have custody rights, access rights, parental responsibilities, parenting time, whatever the terminology is in the appropriate jurisdiction. So there is a large circle, I'm not sure of the number right now, but there are a number of parties to the Hague Convention that guarantee a respect for our domestic orders and a reciprocal respect for their orders.

Mrs. Marlene Jennings: And are any of those countries whose legal system is based on the shariah law?

Mrs. Virginia McRae: No. We have no arrangements right now with Muslim countries of that sort. However, we are developing bilateral arrangements with those countries. I think there is an issue about signing on to the Hague Convention itself, so Canada has undertaken several bilateral arrangements. I think we have one that is nearly complete with Egypt, for example, and we are entering negotiations with other countries as well.

The Chair: Thank you very much.

Mr. Nystrom, I apologize for having skipped over you the last time.

So we're going to Mr. Nystrom, and then we'll be going back to Mr. Hill before we come back here, because I jumped the queue. You were just too polite.

Mr. Nystrom.

¿ (0945)

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): I wanted to ask the minister one question very briefly. Bill C-23 removes the maximum contact principle, as I understand it, and I wonder if you can elaborate on that. It seems to me that the parents want to have maximum contact with the child, and I wondered why that principle was removed.

Mr. Martin Cauchon: That principle is still part of the bill.

To be clear, Mr. Chairman, as I said before, the maximum contact principle in the existing Divorce Act has to be taken into consideration through the best interests of the child. It has always been that way. So what we did in Bill C-22 essentially is we have a list of criteria with regard to the best interests of the child, which is found in subclause 16.2(2), and the maximum contact principle is to be found at paragraph 16.2(2)(b). It is drafted differently, but it is as we said. I can read that clause. We're talking about “the benefit to the child of developing and maintaining meaningful relationships with both spouses, and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse”.

So that principle is now to be found in the list of other criteria to be taken into consideration, to be weighted by the judge. As I said, Mr. Chairman, it's a non-exhaustive list as well.

Mr. Lorne Nystrom: The other thing I wanted to ask about, and maybe it has been asked, because I came in late, Mr. Chair, is that the words “custody” and “access” are being removed and replaced with other words, “parental responsibility”. I understand that this is already being done in the United Kingdom and Australia. Can you give us a bit of a briefing as to how that has worked? Has it improved the situation? Has there been any empirical data you can provide us that might guide us as to whether this was a wise decision or not?

Mr. Martin Cauchon: The model we put in place is quite unique, Mr. Chairman. Reform took place in other countries, like Australia, and the honourable member just referred to U.K. But we know that in those countries we're talking about shared parenting, which is not the same starting point. I've said that shared parenting created a legal presumption that makes, at the end of the day, the system more adversarial. So here what we're using essentially is parental responsibilities. It sends a strong message to both parents that we're not talking about rights, we're talking about responsibilities. And in removing the notion of custody and access, we believe that the system will be even less adversarial and we're going to be able to bring both parents together to get involved in more discussion and mediation. And of course if we can have discussion and mediation, then the court system will be there and we'll have a list of criteria that the judges could use. And when we're talking about those criteria, those criteria are to be found in case law, actually in existing case law. So we've decided to codify those criteria.

Mr. Lorne Nystrom: Would you expect that the new language of parental responsibility would reduce conflict between separated parents? And if so, do you have any data from other countries where this has actually happened?

Mr. Martin Cauchon: Along with the new philosophy of the notion of parental responsibilities, the UFC--unified family court--system is already in place, so we have one single court dealing with family law. Therefore, you're dealing with judges who are experts, who are very much aware of the various services that have been developed by provinces. So all that together will ensure that we're going to have a much better system in place, and as I said many times, less adversarial.

Mr. Lorne Nystrom: My other question would be what response are you getting from the provinces? Have they been fairly supportive of this new bill, or do you have some division in the provinces?

Mrs. Virginia McRae: Of course, we've been discussing this with the provinces for a number of years, in terms of options, proposals, and how they could participate in moving together on a more consistent approach.

There will be some provinces and territories that will follow the model in Bill C-22. There will be others that for priority reasons will not get to that right now. They are interested to see how this works; they're most interested to see how we are able to implement and develop it.

Currently, though, we believe that those two systems are consistent, and even the provinces and territories that retain terminology relating to custody and access will fit within this model, will be able to move together until such a point where all the jurisdictions might be using similar language and similar concepts.

¿ (0950)

Mr. Lorne Nystrom: Could you tell us which provinces are ready to move quickly on this, or is that something you can't divulge?

Mrs. Virginia McRae: I think that's probably not something I can divulge. Those are part of our discussions at official levels, and I don't believe there's been a public discussion of this at the provincial levels. There haven't been public expressions of commitment yet.

Mr. Lorne Nystrom: The goal is to have consistency across the country, obviously. You're optimistic that will happen, Mr. Minister?

Mr. Martin Cauchon: Definitely.

The Chair: Thank you very much.

Mr. Hill, three minutes.

Mr. Jay Hill: Thank you, Mr. Chair.

I don't believe the minister adequately explained to Canadians why the difference in the drafting of paragraph 16.2(2)(b) in comparison to the points I was raising. Specifically, under the United Nations Convention on the Rights of the Child, it refers to direct contact with both parents on a regular basis. The maximum contact rule before referred to how the child should have as much contact with each spouse. But now we'll be implementing--or we will be if this is not amended--this legislation where one of many criteria is developing and maintaining meaningful relationships with both spouses. As I said in my opening comments, it's something that could be construed, or misconstrued, by judges and courts to mean almost anything, and far from maximum contact, or as much contact, or direct contact, which is included in both of the other phrases.

The minister has said to the committee this morning that the reason given for not including the fundamental principle of the report “For the Sake of the Children” is that somehow including the premise of shared parenting would be more adversarial. This is despite what I would class, and I think anyone would class, as an exhaustive study. When this special joint committee took on this task, there were some 520 witnesses, 55 meetings across the country, and they came up with this exhaustive study that included 48 recommendations, which included, as I said, a preamble that would lay out the groundwork or set the principle of shared parenting. Yet somehow the justice department and the minister have said we're going to put all of that aside and we're going to go with something because we believe that this new phraseology would be less adversarial.

What does the minister base this upon? What studies have been done to discount everything that committee has done and to say that shared parenting isn't the way to go forward and instead bring in something he alleges is less adversarial? What is that based upon?

Mr. Martin Cauchon: First, the member knows that we've been consulting with provinces and the territories, and he knows as well that we've built on the recommendations of the committee. But as I said previously, if you take the maximum contact principle the way it exists now, it has never been maximum, in the sense that when a judge has to take into consideration that principle, he has to take first into consideration the best interests of the child. So the fact that we're using the word “maximum” creates more litigation between the parties.

The ultimate goal of the present Bill C-22 is to make sure that the whole system would be less adversarial, as I said. So by using “maximum”, people believe that really they are entitled to have the maximum no matter what, but it's never been true. “Maximum” has to be analysed through the best interests of the child. So we're removing the word “maximum”, and the principle of contact with both parents, which is key in the expression, is to be found in paragraph 6.2(2)(b), as I said.

A big difference as well is that this principle is to be found in the list of criteria that we have listed for the first time. In other words, the principle is there, it remains, it's the very same thing, but it is to be seen as being less adversarial by both parents. It is more realistic as well as an expression, the expression we're using, knowing that we have to take first into consideration the best interests of the child.

The Chair: Mr. Macklin, three minutes.

Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you very much, Mr. Chairman.

I'd like to continue somewhat on the same vein, because in listening to the debate in the House on this issue, it certainly does seem that in referencing the “For the Sake of the Children” committee report I've been getting a different sense of what the report actually said. I think we need to maybe go back and take a look at it.

According to the report, under the heading of “Language of Divorce” in recommendations, under number 5, the committee recommended that there be a new term, “shared parenting”. Following that further, in chapter 4 there is a heading under the “Divorce Act”, 1(i), “No Presumptions”. It goes on in commenting on some of the evidence that was received:

Members of the committee were warned that advancing any form of presumptive model for parenting after divorce would conflict with the best interests of children. Fundamentally, there is too much variation among families for either presumption to offer a benefit to the aggregate of Canadian children.

Secondly, it said:

Presumptions can also have the negative effect of compelling families who might otherwise have been able to make constructive, amicable arrangements to apply to a court if they want to avoid the application of the presumptive form of parenting arrangements.

Finally, at the end of that section, under recommendation 15:

This Committee recommends that the Divorce Act be amended to provide that shared parenting determinations under sections 16 and 17 be made on the basis of the “best interests of the child”.

Therefore, I am wondering if in fact there have been misrepresentations by those who have been representing what the committee brought forward, because to my way of belief and thinking, they have been recommending, within the House, that there was a presumption brought forth by the committee. Based on the report, I don't see any presumption, but rather a request that shared parenting determinations be made in the best interests of the child.

I wish you would comment on that.

¿ (0955)

Mrs. Virginia McRae: Yes, those are exactly the right points, and those were our reading of the reports of the special joint committee as well. In fact, we understood that the special joint committee also recommended that the maximum contact principle be moved into the context of best interests criteria to have that proper analysis of the entire range of criteria that would apply to the determination of parenting arrangements, post-separation and divorce, and the removal of the terminology, which was seen as the key aspect of that as well.

Mr. Paul Harold Macklin: So shared parenting was not a presumption, as suggested by the committee, but merely a term of general description?

Mrs. Virginia McRae: As I understand it, and according to the recommendation, the term was meant to incorporate and encapsulate all of the legal aspects of custody and access. Those two terms would roll into one new term.

The Chair: Mr. Marceau.

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chairman.

Minister, I would like to come back to the unified family courts. We were discussing jurisdictional matters earlier. Would you be prepared to consider a constitutional amendment so that the philosophy behind unified family courts could become a reality in Quebec, but under the Court of Quebec?

Mr. Martin Cauchon : First of all, divorce and separation are a shared jurisdiction under the Constitution. We explained earlier that matters involving strictly divorce will fall within the jurisdiction of the Superior Court. However, when cases involve couples living common law or couples who are married and wish to separate without getting a divorce, all such cases will fall within the jurisdiction of the Court of Quebec, in Quebec's specific case. Those two jurisdictions are already laid out in the Constitution.

So, implementing what the Member is suggesting would be quite problematic from a constitutional standpoint, Mr. Chairman.

Mr. Richard Marceau: I agree with you, but would you be prepared to consider a constitutional amendment in order to resolve the issue?

À (1000)

Mr. Martin Cauchon: As far as the courts as a whole are concerned, a variety of models have been studied, and discussions are proceedings outside Quebec as we speak. In Alberta, the Minister of Justice is currently promoting a project aimed at unifying the courts, so that there would be a single court in that province. Is that feasible? Well, it's much too earlier to start speculating on that, but I do know that at his end, he is looking at a variety of different avenues and the issues that could be involved, including the constitutional and jurisdictional problem which, as you know, is a huge problem. So, I know that in Alberta, they are doing some careful analysis of the options, but we are nowhere near the point where implementation can occur, given the obstacles to be overcome.

As for the courts as a whole, we can look at other avenues, especially on the administrative side. Reforms were introduced in England not too long ago, and a decision was made to simplify court administration while preserving the different jurisdictions and chambers. It's a very attractive model that is also worth taking a closer look at.

Mr. Richard Marceau: You referred to conceptual changes and the deletion of such terms as “custody” and “access”. What will the outcome of these changes be, in practical terms? A young boy or young girl affected by them will still have to spend so much time with mom and so much time with dad. Will this conceptual change really change anything in practical terms and do away with the winner-loser approach? In any case, for the people I've spoken to, what is really important is not custody or access, but the time given each of the parents. So, do you really think this will change anything?

Mr. Martin Cauchon : Yes, very much so. In law, we use certain terminology, and that terminology is always important, as you yourself know. At the present time, the case law has been developed around the two basic concepts of custody and visiting rights for the parents. So, right from the beginning, concepts like custody and visiting rights make the system adversarial and lead to more litigation between the parents. With these new concepts, we will now be talking about responsibilities. The best interests of the child will come first, and that is fundamental. The parents have responsibilities, rather than rights, with respect to that child. That is a change in mentality and culture as a result of which parents will view the situation differently.

As well, there will be better synergy with all the provinces in terms of the different services provided in this area--for example, when a family is going through a particular crisis before an actual divorce occurs. We will be able to provide swifter intervention with the provinces, in terms of services. This is their area of jurisdiction and we want to help them provide this kind of intervention with the money we have received. The unified family courts will create a central point of contact within the court system; these will be experts familiar with the entire range of available services.

So, we have focused our efforts on the terminology, but also on services and unified family courts. All of this will be instrumental in implementing this new philosophy.

[English]

The Chair: Merci, Monsieur Marceau.

Mr. O'Brien is next, for three minutes, please.

Mr. Pat O'Brien (London—Fanshawe, Lib.): Thank you, Mr. Chairman.

Following on Mr. Marceau's question, Minister, you've repeatedly emphasized the rights of children and the responsibilities of parents. I think Canadians would certainly agree with that.

But a concern has been raised with me several times in the past few years in my riding in the city of London, Ontario, by fathers who feel they've been denied the opportunity to live up to their responsibility to continue to parent their children, father their children, because of great difficulty having adequate access.

I've heard that theme repeatedly. In a couple of cases, sadly, I knew these people. I taught their children. They seemed to be very happy families, but then they broke down. These fathers are quite frankly feeling quite a bit of pain at being denied the opportunity to be fathers to their children, to meet the responsibility you address.

I don't purport to know the bill all that well, as I'm fairly new to the committee, but I wonder if you could speak to how this bill addresses that concern and seeks to maybe alleviate it.

À (1005)

Mr. Martin Cauchon: I've been meeting with various groups across Canada. The point raised by the honourable member is one that has been raised to me as well.

Of course, if you look at the court system per se and the various case laws we have seen over the past decades, there has been a change in the way courts see both parents. I'm sorry I don't have the stats in front of me, but with sole parents, in terms of the stats, there's been a switch on that side, obviously. We can provide you with the stats on that.

When you look at the previous notion of custody and access, it was interpreted as talking about rights for both parents. Now in switching to the notion of parental responsibilities, as I've said many times, both parents have responsibilities vis-à-vis the child. The expression we're using in Bill C-22 will make sure the system is less adversarial.

But at the end of the day, we want to make sure both parents will be able to come together and have their own arrangements, their own agreements. If it doesn't work, judges will have to decide, based on each and every case they have to face. In deciding, they will have to first take into consideration the best interests of the child.

To give an advantage to one parent compared to another is unfair. It is true that both parents have responsibilities, but at the end of the day judges have to take into consideration the facts of each and every case.

The Chair: Thank you.

Mr. Hill is next, for three minutes.

Mr. Jay Hill: Mr. Minister, following up on the line of questioning from Mr. Macklin, I would argue that rather than excluding shared parenting from Bill C-22, if you have a problem with the concept and principle of shared parenting, why not define it?

If the problem with the terminology of shared parenting--as you see it or as the Department of Justice, which drafted the bill, sees it--is that somehow it implies 50-50 time-sharing of the children by parents, then why not define it and say it doesn't mean that? Why not say it means equal responsibilities and equal rights, in the sense that when the parents appear before a judge in a court they are considered equal unless there's evidence of why they shouldn't be? That's the difficulty.

I think most people who look at this bill and have had problems with our court system in the past, which Mr. O'Brien referred to, are saying this bill is not going to achieve your objective of being less adversarial. I don't see how that's going to happen.

I want to be on the record as saying that rather than just setting aside everything the joint committee said about shared parenting being the norm, which is the term they said should be in the amendments, if you have a problem with it, why not define it instead of excluding it? That's my first thing.

Secondly, I want to move to the list of criteria included in clause 16.2. You mentioned that you, the justice department, or whoever drafted this bill came up with paragraph 16.2(2)(c), which refers to the history of care for the child. That was not included in the list the committee put forward under their recommendations. There's a reason why that wasn't put forward.

I understand the arguments you put forward in your presentation today, but there's a counter-argument that the parenting arrangement a couple agreed upon while the marriage was intact has little if any relevance once the marriage ends, because the situation is totally different. You have to start with a clean slate, if you will. Let's take the example where the father may have agreed that because his potential to earn greater income prior to the marriage ending was such that he agreed that the mother should be the primary caregiver. That changes once the marriage ends.

So I would like a definitive answer from the minister as to why the justice department decided to include something on an equal footing with all the other criteria that could potentially negate what would be in the best interests of the child.

À (1010)

Mr. Martin Cauchon: The list of criteria we have established is non-exhaustive. Other criteria can be used by the court. Second, those criteria are found in case law. They're a codification essentially of criteria that have been used by the courts over the past few years. That is one among many criteria that judges would have to take into consideration. It refers to the stability of the relationship for the child. It's an important element when you're looking at the question of the best interests of the child.

Second, on the notion of shared parenting, why would we go down that road using the term “shared” if we know that in some other countries it has created a presumption, and at the end of the day presumption means more litigation between both parents? Using the term “shared responsibilities” sends a stronger message. It is more flexible, less adversarial, and at the end of the day it doesn't mean both parents won't have equal time. It doesn't mean that at all; it sends a different message.

I can understand where the honourable member's coming from. I respect his vision. But I believe the notion of shared responsibilities will send a stronger message and respect more the notion of the best interests of the child.

The Chair: Ms. Jennings is next, for three minutes.

Mrs. Marlene Jennings: Very briefly, Mr. Minister, on the question of the unified family courts, for those provinces that agree with the federal government that a unified family court will be put into place and their provincial judges, or a certain number of them, will be transferred over, I'd like to know the process for determining which provincial court judges will be appointed to the united family court in any particular province.

Let me put it into context. In Nova Scotia, the historical or what we call indigenous black population had one family court judge at the provincial level, Corinne Sparks. There was an agreement between the province and the federal government to have a unified family court at the superior court level--I think in that province it's called the supreme court. There were four positions--five provincial judges--and four judges were transferred and she was not. The indigenous black population and community were outraged.

I'd like to know the process for determining which of the provincial court judges go up to the superior court.

Mr. Martin Cauchon: I'd like to thank the member for raising that very important point here.

First, on how many positions we're going to have in each of the provinces and which judges will be part of the unified family court, about 75% of the 62 will be from the existing court. That is to be negotiated on a case-by-case basis with each province and territory.

At the end of the day, I have to decide who will be part of the unified family court. Of course, I want to work in agreement and cooperation with the provinces, as we did in the past, but I also have to consider the question of language. This is part of the discussion going on with the provinces. The issue you just raised is a very important one.

À (1015)

Mrs. Marlene Jennings: Thank you.

Just to let you know, should Quebec decide to go with the unified family court, there are two black Quebec judges in the provincial court--

Some hon. members: Oh, oh!

Mrs. Marlene Jennings: --and none at the superior level.

The Chair: You're making me review all of my time as minister.

Monsieur Marceau.

[Translation]

Mr. Richard Marceau: Minister, with respect to the criteria used to determine the best interests of the child, would you agree that what you are doing here is essentially codifying the existing case law?

Mr. Martin Cauchon: Well, as I already said, this is a non-exhaustive list of criteria. These are all the factors that have been considered by courts in the past in a relatively consistent manner.

Mr. Richard Marceau: So, you used the criteria from case law…

Mr. Martin Cauchon: Well, I imagine there are also other points included here that were raised as part of the consultations, but the vast majority of them are derived from the case law.

Mr. Richard Marceau : Fine. Thank you. I have several questions.

First of all, are you not concerned that a list, even a non-exhaustive one, could end up placing restrictions on judges' discretion? Second, how will judges know which criterion should carry more weight? Third, is the order of the criteria of any particular significance?

Mr. Martin Cauchon: No, the order in which the criteria are presented is of no significance. The list is based, for the most part, on the criteria most often used by the courts. By codifying the list of criteria, we will ensure its consistent application. But having said that, it will be up to the judge to decide how the criteria are to be applied. We want to give the courts some discretion, and that's why this is an important matter. It will up to judges, based on the particular facts of the case, to determine, on a case-by-case basis, what kind of weight should be given to each of the criteria. That is an important exercise for the courts to carry out. Our role in this is only to provide a non-exhaustive list of the most frequently used criteria. So, the courts can consider other factors as well. The order is of no particular significance. What is significant, however, is the analysis that will be carried out in light of the specific facts of each case. And there, it will be up to the court to determine what weight should be given each of the criteria.

Mr. Richard Marceau: Thank you.

[English]

The Chair: Mr. Macklin, for three minutes.

Mr. Paul Harold Macklin: Thank you, Mr. Chair.

One of the issues that keeps coming back is the question of dealing with those people, particularly fathers, who may or may not have carried on a very significant role within the family unit prior to the divorce, and have at least rethought their position with respect to their children after divorce, and would maybe like to change the way in which they have carried on their day-to-day activities and participate more in the rearing of the children.

Looking at the list under proposed subsection 16.2(2), particularly at proposed paragraph 16.2(2)(c), it seems to me that one of concerns is the criterion of the history of care for the child. There is some fear being expressed by fathers that the previous child care patterns might be continued.

How do you believe this is going to be addressed? And how do you believe these criteria generally will overcome this?

Mr. Martin Cauchon: As I said, that criterion is part of a list of criteria. What we're trying to do with Bill C-22 is to make sure that it's going to be less adversarial. We're moving with parental responsibilities, and we listed a series of criteria. As was just mentioned, the court is given discretion here.

In each and every case, if both parents have to proceed to court, which we would like to avoid as much as we can with the system proposed in Bill C-22, the judge will have the discretion to look at each and every case. The judge can look at the specific facts of the case before the court, and using the list of criteria can then make up her mind in regard to which rights we have to give one parent compared to another.

Yes, we're changing the wording and philosophy. We have a brand new list of criteria, using case law from the past but ensuring that it will be applied on a more uniform basis. But at the end of the day, it is still up to the court to use its discretion based on facts.

À (1020)

Mr. Paul Harold Macklin: I see that part of the process being advanced by this bill is to try to encourage parents to work this out before they get to the court stage and these guidelines are applied.

I guess my question is, are you going to be making services available to help parents interpret this process, so that they don't always have to go through the court to achieve this goal?

Mr. Martin Cauchon: That is exactly the goal of the reform.

As I said, there are three components to the reform. There are legislative amendments; there's the relationship with the provinces with regard to the services they already have in place, or that they would like to develop; and there's the unified family court.

Working in cooperation with the provinces and territories, we would first like to make sure that we can develop programs to help more families who are facing specific crises before they get to the stage of the divorce. Once they are there, we also want to make sure that we're going to have good services to support them throughout the process. This is part of the funding we announced in December, and which we obtained part of for the next two years. Overall, we will be helping provinces in developing these. First of all, we'll support them with the existing programs and we will help them develop new programs.

On our side, we will be testing new ways of doing things in family law.

The Chair: Mr. Hill.

Mr. Jay Hill: Thank you, Mr. Chairman.

I'd like to return to what I said in my earlier remarks. I think the place to start is at the start. I'm not sure that I got an adequate explanation or any explanation. Why was the decision taken not to include a preamble upholding the UN Convention on the Rights of the Child, as was recommended by the special committee? Why was that decision taken not to have a preamble in the bill?

M. Martin Cauchon: Why would we include a preamble when the components of that convention can be found as a key principle in the bill? As far as we are concerned, adding a preamble would just add confusion.

Mr. Jay Hill: I would argue, and others have argued, that it wouldn't add confusion. It would very clearly set out the principles contained in the convention, which I have already referred to, namely, “direct contact with both parents on a regular basis”. Show me where that phraseology is included anywhere in the bill.

Mr. Martin Cauchon: Mr. Chairperson, we are part of the convention, whose principles exist and apply here in Canada. As I said, the principles of the convention are found in Bill C-22, so we don't know why we need to have a preamble to the bill. It may add some confusion to the debate.

It is quite clear to me that the way we've drafted the bill, the principles are to found in Bill C-22. I understand the standpoint of the honourable member, and respect his views, but we have quite a clear bill at the present time. It's quite clear to me as well that the principles of the convention—

Mr. Jay Hill: With all due respect, because our time is so short, Mr. Chairman and Mr. Minister—

À (1025)

Mr. Martin Cauchon: If you want to ask questions, let me answer. It's just that—

Mr. Jay Hill: But I've asked the question two or three times this morning already, and I haven't received an answer.

Where in the bill is the phraseology of article 9 of the Convention on the Rights of the Child, “direct contact with both parents on a regular basis”, which Canada has signed on to? Where is this found in Bill C-22? That's the question I have asked.

Mr. Martin Cauchon: Paragraph 16.2(2)(b).

Mr. Jay Hill: As I have already laid out, “meaningful relationships” is not that phraseology. It can be taken to mean anything.

Mr. Martin Cauchon: I just said that he has a different vision.

To you and the Canadian population, I have said that the reason we decided to use that expression in Bill C-22 is that we want to refer only to the principle. We don't use “maximum” as a term, for the reason I have given you already.

Mr. Jay Hill: What I referred to did not say “maximum” anywhere. It said “direct contact with both parents on a regular basis”. There's no “maximum” in there.

Mr. Martin Cauchon: The existing wording is better than “maximum contact”, because what does contact mean?

Based on the best interests of the child, we're talking about “meaningful relationships”. From the child's point of view and for its best interests, this is a very good expression as far as I'm concerned.

Having said that, I've said what I have to say on this, Mr. Chairman.

[Translation]

Mrs. Marlene Jennings: Minister, you mentioned that part of the budget will be allocated to the provinces to implement mediation, counselling and other kinds of programs. I know that there are already programs of this type available to couples who are in the process of terminating their relationship, but I was wondering whether any studies have been done to determine whether couples who use mediation have a positive impression of these services.

The reason I'm asking this question is that I am aware of a specific case. The parents of a friend of mine decided to get divorced. They had settled all the issues between them, but their lawyer suggested mediation. They decided to go ahead but came out of it feeling that the mediator was only trying to drag out the process in order to make as much money as possible. They ended up terminating the mediation and immediately initiated legal proceedings. I think it would be worthwhile to carry out this kind of study.

Mr. Martin Cauchon: Your question brings me back to the budget we announced in December. As I mentioned earlier, part of that budget will go directly to the provinces, and another part will help the Canadian government implement the reforms, review existing programs and look at new ways of doing things. All of that is being done in close cooperation with the provinces.

Yes, there are some good programs in place at this time, and I should also say that this is something that falls within the jurisdiction of the provinces, but at the same time there should be some analysis of those programs. In terms of the attitudes of the people around the table at the Federal-Provincial-Territorial Ministers of Justice Forum, I sincerely believe that they are very open to the idea of analyzing the impact of those programs, possibly making further refinements and seeing whether new ones should be added.

At the present time, services are provided to the parents, and there is also supervision. More education is being carried out with the parents, and there is mediation as well. There are four or five services that are already provided all across the provinces. Could things be done differently? Well, that's exactly what we want to ascertain.

Mrs. Marlene Jennings: Is there any kind of performance evaluation of mediation services by couples who have used these services and have been left with a good or bad impression of them?

Mr. Martin Cauchon: At the present time, as far as I know, there is no specific analysis done in that area, but it is possible that one of the provinces may have carried out this kind of evaluation. As far as we are concerned, that is certainly what we are aiming for at this time.

À (1030)

Mrs. Marlene Jennings: Thank you.

[English]

The Chair: Thank you very much.

Monsieur Marceau.

[Translation]

Mr. Richard Marceau: Minister, like many members of the Committee, I am sure you are aware of the problem associated with the length of child support arrangements. This problem has been raised by second spouses, who often feel they are directly involved, because of their relationship with the divorced person, in their spouse's relationship with his or her first spouse.

Does this legislation deal in any way with that particular issue? Do you have any idea as to how to resolve this problem so that people don't end up feeling caught up in an arrangement, when in actual fact, they have nothing whatsoever to do with the first relationship?

[English]

Mrs. Virginia McRae: Excuse me, I missed the first part of your question.

[Translation]

Mr. Richard Marceau: I was referring to the problem raised by second spouses, who often feel they are being caught up in a first relationship that ended in divorce. Sometimes their own income is considered when support orders are issued for the first spouse.

[English]

Mrs. Virginia McRae: Bill C-22 does not deal with child support issues, other than some very minor technical corrections to language that had existed in Bill C-41, the previous bill. So there is no reflection in Bill C-22 of those concerns.

The minister did table a report in April of last year to indicate what changes would be done after the five-year review to the child support guidelines, and issues that are flowing from there will be implemented with the provinces and territories, as we look at the table amounts, as we look at the other issues that were listed in the report to Parliament.

[Translation]

Mr. Richard Marceau : Why were the results of the analysis presented in that report not incorporated into Bill C-22 which, according to the Minister himself, is part of a more comprehensive strategy? Would this not have been a good time to introduce more extensive reforms and look at a specific problem that obviously affects a lot of people?

[English]

Mrs. Virginia McRae: Yes, the child support guidelines were actually implemented and developed fully by regulations of power. The changes that will be taking place to the child support guidelines will be done through the regulatory authority, so there was no need to deal with them in Bill C-22.

The Chair: Thank you very much.

Mr. Macklin.

Mr. Paul Harold Macklin: Thank you, Mr. Chair.

With respect to this process that we're working through on the Divorce Act, obviously certain issues came up, and came up as recommendations from the committee looking into this matter for the sake of the children.

One of the concerns, and it's a common concern, and it does seem to have a rather great frequency in terms of it being raised, is that of one spouse alleging against the other spouse that there's been some type of abuse of the children in order to try to in some way adversely affect the other parent's possibility of being able to have access to the child.

The committee recommended that there be an examination of the Criminal Code in relation to this. I see that you have made some attempt here. I wonder if you could give us your rationale for what you proposed in this bill to deal with that problem of abusive relationships being alleged when in fact they are not true.

Mr. Martin Cauchon: I guess you're referring to one of the key points of that bill, which is that we want to change attitudes there. I believe that trying to avoid both parents going to court would be very helpful. I just referred to the three components of that reform: unified family court, services that are already given by provinces, and legislative change. Those three components taken together will change attitudes and will make sure as well that when families are facing a crisis, they will have access to good services.

I believe the more services you give to people, the less adversarial the system will be. Of course, if people have one reason or another to proceed in court, the judge will still have to decide based on the facts of each and every case. But we believe the system we will put in place will encourage people to have an arrangement before going to court. Services that will be given to families will help a great deal in that sense in order to avoid what you just referred to.

À (1035)

Mr. Paul Harold Macklin: Is there anything being proposed that would give some comfort to those who are caught in this position, other than having to go to court? Is there any means or method of finding a resolution at any other level, or are we simply left with the only option of court in order to deal with questions of abuse that may be false?

Mrs. Virginia McRae: As the minister explained, the primary motivation and the entire strategy of the bill is to help prevent some of these things from taking place. Research has shown that the level of intentionally false allegations of violence is actually relatively low. Many allegations are often made on the basis of a mistake, perhaps an honest mistake, or some misunderstanding.

In terms of giving people guidance in Bill C-22 to look at the best interests criteria and the other factors and to provide the face-to-face support that comes through services, we can essentially eliminate a good number of these problems from even arising in the first place. There are still solutions in the Criminal Code and other places that deal with those serious matters that need resolution and need some firm act by the state to be resolved.

The Chair: Mr. Hill.

Mr. Jay Hill: Thank you, Mr. Chairman.

I want to return briefly, at least for a statement, to the issue Mr. Marceau was raising in his last intervention dealing with the child support guidelines.

I would argue that if we are not going to enshrine in Bill C-22 the principle of shared parenting, and by the minister's own admission he doesn't want to see a presumption of equality that would go with that, then by nature, even though the child support guidelines and any further amendments to them are not contained in Bill C-22, I would argue Bill C-22 is going to have a real bearing on how the courts view child support guidelines.

In many cases, I would argue, the fathers are going to be starting off at a disadvantage because there's not going to be that level playing field when the courts are making their decisions about child support. As Mr. Marceau has indicated, too often we hear of cases of a second spouse's income being taken into consideration when it comes to child support on one side, but it's not if, for example, the mother remarries or has a new living arrangement with a second spouse. The second spouse's income on that side isn't taken into consideration, but it is if the father remarries or lives common law with a second spouse.

Likewise, the issue of whether a father has to pay for post-secondary education is a concern I hear continually raised. We don't have any laws in this country that state an intact family has a legal responsibility to pay for post-secondary education, yet somehow the courts can rule that a father has to pay for post-secondary education. I would argue that Bill C-22 will have a bearing on that if it sends the signal to the court that somehow we're going to maintain any inequity or existing inequality. That's why I keep coming back to this issue of shared parenting.

The minister has said, Mr. Chairman, that he believes that his approach with Bill C-22 will achieve the goal of having a less adversarial system in place. He mentioned Australia, I believe the United Kingdom, and other countries where they have tried shared parenting in one form or another, with the presumption that goes with it, the equality of responsibilities and rights. What evidence, what studies, could he provide for the committee's consideration as to how Bill C-22, without enshrining shared parenting, will achieve that goal of being less adversarial? In other words, rather than just our taking the minister's or the justice department's word for it that it will achieve that, are there any studies, examples, or evidence he could produce for the committee that would back that up?

À (1040)

Mr. Martin Cauchon: With respect to the last question, Mr. Chairman, as I said in answering a question earlier, the system we're putting in place in Bill C-22 is quite unique. What we're trying to do is learn from the experience of other jurisdictions, and he just referred to Australia, the U.K., and maybe some other countries as well. We know that shared parenting has created a legal presumption we essentially don't want, and that's why we decided to move toward that new expression, “parental responsibility”.

Is there a study on parental responsibilities? As I said, it's a brand-new model we've put in place, and in order to develop that model we've learned from other countries' experiences.

As to the first question, the one dealing with the question of child support guidelines, obviously--and the honourable member knows it--Bill C-22 doesn't deal with the question of child support guidelines. It's quite obvious, and we all know that. But that being said, as to the child support guidelines that have been put in place, do you know what the first report last year was? It was a very positive report; it has helped families and parents a great deal.

Of course, the evolution of the child support guidelines, how we use child support guidelines, is based on various examples of case law and is an ongoing process. It is part of the discussions we have with provinces. Of course, as you know, to reflect the practice in the child support guidelines doesn't take a legal amendment. We're not talking about amending legislation; it's part of the regulations.

As I said, it's an ongoing process. For the time being the report we have is that the child support guidelines are working, and they are working very well, Mr. Chairman.

The Chair: Mr. Hill.

Mr. Jay Hill: I'd like to note that Bill C-22, at least as it's presently written, replaces the terminology of “custody order” and “access order” with the new terminology of “contact order” and “parenting order”, this despite the committee's recommendation that this type of terminology, “custody order” and “access order”, be replaced by a single term, “shared parenting”.

Now, Mr. Chairman, the biggest concern I have with Bill C-22, as I keep expressing repeatedly, is that after an exhaustive study that received all-party support after a year of cross-country meetings, the fundamental principle enshrined in that report is being put aside throughout Bill C-22, and this is another example. I wonder why the minister believes that replacing the terms “custody order” and “access order” with “contact order” and “parenting order” will somehow make the system less adversarial. To me, it's a pretty superficial change to change that wording and then expect that somehow that's going to help solve the problem.

M. Martin Cauchon: My understanding of the situation is that the committee wanted to change those two expressions for “shared parenting”. They recognized that we had to change the two expressions we're using in the existing legislation. The difference between the committee's recommendation and Bill C-22 is that we have decided not to use the notion of shared parenting. Instead, we've decided to use the notion of parental responsibilities, and I've explained the reason many times here today in answering questions, Mr. Chairman.

Mrs. Marlene Jennings: Just so I'm clear on the reason it's been decided to use “parental responsibility” and “contact” as the terminology rather than “shared parenting”, it's because, although the committee report suggested “shared parenting”, as the term to be used, the committee also stated there should not be a presumption of shared parenting.

The work of the justice department has shown that the experience of those foreign jurisdictions that have used the term “shared parenting” is that the courts have taken it to mean there's a presumption of shared parenting. That is why Justice Canada has decided not to use that term but rather to use the term “parental responsibility”, precisely so there is no presumption of shared parenting rather than another order of parenting, this in conformity with the recommendation of the committee that there should not be that kind of presumption.

À (1045)

Mr. Martin Cauchon: What you refer to, essentially, is to the point raised by Mr. Macklin previously. You're right. It's been my decision to proceed with the notion of parental responsibilities for the reason you just stated--to make sure that we will not create a presumption.

And with regard to the list of criteria, a question that was asked earlier, I just would like to point out as well that a special joint committee has recommended putting the list of criteria in the bill in order to determine the best interests of the child.

Mrs. Marlene Jennings: Thank you.

Mrs. Virginia McRae: May I add just one point?

The Chair: Yes.

Mrs. Virginia McRae: In relation to the last two questions, I wasn't sure whether people were reading the bill to mean.... Contact orders and parenting orders are two different things. Parenting orders are for parents and contact orders are for third parties. I just wanted to clarify that there was a distinction.

The Chair: Mr. Hill, you have three minutes.

Mr. Jay Hill: Thank you, Mr. Chair.

First I want to return to a question, because I don't understand the response. Following up on Ms. Jennings' intervention about the presumption issue, I had asked earlier that rather than dropping the issue and terminology of shared parenting, why did the justice department not decide instead to include it and define it?

If the problem is with shared parenting, we don't want to start from the presumption that one size fits all, which I think we can all agree on. Every situation is unique, because every marriage, every individual, is unique and every relationship is unique, and we can all agree on that.

Why would the justice department not define what it means? If the problem is that it doesn't want it to mean a presumption that the child or children will spend 50% of their time with the mother and 50% of the time with the father, because in that particular relationship or family unit it would be too disruptive and not in the best interests of the child or children, then why not say that, rather than just exclude it?

Mr. Martin Cauchon: I'll answer with a question, Mr. Chairman.

I've said why we've decided not to proceed with the notion of shared parenting. I've said it many times today. Why wouldn't we be using the notion of parental responsibilities when we know that if we would use the notion of shared parenting we would end up creating a legal presumption based on case law, which we've seen in other jurisdictions?

Mr. Jay Hill: In the case of Australia--because the minister mentioned it in his opening remarks--as a comparison to the existing system in Canada, what percentage of divorces end up in the courts?

They have shared parenting in Australia, and the minister says there's a problem because of the presumption, and therefore it's more adversarial. I would assume--and maybe this is a wrongful assumption on my part--that what the minister means is that more divorces end up going to court. If it's more adversarial, I would assume divorces are going to end up in court.

Is there a higher incidence of this in Australia than we presently have? What is the evidence that what we are going to try, this new model, this new attempt to make it less adversarial in Bill C-22, is going to achieve the goal of fewer divorces ending up in court?

À (1050)

Mrs. Virginia McRae: What we've heard from Australia, and what we've learned from the evaluations of their system--and they've done some very thorough evaluations as well--is that there was a very clear spike in litigation after they passed their legislation. From discussions with officials in Australia and members of the bench, it was clear we could learn from their experience by putting in a more synthetic system. If we could help educate parents, tell them what their options are, what the services that can help them work through the system would be, we could help negate any possible increase in litigation that comes after any new piece of legislation.

There will always be a testing of terms and new concepts. It's almost a given. The expectation is, though, that you'll get over that hump and then smooth out that edge. The lessons we learned from Australia were that if we took some serious, dedicated efforts to ensuring that people knew better what their options were, how better to walk through the system, how to avoid the problems that would come from just a straight conflict, we could eliminate or reduce that kind of thing here. This was the lesson we learned from them. It was a very clear message.

Mr. Jay Hill: Were there any studies done or was consideration given to the fact that there was a spike in litigation in Australia following their move to shared parenting? This happened because parents, either mothers or fathers, who were unhappy with the arrangement they had before wanted to test the system to see if they had greater equality before the courts, and could therefore revisit the arrangement they had before. It would be a natural evolution, if you will.

Similarly, with Bill C-22, once it becomes law, will we not see that as well? If you're arguing that it's going to be fairer to both parties, isn't it natural for people who feel they've been wrongfully treated by the system today to attempt, as a last resort--because I believe most parents use the courts as a last resort...? That's why we see a very small percentage of divorces that actually end up before the courts. My argument is, wouldn't this naturally follow, in the Australian case and in Bill C-22?

Mr. Martin Cauchon: To answer, Mr. Chairman, first I just want to be clear here that the enactment of Bill C-22 will not reopen existing agreements. We know that what tests need to be used are in order to reopen an existing agreement. Obviously, Bill C-22 wouldn't meet these tests. Therefore, it has to be clear that the enactment of Bill C-22 wouldn't reopen the existing agreements.

Second, we keep coming back to the notion of shared parenting. Mr. Chairperson, I will keep coming back with my question: if there's a chance shared parenting would create a legal presumption, why would we take that chance?

We have access to the Australian experience and to what took place in the U.K., and all together, as Canadians, we can provide our people with a term that really has to be seen as less adversarial. At the end of the day, using the notion of parental responsibility doesn't mean people won't end up having an equal share of parenting time.

The Chair: It's time for your final question, Mr. Hill.

Mr. Jay Hill: It's too bad we're out of time, Mr. Chairman, but I do appreciate all the opportunities I have had today to raise these concerns. I hear them continually, not only in my riding of Prince George—Peace River, but all across Canada. This is a huge issue of incredible importance to a large segment of our population. Sadly, this obviously reflects the fact that so many marriages end up in divorce. That's why this issue is so important to families--and specifically to children of divorce. I do appreciate the opportunities I've had.

I just want to return to this issue as my final question. Research I did a number of years ago, based on divorces in the United States because there was no applicable data in Canada, showed that states that had moved towards joint custody saw a corresponding increase in voluntary compliance with child support. Joint custody was the old term for shared parenting, where there was an equality of the parents and automatic joint custody was awarded, except in cases of proven abuse or neglect, or where it wasn't in the best interests of the child.

In other words, I would argue that the presumption of shared parenting and equal rights of the parents actually accomplishes the goal of making the system less adversarial, not more adversarial. In most cases, fathers can see the positive benefits of participating in the lives of their children in a meaningful way, and they are more willing to comply voluntarily with the child support, in some cases increased child support, because they can see the benefits to the child of that support.

À (1055)

Mr. Martin Cauchon: Our belief is that if we can reduce the conflicts between parents and make sure that together they're going to be able to come to an arrangement and an agreement, the level of compliance will increase. This is exactly the aim and goal of Bill C-22.

The honourable member mentioned the importance of this bill in our Canadian society. I agree with him. When I became justice minister more than a year ago, I decided to wait a little bit before proceeding with the bill, to really take the time to have a closer look at that bill and to consult with some stakeholders in our Canadian society as well. I would just like to tell you that I'm very aware of the importance of this piece of legislation, of course for us, as parliamentarians, but also for Canadian society.

The Chair: Thank you very much, Mr. Hill.

Thank you very much, Mr. Minister, and guests.

Before we adjourn, you've mentioned, Mr. Minister, that you've been in your position for something around a year, and you certainly have kept us busy. On that note, on the marriage and legal recognition of same-sex unions, Mr. Minister, I would advise that we are taking our study on the road. For the purposes of the viewing audience--I know most Canadians will be riveted--the committee will be in Vancouver on Tuesday at the Renaissance Vancouver Hotel Harbourside; in Edmonton on Wednesday at the Fairmont Hotel MacDonald; in Moose Jaw on Thursday at the Heritage Inn in Moose Jaw; and in case anyone in Steinbach, Manitoba doesn't know we're coming, we'll be at the Days Inn in Steinbach for the day on Friday. And then the next week it's Halifax, Sussex, Sudbury, and two days in Toronto. Then after two weeks in our constituencies, we'll be in Montreal for two days, and then Iqaluit.

So just so you know, we have taken our work very seriously. Thank you for keeping us all out of trouble.

Mr. Martin Cauchon: Mr. Chairperson, I know that over the past few months this committee has been very busy. I'd like to thank each and every member of this committee. Thank you very much for the time you invest in each and every bill we have tabled and with the various policies we have to look at as a government. I appreciate your support and your contributions.

Thank you very much for the hard work.

The Chair: Thank you very much.

The meeting is adjourned.