Thank you very much, Mr. Chairman.
I have a brief statement to make and then I can answer questions, if necessary.
It's an honour for me to be here today speaking to you about my private member's Bill C-252, an act to amend the Divorce Act. I know how busy this committee has been with the volume of legislation, and I appreciate your taking the time to examine this important bill.
Since it was first read on May 4 of this year, this bill has been a work in progress. Bill C-252 received rigorous and constructive debate in the House of Commons during second reading, and I appreciate the thoughtful debate provided by members of all parties during the first and second hours of debate at second reading.
That input from all sides allowed this bill to proceed to this committee today with unanimous support from the House. From the Liberal Party, we heard from Mr. Shawn Murphy, Mr. Lee, Mr. Szabo; from the Bloc, Ms. Freeman and Mr. Ménard; from the NDP, Mr. Comartin and Mr. Siksay; and from the government, we heard from Mr. Goodyear, Mr. Shipley, Rob Moore, Lynne Yelich, and Mr. Van Kesteren. All made contributions. I really consider it to be a bill that has been shaped and moulded with the cooperation of my colleagues in the House of Commons.
I would like to say at the outset that this bill is and always has been about families. We all know divorce is an unfortunate yet common reality in our society today. This bill recognizes the importance of familial bonds in all families, especially those families where a divorce has occurred. Although families may be fractured by a divorce, the bonds and relationships between children and their parents continue to exist and deserve the support this bill seeks to establish.
I first considered undertaking a private member's bill to address this issue earlier this year after hearing about a very unfortunate situation in my riding involving a young family that had been split by divorce, and one of the parents had become terminally ill. As is the case with most divorces, there are two sides to the story. I did not undertake this bill because one person was right or one person was wrong. That was not and is not a decision for me to make. However, I did recognize that something was wrong, so I was faced not with the question of who is right, but rather of what is right.
I believe it is right that children be ensured a chance to say goodbye to a parent who is terminally ill or in critical condition, unless such contact between parent and child is not in the best interest of the child.
As you know, this bill seeks to establish that the terminal illness or critical condition of a divorced parent represents a change of circumstance of that child of the marriage, and that this change of circumstances ought to allow the child and parent to visit as long as it is consistent, as I said, with the best interests of the child.
As legislators, we need to produce and provide, where we can, ample and timely access between children and their divorced parents. Ample access is a principle provided for in subsection 16.(10) of the Divorce Act, which states that “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”.
Subsection 17.(9) reiterates the same support for ample access in the consideration of variation orders.
I have undertaken this bill because I believe it is necessary to take the Divorce Act a step ahead to provide not only ample access, but also timely access. Timely access is especially important for circumstances where a divorced parent is terminally ill or in critical condition and the child may not have the opportunity to say a last goodbye to his or her parent.
This is what I mean when I say “timely access”. The Divorce Act currently provides for maximum access, and this bill seeks to establish, or at least open the door for, timely access by affirming that a child who is on the verge of losing a parent is indeed a child in unusual circumstances, a child needing a chance to say goodbye.
Visitation rights in Canada are about the rights of the children, and this bill respects those very rights, while also seeking to expand them. During second reading debate, honourable colleagues voiced concern in relation to the rights and the best interests of children.
The original text of this bill stated that any access or custody order must be made subject to subsection 16.(8) of the Divorce Act, which clearly states that such orders must be made according to the best interests of the child.
During the second hour of debate at second reading, the bill was amended by all-party support so that the proposed subsection clearly states that such access to a child be granted only as long as it is consistent with the best interests of that child. This was an important amendment, because it provided the bill with its own provision upholding the best interests of the child.
Another important aspect of this amendment is that it preserves judicial discretion by maintaining that it is the courts who decide what embodies the best interests of the child. This bill does not dilute the ability of the courts to exercise their discretion when assessing the interests of a child and preserves the role of the courts in doing so.
This bill is meant to provide an important criterion to assist the judge's consideration, not to harness it. Terminal illness or a critical condition of a parent ought to be one factor amongst other factors that are collectively subject to the key issue, the best interests of the child. Likewise, I do not believe that terminal illness or critical condition is cause for automatic custody.
In short, although the terminal illness or critical condition of a parent is a significant factor that demands consideration, it is not the determining factor, and it cannot trump the biggest factor, which is the best interests of the child.
Another significant aspect of the amendment applied to this bill at second reading is that the bill now seeks to amend section 17 of the Divorce Act rather than section 16. This amendment is significant and appropriate because section 16 deals with custody orders, while section 17 deals with variation, rescission, or a suspension of orders. The condition of a parent who is terminally ill or in critical condition would be taken into consideration by a judge assessing the circumstances surrounding an initial custody order. This bill is aimed at situations in which the circumstances have changed due to the condition of a parent, and in which the consideration of custody or access needs to be revisited.
Mr. Chairman and members of the committee, in summary I would like to say I believe this bill is balanced as it seeks to support both familial bonds and the best interests of children. Any and every child faced with the possible loss of a parent deserves a chance to say that last goodbye unless it is decided by the court that such visitation is not in the child's best interests. This bill also respects the judicial discretion of our courts by allowing them to exercise that discretion in determining what decision ought to be rendered in the best interests of the child. This bill does not seek automatic custody for divorced parents who are terminally ill or in critical condition; rather, it seeks to establish the terminal illness or critical condition of a parent as one factor amid other factors that need to be considered when the courts are adjudicating such questions of custody.
I believe we have a responsibility to identify how we can create and fine-tune the laws to help our fellow Canadians and support them in both good and bad times. That is why I am here today speaking to you about Bill . Mr. Chairman, thank you for this opportunity, and I look forward to your questions and input.
Thank you, Mr. Chairman.
Congratulations on your bill. I know it's always an important moment when you get to do your job as a legislator. I have often said to my whip and my leader that there should be two hours a day for private members' business. That's one way for us to do our job well and to represent people in the House of Commons. Unfortunately, the balance between government business and private members' bills has not yet been struck.
We, in the Bloc Québécois, are mostly supportive of your bill, although we are still concerned by the fact that family policy has to remain with the provinces, in our opinion. Quebec, in particular, has a civil law tradition, and we would like divorce to come under Quebec jurisdiction. If legal separation and marriage are part of Quebec civil law, it would be logical for divorce to be too.
That said, the courts currently take into account the rights of the child—that's fundamental—and unless there's any criminal record, history of poor parenting or deprivation of an attribute of parental authority, the courts generally tend to favour giving access to both parents.
Correct me if I'm wrong, but basically, the amendment you're suggesting potentially involves two cases. The first is where a court judgment denies one parent access to the child, and the second is on a review application because the parent is in the terminal stage, in the hope that a special arrangement can be made, for more frequent visits or visits at other times with the father or mother who has a degenerative disease.
Are those the two scenarios that a person unfortunately suffering from a degenerative disease could rely on under amended section 16?
Thank you, Mr. Casson, for being here.
I have to admit that I didn't catch this until very recently, and I had it confirmed again today. I don't know if you appreciate this, but there are several different types of scenarios where this issue could arise in terms of a terminal illness. Let me quickly go through those.
One is a scenario where the parties have separated, the parents have separated, and there's no court order. One of the individuals who doesn't have physical custody of the children becomes terminally ill and applies to the court. Section 16 of the act would apply, not section 17. The test or the criteria in section 17 would not be something the court would have to take into account.
The second scenario, which also applies to section 16, would be where you have an application for custody or even a disputed application for custody by both the parents, but there's no order yet. You have de facto custody residing with one of the parents, and again the non-custodial parent becomes terminally ill and wants to have access. Section 16 would apply there, and this criterion would again not apply.
This criterion only applies in the third scenario, where a court order has already been made and you're moving to vary it.
I'm raising this with you, and I'm apologizing to some degree, because when you talked about the amendment, I didn't appreciate that it was only going to apply to the third scenario. It doesn't apply to the first two. It only applies to the variation.
I have to say to you that from my experience in family law, which is quite extensive, the third scenario is going to be the most common one, where you'd actually have a court order and custody would be granted to one parent or access would be denied or left blank. The most common situation is where the parent has perhaps dropped out of the child's life but is now terminally ill and wants to have access before death.
You're probably going to catch most of the cases or the majority of the cases, but I think there are a significant number that you're not going to catch. I have no idea what the percentage is, but I would think it's less than half. There are a number of cases that you're not going to catch through this amendment.
I'm only raising this so you can appreciate it. We may want to hear more when we hear from the officials, but it's a problem.
Let me finish my question, after all of this.
I'm assuming you wanted to catch all three of those scenarios, where a person faced with a terminal illness or a very serious illness would want the opportunity to say to the court this is really important and take it into account, which is what your amendment does in the third scenario.
Good afternoon, Mr. .
First, I'd like to congratulate you. Your amendment, which would amend the Divorce Act, is a really good one. The act was proclaimed in 1968, under Trudeau and the Liberals. For nearly 40 years, this act has been causing us problems, in families and in society. As you say, we have to try to protect children with this legislation so that their interests take precedence. At least that's the way I see it.
In Quebec, there tends to be an imbalance in terms of custody orders. In many cases, the woman gets custody of children under five.
Very often, what happens is what's called an alienation of affection, that is to say, the custodial parent has so much control over the mind of the child that the child ends up rejecting the other parent. This type of behaviour is of course not allowed, but it's very hard to prove or even deal with legally.
In Quebec, under the Legal Aid Act, young children, though minors, can apply for legal aid given their lack of financial means. They can ask to see their father or mother in the terminal stage. That's great. That didn't use to be an option.
I think this is a very significant step forward, and it's to your credit. Take, for example, a 7-, 8-, 9- or 10-year-old child who has had an alienation of affection and stopped seeing their father five or six years ago. Let's just assume it's a father. At some point, the child learns from uncles and aunts that the father is not doing very well. The mother, who has alienated the child, wants to keep the child to herself. I'm not faulting her; she's only human. In that case, the child could go to legal aid and ask, through a lawyer, to see the father. In other cases, it could be the mother. It's a delicate situation. The child is going against the wishes of the custodial parent.
This bill would enable a parent in ill health, who might be unable to go to court in the terminal stage, to see the child if the child has requested it.
Do you see it the same way I do, as a new opportunity for children, an opportunity to visit a parent with the help of legal aid, as is done in Quebec?
Mr. Comartin pointed out a couple of instances where there are no custody orders or where they are being developed. I agree that section 17 doesn't deal with that.
When I started this, I saw a parent who was denied access to their children at a time when there was very little time left. I thought, how could this happen in this country? If there's no other reason for the judge to stop it--for instance, from a previous order that saw some issue of abuse or whatever and the parent had no right to see those children, then certainly. But with all of that absent, my goodness, shouldn't we allow that child to see that parent or that parent to see the child?
That was the driving force, and that was what I was thinking. There was a situation where the courts had decided that the child would be in the custody of the other parent--the one who wasn't ill--and the one who was ill needed access. That's what we're trying to work toward here.
Mr. Lee's comments are pretty important. He made some of these issues during the debate as well. From a lawyer's point of view, on any statement or any law, if you just drill into one word or one aspect of it, you could pretty much find an argument against almost everything.
I think the overall encompassing reason for doing what we're doing is just that. I'm not trying to read anything into this that doesn't exist. I'm not trying to force children to see a parent they don't want to see. That's all covered off elsewhere in the legislation.
Thank you very much, Mr. Chair.
Mr. Casson, thank you for bringing this issue to us.
Prior to being elected I was with an insurance company, and we dealt with critical and terminal illnesses. There are so many definitions of critical illness and terminal illness, especially terminal illness. A major consideration was the timeframe one was faced with. It was not whether one was terminal--terminal is easily defined--but within what timeframe was that person not going to be with us any more. Some terminal illnesses may provide a person a life expectancy of ten years after they're diagnosed. In other areas, when we're talking about a critical illness, there are to my knowledge as many as 38 different definitions of critical illness, anything from cancer, to skin cancer, to heart attack, and so on.
I don't see here where you're defining that. Maybe you could give us a little more information on the definitions of these, because if the bill is intended to have children visit a terminally or critically ill parent, it can happen with even the least amount of consequences there, unless defined appropriately.
It's really not a point, it's just a comment and then a question.
I want to thank you, Rick, for bringing this forward. It's a great bill as far as I'm concerned.
You're right when you say it's all about families. I never had any problem with the intent of this bill right from the very beginning. I think the intent was quite clear. It seems to me one piece of our vocabulary that gets lost nowadays is common sense. The bond between a child and a parent is always there. No matter what happens, there is a bond. I think that's what we need to remember. I've had an experience in my own family, and I can tell you it is extremely important. The possibility of children being able to visit with the one who is going to expire is so important.
It's nothing against lawyers, but it seems to me every time something comes up this nitpicking seems to be way bigger than it ought to be. It looks to me like the important thing here is that the intent is loud and clear, and I think everybody would say yes, it's good common sense to acknowledge this. We all know the provinces and the territories are the ones responsible for implementing the laws that we pass in this place.
When do you think this bill will be raised with the provincial and territorial authorities? I think their way of administering it is going to be the real key to the success of this bill.
Members of the committee, we're pleased that you have invited us to participate in these committee hearings.
My name is Claire Farid. I'm counsel with the family law policy unit of the family, children, and youth section. With me is Lise Lafrenière-Henrie, senior counsel and coordinator of the family law policy unit.
We will provide you today with information about the technical aspects of the Divorce Act and Bill . However, before turning to the specifics of the bill, we would like to discuss the general scheme of the Divorce Act with respect to custody and access issues.
As you're aware, the federal government is responsible for the Divorce Act and the custody and access issues that arise in that context. The provinces and territories are responsible for custody and access issues that arise in the non-divorce context--for example, for common-law couples.
Section 16 of the Divorce Act is the section that provides that a court may make an order for the custody of and/or access to a child. Subsection 16(8) provides that only the best interests of the child shall be considered by the court in making an order for custody or access. The child's best interests are to be determined in light of the condition, means, needs, and other circumstances of the child.
Therefore, when a court makes an order for custody of or access to a child, it is required to look at all of the circumstances of the child and make the order that is best for that particular child.
Some of the types of issues that a court will generally examine are: factors related to the child, such as his or her age and views and preferences about the custody and access arrangement, the relationship that the child has with each parent and other significant people in his or her life, and plans that the parents have for the upbringing of the child.
It is relevant to note subsection 16(10) of the Divorce Act, which provides that in making an order for custody or access, the court must give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child, and must take into consideration the willingness of the person who is applying for custody to facilitate contact with the other spouse.
The Divorce Act therefore emphasizes the importance of the child's relationship with both parents. The particular access arrangement that is ordered must, of course, always be in the best interests of the child. Section 16 deals with original orders, and therefore looks at the circumstances of the child at a particular point in time. Those circumstances sometimes change, however, in a way that makes this original order inappropriate; thus, there is a need to return to court for a variation of that order. It is subsection 17(5) of the act that currently sets out the conditions for the variation of an order for custody or access.
There are two aspects of the inquiry under subsection 17(5). First, before the court can make a variation order, it must be satisfied that there has been a change in the condition, means, needs, or other circumstances of the child since the making of the last order. While subsection 17(5) of the Divorce Act simply refers to a change in the circumstances of the child, the Supreme Court of Canada has clarified that it is not any change in the circumstances of the child that will be sufficient for a court to consider the merits of a variation application. There must be a material change in the situation of the child. This requirement that there be a material change is to prevent parties from indirectly attempting to appeal or re-try the case by pointing to some minimal or insignificant change in the situation of the child.
In order to be a material change, the change must have altered the child's needs or the ability of the parents to meet those needs in some fundamental way. The change must be such that the previous order may have been different had the new circumstances existed at the time the original order was made. It's significant to note here that an important change in the life of a parent that is relevant to the child could be considered a material change in the circumstances of the child.
For example, in the 2002 case of Kazdan v. Kazdan, a mother was terminally ill and she sought to vary a Divorce Act custody and access order to dispense with her former husband's consent for her to travel to Israel with the children. The court found that the former wife's terminal illness and her resulting emotional need to travel with the children to Israel to see her family was a change in the circumstances of the child within the meaning of subsection 17(5) of the Divorce Act. The order was varied to allow her to travel, since it was found to be in the best interests of the children.
So the first aspect of the analysis under subsection 17(5) is to establish that there has been a material change in circumstances, which would then allow the court to consider the merits of the situation. Once this threshold has been met, the court must then embark on the second aspect of the analysis, which is to determine what order would now be in the best interests of the child. In determining what is in the best interests of the child, like under section 16, the court must seriously consider the importance of the child's relationship with each former spouse. Because both subsections 16(8) and 17(5) require that original orders and variation orders related to custody and access be based on the best interests of the child, the court must look at all aspects of the child's life to determine what order would be appropriate. The court therefore has broad discretion to fashion an order to ensure that the child's best interests are met.
Bill would add proposed subsection 17(5.1) to the Divorce Act to assist with interpretation of subsection 17(5) in circumstances where a former spouse has a terminal illness or is in critical condition. There are two elements to proposed subsection 17(5.1).
First, proposed subsection 17(5.1) would provide that for the purposes of subsection 17(5), a former spouse's terminal illness or critical condition shall be considered a change in circumstances of the child of the marriage. This aspect of the provision would have the result of deeming the terminal illness or critical condition of a former spouse to be a material change in circumstances. As a result, in cases where a former spouse has such a terminal illness or is in critical condition, the threshold requirement of subsection 17(5) will have been met, and the focus would be on the issue of whether a variation of the original order is appropriate.
The second element of proposed subsection 17(5.1) is that it provides some direction for the court with respect to the potential variation of the order. The bill states that the court “shall...ensure that the former spouse is granted access to the child as long as it is consistent with the best interests of that child”. Therefore, access between the former spouse and the child is to be ordered, as long as it is in the best interests of the child.
Since the best interests of the child are a prerequisite for making a variation order for access, the court would be required to consider all the circumstances of the child to determine whether such an order would be appropriate. In the context of this analysis, the court would also consider what type of access arrangement would be appropriate--for example, in terms of the frequency and length of visits, and who would be present at these visits.
We hope this information is helpful to the committee, and we would be pleased to take any questions.
I will ask the same question I asked earlier, but formulated differently. In the Kazdan v. Kazdan case you cited, Ms. Kazdan had to prove before the courts that she was in the final stages of her terminal illness and that she wanted to return to Israel.
The amendment would be such that the lawyer or one of the parties would only have to prove that the person concerned is in the final stages of a terminal illness or is in what is referred to as critical condition. This must be proven first. You broke the clause down into two parts. I want to get back to the term you mentioned earlier. You do not agree with the use of the word "veille", the French equivalent of the word "ensure".
I will explain to you how I see these things, because if ever I have to plead such a case before the courts, I want to make sure I will do so properly. If I've understood the clause correctly, once the condition is proven, once the terminal stage is proven, the courts will ensure that I hold the right to see the child, to avoid any possibility of a dispute, as Mr. Casson was saying.
If the courts do not do so and do not exercise their authority, very often, there is an alienation of affection. Let us suppose that both spouses are in conflict, that the child is taken as hostage, and that one of the two parents is in the final stages of a terminal illness. The terminal illness is proven, the mother "loses it" and attacks my client. My client will not be able to see the child and may even die before seeing the child again. So, it is almost as though you are giving the court the power to issue an injunction order, but the court must ensure that a spouse is truly in the final stages of a terminal illness.
Suppose that the person is in the hospital and must appear before the court. The person is terminally ill and wishes to see his or her child. Imagine how difficult this would be. The court would have to go to the hospital, and the lawyer would have to provide medical reports. The person is already under enormous stress, is about to die, and is being asked to appear in court. Imagine this! Even during normal circumstances, this is a very long and difficult process.
This is why I believe in the use of the word "veille" or "ensure". Once it is proven that a person is in critical condition, or hospitalized, a judge must ensure that the person may see his or her child. That is how I interpret it.
Why do you disagree with the use of the word "ensure"? If we take out this word, a woman who does not want contact between her child and the ex-spouse will go to the Superior Court of Quebec, and the father will lose the right to see the child and die without ever seeing the child.
To my mind, the word "ensure" contains an element of authority; it is like an injunction. Why are you saying that the word "ensure" should not be used?