Of course, thank you to all of the members of this committee for the opportunity to present on an incredibly important bill, Bill , an act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another act.
I am incredibly proud of the work our government has done to improve the lives of Canadians experiencing separation and divorce, particularly children. Bill is the cornerstone of this work.
Federal family laws have not been substantially updated in over 20 years. Over the past two decades, families have changed considerably, and so has our justice system. Our government understands that there is much to be done in order to improve federal family laws and family justice systems so that they better meet the needs of Canadians.
Separation and divorce can be incredibly difficult for families, especially children. For most Canadians, their only interaction with the justice system will be through the experience of family breakdown. Two million children in this country are impacted by separation and divorce. With this bill, we are taking concrete steps to help parents come to a timely and lasting resolution of their disputes, with the primary focus of what is best for their children.
Bill advances four important goals: promoting the best interests of the child, addressing family violence, reducing child poverty, and improving efficiencies and accessibility to the family justice system.
I will briefly address each of these in turn.
Promoting the best interests of the child is a common theme, tying together all policy initiatives reflected in this bill. The primacy of the best interests of the child is a fundamental principle of Canadian family law. Bill will further entrench and bolster this principle.
The bill includes a non-exhaustive list of criteria for a court to consider in determining the best interests of the child, including elements such as the child's needs, given the age and stage of development; the child's relationship with people in his or her life, especially parents, but also others such as grandparents; and the child's culture and heritage, including indigenous heritage.
The bill also proposes a primary consideration. Any plans for the child's care, any allocation of time or responsibilities, and any imposition of terms or conditions in a parenting order would have to be made on the basis that the child's physical, emotional and psychological safety, security and well-being must be considered above any other matter.
The bill also removes the archaic language of custody and access that the Divorce Act currently applies to parents' relationships with their children. The Ontario Court of Appeal and several associations of family justice professionals have highlighted that these labels focus more on parents winning and losing rather than on what is best for the child.
Instead, Bill embraces the principle that children are individuals who have their own needs and rights, and therefore, it proposes clear definitions of “parenting time” and “decision-making responsibility”. Children's rights organizations have been particularly supportive of this proposed change.
The bill does not contain any parenting presumptions, such as equal shared parenting. Rather, it focuses on what is best for each child. A presumption would force courts to impose one particular parenting arrangement on every family unless a party could convince the court otherwise. This would mean that judges would have to be actively involved in more cases to hear evidence to displace the presumption, which could increase conflict between parties and place additional and unnecessary pressure on already overloaded family courts.
Moreover, in cases that involve family violence, abused spouses may not have the financial or emotional resources to prove to a judge that the presumption would not be in the child's best interests. Fundamentally, a presumption would detract from the focus on the best interests of each individual child, which the bill aims to promote.
We know that each child and each family is different, and children deserve to have their own unique needs and situations considered. That is why we have taken this approach.
Bill will still preserve the maximum-contact principle that a child should spend as much time with each parent as is consistent with the best interests of that child. This would not be a parenting presumption, however, and it would be subject to the primary consideration of the child's physical, emotional and psychological safety, security and well-being.
For the first time ever, we are defining family violence in the Divorce Act. In Bill , we have introduced an evidence-based definition of family violence that provides a non-exhaustive list of different forms of family violence and is designed to evolve over time to capture additional behaviours and patterns as our understanding of family violence expands.
This definition explicitly mentions “coercive and controlling” violence, which social scientists believe to be the most dangerous form of family violence. Again, this definition is designed to evolve over time to capture additional behaviours and patterns as our understanding of family violence expands.
The bill also proposes best interests of the child criteria to help courts draft a parenting order where there has been family violence. These criteria will also be subject to the primary consideration that the child's safety, security and well-being would be considered above all else.
The bill introduces other measures to keep family members—especially children—safe. The non-removal provisions will help prevent child abduction in appropriate cases. Another provision will remind courts of the option to order supervised parenting time to promote safety and reduce children's exposure to conflict.
Our government has committed to lifting Canadians out of poverty. In addition to initiatives like the Canada child benefit, we are supporting middle-class families by helping to ensure families facing separation and divorce have the support payments to which they are entitled. We know that families are especially financially vulnerable in these circumstances.
Single-parent families have a significantly lower median net worth than do couples with children and tend to have lower levels of employment. We also know that single-parent families are disproportionately led by women, so these financial pressures contribute to the feminization of poverty. Receiving a fair and accurate amount of child and spousal support can help prevent these families from experiencing poverty. Addressing family poverty helps to target child poverty, which we know can have long-lasting impacts. Bill therefore proposes several important changes to make it easier for families to receive the support to which they are entitled.
A significant impediment to families receiving the child support they need is parties' failure to disclose incomes, despite their obligation to do so. The bill will amend the Family Orders and Agreements Enforcement Assistance Act to allow the federal government to provide information from a party's tax returns to a court as well as other provincial services such as maintenance enforcement services and provincial child support services.
There are currently billions of dollars in unpaid child support payments in Canada, the vast majority of which are owed to women. With this bill, we are giving provinces, territories and individuals more tools to ensure that those obligations are being paid. The bill includes rigorous privacy protections to support this change. If this information were released to a court, it would have to be sealed and kept inaccessible to the public.
The bill's fourth priority is increasing access to justice and improving efficiency. Bill will provide parents with more options to resolve family law disputes. While the courts may be the best route for some families, others may benefit from out-of-court dispute resolution processes as a lower-conflict, more expeditious and lower-cost option. These processes enable parents to play an active role in crafting their own agreements, which increases compliance and makes for better agreements that are uniquely adapted to each family's situation.
However, Bill does not make family dispute resolution mandatory. Situations of family violence or power imbalance can make some mediation or dispute resolution processes inappropriate. What Bill C-78 does is require that lawyers must now inform their clients of all their options, both in and out of court, so that families are sufficiently informed of all available options.
In conclusion, Bill includes a number of other important changes that I'm happy to discuss further, but for now I would like to thank all the members of the committee for the meaningful work that you will undertake in studying this bill and for the ongoing dedication to making Canada's laws as strong as they can be.
Through Bill , we have an important opportunity to make a real difference in the lives of Canadian children and families. Separation and divorce are among life's most challenging events, and I am proud that Bill proposes significant ways to make these processes a bit easier for all involved.
Thank you, Mr. Chair.
Thank you, Chair, and thank you, Minister, for being available for this important bill.
I want to convey to committee members that I have two notices of motion, and I will read them now. We won't debate them now, as I understand it. I don't want to cut into the minister's time, but I did want members to be aware of these notices of motion.
The first one says:
||That the Committee invite the Minister of Justice and Attorney General of Canada to appear to answer questions with respect to any rules, precedents, or procedures related to the invocation of cabinet confidence to prevent the disclosure of information as requested by counsel in a trial process.
This, obviously, relates to the Norman issue.
My second notice of motion is:
||That, pursuant to the Order of Reference of Wednesday, October 24, 2018, the Committee consider the Supplementary Estimates (A) before the reporting deadline set out in Standing Order 81(5); and that the Committee invite the Minister of Justice and Attorney General of Canada to appear in view of this study.
I want to get that on the record and proceed with a few questions and answers, if you don't mind, Minister.
First of all, I note that there's quite an increase in the judicial system when it comes to self-represented litigants. That's true of many courts, not just the family court, of course. Bill is now four times longer than the previous act, so non-lawyers are going to have difficulty, I would say, digesting all of that and making sense of it.
I wanted to get your thoughts, Minister, on how this will impact case management and not lead to a further bogging down of the family court system, which, I think you will agree, is somewhat overburdened right now.
Thank you to the minister for being here.
First, it's encouraging that the best interests of the child is a centrepiece of Bill . The best interests of the child is well established in Canadian family law. Under Bill proposed section 16 provides that only the best interests of the child shall be considered in respect of orders applicable to children in family situations.
While that's encouraging, I want to follow up with the line of questioning from Mr. Clement. It relates to how we square Bill on the one hand, which puts the interests of the child first, with Bill that hybridizes a number of serious indictable offences, including offences that relate to crimes against children.
Mr. Clement referenced kidnapping a minor under the age of 16 as well as the offence of kidnapping a minor under the age of 14. I want to raise the issue of the hybridization of individuals who breach long-term supervision orders. These are individuals who have received sentences of more than two years. They're deemed to have a substantial risk of reoffending. The offences for which they were convicted involved a range of sexual offences, often against children. They're considered to be a serious risk of reoffending, so serious that they can be subject to up to 10 years, subject to an order that imposes a whole series of very strict conditions. We're really talking, Minister, about the worst of the worst when it comes to offenders who are at risk of offending again, often against children.
How does that square with putting the interests of the children first by hybridizing the offences related to those breaches, which are often the first sign that these bad actors are going back into their history of violence and escalation toward that? It's a serious public safety concern.
Thank you very much, Mr. Chair.
Thank you, Minister, as always, for being here with us and answering our questions on the relevant bill to our study.
I'm glad to hear that the Conservatives don't seem to have any substantive questions to ask on Bill . I'm assuming, then, that they'll be supporting the bill.
Getting to the substance of this bill, I would like to acknowledge and thank you for highlighting in your remarks the fact that the terminology often used in family court cases relating to custody and access is problematic. It does oftentimes pit the parties against one another in a win and loss sort of atmosphere. That is not in the best interests of the child.
I applaud you, Minister, for highlighting that in your remarks and in the bill. It ensures that parenting orders reflect it and the terminology is updated to ensure that the true, best interests of the child are at stake, and also that parents see that what's important in these tough decisions is what is best for the child.
In one of the items in the non-exhaustive list that can inform a court on what the best interests of the child are, you mentioned heritage and cultural considerations, including children of indigenous backgrounds. Can you expand a bit about why that would be important in ensuring those considerations are taken into account by a court to determine the best arrangement for a child?
Certainly, and thank you for the comments around the change in terminology.
The change in terminology from stakeholders, from individuals whom we've talked to, presents a significant change in terms of how we proceed. Many provinces have been out in front of us and other jurisdictions in terms of the change in terminology, again, as you said, moving from a win or lose situation to one that focuses on the responsibility of parents and parenting orders, decision-making and parenting time. It actually moves beyond the premise that children are possessions and that children should be at the centre in terms of separation and divorce, and the considerations around that.
This is why we thought—as you talked about—to put in place criteria or factors around what is in the best interests of the child or what should be considered. I was pleased to be able to put in the child's cultural, linguistic, religious and spiritual upbringing, including indigenous upbringing and heritage, as one of the factors to be considered in terms of the best interests of the child.
As we said, children are different. Children have different identities and identify with particular groups, parents and religions. We want to ensure in the breakup of a marriage or a divorce that this identity of what the child feels and where he or she is tied to is taken into account. It's one of the factors to be considered, but it's an incredibly important factor. I suspect many individuals around this table, including me, who identifies very closely with an indigenous heritage, consider that it's incredibly important to maintain the child's well-being.
With regard to this motion, I will not be supporting it. There are problems with it for a few reasons.
First of all, basically, it's asking the committee to invite the minister to seek what amounts to a legal opinion on the procedures, practices and precedents dealing with cabinet confidences. I don't think it would be appropriate for us to have the minister come here and give us her opinion on this. If the members want to get a legal opinion on such things, of course, they're entitled to do so, but it wouldn't be appropriate for our committee to undertake that type of work, in my view.
With regard to the Norman matter, it's obviously the subtext here for the rationale of this motion. I appreciate what my friend has said, that this would be in general terms and wouldn't be specific. It could easily stray into that type of discussion. The sub judice principle applies, that if there is a matter currently before the courts, it would be inappropriate for any member of cabinet to discuss this matter, or to make any types of submissions on that basis outside of the court process.
In addition to both of those excellent reasons, I would submit, we also have a lot of important work that this committee is doing. We started Bill today. We have Bill coming to this committee, an animal cruelty bill. It will be important for Canadians to see justice done to that bill. We have a human trafficking report that we're currently putting together to send back to the House. We have, in our agenda, a new study on the criminalization of HIV. We have lots of other important work to do.
For all of those reasons, it would be best to not support this motion. That's why I will be voting against it.