Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.
We have Ms. Claire Farid, who is senior counsel. We also have Ms. Andina van Isschot, acting senior counsel.
For all of the committee members present, let me say that as people know, I have to leave for about a half-hour or 40 minutes between 5:05 and 5:45. Mr. Cooper will be chairing during that time, but we're in sync.
Because I have to walk out and I have one amendment that I am proposing with Madame Fortier, everyone has agreed to do amendment LIB-28.1 first. If that's okay, it will be the only one. Then we'll go back right to the beginning and will go as normal.
As you know, the Fédération des juristes d'expression française de l'Ontario and the Canadian Bar Association have both said that there are no provisions under which Canadians can obtain a divorce in the official language of their choice, either English or French.
This new provision is intended to make sure that Canadians from one end of the country to the other can obtain a divorce in the language of their choice. I doubt if you want me to read the provision.
Mr. Chair, perhaps you can help me with the next part. There is a provision that requires discussion with the provinces to make sure that those that do not have a provision of that kind, British Columbia, for example, do adopt one.
I hope that all the members of the committee will support this change.
I must say that I was a little shocked to learn that people in Newfoundland and Labrador and in British Columbia have no right to ask for their divorce proceeding to be heard in French.
As Canadians, we believe that justice and access to justice should be available at the federal level in both official languages, especially when it is something as painful for people to go through and as traumatic as a divorce and the idea of who would parent children. It seems really unfair that there are some Canadians who are not able to do this in their own language, at one of the most painful times in their lives.
This amendment, for which I am hopeful to have support from all parties, is one that will enshrine for Canadians the right of access to divorce in both languages. You can testify in both languages. You can plead in both languages. You can receive translation, if somebody is testifying in the other language. You can also get the judgment in your language of choice, and you have a right to a judge who speaks one or both of the official languages of the parties. This is similar to what we have in the Criminal Code for criminal trials.
There will be another proposed section that says it will go into effect in various provinces on the date when the province is ready. This is a separate amendment, put into effect by cabinet.
I appreciate everyone's forbearance in doing this amendment first. For me as an English-speaking Quebecker, this is incredibly important.
It is also extremely important for French Canadians outside Quebec.
Again, I thank my colleagues for their consideration of this really important amendment. We as a committee are doing something very important for Canadians who speak the minority official language in their province today.
I will turn it over to anyone else who wants to comment.
I might just want to add that, being known to be the member of Parliament for Ottawa—Vanier, I have received many calls and much advocacy from different organizations saying, “This is not possible in my province and I would like you to bring it up, now that the act is being revised”. You can acknowledge that there is a need to give access to French Canadians but also know that in Quebec right now you can divorce in both official languages, but that some don't have that possibility. This is why I am advocating today for their being able to do it.
First, I'm only here because of the motion that was passed by this committee. I still object to the motion. I object to it restricting my rights at report stage by insisting I be at clause-by-clause. It's often very difficult for a sole member of a party to be at everything.
This evening, I'm sure you share that concern. We have the lighting of the menorah. I will be disappearing for a brief amount of time to be present at that.
I can't refer you to where it's present in the act, but we do need a definition of “gender-based violence”. Amending this was a recommendation from a number of witnesses before the committee, including the National Association of Women and the Law. The only thing I could suggest is that the definition of “family violence” within this bill opens up the possibility for a definition of “gender-based violence”. I submit that and hope that others will agree.
I appreciate that. However, since there is no reference in the bill to “gender-based violence” and there's no amendment that proposes to include those words, you can't create a definition with no purpose. At that point, I have to rule that this amendment is out of order.
I would suggest that perhaps you could look at Madame Sansoucy's amendment on the next page, which introduces something similar in the realm of “family violence”, which would have been admissible.
Unfortunately, I have to rule the amendment out of order.
What we can say about the definition of “family violence” is that it is gender-neutral. It would apply to intimate partner violence, which can happen between different genders or the same gender, but it also includes violence that can happen to children. It's a broad definition and it would include violence committed against whatever gender, as long as it falls within the broad definition of conduct that's covered by that definition.
Of course, but I'm asking whether this could create confusion when you specify one group and say it includes all violence against one group. Could that then create confusion for the court that the legislators didn't intend to include all forms of violence against other groups?
The long definition section that deals with all the definitions that relate to family violence and other forms of threats is amended by my proposal, which remains gender-neutral. I want to stress that.
What it does is import to the legislation the understanding that threats of violence can include threats made through cyberspace or on Facebook pages. A number of witnesses we've heard here have made the point that cyber-violence is actually one of the main forms of family violence now. To make that explicit, threats on Facebook, threats through texting, threats of sending intimate photos, and so on, are an important area of psychological violence and can lead people to suicide. It's a real threat, but it's much less personal than our conventional understanding of threats of violence, so I would urge the committee to consider this amendment favourably.
I hold a bit different view. The definition as it is in the bill is still quite broad. Although it's important to address it and necessary to acknowledge that this type of violence exists, I don't think codifying it by including language such as this is the right approach.
As “family violence” is determined on a case-by-case basis in the courts, the application of these kinds of threats should also be made on a case-by-case basis. My fear is that by adding this type of language, we're actually narrowing the scope of what “family violence” could mean, so I will not be supporting this.
Iqra, with all due respect, I can't see how that makes sense. This is just for greater certainty and furthers the definition. This just ensures that it is included. It doesn't create confusion. It doesn't diminish any other interpretative, judicial or prosecutorial understandings of family violence. It merely makes explicit something that could be seen as somewhat in the virtual realm. It clarifies it, in a way, but it takes nothing away from the existing broad definition found within the act.
It is a positive and helpful addition. As you'll remember, of course, in the evidence, the South Asian Legal Clinic of Ontario was the specific witness that called for this change.
The minister has already indicated that the definition of “family violence” is a very broad one. The examples given in the list are non-exhaustive, so it doesn't preclude other types of family violence from being considered if they fall within the general, broad definition.
The other issue I would raise is with respect to the terminology of Internet and digital networks and the extent to which that terminology might or might not be reflected in other federal legislation.
This might be a really minute point, but I'll say it anyway.
We're writing this legislation for the long term. While digital communications might still be a little fresh now, I imagine 20 years from now, going back to this act and seeing how that would impact the definition of “family violence”. I really think we should keep it as broad as we can, which is the way it is currently written.
I have a number of amendments, of course, which I submitted in consequence to witness testimony, wanting to make sure they were on the table for us to consider. I've been persuaded, however, in talking to legal people who know the act and know the legislation much better, that this is not necessary. I'm withdrawing it at this point.
I can see that there is opposition to this amendment, but I was really pleased when I saw that you had proposed to move this measure, Mr. McKinnon.
The evidence here came—as many of my amendments did, by the way—from Luke's Place and the National Association of Women and the Law. While we want to see diversity and dispute resolution processes, we want to give parties a chance to sort things out and make informed choices. We need to pay attention to situations in which alternative dispute resolutions processes provide abusers with ongoing contact with the spouse who has been abused. The additional language here is just as a reminder. It doesn't cut off that option.
It is just a reminder that:
To the extent that it is appropriate to do so, especially with regard to the risks that ongoing contact between the parties may pose in cases of family violence,
It continues on page 10, that the parties:
shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.
It just is a reminder that this may not be appropriate in all cases.
I don't have a problem with the current language in the bill, because it states very clearly that it is “to the extent that it is appropriate to do so”, and clearly, in the case of family or domestic violence it wouldn't be appropriate to do so, and of course there could be other circumstances in which it's not appropriate to do so.
This is to the same concern—ensuring that people involved with the family law system have a duty to prevent violence against women and children. It also extends to advice that is given.
Having an accredited family violence screening tool to assess the extent to which family violence may adversely affect the safety of the person of a family member and the ability of a person to negotiate a fair agreement, to have full information—those provisions—will be included, as you can see, following the existing requirements of the “Duty to discuss and inform”.
Certainly the issue of family violence screening is an important one and it was raised by witnesses. The important issue to underline is that there's a jurisdictional issue here in terms of the implementation of any screening approach. Family violence screening requires training of those who would use any screening tool. The training for family law practitioners falls within the mandate of provincial law societies, so it's not something that can be done by the federal government on its own in federal legislation.
I would think the common-sense understanding of “accredited family violence screening tool” is the work of those who are court appointed to assess the suitability of family arrangements.
There are a lot of screening tools used in the courts to determine whether there's a risk, particularly when assessing custody. While we haven't defined that term, there's a common-sense understanding of what it is. That's why I used it in this amendment.
While she's finding her place, I'll just say LIB-3 is basically to clarify “to inform the person of the parties' duties under this Act.” People were confused that it might be the lawyers' duties as opposed to the parties', so some witnesses had asked us to clarify that. That's why LIB-3 was drafted.
A number of witnesses have told us that it would be in all our interests to include, in a clause of Bill C-78, a reference to the preamble of the Convention on the Rights of the Child, passed by the United Nations General Assembly on November 20, 1989. That is why I am asking that we add a reference to the Convention on the Rights of the Child to clause 12 of the bill.
It is my understanding that the treaties and commitments such as the Convention on the Rights of the Child are already fundamentally incorporated into Canadian law, so the judges are expected and required to follow them anyway. In that case, it's not needed and it's not good practice to incorporate references of that kind.
On that basis, I will oppose this amendment, just as I will withdraw my later amendment that references the same thing.
I would like to ask for a clarification from the officials from the department. Is there not a convention that we do not name international treaties in our legislation? At least, that's what I thought I understood. Is that the case?
What we tend to do in legislation is to incorporate the principles that are in a convention and see that they're reflected in what is done in the federal legislation. For example, here there's the focus on the best interests of the child, but there's no need to incorporate directly the language that's in the convention, or allude to it, or refer to it specifically in the legislation.
As you've stated, Canada is a party to the Convention on the Rights of the Child, for example, so we are required to bear that in mind when we—or actually you—enact legislation at the federal level.
Allow me to insist. Actually, it is all very well for us to have signed that convention, but, each year, the United Nations rapporteurs allude to the improvements that we should make in order to keep faith with our commitments. A number of witnesses have indicated that, if it is not explicitly stated, the UN rapporteurs will report negatively about us once more.
I just want to be precise in my clarification, because I really want to understand. I know this was discussed.
My understanding is that there is a convention in Canadian laws not to name international treaties inside a bill. There can be references to international treaties in the preamble, but not in the bill itself. Am I correct that this is a convention in Canadian legislation?
This amendment builds on the considerations for determining what is in the best interests of a child. On the basis of a lot of testimony, and of course, how we all feel as individual members of Parliament, we're well aware that indigenous children are apprehended at an alarming rate. I know this is also looking at family law issues, but just to put it in context, we have more indigenous children apprehended now by social services than used to be in residential schools. Therefore, we have an ongoing concern that when decisions are made about what's in the best interests of the child, if that child is an indigenous child, there are other considerations that should be taken into account.
The amendment I'm putting forward here as PV-5 deals with strengthening the determinations of what's in the best interests of the child by adding that, in the case of an indigenous child, the importance of preserving the child's cultural identity, connection to community and rights of indigenous people to raise children in accordance with culture, heritage and traditions be a positive and required consideration. Otherwise, there's no additional lens for the best interests of the child when it's an indigenous child.
Once again, I have to oppose this. This is already dealt with later on the same page. In proposed paragraph 16(3)(f), “the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage” must be considered as well. Therefore, I see this as redundant and unnecessary.
Maybe I should have amended that section, but I felt it was at the level of primary consideration, and as an umbrella clause, it was a better place to put it. However, while this throws in the idea of “cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage”, it doesn't speak to the rights of indigenous people to raise their children in accordance with their rights, culture, heritage and traditions, and the importance of preserving a child's cultural identity.
In the existing proposed paragraph 16(3)(f), it just says this is a factor for consideration in the circumstances of that child. It doesn't speak to any particular higher order of concern when the child is indigenous.
Can I ask a question? Given that this amendment would presume to create a primary consideration of culture and heritage solely for indigenous Canadian children and not for Canadian children of other traditions, heritage and culture, could that not be seen as discriminatory in the sense that other people might say, “Why is my heritage, culture and tradition not as important to the child as the indigenous heritage, culture and tradition?”
Certainly it would be identifying only one aspect of culture. If you look at the criteria in proposed paragraph 16(3)(f), you'll note that there's a more general reference to cultural, linguistic, and religious heritage, but indigenous heritage is included as one example of that.
The other aspect as well is that the ideas of indigenous upbringing and heritage would also capture the concepts of cultural identity and connection to community.
I would answer your question by pointing out that I'm Anglican. I'd love in any separation issue to have a hypothetical child raised Anglican. I don't have any constitutionally enshrined rights about my ability to exercise rights in that sense.
Section 35 of the Constitution recognizes that indigenous peoples are not in the same category as other groups. They are not stakeholders we're dealing with. We're also dealing with a marginalized population where we know we have been separating indigenous children from their families over and over again, first with the residential school system and now through the actions of provincial governments in terms of social services. If our family law fails to take account of this, we are putting indigenous culture in the same pot with a factor to be considered.
Yes, we'd like them to be raised with their family that came here from Scotland, or we'd like them to be raised....
This is very specific. This is sui generis. Indigenous status in this country is not like the others. It's constitutionally protected but has been more deeply abused than others.
The other thing I have a problem with in regard to this amendment is that the whole focus or the primary foundation of this act is the consideration of the best interests of the child, and here and now, suddenly we're talking about the rights of the people, the rights of the parents, basically, which I fear will derogate from that principle of the best interests of the child. The rights of the child have to be paramount and I feel that this does derogate from that.
I understand what you're saying and I don't disagree that indigenous Canadians have been mistreated in greater numbers and have higher incarceration rates and higher rates in foster care. There's no doubt of that. However, linguistic rights of the English and French communities are constitutionally protected. Multiculturalism rights are constitutionally protected. I'm just concerned about singling one out in a primary consideration when everything else is a secondary factor to be considered. That's why I raised that question.
I have a feeling that this amendment will not receive support, but I would just say that in adding it to primary consideration, it has no impact whatsoever in determining the best interests of the child if the child is not indigenous.
You'd have to look at our family law system. Our social services system over generations has been a whole lot of non-indigenous people deciding to take the children of indigenous people away from them. As an experiment, it hasn't worked well for indigenous children, indigenous parents or society as a whole. This is an effort to remedy that.
I would note as well that if PV-6 is supported, CPC-3 proposes the contrary. CPC-3, when we get there, would then not work because it actually is saying exactly the opposite. However, PV-6 is perfectly in order to be proposed at this point in the bill.
This comes from evidence presented by Shaun O'Brien and the language here is based on the B.C. Family Law Act.
I've had lots of visits from family law lawyers in B.C., because we see it as a model act. The B.C. Family Law Act has been extremely well received and has really helped with sorting out issues in parenting orders and making sure that parental time, when it's in the best interests of the child and there's isn't a threat of violence, and so on.... It's very clear that sharing parental responsibilities has worked extremely well for the best interests of the child and also for the health of the family unit altogether. The family unit may be split, but it is still, in many ways, a unit, and the way that the British Columbia Family Law Act has worked has been very positive.
Once again, I heard this testimony and I was very taken by it, but this act studiously stays away from presumptions. It's based on the fundamental principle of the best interests of the child, and there are no presumptions.
Here, we're trying to add negative presumptions and I think that's a mistake. That's why I'm withdrawing amendment LIB-14 as well.
When you look at these things in the abstract as the leader of the Green Party and you think that the Liberals are moving this anyway, you don't think it's Ron by himself and that he's about to withdraw it. I was sure these were all going in.
In any case, I accept that you've been dissuaded from this. I still think it's the right way to go. It makes for happier families.
You'll remember the testimony around this. The existing legislative language speaks to the “nature and strength of the child's relationship” with each parent, or in its language, “with each spouse”, with “the child's siblings” and so on.
The question was whether “nature and strength” is the right language. What if there's a very strong and controlling parent—a situation that does not actually represent a healthy relationship—but the relationship is very strong; in other words, the child is scared to death of one of the parents?
I know what they're trying to get at with “nature and strength” in that legislative language. I'm suggesting that the “quality” of the child's relationship is more neutral language and more encompassing of what's healthy, in distinction from the use of the word “strength”.
I'd like to ask the officials a question. There's a difference here between using the words “nature and strength” versus using “quality”. Could you tell me what the significance of it is? My understanding is that “nature and strength” is consistent with usage elsewhere in the act, and “quality” is perhaps not as well defined.
The terminology “nature and strength” is used in other family law legislation. For example, it's used in the B.C. Family Law Act, and no concerns have been raised with respect to the use of that terminology in that legislation.
The term “quality” is much broader than the concept of “nature”, which has you look at different aspects of the relationship, and “strength”, which asks about whether there is a close relationship, a good relationship—those types of issues.
Thank you, Chair. I'd just like to ask the officials a question.
How long has the B.C. Family Law Act been in effect with the language “nature and strength”? When you say there's been no difficulty with it, I assume you mean in case law or in any litigation surrounding that terminology. Is that correct?
I want to applaud you for making this proposed amendment. I've been working with stakeholders who are working towards having more recognition of equal parenting. I think everyone around the table realizes that it's in the best interests of a child to have a good relationship with both parents. This is a great starting point, and I believe it's consistent with the Senate report of 1998. I hope, therefore, that colleagues around the table will be supportive of this amendment.
I'd like to hear from the officials on this one in particular and then make comment.
My understanding is that this is going some way towards adding a presumption. It appears as though it's making a preference over some of the factors and considerations that go into the overall paramountcy of the best interests of the child by adding certain elements and ranking them as to how these things are balanced and factored.
I'd like to hear the officials' thoughts on whether or not that is an accurate assessment of this amendment.
I'm not sure I understand specifically what your question is. I can just comment on what the minister has indicated as the focus in this bill. First of all, she said when she appeared before this committee that there are no presumptions being presented in this legislation and that the focus is on the best interests of the child, so that the parties who are involved with each other in looking to make a decision, arrangement or agreement—or family justice professionals, service providers or judges—would be looking at each case individually, without starting on the basis of a presumption, to see what is in the best interests of a particular child in particular circumstances.
My point was, from looking at this amendment, that it would appear as though it creates a presumption, or goes some way towards creating a presumption, of equal parenting time. If that's the case, it detracts from the overall purpose of not having presumptions and leaving the best interests of the child as the overall consideration.
Based on that—and I know we heard testimony from individuals who wanted to say that the best interests of the child is a wonderful thing, but that we should identify certain factors, such as equal parenting time, as primary considerations that go into the factor—I think this erodes the basic premise, about which we heard from many witnesses, that the only consideration should be the best interests of the child.
Since this amendment erodes that overall paramountcy of best interests of the child, I can't support the amendment.
This is a motion that would improve consistency between the wording of this provision and similar provisions in provincial and territorial laws. It's to remove the word “by”. It doesn't change the meaning of the provision.
This is basically the same argument I made earlier.
Training on the way to consider the interest of the child in family court proceedings must be based on the 2007 Convention and on current best practices in Canada and other countries. It would therefore be worthwhile to add: “based on the 2007 Convention, the 1996 Convention, and current best practices in Canada and other countries.”
It is important for the rights, culture, religion, and language of indigenous children to be recognized. Representatives of UNICEF Canada recommended that our committee amend paragraph 12(3)(f) to more closely resemble article 30 of the convention, which recognizes the right of an indigenous child, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language. That emphasizes the importance of cultural continuity and identity preservation, which are also recognized in the convention. We therefore propose the addition of the words “the child's rights” at the start of paragraph 12(3)(f).
I would submit that this particular change would be unnecessary, and I would say so given what we heard from the officials earlier today, as well as the fact that courts are supposed to interpret provisions in a manner that is consistent with international statutes and international treaties. It would appear to me that this wouldn't make much of a difference.
(Amendment negatived [See Minutes of Proceedings])
The Vice-Chair (Mr. Michael Cooper): We move now to amendment PV-10. It should be noted that if PV-10 is adopted, amendment LIB-11 cannot be moved due to a line conflict. Does anyone wishing to speak on PV-10?
(Amendment negatived [See Minutes of Proceedings])
The Vice-Chair (Mr. Michael Cooper): We now move to amendment LIB-11.
The effect of this amendment is in changing clause 12. It would be moving proposed subsection 16.2(1) of the bill, the provision for maximum parenting time, into another part of section 16 that deals with the best interests of the child. This amendment clarifies, somewhat related to what I was speaking to earlier about another amendment, both that a child's relationship with each parent is important and that considering the best interests of the child is the only test to be applied in making parenting arrangements, while having regard for the fact that having both parents as part of a child's life is important to the child.
Again I think this is a great amendment to consider, and I ask my colleagues to think about how important it is for kids. Really it is in the best interests of kids to have a good relationship with both parents. If you look at proposed subsection (8) it says:
The presumptions set out in subsection (7) are rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or decision-making responsibility other than equally.
I think it would take into account my other Liberal colleagues' challenge with the other amendment. I think this is consistent with the Senate report of 1998 and it is a great starting point during these situations.
I understand where this is coming from; however, I go back to the point about the fact that adding presumptions into what is a wholesome view of what is in the best interests of the child can be dangerous.
I note that the courts already take into account the fact that a shared parenting arrangement or maximum parenting time—all of these things—are often weighed already in determining what is in the best interests of the child.
Putting parenting presumptions in the Divorce Act would likely detract from courts focusing on the specific needs of each individual child. I think we've heard plenty of testimony to indicate that these should be considered case by case, and adding presumptions detracts from the overall best interests of the child test.
Thank you, Chair. It's great to see you in that chair.
This is basically a technical amendment. It simply renumbers the proposed subsections of proposed new section 16.2, which is required as a result of the removal of the maximum parenting time provision from this section.
There are circumstances in which requiring notice of an application for exemption from notice requirements would not be appropriate. For example, where a change in residence is sought by someone fleeing family violence, providing notice to other parties, including a perpetrator of family violence, may create a serious risk.
Therefore, explicitly providing that applications for exemptions from notice requirements may be made without notice to other parties is an amendment worthy of support in my view.
I think this is a welcomed amendment. I think the use of prescribed forms is something that we should all welcome, in the sense that it brings clarity and consistency for people who are involved in these types of cases. That would also make it consistent with the manner in which we deal with a change in residence.
Certainly it's intended to provide sufficient time for someone to consider whether there's a need to provide objections to the notice and to allow for enough time for negotiations in order to prevent, if not necessary, a court application.
Yes. I raised the question because there had been some testimony before the committee about whether that was sufficient time. I just wanted to get clarification as to whether there was a specific basis for that number, or whether that number was arrived at on a policy basis as opposed to some other technical case.
I would like to ask the officials if on application a person could ask the court for an extension of the time period in order to have an opportunity to respond to the request to move. Is that something that is possible? If there were a situation where there was a time problem or a delay in getting into court, could they ask a judge to extend the time in those appropriate cases?
Certainly because this relates to the best interests of the child, if the court is concerned that sufficient time has not elapsed for the application to be brought, they would certainly have discretion in a particular case to nonetheless hear an application with respect to an objection to notice.
If I may, Mr. Chair, on the 60-day time frame, that notice period, it's my understanding that it's consistent with the notice period in existing provincial schemes that deal with relocation issues for the children. Is that correct?
Based on what the officials have said, knowing that it's always a balancing act between a parent wanting to move and having the ability to have that adjudicated in a reasonable time frame, knowing that in provinces it's well established that it's a 60-day notice period, and also knowing that there would be an opportunity in those appropriate cases for a judge to extend the time, I think there are enough factors there to persuade me that the 60-day notice period is probably sufficient. Therefore, I'd be voting against the amendment.
I think this is a very good amendment in the sense that this will permit non-relocating parents the option of responding. It certainly saves them the trouble and expense of having to go to court. Again, this would be by a prescribed form, which I'm very much in favour of, as you know.
I think this is the type of amendment that promotes fairness and access to justice. For that reason, I think it should be supported.
This amendment deals with the issue of the double-bind question we heard about from a couple of different witnesses. When a parent is looking to relocate, the act prohibits asking whether or not the person who intends to relocate with the child would relocate without the child. This would make it so that both sides of that question are covered. It appears as though the legislation now is not entirely clear that it would not be barred from asking if the person would either relocate or not relocate without the child.
To cover both sides of that question, this amendment is put forward.
I have a bit of concern about the wording here. The phrase “if the child's relocation was prohibited” seems a little bit incoherent to me. I'm wondering whether we should change “was” to “were” or else “were to be”. To me, that would clarify the meaning.
I guess I'm asking for any comments on that suggestion.
I would say it's an issue of tenses. “Was” assumes that the move has been prohibited, and then the court can't ask, if that were to happen, whether the person would move or not move. “Were to be” is just more forward-looking. It's a tense issue.
I'll try to get this as clear as I can from the proposer of the amendment. Basically it is to put the responsibility on the person who wishes to make the amendment. The burden is on them to prove that the relocation would be in the best interests of the child. It's all about what's in the best interests of the child, and the person who wants to make the relocation is going to have to make that case to the court that it's in the best interests of the child.
That's correct, and maybe just to elaborate on the intent of the amendment, it's intended to simplify the process with respect to relocation. Under the bill as it is currently drafted, there would be a three-way test. Where there is a shared-parenting relationship, the burden would fall on the parent proposing the move. Where there is an unequal relationship and the child spends very little time with one parent, the burden would fall on the parent who does not spend time with the child to justify why the move should not occur. Then there would be the case of both parties having the burden if there is some sort of arrangement in between, something between a shared-parenting relationship and something on the upper end of the spectrum. It's really intended simply to simplify that, as a general rule, the burden should fall on the parent who is proposing the move except where that parent does not have a real relationship or a significant relationship with the child.
It can get a little bit complicated. I know we heard from witnesses on the burden of proof. Could you just help clarify the burden of proof as it is currently in the bill and what the effect of this amendment would be, please?
The burdens as laid out in the bill, the framework, are very similar to what is in the legislation in Nova Scotia. There are three different situations. There's a situation where there's substantially equal time, and in that case the burden is on the person proposing to move. There's the situation where one parent has the vast majority of the time, so there's a clear primary caregiver. In that case the person who is opposing the move has the burden of proof. In those cases in between that are not the clear cases on either end of the spectrum, both parents have the burden to show what's in the best interests of the child.
Is this alluded to in the Gordon v. Goertz case as far as burden goes, or is that totally separate and apart? I'm just wondering, because I know the bill is legislating or codifying the principles from Gordon v. Goertz, but does it talk to burden at all?
This amendment is intended to provide for a prescribed form for notice in the case where a person with contact is proposing a move that would have a significant impact on the child's relationship with that person. Requiring a use of a form prescribed by the regulations would promote clarity by prompting individuals to provide all necessary information in a consistent manner. This is identical to the amendments that were previously made with respect to notice requirements regarding change of residence and location. It would expressly provide that applications for modifications of or exemption from the notice requirements may be made on an ex parte basis.
This amendment ensures compatibility with similar provisions in the harmonization initiative. It adds the word “or” and a comma, and doesn't change the meaning of the provision. It's just a technical amendment.
Mr. Chair, thank you for allowing me to speak to that.
Much like the previous amendment, this is a compatibility amendment as well. In this particular instance it's to ensure that the provisions on the recovery of an overpayment are compatible with similar provisions in the harmonization initiative.
If you look at those changes, adding the word “or” or the comma that follows will not change the meaning of the provision.