Mr. Speaker, I rise today to speak to a subject I feel strongly about, children’s rights. The bill currently being considered by the House poses a serious risk to the rights of Canadian children, which is why I would like to voice my opposition the current iteration of Bill C-560.

Bill C-560, as introduced by my colleague, the member for Saskatoon—Wanuskewin, amends the Divorce Act by replacing the concept of custody orders with that of parenting orders. The legislation instructs judges, when making a parenting order, to apply the principle of equal parenting unless it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.

This change to the legislation, which may, at first glance, appear innocuous, has significant consequences for thousands of Canadian families that have to navigate the already difficult experience of divorce.

The main effect of the bill is that it gives priority to the best interests of parents, rather than of the child, when a parenting order is issued. However, in my opinion, it is absolutely essential that the criteria of the best interests of the child remain the primary consideration in decisions made by judges regarding custody.

In this regard, I stand squarely behind the opinion issued by the Quebec Bar Association, which publicly announced its opposition to Bill C-560. Allow me to read a couple of excerpts from the letter that the Bar Association sent to the member for Saskatoon—Wanuskewin. I completely agree with the opinion of Bar Association and, at the same time, remain hopeful that the member will bear in mind the expert opinion and jurisprudence on the issue.

In his letter, the president of the Quebec Bar Association expressed the following opinion:

The bill being studied was preceded by two other bills, introduced in 2009 and 2002, that also included the concepts of “parenting orders” and “parental responsibility”. The 2002 bill was the result of a Canada-wide reflection that lasted more than a decade.

In 2001, at the invitation of the Federal-Provincial-Territorial Family Law Committee, the Barreau du Québec participated in this reflection and attended a conference on the subject.

A brief was prepared. The Canadian government's final report on custody and access and child support payments, entitled “Putting Children's Interest First”, along with Bill C-22, were the culmination of that extensive consultation. One of the most important conclusions that came out of the consultation concerned the rejection of all assumptions about child custody and the importance of maintaining the flexible criterion of the interest of the child along with the “friendly parent” and “maximum contact” principles. This conclusion was endorsed by the vast majority of those who participated in the consultation, which targeted numerous social and legal groups across Canada.

Bill C-560 proposes amendments that are contrary to the conclusions that came out of that 2001 consultation, particularly in relation to child custody. One of the legislator's objectives is to have the Divorce Act include, under the expression “equal parenting responsibility”, a presumption of joint parental authority and a presumption of shared custody.

Why does the bill disregard a decade of consultation? Why does it fail to take into account the opinion of experts?

The difficult experience of divorce and the issue of custody already place huge pressure on families and especially on children. However, the current bill would force judges to put the interests of the child second, behind the right of parents to equal custody.

This shift has serious consequences and may have an adverse effect on the healthy development of the child. Judges already consider the option of equal shared custody as the optimal solution for a divorced couple with a child, if indeed this option is in the best interests of the child.

What, therefore, is the point of this bill when the legislative tools at our disposal already provide us with the option of equal shared custody?

Canadian judges are competent and know what to do. In the face of ongoing family conflict, it is quite simply not in the interests of the child to be in a situation where the parents share equal custody. Moreover, where in this bill is the opinion of the child taken into account? Does it come second to the custody rights of parents?

Of course, the NDP will always stand up for gender equality, and the rights of fathers are just as important as the rights of mothers.

However, this bill misses the mark, since it in no way moves us in the direction of equality. Rather, it diminishes the rights of the child, and it is high time that the debate refocused on the real issue at hand: the best interests of the child.

It is also important to avoid relinquishing any legislative space to parents who, in the throes of divorce, often lack perspective and judgment. This vulnerability may cause one parent to use custody of the child to attack the other parent. Sometimes parents’ claims come from a selfish place rather than from a place of genuine concern for the best interests of the child. This must be avoided at all costs.

I will say it again: I share the opinion of the Barreau du Québec, which is that the best interests of the child must take precedence over any other consideration when it comes to custody rights.

I would also like to inform my colleagues that the opinion of the national family law section of the Canadian Bar Association is that Bill C-560 puts the rights of parents before the best interests of the child. The association further argues that:

Parenting is not about adults claiming rights…It is about the desire and ability to put children’s interests first.

The association goes on to say:

The bill is based on the faulty assumption that equal parenting time will work for all families, regardless of abilities, circumstances, needs, history, challenges or attitudes of all those involved...

In reality, the proposed change is clearly about promoting parents’ views of equality at the expense of the interests of children, who are affected by their parents’ separation.

I hope that my colleagues will also consider this expertise when it comes time to vote.

In closing, I would like to express my concern about two other aspects of the bill. First, this bill allows custody orders that have already been made by a judge to be changed. From what I understand, an application for judicial review can be submitted for any sole-custody orders, and the courts will now have to apply the presumption of shared custody. This gives a certain amount of retroactive power to change decisions that were already made in an appropriate manner in light of the facts presented to the judge.

Finally, there also seems to be a desire to rank a number of criteria that the judge must consider when rendering a decision. How can the child's opinion and family violence be ranked lower than maximum parental contact? That does not make any sense, and it represents a major setback in terms of child and family law when compared to the laws in most other western countries.

I would like to close by saying that when parents are more concerned about their children than themselves, they are more likely to forget their differences and their own interests and find a solution that works well for their family. The existing laws already offer the possibility of equal shared custody, if that solution is in the best interest of the child.

Rather than restricting the rights of children, I urge all my colleagues to think about more constructive solutions that will enable us to develop tools and provide families with the resources they need to deal with the painful transition of divorce. Parents who are better equipped will be able to minimize the negative effects of divorce on their children's development and well-being.

Anne-Marie Day

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