Senator Cool's Motion
CHILDREN OF DIVORCE
MOTION OF AFFIRMATION AND RESOLUTION
IN SUPPORT OF ENTITLEMENTS-DEBATES ADJOURNED
Hon. Anne C. Cools, pursuant to notice of June 1, 1999, moved:
She said: Honourable senators, on the question of divorce, the role of senators in the past and the present is legend. In February 1997, on Bill C-41, to amend the Divorce Act and other related acts, the Senate reaffirmed its protection of children.
I am indebted to the Conservative senators, particularly Senator Duncan Jessiman, for this assertion of the Senate's peculiar constitutional role to uphold, protect and represent the children of divorce. I applaud our now retired Senator Jessiman.
Honourable senators, it had been the Liberal Minister of Justice, the late Mark MacGuigan, in Prime Minister Pierre Trudeau's government, who first proposed the term, "the best interests of the child," for the Divorce Act. On January 19, 1984, in the House of Commons, Minister MacGuigan introduced Bill C-10, to amend the Divorce Act. It later died on the Order Paper when Parliament dissolved, in July. Bill C-10's clause 10 proposed to add to the Divorce Act, in Section 12, a new section 12.1 (3). headed "Principles respecting children" that would have read, in part:
Minister MacGuigan had anticipated that the courts and legal practitioners would apply "the best interests of the child" to mean the child's entitlement to 4 full relationship with both parents. Prime Minister Brian Mulroney's new Conservative government's Throne Speech of November 1984 pledged a new divorce regime. Minister of Justice John Crosbie redrafted Bill C-10 extensively and, in 1985, he introduced his own divorce bill, Bill C-47, entitled: "'An Act respecting Divorce and Corollary Relief," and also Bill C-46 and Bill C-48, the passage of which in 1986 all created the current divorce law regime. Minister Crosbie retained the phrase "the best interests of the child" in Bill C-47. However, his concept was not exactly as Minister MacGuigan had intended.
From then till now, the development of family and divorce laws took some strange turns, such that "the best interests of the child" became the best interests of custodial parents, mostly mothers, and non-custodial parents, access parents, mostly fathers, became visitors and observers in their children's lives.
In his 1995 article "The Best Interests of the Child," about this and the Supreme Court of Canada's 1993 judgement in Young v. Young, Queen's University Law Professor Nicholas Bala wrote, at page 455:
About Justice L'Heureux-Dubé, he added, at page 461:
About her judgement in Young v. Young, he stated, at page 462:
In the 1995 Supreme Court judgement in Gordon v. Goertz, Madame Justice L 'Heureux-Dubé reiterated, at paragraph 110,
Honourable Senators, Ontario Court General Division Justice Robert Blair, in his 1991 judgement in Oldfield v. Oldfield, is especially enlightening. About Mr. Oldfield's relationship with their children, Justice Blair said, at paragraph 5:
That is, the relationship with the father.
About Mrs. Oldfield, unhappily living in North America and wishing to move to France with their children for her prospect of marriage to a boyfriend, Justice Blair said, at paragraph 6;
Justice Blair permitted Mrs. Oldfield's move to France for this marriage. Mrs. Oldfield and the children did move to France, but that marriage never ensued. Mr. Oldfield's high child support payments then financed the children's trips to Canada for his access to them.
Honourable senators, the term "best interest of the child" went astray from the late Mark MacGuigan's intentions. It became an opportunity for shutting fathers out of their children's lives, for dispossessing children of their parents, and parents of their children.
Honourable senators, now to the Senate's encounter with Bill C-41 in February 1997. The then Liberal Minister of Justice Allan Rock's Bill C-41 was introduced in the Senate, having sailed through the House of Commons unquestioned. It proposed to repeal sections 15.(8) and 17.(8) of the Divorce Act, the provisions which had imposed the joint financial support obligation to their children on both parents, and also enabled the Federal Child Support Guidelines. The Senate amended Bill C-41 by reinstating that clause founding the Federal Child Support Guidelines, regulations on this joint and shared financial duty of parents, That clause, now section 26.1(2) of the Divorce Act reads:
Honourable senators, the public support for these Senate actions was unprecedented. As a corollary to Bill C-41's passage, the Senate obtained agreement to a Joint parliamentary committee on the neglected issue of child custody and access in divorce. I agreed to a joint committee, rather than a Senate committee, because 1, as did Senator Jessiman, believed that it joint committee would be the best vehicle to bring forward concerns and opinions, because it would include two of the three estates of Parliament, the Senate and the Commons. Knowing that, by the sheer number of political parties' members on it 4 joint committee would be more cumbersome than a Senate Committee, We believed that a Joint committee's study and recommendations would be a certain, efficient, and direct route to the government's inclination and mind because Parliament is the highest court of the land, and a concerned minister would welcome its opinion and feel responsible to it.
Honourable senators, Recommendation No. 5. the shared parenting legal concept, the most significant recommendation of the Special Joint Committee's report "For the Sake of the Children" states at page 27:
About this, Liberal Minister of Justice Anne McLellan, in her May 1999 response entitled "Government of Canada's Response to the Report of the Special Joint Committee on Child Custody and Access: Strategy for Reform," stated, at page 12.
I repeat, a "high priority," She continued
Honourable senators, the term "visitor" and "observer" entered the divorce lexicon after Justice L'Heureux-Dubé used the term "observer" in Young v. Young. The minister clearly accepts the major recommendations and principles of the committee's report. She clearly accepts the need for correction to the current divorce law regime, The minister, to her credit, has received the public call for change. The problem is her time-frame.
Honourable senators, I have studied the incalculable pain and suffering of thousands of children, mothers, fathers, grandparents, and other family members, Disturbed by the disinclination of Parliament and the courts to vindicate the emotional needs of children for both parents, for both mothers and fathers. I have been shocked by this collective recklessness with children's lives. For years, I have been inspired and deluged by thousands of letters and requests as burdened and anguished Canadian families appealed for my help, 411 questioning how governments of their beloved country can allow these injustices to continue.
I have studied this issue, its injustice, and its consequences for the children of divorce and their families. I have studied the legal documents of hundreds of fathers falsely accused during divorce and custody proceedings by mothers of sexually abusing their children. This phenomenon is a heart of darkness. Such false accusations are soul-destroying to those afflicted fathers and families.
On such false allegations, I welcome Professor Nicholas Bala's and John Schuman's recently released study "Allegations of Sexual Abuse When Parents Have Separated." I feel vindicated. I note that in their study they cite many cases and judgements that I have brought to the attention of the Senate and that I have quoted, including the cases of Reverend Dorian Baxter v. the Children's Aid Society of Durham Region. Barham v. Dadd, the Law Society of Upper Canada v. Carole Curtis, Metzner v. Metzner, Plesh v. Plesh. and others. These false accusations are a strategy to obtain sole custody and to defeat the other parent legally, emotionally, and financially, it is a potent and destructive use of legal process by one parent to dispossess the other parent or 4 parental relationship with their children.
Honourable senators, the other issues include parental alienation, grandparent alienation, and access denial. Governments have prescribed hefty penalties for non-custodial parents, fathers mostly, who lose their jobs and are unable to pay child support, including passport denial. Some even wish to create new criminal offences, Yet, about custodial parents, usually mothers who deny access to non-custodial parents, usually fathers, there is only silence and a systemic complicity.
On custody, children, and the courts' disinclination to enforce its orders. Lord Hartley Shawcross, in his famous 1959 work "Contempt of Court." wrote, at page 35,
I repeat, these unfortunate children are denied the court's protection
It is scandalous that parents, mostly fathers, must spend inordinate amounts - hundreds of thousands of dollars - to maintain contact with their children, I repeat, the disinclination of Parliament and the courts to vindicate the needs of children of divorce is an injustice. However the Senate upholds the needs of the children of divorce and urges the minister to act.
Honourable senators, a full six months after the Special joint committee's December 1998 report to Parliament, Minister McLellan has set a three-year time-frame to May 1, 2002. That is three and one-half years from the committee's report. The minister states that this May 1, 3002 date will coincide with the five-year review of the child support guidelines, regulations created by Bill C-41, the very bill that the Senate amended and passed reluctantly in February 1997, whilst informing the government of its very deep flaws.
The minister will have asked (or five years to correct a regime that the Senate has clearly told her was defective and harmful to children of divorce. We told her then that the divorce 1214' regime was defective. A joint parliamentary committee has told her. The public has told her. Further, May 1, 2002 is beyond this government's term of office, and beyond this minister's watch.
Newspaper editorial; have been unanimous in their condemnation of the minister's proposed delay. Their editorial headlines are instructive, and some read as follows. The headline in the May 12 issue of The Globe and Mail read, "Who is acting for the children? The Justice Minister is curiously reluctant to amend the Divorce Act," The headline in the May 12 issue of The Gazette of Montreal read, "The courage to act." The headline in the May 12 issue of the Toronto Star was, "Disappointing delay," The headline in The Vancouver Sun of the same date was, "Legislative dodging hurts the children of divorce." The May 13 edition of the National Post read, "Fathers under fire."
These editorials, a plethora of other media comment, and the public in general, all disapprove of Minister McLellan's proposed delays. These commentaries are instructive and insightful of some current ministers' attitudes to ministerial responsibility and to Parliament. Consequently, many ponder the diminishing notion of a minister as 3 servant of Parliament and a minister as responsible to parliament.
I hope that the minister's proposed delay is intended to keep us in suspense, and that, in its Throne Speech at the start of the expected new session of Parliament this fall, the government -- my government - will reveal its plan for a new Divorce Act, upholding fairness, balance, and equilibrium, and upholding the entitlements of children of divorce to the love and support of both parents, both mothers and fathers, To uphold the entitlement of children of divorce to the emotional and financial support of both parents is a duty imposed on the Minister of Justice, the cabinet, the Senate and Parliament, by virtue of Her Majesty's Royal Prerogative, the parens patriae.
Honourable senators, to do less is unacceptable, even irresponsible and immoral. To know of the injustice of the divorce law regime currently in force and not to act forthwith to correct it is unconscionable, Further, such inaction is inconsistent with every principle on which we found government, and violates all that we consider to be just, honourable, and true. It violates every ethic of social and moral justice.
Honourable senators, we urge the minister to bring in a new Divorce Act, to honour the children of divorce- their families, and the people of Canada.
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