May 11, 1984


The House resumed from Monday, April 9, consideration of the motion of Mr. MacGuigan that Bill C-10, an Act to amend the Divorce Act, be read the second time and referred to the Standing Committee on Justice and Legal Affairs.


LIB

Harold Thomas Herbert (Deputy Chair of Committees of the Whole)

Liberal

The Acting Speaker (Mr. Herbert):

When the House adjourned on the last day of debate on Bill C-10, the Hon. Member for Kingston and the Islands (Miss MacDonald) had the floor. As that Hon. Member is not present, another Hon. Member may rise to speak in the debate.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink
PC

Jennifer Cossitt

Progressive Conservative

Mrs. Jennifer Cossitt (Leeds-Grenville):

Mr. Speaker, today I join in this debate on Bill C-10, an Act to amend the Divorce Act, with both hopes and reservations. I hope, Mr. Speaker, that our deliberations will lead to a greater humanizing of a process which is, for the majority of those who go through it, the most difficult and traumatic experience they are likely to face in their lifetimes. I have reservations, Mr. Speaker, that this Bill is far from complete with its present proposals and that it is far from perfect as a vehicle which will provide that humanizing effect to the Canadian divorce procedure.

There can be no question that the divorce law needs to be revised and amended. The Divorce Act of 1968 has become subject to changing attitudes and social mores. Today, the Act is very definitely out of date. There is no question that change is due and that the principles of the original Act need to be rethought. The Act needs a change that will reflect that, no matter how regrettable and no matter how sad, divorce is indeed a very unfortunate fact of life.

Divorce is so much a fact of life that 40 per cent of marriages will end in divorce. However, recognition of those figures does not make the experience any easier to face. The rationale behind this Bill, and indeed the initiative taken on behalf of the Government in this area, seem to suggest that we can make divorce an easier experience without trivializing marriage in the process. I know that during his remarks at second reading, the Minister of Justice (Mr. MacGuigan) denied emphatically that this Bill would make divorce easier.

It is because there appear to be confusing signals between what the Minister has said and what appears to be the rationale for bringing forth this Bill, that I question which objectives are really being addressed. I must also question whether we will not see as a result of this Bill a new and sudden upsurge in the divorce rate as we did in the aftermath of the 1968 Act. Such an upsurge would only serve to undermine the institution of marriage further. Before the 1968 Act was passed, the rate of divorce per 100,000 of population was just over 50. In 1969, it was up to 124.2, and that figure has more than doubled in the years since then.

Make no mistake about it, Mr. Speaker. When a marriage is over and done with, I agree with those who say that it is in the best interests of all to end it. Ending it is especially in the best

May 11, 1984

Divorce Act

interests of the children of such a marriage, who are indeed the true victims of all tragedies associated with divorce. However, if we are not careful and if we do not exercise extreme caution, we may well create circumstances which make marriage dissolution so easy that no real judgment can be made as to whether or not the marriage has failed and is indeed irreconcilable.

This, Mr. Speaker, is the general reservation I have with the Bill before us and with one specific part of the Bill, its being the proposition which merely requires as a condition of divorce that the husband and wife have lived separate and apart for a period of one year or more that immediately precedes, includes or immediately follows the date of presentation of the petition.

I am sure the intention of this Bill is not that it be used to facilitate divorce on demand, but I question, especially when there are no children involved, whether that will not actually be the result. What requirements exist under the proposed Bill to verify that the couple in question have indeed lived separate and apart for one year? None that I can find. There is no legal requirement-no filing of legal separation papers and no letters of intent registered with the court. Indeed, the conditions that permit cohabitation during 90 days of the year, ostensibly to effect reconciliation, may well serve to obscure the deception being undertaken.

The argument may be made that when there are no children in a marriage and both partners agree to end the marriage, they should be able to obtain a divorce on demand. However, that is not the argument proposed by the Minister and his staff in the documents which accompany the Bill. If they wish to see divorce on demand, they should have the courage and the conviction to state so openly, rather than provide loopholes that permit them to say one thing and do another. It is this inconsistency, this slapdash attitude to this very important subject that affects the social fabric of our lives that I find throughout the Bill that causes me to hold reservations.

I have no objection to shortening the time requirement for divorce to one year. One year seems to be a reasonable time in which to determine whether a marriage has failed completely or whether it can be saved or reconciled in any way. I have no objections to "no-fault" grounds, as long as they are agreed upon by both parties, without coercion. But I cannot agree with the supposition contained in the Bill that in all cases it is preferable to list "no-fault" as the basis for concluding a marriage. This I cannot accept. Surely we are not so naive as to believe that once a divorce has been granted, the scars and injury of every single marriage, no matter how bad or how cruel, will be healed and that the agony and torment of such a marriage should not be taken into consideration when it comes to matters such as maintenance.

We know very well that there are acts committed in the confines and privacy of a marriage which would not be condoned were they committed in public against strangers. These acts would, in many instances, qualify for prosecution under the Criminal Code. The vast majority of such acts are committed against wives and minors. Surely they have some right, if not to financial compensation for the injuries received, both physical and mental, then at least to the understanding of the courts. Somewhere it should be recorded that such a marriage failed because of the very real, even criminal, fault of one of its partners. We provide financial compensation in Canada today for the victims of criminal injury. Surely we can at least give moral compensation to the injured victim of a divorce.

There is more than the emotional solidarity that a court can get in its assessment of fault in those instances where clearly there is fault. Surely there is a correlation between such fault and awards the court may make for settlement and maintenance. If there is no recognition of fault, how can we pretend that we will ever reach an equitable maintenance settlement? The Bill states that the courts will be obliged to consider the economic advantages and disadvantages of spouses. Where is the clear criterion for the courts to be obliged to consider, for example, the mother who has given up the pursuit of her career to raise children; the wife who has worked to help her husband through university and launch him on his career; the wife who has given up the advancement of her own career pursuits to raise children; and the wife and the mother who has been out of the work-force for some 30 years to 35 years or more and has no means of attaining self-sufficiency?

But age, experience and family obligations are surely not the only disadvantages created by a marriage. The mental anguish and insecurity caused by the behaviour of one or the other of the spouses is no less a valid disadvantage. To say that the court shall not have regard to any misconduct is to negate this very valid disadvantage. In my opinion, the use of the word "misconduct" to cover instances of extreme psychological and physical abuse is an insult unworthy of a Bill which purports to do justice. The concept of maintenance without consideration or regard to such misconduct not only ignores the very real disadvantages such a victim or spouse may have at the time of divorce, it also undermines the grounds he or she-and quite obviously in most cases it will be a she-may have at some time in the future of making application to have such maintenance orders reviewed. Are these victims of divorce, therefore, not to be protected? Do we not have a responsibility when amending any law to take into consideration and take the time to bring forth all the improvements that are required, and not just pay lip service to addressing a need that has been brought about by social change?

Let us remember that an abused spouse, indeed any spouse, may very well make agreements at the time of divorce just to get the process and the marriage over with. In such a case, and under the no-fault agreement, what recourse does a spouse have upon reflection to apply for an adjustment of the divorce settlement? What hope does a spouse in this situation have of obtaining that she or he should have had at the time of the divorce? Such a spouse cannot explain to the reviewing judge that there were circumstances at the time of the divorce-the severe mental anguish, even fear that prevailed-that acted against the spouse's best interest. The divorce was no-fault.

May 11, 1984

There were no such fears or anguish. As far as the court is concerned, there was simply no misconduct.

We are all very pleased, 1 am sure, with the recent news from the Minister of Justice that the provinces and the federal Government have agreed, at least in principle, to the establishment of a central divorce order register which should make the 75 per cent of obligated spouses who default on their payments think twice about reneging on their responsibilities. Elowever, I question whether the no-fault concept will not provide, through the conditions I have mentioned, an equally convenient vehicle for the avoidance of their financial responsibilities, and thus provide for more children, and indeed for the spouse caring for the children, to become wards of the State. As well, I question how much a court at one end of the country, upon a petition to review, is going to delve into a divorce that happened at the other end of the country. What guidelines or signposts are there in the words "no-fault" which might be instruction to disregard conditions, misconduct notwithstanding, that have influenced the original presiding judge who set the awards in the first place?

It is in the area of support and maintenance that this Bill has failed. It has failed to provide the means by which to ensure that individuals have an obligation to live up to their responsibilities-responsibilities they undertook upon entering into a matrimonial union; the responsibilities of providing an adequate environment in which to raise their children. With 75 per cent of spouses who default on their obligations to provide support, the recipients-in most cases women and children- become wards of the State. In Ontario alone, over 11,000 divorced women are on the provincial welfare rolls. To pass off support and maintenance as being strictly a provincial responsibility, as the Minister of Justice stated, is simply not the answer.

The Government should have the courage and conviction throughout this Bill to address these very real concerns, to provide a clear criterion for support and maintenance orders to be awarded, upheld and enforced. The Minister of Justice should not be trying to score political points in his bid for the Liberal Party leadership by introducing a Bill that is truly inadequate. This Bill is not clear enough. This Bill is not fair enough. It is not just enough, although the Minister obviously feels it is just enough, to fulfil the promise to review the law as it now stands. There are too many unanswered questions and too many new objections raised by its provisions, not the least of which is whether it is not laying the grounds for a whole new cottage industry of mediators and experts. Consulting lawyers, as we have consulting physicians, may be called in to advise the client's own legal adviser. This certainly seems to be the inference of the addition to Section 7 that advises lawyers to advise their clients to use mediation facilities to achieve agreements, including those covering maintenance. I hope I am mistaken in this regard, because this would make the divorce process more complex and more expensive. Thus the children, whom we are trying to protect, are going to be subject to even more trauma.

Divorce Act

In principle, I support the reduction of the time requirement for divorce to one year. In principle, I support the introduction of no-fault grounds. But let us be sure that one year means one year and no-fault is no-fault only when there is no fault or when it is amicably agreed upon.

I therefore urge the Minister to revise the provisions we have before us and to bring before us a divorce reform Bill which will help families, husbands, women and children alike through this difficult time and not add further to their troubles. I believe, Mr. Speaker, before proceeding with any great haste on this subject, that extreme caution must be exercised before making changes to an existing law which will have such a profound bearing on our individual lives and on society in general.

I hope that a complete airing will be given this Bill by all interested parties right across Canada, who would be given an opportunity to voice their concerns, and that the important questions of maintenance of a spouse and children, the division of assets, and the enforcement of such maintenance orders, will be addressed fully and completely.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink
LIB

Harold Thomas Herbert (Deputy Chair of Committees of the Whole)

Liberal

The Acting Speaker (Mr. Herbert):

There follows a ten-minute period for questions and comments. Is there anyone who wants to put a question? If there are no questions or comments, we will continue debate.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink
PC

Douglas Roche

Progressive Conservative

Mr. Douglas Roche (Edmonton South):

Mr. Speaker, I feel certainly confident in giving this speech this afternoon. While I must confess that not every word I have uttered in the House of Commons has carried behind it all the research I might have wished, I can tell you, Sir, that, although, thankfully, I am not a first-hand expert in divorce, I have gone to the source of really deep knowledge in family law today and, as a result of that, I have these comments to make.

When I look at the key aspect of Bill C-10, it seems to be the introduction of a no-fault divorce after a one-year period of separation. The Minister of Justice (Mr. MacGuigan) has stated that, by reducing the required separation period from three years to one year, the adversarial approach associated with fault divorce will be greatly minimized. It is true that at present some divorcing couples are forced to have one of them take the blame for the breakdown of the marriage, and that this sometimes exacerbates an already difficult situation. However, the thrust of the proposal by the Minister misses the central reality of divorce in Canada today. The Hon. Member for Leeds-Grenville (Mrs. Cossitt) outlined very well the deficiencies which are present in this Bill, and reflected our concerns that a whole new examination be done before this Bill goes forward.

Elimination of fault grounds will not eliminate the adversarial process which is so destructive to families. Neither a three-year period nor a one-year period of separation will avoid the problems inherent in the present system unless the issues that are a corollary to the divorce itself are dealt with in a less adversarial, more humane, manner. It is necessary to

May 11, 1984

Divorce Act

distinguish between the grounds for divorce and the questions of custody of, and access to, children, property division and financial support, which must be decided before the divorce itself can be granted.

It is relatively easy to change the grounds for divorce. Reform in this area has been long overdue and, although provision might be made to retain fault grounds in circumstances where it would be unjust to force a spouse to wait a full year for a divorce, this can be done relatively easily. It takes much more courage to institute the kind of reform required to really change the way Canadians separate, divorce and then restructure their family lives today.

The adversarial approach to divorce proceedings, which is inevitably followed today, has numerous disadvantages. It is incredibly expensive. Estimates are that Canadians have spent over $500 million in legal fees over the past ten years. However, the emotional and psychological costs, both to the parents and to the children, have been even greater. Because the adversarial process forces the parties to take polarized, extreme positions, there is inevitably a winner and a loser, with the result that the parties come out of the process angry and bitter toward each other. Any possibility that they could have resolved their differences in a rational manner and continued to act as co-operative parents to their children is destroyed in the process.

How do we make the resolution of custody and financial issues less adversarial so that husbands and wives can spend less time fighting with each other and more time restructuring the family's future? I submit that there are three main ways: first, we need more precision in the law. Divorce legislation must provide concrete guidelines to the legal profession and to society, not vague statements of intent. The reason the courts are clogged with family disputes today, to the point where it can take two years to resolve all issues, is that even lawyers with the best of intentions cannot advise their clients with any degree of precision what a court will order in their particular case. The law is too general to allow any real predictions to be made.

Legislative steps have been taken to clarify the questions of cutody of, and access to, children, but provisions regarding maintenance payments, which are the subject of most court applications today, are still unclear. The objectives of maintenance payments set forth in the Bill do not begin to address the problems enunciated in the recent Supreme Court of Canada decision in the Messier case. To simply state that a maintenance order is designed to relieve any grave economic hardship is to invite future litigation.

What are the rights of the young woman with small children who does not wish to work for several years while she raises her children? What of the older woman with little education and no marketable job skills who has become financially dependent on her husband during a long marriage? Are both these women going to be required to work to fulfil a requirement of economic self-sufficiency? How is "grave economic hardship" to be defined? Is the purpose of maintenance to compensate a spouse for the dependency created by a long

marriage, or simply to allow her time to become self-sufficient? If the objectives of maintenance, and the circumstances in which one spouse is entitled to maintenance, are not more clearly set out, this Bill will only result in an increase in adversarial proceedings.

Specific provisions are also needed with respect to the enforcement, as well as the criteria, of maintenance orders. As long as the law allows for a situation where 75 per cent of maintenance orders are in default at any given time, the courts will continue to be crowded with wives trying to enforce these orders. A central registry for maintenance orders, together with a stricter policy of enforcement, is clearly required. The federal Government cannot abdicate its responsibility in this regard by saying that these matters all fall within provincial jurisdiction. Joint action by the federal and provincial governments is required, and the federal Government must take the initiative in implementing these proposals.

Unless we have precision in the law, with specific proposals regarding criteria and enforcement of maintenance orders to the point where lawyers can advise their clients with some degree of certainty as to their rights and obligations, we are going to continue to see a flurry of litigation as judges are asked to interpret the law. The law should be clear enough so that adversarial proceedings are not necessary, in most cases, to resolve issues.

The second major way, Mr. Speaker, in which divorces can be handled in a simpler, more constructive manner, is through the nation-wide implementation of unified family courts. This type of court system has two main advantages. It provides husbands and wives with a single forum to settle all issues regarding their children, property and finances. The present system, which still exists in most Canadian centres, involves application to one court for custody and another court for maintenance and property orders, and still another for the divorce decree itself. This system is complex, unwieldy and very expensive, and any reform in the area of divorce must deal with this problem.

A unified family court has the added advantage that counselling services are available at three stages of the separation and divorce process. Pre-divorce counselling, when undertaken early enough, sometimes has the result of allowing people to reconcile before being caught up in an irreversible legal proceeding. Surely, this is a welcome and important aspect of divorce reform which must be encouraged. Even when the parties have decided to divorce, the counselling and conciliation services enable them to resolve all matters relating to their children, property and finances in a meaningful and constructive way. Finally, post-divorce counselling, designed to assist those parents and children for whom the divorce was a traumatic experience in dealing emotionally with the divorce and sorting out of their future, has been successful in minimizing the return to court by bitter and angry spouses bent on changing custody and maintenance orders. Again, federal and provincial co-operation is required to set up unified family courts across the country. The federal Government must be the leader in this area.

May 11, 1984

Finally and most important, Mr. Speaker, the current adversarial manner of settling the ancillary issues in divorce proceedings must be done away with through a system of mandatory mediation throughout the country. Divorce mediation is a structured process, usually involving both a counsellor and a lawyer, whereby these professionals help a divorcing couple work out problems regarding their children, property and finances without going to court. It is a time limited, practical process which focuses not on past wrongdoings but on future life goals for all family members. Particular attention is paid to the needs of the children. Whereas the traditional adversarial system fragments the family by focusing only on such questions as "What can I get?" or "How can 1 get even?" the mediation process forces the husband and wife to concentrate on their children's interests as well as their own. In short, divorce mediation is a rational, commonsense alternative to the adversarial process.

Although it is fairly new in Canada, divorce mediation has been an accepted way of resolving disputes for some years in the United States. An article which appeared in the Wall Street Journal some time ago reported on the two-year wait in family courts for hearing contested divorces. The solution advocated by one judge cited in the article was to get divorce out of the court system. The judge said that it is the ideal thing for mediation. The article went on to describe one American lawyer who refused to represent in the traditional way the parties involved in a divorce. Instead, he acted as a mediator, encouraging his clients to work out their own solutions to custody, property and maintenance problems. These matters, he maintained, were too important to be left to what he described himself as "a stranger in a black robe".

As the Canadian divorce rate increases, we must inevitably adopt the same approach to mediation as we now see growing more common in the United States. Most states have a no fault divorce. Mediation has been a natural outgrowth of that development. Studies show that in those states where mediation has been made mandatory, parties reach their settlements in a short period of time and at a fraction of the cost of court proceedings. Mediated settlements are also much more likely to last, minimizing the need for variation in the applications in the future. More important, husbands and wives are able to continue dealing with each other as parents and the children adjust to the separation much more readily.

Unfortunately, Sir, the sole reference to mediation in the proposed Bill creates a duty which is likely to become a mere formality. A clause of this Bill states that a lawyer must, in the absence of any real prospect of reconciliation, inform his client of the mediation facilities known to him which might help the parties negotiate corollary matters. While this legislative recognition that mediation has a role to play in the divorce process is welcome, the duty created by the Bill is not for a divorcing couple to seek mediation, but simply for lawyers to advise their clients of any mediation facilities known to them. The problem with this is that many lawyers are not in favour of mediation. That is the truth of the matter. This is not

Divorce Act

simply because it will reduce their incomes, but because they have been so strongly schooled in the adversarial process that they are reluctant to relinquish control to a mediator. They are also largely unaware of what mediation entails and how it works in practice. Thus, they have no real interest in or knowledge of the mediation facilities in their community and are not likely to recommend them strongly to their clients. Many lawyers now comply with the requirements of Section 7 of the present Divorce Act to inform clients of marriage counselling and guidance facilities only in a very cursory manner, perhaps assuming that by the time the client walks into their office, reconciliation or counselling is no longer appropriate.

Lawyers who may be in favour of mediation may not practise in an area where mediation facilities exist. These facilities are now found mainly in large Canadian centres, primarily in Toronto. Mediation must be made available to all divorcing persons, wherever they live in Canada.

The question of the cost of mediation must also be considered. Professional mediators charge fees of at least $60 an hour. Their services may not be available to all persons, particularly where a provincial legal aid plan is paying for the service. The Minister of Justice has expressed the hope that the money saved by the provinces through streamlining the actual divorce proceedings will be ploughed back into mediation and conciliation services. However, there is no guarantee that this will be done. Funds also need to be set aside for the training of professional mediators, for the education of the public and of the legal profession as to the benefits of mediation, and for the establishment of court and community mediation facilities.

The public is, by and large, in favour of mediation. Those mediators already in practice report a large number of inquiries from members of the public interested in finding out more about mediation. However, legislative acknowledgement of mediation, in more than just an offhand way, together with public seminars on the topic, are needed to convince those individuals with sufficient funds to litigate and those who feel they will obtain a better result in court to undergo mediation.

Funds must also be made available to train more professional mediators. Provincial associations of family mediators have begun to codify standards and ethics for divorce mediators, and courses designed to train mediators in accordance with those standards have been developed in major centres. However, more funds are required to make these courses available right across the country. Much more time and money must be devoted to educating lawyers about mediation. Because most divorcing couples now visit a lawyer before any other professional, that person has enormous influence over the way the divorce will be handled. If the lawyer does not advocate mediation, chances are the case will be handled in the traditional, adversarial way.

Law schools have begun to incorporate interviewing and counselling courses into their curricula. Mediation is now being taught to lawyers at the bar admission course level. However, lawyers already used to practising in the adversarial

May 11, 1984

Divorce Act

way are sometimes threatened by mediation. They are afraid that it will undermine their years of training and destroy their livelihood. These lawyers must be taught that they have a vital role to play in the mediation process, either by working in conjunction with the other lawyer and a non-lawyer mediator, or by acting as mediators themselves.

Studies in the American states, where mediation has been going on for some years, show that it is most successful when carried out by a lawyer-counsellor team. This interdisciplinary approach is a recognition of the fact that divorce is both a legal and an emotional problem and that the parties are better able to handle their divorce in a constructive manner when both these issues are addressed. A legal resolution which ignores the client's psychological needs is as inappropriate as a psychological resolution which conflicts with the client's legal needs. Lawyers do not usually have the psychological awareness and interpersonal communication skills necessary to mediate custody and access issues. A mental health professional trained in this area, with expertise and experience in dealing with children, can more easily help the parties come to an agreement on these issues. However, the mental health specialist is rarely trained in the law, and the parties need a lawyer's advice about property and financial settlements. By working together, Sir, the lawyers and the counsellor can help the parties arrive at a total settlement which resolves all their problems.

In conclusion, these are my three suggestions for reform: greater precision in the law, unified family courts, and mandatory mediation. They work together.

Only when the provisions of the law are set out with sufficient clarity that lawyers can predict the outcome of a given case with some certainty, will both lawyers and individuals be more accepting of the mediation process. Unified family courts will provide the framework for divorcing couples to obtain both the counselling and the legal advice they need to settle their case.

There is a profound need in Canada today for the humanization of our divorce system. This will not be accomplished by providing for no-fault divorce and tinkering with other reforms. These reforms must be set out clearly in any divorce legislation, if we are to reflect the reality of what is happening when thousands of couples divorce each year. Otherwise, our present system of settling divorce problems through expensive, time-consuming and contentious litigation will only continue, and the fact that we have no-fault divorce in this country will not stop the destruction of family life as we know it.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink
LIB

Harold Thomas Herbert (Deputy Chair of Committees of the Whole)

Liberal

The Acting Speaker (Mr. Herbert):

There follows a ten-minute period for questions or comments.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink
PC

James Aloysius McGrath

Progressive Conservative

Mr. McGrath:

Mr. Speaker, I have a question for the Hon. Member. He made a very excellent and thought-provoking speech. I am disturbed by the fact that this Bill was drafted by lawyers when we should have had the Bill that had input from

family and marriage counsellors. That was one of the positive suggestions made by the Hon. Member who just spoke.

Given the fact that I agree wholeheartedly that if there is to be no-fault divorce there must be some form of mandatory mediation, what has been the experience in other jurisdictions in terms of the success ratio of this mandatory mediation and what is the time-frame involved? In fact, is there a time-frame imposed by the courts for the mediation process?

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
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PC

Douglas Roche

Progressive Conservative

Mr. Roche:

I was thinking of this Bill in relation to the Bill which we debated earlier today. The point was made at that time that if input had been made into the preparation of that legislation by the Standing Committee on External Affairs and National Defence, it would have assured a much wider and a more contemporary approach, and the Bill would have been improved prior to its being presented to us. Similarly, the Hon. Member mentioned the question of mediators. I believe that this Bill was drafted in the confines of the Justice Department and did not have sufficient input from mediators. I suggest that this raises a much larger question about how legislation comes to the House before Members have an opportunity to see it, especially those Members who are on committees that are relevant to the legislation to be introduced. Those Members who have the expertise and appropriate background would be able greatly to shorten the time needed for debate at second reading because of the input that could be given at the pre-presentation stage. That would certainly enable the House to move on to a one-day debate on second reading, provided that that input had been made in a parliamentary way.

1 believe that the research and surveys show that where there is mandatory mediation in those jurisdictions where it applies, there have been significant improvements in reconciliation. Furthermore, the savings in costs that would have otherwise been used in court proceedings can be used to train more mediators. Not only is there an economic benefit at that level, there is a much greater human benefit in helping families to stay together.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink
PC

Blaine Allen Thacker

Progressive Conservative

Mr. Thacker:

Mr. Speaker, I have a brief question with respect to mediation services. Could the Hon. Member indicate from his reading whether the mediation services are provided at public expense, or would it be by psychologists holding themselves out as professionals at the street level? Would they be triggered by the law after a divorce petition had been issued, or would it be mandatory to have a certificate from a mediator before a person issued the petition? Could the Hon. Member tell me what the practice is in the United States?

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink
PC

Douglas Roche

Progressive Conservative

Mr. Roche:

Mr. Speaker, with respect to the payment for mediation services, I believe it should be done at both levels. There should be public money available for the services and there should also be private payment by the couples concerned. In this respect, I think there needs to be a very detailed study made into how this applies to other jurisdictions so that we could advance the concept of mandatory mediation.

May 11, 1984

I have experienced a great deal of resistance even among those who are on the Justice Committee who, because of their legal background, do not believe that conciliation has a structured process in the legal proceedings. Until they improve their own understanding of this, we will not be ready to ascribe the whole question of costs.

In answer to the Hon. Member, my personal opinion is that the costs should be borne both publicly and privately. I think the destruction of family life and the resulting divorce is a societal matter and not only a private concern. I think there is a great deal about marriage today, about its input into society and how it strengthens society, that has been lost by current standards. As to when this would be done with respect to the decree, the conciliation process should take place before.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
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PC

Alexander Bell Patterson

Progressive Conservative

Mr. Patterson:

Mr. Speaker, I wish to commend the Hon. Member for the very careful and thoughtful presentation which he made today. With respect to the idea of mandatory mediation, there have been suggestions that there ought to be some consideration given to the feasibility of premarital counselling. Has the Hon. Member given any consideration to this in the discussions and research in which he has engaged?

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
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PC

Douglas Roche

Progressive Conservative

Mr. Roche:

Mr. Speaker, I have believed for some time that the divorce rate in our country would be lower if more attention were paid in a structured sense to premarriage instruction. This is also a controversial question which concerns, among other things, the rights of people.

We have lost sight of the marriage contract as a centrepiece of our society. As a result, there are huge manifestations and repercussions from that in our society. Therefore, the commitment of two people to stay together to weather the storm that inevitably enters any marriage is weakened to the extent that the centrality of the societal importance of it was not understood at the very beginning.

That brings us directly to premarriage counselling. Religions throughout our society have always advocated premarriage instruction. They do not always have the facilities to do so. While I would not suggest that it should only be religions that have this right, I believe that if there were greater fostering and a deeper understanding through the mediation process of the commitment of marriage and its contituation as a societal contract, there would then be a greater understanding of the need to enter into this contract. There would be a better understanding that society assumes its own responsibility for financing it.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
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LIB

Harold Thomas Herbert (Deputy Chair of Committees of the Whole)

Liberal

The Acting Speaker (Mr. Herbert):

If there are no further questions or comments, we will proceed to debate.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink
NDP

Stanley J. Hovdebo

New Democratic Party

Mr. Stan J. Hovdebo (Prince Albert):

Mr. Speaker, Bill C-10, the Divorce Bill, has the appearance of a reformed Bill. However, it does very little to reform the way society faces divorce in this country. It probably makes one important reform, a reform that has long been part of the New Democratic Party policy, that marriage breakdown is the sole grounds for divorce. Otherwise, this Bill is grossly deficient, particularly in the area of maintenance, particularly when it

Divorce Act

might worsen the economic situation of women, especially those who are long-term homemakers who face divorce.

There are many amendments within the federal jurisdiction that we would like to see introduced in this Bill. They also involve other pieces of legislation within the jurisdiction of the federal Government. Not only are we limited because this Bill deals just with the Divorce Act, but we think this is a particularly good time for the federal Government to look at the whole procedure and make some broader changes to the legislation. It would be interesting to put before this House, something which has probably been done before and will be done again, some quotations and items that have been put to the committee studying divorce. For instance, the Canadian Advisory Council on the status of Women, on January 20, 1984, said:

-the dignity conferred by non-adversarial divorce proceedings must be undermined by economic losses that could easily come about if fair and effective support enforcement procedures are not explicitly made into law.

This is a direct reference to some of the needs for changes in the Divorce Act. The Law Reform Commission of Canada's report on family law, Enforcement of Maintenance Orders, 1976, had this statement:

Reform involves two courses of action. First there must be an effort by government in Canada to improve individual laws and practices that deal directly with maintenance enforcement. Second, the whole body of marriage breakdown law must be thoroughly re-shaped. It is as much the traditional fault-and-adversary foundation of this law as it is the particular deficiencies in enforcement techniques that account for the appalling record of non-payment of maintenance obligations in Canada.

Bill C-10 deals with only half of the problem or less than half of the problem. The Minister in the introduction of this Bill suggested that the Bill involved broad, revised and comprehensive measures on maintenance. The Minister claimed that this Bill goes as far as the federal Government can possibly go, especially in terms of maintenance and its enforcement. But that is not true. One of the things that needs to be explored in committee is how far and in what areas the maintenance procedures can be strengthened.

In dealing with this Bill, Mr. Speaker, we do not intend to support it on second reading, but we do intend to try to bring before the committee a large number of possible changes and an appeal to the Government to take a broader look at the needs of people facing divorce in Canadian society.

I would like to spend the next few moments going over the Bill based on broad principle and pointing out where there are some areas which the Government and which we as a Parliament need to look at in an attempt to make it a much better Bill than it already is.

First, marriage breakdown as the sole ground for divorce is probably the most welcome provision in the divorce Bill. Making marriage breakdown the sole ground for divorce has been our Party policy since 1967. It has been a position that has been supported by a number of churches since about that time, or even before then. No-fault divorce, as it is sometimes called, is supported by most women's groups, social service

May 11, 1984

Bonus Bond Draw

agencies and many churches. Again, I would like to quote from a brief of the National Action Committee on the Status of Women which was presented to the Minister of Justice (Mr. MacGuigan) last year. This is what we find in it:

Marriage must be recognized as an equal partnership entered into voluntarily by a woman and a man. Once one of the parties has decided that the partnership is not working, the relationship is clearly ended and no legal rule will make it work. That spouse should be able to declare that the marriage has broken down, and that declaration should be regarded as sufficient to prove the breakdown. Proof of separation or fault should not be required.

I do not necessarily agree with that position, but it is a position of a very active group of women who have spent a considerable amount of time taking care of what they consider to be the major areas of welfare that need to be guarded for women particularly. Right now we have a huge backlog of court cases. Quite often, because of the fault provision which is in the present Divorce Act, these cases take much longer than necessary. No-fault divorce would affect almost 90 per cent of divorce actions that come before the courts. In other words, almost 90 per cent of divorce actions are not contested in any way and consequently would fit even now under this definition of no-fault divorce or marriage breakdown. I do not particularly like the phrase no fault. I think marriage breakdown as the only ground for divorce is a much better terminology. The idea that people must publicly, and sometimes falsely, admit to committing offences such as adultery so as to speed up the legal process is abhorrent. People should not have to lie, which is the case in many situations, to expedite the process of divorce. Quite often naming a third person, who might not have been involved particularly in the breakdown but is dragged into it because of the requirements of the law-

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
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LIB

Harold Thomas Herbert (Deputy Chair of Committees of the Whole)

Liberal

The Acting Speaker (Mr. Herbert):

I am sorry to interrupt the Hon. Member, but his time has expired.

It being four o'clock, the House will now proceed to the consideration of Private Members' Business as listed on today's Order Paper.

Topic:   GOVERNMENT ORDERS
Subtopic:   DIVORCE ACT
Sub-subtopic:   MEASURE TO AMEND
Permalink

PRIVATE MEMBERS' BUSINESS-MOTIONS

LIB

Harold Thomas Herbert (Deputy Chair of Committees of the Whole)

Liberal

The Acting Speaker (Mr. Herbert):

Shall all orders and items preceding No. 97 stand?

Topic:   PRIVATE MEMBERS' BUSINESS-MOTIONS
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?

Some Hon. Members:

Stand.

Topic:   PRIVATE MEMBERS' BUSINESS-MOTIONS
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LIB

Harold Thomas Herbert (Deputy Chair of Committees of the Whole)

Liberal

The Acting Speaker (Mr. Herbert):

Stood by unanimous consent.

Topic:   PRIVATE MEMBERS' BUSINESS-MOTIONS
Permalink

May 11, 1984