Ms. Diane St-Jacques (Shefford, PC)
Mr. Speaker, I would like to start by congratulating the government on presenting this motion to set up a joint committee to examine custody and access in response to the concerns expressed by certain senators on behalf of non-custodial parents.
The government must provide direction on this issue, as it did earlier this year on Bill C-41, an act to amend the Divorce Act, with respect to child support payments.
In the course of the debate on Bill C-41, many parents requested on behalf of non-custodial parents, whose access rights are guaranteed by order, that similar legislation be passed regarding support orders. They wanted legislation that would provide for more effective and less costly ways to enforce access orders.
The points raised by witnesses at the hearings on Bill C-41 included questions on the effectiveness of existing mechanisms to enforce access rights, the rights of second and third families, the opportunity for mandatory mediation in the case of divorce, the rights of grandparents or third parties to apply for custody or access, parents' freedom of movement after the divorce, the right to information and other non-custodial parent rights and the effects of divorce on a child's mental health and development.
We must look at the language of divorce in terms of the divorced parents and the children, as Senator Jessiman pointed out during the debate on this motion.
The language of divorce, the terms used, such as “custody” and “access”, come from criminal law and property law and are not appropriate to designate the relationship between parents.
The parental approach to custody and access has been taken in a number of states, where joint custody is considered the best solution for divorcing couples, and sole custody is accorded only if it is in the child's best interest. Some people are opposed to joint custody.
In 1991, when she was teaching law at the University of Alberta, the Minister of Justice wrote a working paper for the Alberta Advisory Council on Women's Issues entitled “Women and the Process of Constitutional Reform”.
If, through constitutional reform, divorce were to become an exclusively provincial jurisdiction, the provinces could pass comprehensive family law. Some people would opt for the presumption of shared custody and make mediation obligatory in the resolution of family disputes. Increasingly, commentators feel that sole custody serves only to perpetuate the influence and domination of men over the lives of women.
We all know that education and mediation are the best solution in any dispute, and some witnesses have spoken about education with respect to divorce, an approach that has been taken in a number of Canadian and American cities. Parents seeking divorce take courses about the impact on their children of certain behaviours or attitudes they might adopt—such as involving their children in their dispute—and which are the most likely to have harmful psychological effects on the children.
One of the witnesses before the Senate Standing Committee on Social Affairs, Science and Technology, Paul Carrier, a family counsellor with the Royal Ottawa Hospital, said: “Disputes over custody and access affect children's self-esteem—In the interest of children, it is preferable for parents to maintain a harmonious relationship. Money is important, but the quality of the relationship is even more important. Many people have grown up in poor environments but are still happy. Money is important, but it is not the only thing. The quality of the relationship is still more important”.
In connection with Bill C-41, he said: “The bill does not address the question of access properly. Its approach is not in the children's best interests. It could, and should, attach more importance to parent-child relationships. If the division of resources does not foster more prolonged contacts between parents and children, the legislator will be neglecting one of children's basic needs”.
Article 9 of the UN Convention on the Rights of the Child states as follows: “A child shall not be separated from his or her parents against their will, except when this is in the best interests of the child. A child who is separated from one or both parents has the right to maintain personal relations and direct contact with both parents on a regular basis”.
Article 18 states that “both parents have common responsibilities for the upbringing and development of the child. States shall render appropriate assistance to parents in the performance of their child-rearing responsibilities”.
I have raised some of the questions I wish to see the joint committee examine. This is an important study and one which, I am sure, will generate measures that will make it possible to create a custody and access system to protect the rights of the child as defined in the UN Convention and will also enable children to continue to benefit from the presence of both parents.
Topic: Government Orders
Subtopic: Parenting Arrangements