DISSENTING OPINION OF THE BLOC QUÉBÉCOIS

ON THE REPORT OF THE
SPECIAL JOINT COMMITTEE

ON CHILD CUSTODY AND ACCESS

The study conducted by the Joint Committee deals with problems that are very timely and constantly changing. The growing numbers of divorces and of children born outside marriage have created new and complex dynamics in the lives of families and, by definition, children. In our view, the Committee was not the appropriate forum for finding legislative solutions to the social problems that affect an ever-growing number of our fellow citizens. However, the Committee's sittings, particularly when the draft report was written, did help to spotlight a paradoxical situation: the manner in which provincial and federal jurisdictions in this field are divided up, which cannot be justified today.

The situation is that all matters relating to the family, education and social services are clearly within the jurisdiction of the provinces, as are any questions relating to separation from bed and board. In Quebec, separation from bed and board is covered by articles 493 et seq. of the Civil Code of Québec. On the other hand, divorce is under federal jurisdiction, by virtue of the Constitution. The vast majority of divorces are settled out of court. In most cases, agreements regarding child custody and access are made when a couple separates. Since separation from bed and board is under provincial jurisdiction, it would be logical for legislation on divorce to be as well.

Accordingly, we recommend that the Divorce Act be repealed and that jurisdiction over divorce be transferred to the provinces.

It would also be logical to repeal the Marriage Act and transfer that jurisdiction to the provinces. The celebration of marriage, as well as division of property, the civil effects of marriage and filiation are within the exclusive jurisdiction of the provinces, while the substantive requirements (capacity to contract marriage and impediments to marriage) are under federal jurisdiction. In Quebec, for example, the Government of Quebec has legislated to permit civil marriages. In our view, this is another example of the pointless and outdated division of powers. It would be much simpler for all family law to be under the jurisdiction of a single level of government: the provinces. On this point, we would quote the Honourable Senator Gérald-A. Beaudoin, who wrote, in 1990:

[TRANSLATION] "One might ask why, in 1867, the framers gave Parliament exclusive jurisdiction over marriage and divorce. This seems to have been for religious reasons. Under article 185 of the Civil Code of Lower Canada, marriage could be dissolved only by the natural death of one of the spouses. This principle was accepted by the vast majority of Quebecers, who were Catholics; the Protestants, on the other hand, wanted the Parliament of Canada to be able to legislate on divorce. Accordingly, subsection 91(26) of the Constitution Act, 1867, was enacted to give exclusive jurisdiction over marriage and divorce to the federal Parliament." (Beaudoin, Gérald-A., La constitution du Canada, Institutions, partages des pouvoirs, Droits et libertés, Montreal, 1990, éditions Wilson et Lafleur 1990, p. 360)

What was appropriate in 1867 no longer is today. Given that the religious issue no longer has the same significance, our laws ought to reflect reality. Our recommendation would mean that the provinces could have complete jurisdiction over their family law and could legislate in that field as appropriate to their own social context.

We would again quote the Honourable Senator Beaudoin:

[TRANSLATION] "The question then arises of whether the field of marriage and divorce should not be returned to the provinces, thereby enabling Quebec to have more absolute control over its family law, an important part of its private law, which is different from the private law of the other provinces.

Some authors believe that it would be best to leave this area of jurisdiction in section 91. They consider it paradoxical to want to decentralize this field, while the United States seems to want to move toward centralization and uniformity in divorce laws. Perhaps they are forgetting that we have two systems of law in Canada, and that the arguments they make in support of their position lose some of their force in a heterogeneous federation such as Canada." (Ibid., p. 366)

It was apparent from the Committee's inception that jurisdictional problems would dog its every step. The Committee's mandate was as follows:

"That a Special Joint Committee of the Senate and House of Commons be appointed to examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests."

We participated in this Committee because the subject is a very serious and important one in our society, particularly for people who have experienced difficulties in the process of a divorce or separation from bed and board. However, it is not up to the federal government to legislate in this field; that is a matter for the provinces. We need only compare the manner in which the provinces deal with family policy to understand that there are significant differences. For instance, in Quebec, our civil law system means that our vision of family law is different from the rest of Canada's: we would cite the long debate that took place in the Committee regarding the concept of the best interests of the child, which has been part of the Civil Code of Québec for a number of years now.

Parents and children would be much better served if family law were entirely under provincial responsibility.

Notwithstanding our position, we nonetheless consider it important to point out a number of facts:

1. Given that the large majority of custody and access cases are settled by mutual agreement, we would express serious reservations regarding the need to legislate controls on all cases.

2. The fundamental rights of all individuals must be protected, and specifically their right to privacy.

3. We recognize the principle of the best interests of the child. This means that a child must not be the victim of conflicts between his or her parents, and the child's interests must not be confused with those of the child's parents or extended family.

4. Family violence exists, and the danger to victims of family violence is exacerbated in a separation. The safety of children and their parents must therefore be protected. The large majority of studies and statistics show that women are most often the victims of family violence. In view of how hard it is to bring situations of violence out into the open, we would question the need to refer to "proven" violence (see recommendation 16.11).

5. The responsibility for resolving disputed cases lies with the courts.

6. The vast majority of parents sincerely want what is best for their children: they are not highway robbers. We do not consider the use of sanctions and coercion, and making parental obligations excessively rigid, to be helpful approaches in a process which, even under the best circumstances, is always a difficult one.

7. Although a number of witnesses talked about cases in which there had been false accusations of abuse, it must be recalled that the Criminal Code already contains provisions against perjury. Before legislating in this respect, it is essential that research be done to shed light on these situations.

8. Although the Committee should have emphasized parental responsibilities, it must be acknowledged that instead it was transformed into a battle of the sexes. It is regrettable both that the positions of fathers and mothers became so polarized and that some people chose to question the ground women have struggled long and hard to gain.

To summarize, the position of the BQ on the recommendations in the report is as follows:

We are opposed to the following recommendations: 10, 19, 22, 23, 25, 26, 30, 43.

We are in favour of the following recommendations: 1, 2, 15, 17, 37, 41, 42, 45, 47, 48.

We are in partial disagreement with the following recommendations: 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 16, 18, 20, 21, 24, 27, 28, 29, 31, 32, 33, 34, 35, 36, 38, 39, 40, 44.

Acknowledgements

We would like to thank all of the Committee's staff for their excellent work, and especially the two research advisers, Kristen Douglas and Ron Stewart, and the clerks, Catherine Piccinin and Richard Rumas. We would also like to thank all of the individuals and groups who took the time to present their views to us. Lastly, we would like to express our special thanks to Landon Pearson for her patience and her efforts in the cause of children's welfare.

Madeleine Dalphond-Guiral, M.P. Laval-Centre

Caroline St-Hilaire, M.P. Longueuil