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Speech in Senate Chamber: Senator Cools speaks to her inquiry on the Minister of Justice, Anne McLellan's May 10, 1999 ministerial response to the December 10, 1998 Senate-House of Commons Joint Committee Report 'For the Sake of the Children' that the Minister will act on the study's findings and recommendations on May 1, 2002.

Hon. Anne C. Cools, pursuant to notice of June 1, 1999, moved:

That the Senate of Canada uphold its unique, historical, constitutional and parliamentary interest and role in divorce and in granting bills of divorce, as demonstrated by the Senate's former Standing Committee on Divorce, and that the Senate continue to assert its special role and interest in the condition of the children of divorce;

That the Senate upholds that the Senate has vigorously renewed this interest by its actions upholding the entitlements of children of divorce to the financial support of both parents according to respective abilities, and by the Senate's actions to amend Bill C-41, an Act to Amend the Divorce Act and other related Acts, amended by the Senate on February 13, 1997, concurred in by the House of Commons on February 14, with Royal Assent on February 19, 1997;

That the Senate upholds that a corollary to the Senate's passage of Bill C-41 in February 1997 was the will, agreement, and intention to constitute a joint committee of the Senate with the House of Commons to examine the previously unstudied and neglected question of the condition and functioning of children, within the hitherto established regime of custody and access in divorce;

That the Senate affirms that this Special Joint Parliamentary Committee of the Senate and House of Commons was constituted by a joint resolution, moved in the Senate on October 9,1997 and adopted in the Senate on October 28, 1997, and moved in the House of Commons on November 5, 1997 and adopted in the House of Commons on November 18, 1997;

That the Senate affirms that this Special Joint Parliamentary Senate-Commons Committee on Child Custody and Access in divorce traveled across Canada, held numerous sittings, heard testimony from over 520 witnesses and reported to the Senate on December 9, 1998 and to the House of Commons on December 10, 1998 by its Report, For the Sake of the Children;

That the Senate affirms that this Special Joint Parliamentary Senate-Commons Committee concluded that upon divorce, the children of divorce and their parents are entitled to a close and continuous relationship with one another, and, consequently, recommended that the Divorce Act be amended by Parliament to express this joint nature of parenting by inserting the legal concept "shared parenting" in the Divorce Act, and also by including in the Divorce Act's definition of the "best interests of the child", the importance of the meaningful involvement of both parents in the lives of the children of divorce;

That the Senate affirms that on May 10, 1999, six months after the Committee's Report to both Houses of Parliament, more than two years after the passage of Bill C-41 in February 1997, the Minister of Justice, Anne McLellan, gave her ministerial response to the Committee's conclusions and recommendations in her paper entitled Government of Canada's Response to the Report of the Special Joint Committee on Child Custody and Access: Strategy for Reform; having fully accepted the Committee's major recommendations, and having accepted that the divorce law regime currently in force is wanting and needing correction, she then proposed a three-year delay to May 1, 2002 for her legislative action to correct the obviously wanting divorce law regime;

That the Senate asserts that the recommendations of a committee of Parliament, the Highest Court of the Land, the Grand Inquest of the Nation, is the highest recommendation of the land, and that such advice and counsel of Parliament is the most complete, representative, constitutional, and the most efficient form of advice a government can heed; and that the Senate asserts that the responsible Minister and the Ministry owe a moral, a political, and a constitutional duty to Parliament to accept and follow the advice of Parliament;

That the Senate asserts that the Parliament of Canada, by its own study, examination, and conclusions, is now seized of the knowledge, that the divorce law regime currently in force in Canada is defective, insufficient, and even harmful, to the needs of children of divorce, their parents, and their families; and that the Senate being seized of this knowledge of the inadequate state of the divorce law regime, has a moral imperative and a bounden parliamentary duty to correct the situation forthwith, because possessing the knowledge of the children's plight and ongoing damage to them, Parliament's continued inaction and neglect is unconscionable;

That the Senate upholds the enormous public support of the people of Canada for the entitlements of the children of divorce to meaningful involvement with both their parents and families, and that the Senate further upholds all the children, their parents, and their families afflicted by the current divorce law regime; and

That the Senate of Canada, by virtue of the doctrine of the parens patriae, and the Senate's duty as stewards of the children of divorce, resolves to defend and protect the children of divorce; and that the Senate resolves to vindicate the needs and entitlements of the children of divorce to the emotional and financial support of both parents; and that "for the sake of the children" and in the "best interests of the child," the Senate resolves that the responsible Minister, Minister of Justice Anne McLellan, should cause a new divorce act to be introduced in the Senate or in the House of Commons, to implement, without delay, these recommendations of the Special Joint Committee on Child Custody and Access.

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.l (3), headed "Principles respecting children," that would have read, in part:

12.l (3) In the exercise of jurisdiction under sections 10 to 12 in respect of children, it is the duty of the court to take account of the best interests of the children as its paramount consideration and to give effect consistent therewith to the following principles; namely,

(a) the spouses have a financial obligation to maintain the children of the marriage, which obligation shall, in so far as is practicable, be apportioned between the spouses according to their relative abilities to contribute to its performance, taking into account the means and needs of the spouses and children; . . .

(c) the children of the marriage ought to have as much access to each of the spouses as the circumstances permit; . . .

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 a 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 law 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:

Justice L'Heureux-Dubé . . . wrote a lengthy dissenting judgment in which she emphasized that the best interests of the child are served by protecting the position of the custodial parent . . .

About Justice L'Heureux-Dubé, he added, at page 461:

. . . she offers an explicitly feminist analysis . . .

About her judgement in Young v. Young, he stated, at page 462:

In regard to parental rights after separation, she argues strongly in favour of a legal regime that supports the decision-making authority of the custodial parent. "The role of the access parent is 'that of a very interested observer, giving love and support to the child in the background.'"

In the 1995 Supreme Court judgement in Gordon v. Goertz, Madame Justice L'Heureux-Dubé reiterated, at paragraph 110:

Important as contact with the non-custodial parent may be, it should be noted that not all experts agree on the weight to be given to such contact in assessing the best interests of children.

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 this is a loving and caring relationship is apparent.

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:

Is it "in the best interest of the children" to make an order which effectively defeats this prospect and leaves them in the daily care of a mother who loves them dearly but who is shackled by her discontent?

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 l7.(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.l(2) of the Divorce Act, reads:

The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.

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 I, as did Senator Jessiman, believed that a 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, a 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:

This Committee recommends that the terms "custody and access" no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term "shared parenting", which shall be taken to include all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms "custody and access."

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:

This recommendation is important, and further consideration of this proposal will be a high priority for the Government.

I repeat, a "high priority." She continued:

We share the Committee's concern that the current terms in the Divorce Act have the potential to escalate conflict between divorcing parents. In particular, we agree with the Committee's conclusion that there is a need to rectify the unfairness and inequality that has come to be associated with the term "sole custody." In some cases, this term is being interpreted as vesting the custodial parent with exclusive rights over the children and relegating the non-custodial parent to the status of "visitor." This situation needs to be changed.

Honourable senators, the terms "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, all 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, Barbosa 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 of a 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:

The Court of Appeal pointed out in Gordon v. Gordon the unsatisfactory state of the law in which the unfortunate infant might not gain the protection intended by the court, owing to a lack of effective action to enforce the order of the court.

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, 2002 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 for 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 law 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 editorials 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 a 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.

I urge all honourable senators to support this motion.


The remainder of this day`s Senate Debates available here.