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Speech in Senate Chamber: Divorce Act- Second Reading


Divorce Act

Bill to Amend—Second Reading— Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Cools, seconded by the Honourable Senator Segal, for the second reading of Bill S-216, An Act to amend the Divorce Act (shared parenting plans).

Hon. Anne C. Cools: Honourable senators, I rise to speak to second reading of Bill S-216, An Act to Amend the Divorce Act (shared parenting plans). Bill S-216 will amend the Divorce Act to enact shared parenting plans that will set out the responsibilities and authority of each spouse regarding the care and upbringing of children of the marriage. This bill will require the court to satisfy itself, before granting a divorce under the act, that reasonable arrangements have been made for the parenting of any child of the marriage.

I ask colleagues to support this bill, and I thank Senator Hugh Segal for seconding it. I laud him for that.

Honourable senators, in 1984 then-Liberal Justice Minister Mark MacGuigan intended that shared parenting would be the result of his Bill C-10, An Act to amend the Divorce Act. To this end he employed the well-established principle in the legal phrase "the best interests of the child." Minister MacGuigan's Bill C-10 died on the order paper when Parliament dissolved on July 4, 1984. The September 4 federal election returned a Progressive Conservative majority government under Prime Minister Brian Mulroney. The new Justice Minister John Crosbie revamped Bill C-10 and in 1985 introduced his own Bill C-47, An Act Respecting Divorce and Corollary Relief. Minister Crosbie's Bill C-47 retained "the best interests of the child" as a conceptual legal framework. It received Royal Assent on February 13, 1986, as the new Divorce Act. The legal phrase "the best interests of the child" is used five times in the Divorce Act in two sections, 16 and 17. Section 16, the act's child custody section headed "Custody Orders," uses it twice, in subsections 16(8) and 16(10), known as the "friendly parent rule." Section 17, headed "Variation, Rescission or Suspension of Order," uses it three times in subsections 17(5), 17(5.1) and 17(9).

Honourable senators, Minister MacGuigan was a legal scholar and had been the Dean of the University of Windsor Law School, and a professor at York University and at U of T law schools. He well knew the legal phrase "the best interests of the child" and its pedigree in the sovereign's parens patriae, in the Law of Equity and the Courts of Chancery. He used it in his Bill C-10, as did Minister Crosbie, to vest the children of divorce with the protection which is their lawful due, owed to them by the superior courts and their judges.

Since 1986, the Divorce Act has vested the children of divorce with statutory rights in relation to their parents, particularly their bonds of affectionate and financial care. These two cares are wholly bonded, as is the parent and the child. It is a truism to say that the child's first interest of the "best interests of the child" must be the child's own relationship with his own two parents, both mother and father; in the child's physical and affectionate sustenance; uncertain that the then new term "shared parenting" would endure in the jurisprudence, Minister MacGuigan had employed the well-tested phrase "the best interests of the child" with its known origin in the jurisprudence in the Law of Equity in the British Lord Chancellor's Courts of Chancery and Equity.

My Bill S-216 follows his and Minister Crosbie's lead, both of whom I knew.

I also note that my Bill S-216 relies on the recommendations of the 1998 report of the Senate and House of Commons Special Joint Committee on Child Custody and Access after Divorce, on which I served. Its famous and well-supported report For the Sake of the Children recommended shared parenting and the continuing and meaningful involvement of children with their parents post-divorce.

Honourable senators, Bill S-216 uses the term "shared parenting" in its title, but its text employs the term "parenting plan." It also uses the phrase "the best interests of the child" six times to be consistent with the Divorce Act as presently composed. My bill is a small, well-cast amendment that does not attempt to rewrite the Divorce Act because such a rewrite is a purview of the Justice Minister, our good friend Peter MacKay.

Shortly, I shall explain the origin and the pedigree of this legal phrase "the best interests of the child" and its high place in the high jurisprudence which form our 20th century approach that is called "the welfare of the child."

Honourable senators, in 1968 Canada enacted its first federal Divorce Act. Until then, divorce was rare, difficult and expensive and proceeded in most provinces pursuant to the old British 1857 Matrimonial Causes Act, except in Quebec and Newfoundland, where divorce was by individual private bill proceedings in Parliament, whose petitions began in the Senate. Divorce bills were introduced, debated and voted in the Senate, then adopted untouched in the Commons and given Royal Assent by the Governor General. Each divorce bill's proceedings in both houses was particular to the couple, identified by name in the petition and the bill. These Senate divorce bills ended in the 1968 Divorce Act, the proceedings of which hardly mention the word "children."

Honourable senators, in 1996 Liberal Justice Minister Allan Rock introduced Bill C-41, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act. His bill created the Federal Child Support Guidelines, a wholly new child support scheme. To this end, his bill proposed to repeal sections 15(8) and 17(8) of the Divorce Act, which had been Minister Mark MacGuigan's and John Crosbie's equality reforms in child support. Section 15(8) reads:

An order made under this section that provides for the support of the child of the marriage should

(a) recognize that the spouses have a joint financial obligation to maintain the child; and

(b) apportion that obligation between the spouses according to their relative abilities to contribute to the performance of the obligation.

The same wording is in section 17(8) that varies the orders.

Honourable senators, these sections had been Minister Crosbie's reforms on the joint obligation of both spouses to the post-divorce financial support of their children. In repealing these sections, Minister Rock's Bill C-41 replaced this "equality system" with a new child support scheme called Federal Child Support Guidelines. These guidelines set the child support payment amounts based on the income of the non-custodial parent, mostly fathers. The income of the custodial parent, mostly mothers, was not factored into the guidelines' calculated amounts, claiming that the custodial parent's financial contribution was assumed. These Federal Child Support Guidelines hailed the pre-eminence of the financial over the affectionate duties of parents and impaired judicial independence and the judicial role in setting these now predetermined child support amounts. These amounts set by calculation tables and wholly based on the non-custodial parent's income were actuated as regulations, what we call subordinated legislation, in the bill's regulatory framework. This so-called uniformity in payments created a new court duty to enforce child support payments, even unto staying the divorce. Such was the quest for the uniform child. Remember, they were seeking uniformity in child support payments.

Honourable senators, Bill C-41 was a well-publicized and supported Senate fight for fairness and balance in the Divorce Act. Our late colleague Progressive Conservative Senator Jessiman and I, as a Liberal, upheld divorce's children. I laud him, I thank him, and today I uphold his memory. I also thank his able assistant Janelle Feldstein for her devoted work with him for the children of Canada.

He and I upheld the need of Canada's children of divorce for the financial and emotional support of both parents, both mothers and fathers. We held that a divorce decree severs the marital relationship between spouses but not the parental bond between parent and child. We upheld the child-parent relationship as subsisting and enduring, that the parent-child bond is permanent, and that no statute can dispossess children of their parents, nor parents of their children. This is very important.

Honourable senators, Senator Jessiman and I had relied on the ancient common law and the King's Royal Prerogative to protect the children, ever mindful of the Queen's absolute royal power called the parens patriae in the Law of Equity that is owed to all children. In Britain, this had been delegated to the second-most powerful person after the King, the Lord Chancellor in his Courts of Chancery and Equity in its unique jurisdiction to protect the vulnerable, mostly children. The Lord Chancellor, as the Keeper of the Great Seal, in his Chancery Courts had replaced the ancient King's courts of wards and liveries. These were from a time knights were killed in the service of the King and the children were left with properties. As wards of the King, he protected them and their properties, which were delivered to them when they reached majority.

Honourable senators, I shall now trace the Chancery or Equity Courts, and these powers, in Canada. In 1837 in Upper Canada, a Court of Chancery was established, with like powers to the British Court of Chancery. Its statute, the Act to establish a Court of Chancery in this Province, in section II, said, at page 765:

And be it further enacted by the authority aforesaid, That the said Court shall have jurisdiction, and possess the like power and authority as by the laws of England are possessed by the Court of Chancery in England, in respect of the matters hereinafter enumerated, that is to say: . . .; in all matters related to infants, ideots and lunatics, and their estates, . . .

Black's Law Dictionary, sixth edition, defines the parens patriae, at page 1114:

Parens patriae originates from the English common law where the King had a royal prerogative to act as guardian to persons with legal disabilities such as infants.

The 1959 Jowitt's Dictionary of English Law, volume 2, also defines it at page 1294:

The sovereign, as parens patriae, has a kind of guardianship over various classes of persons, who, from their legal disability, stand in need of protection, such as infants, idiots, and lunatics.

Continuing the relevant definitions, Jowitt's volume 1 defines the maxims of equity at page 726:

. . . equity acts in personam; equity acts on the conscience; equity will not suffer a wrong to be without a remedy; equity follows the law; equity looks to the intent rather than the form; equity looks on that as done which ought to be done; equity imputes an intent to fulfill an obligation; equitable remedies are discretionary; delay defeats equities; he who comes to equity must come with clean hands; he who seeks equity must do equity; equity regards the balance of convenience; where there are equal equities the law prevails; where there are equal equities the first in time prevails; equity, like nature, does nothing in vain; equity never wants (i.e., lacks) a trustee; equity aids the vigilant; equality is equity.

Britain, by its 1873 Supreme Court of Judicature Act, merged its common-law courts with its equity courts. By this union, the British superior or high courts were vested and endowed with the royal equity power to protect children and the vulnerable.

Honourable senators, here at home, the Ontario Judicature Act, 1881, merged Ontario's equity and common-law courts. This vested the Chancery Courts powers to protect children, as an inherent power in our high and superior courts. This act used the exact words as Britain's 1873 act, sections 25(10). The Ontario act, sections 16(9) and (10) say, and they replicate the British words:

(9) In questions relating to the custody and education of infants, the Rules of Equity shall prevail.

(10) Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail.

The rules of equity prevail. This is a vast area of law, not as well-known as it should be. Honourable senators, I come now to the hailed 1893 case, Queen v. Gyngall, the defining judgment in Britain's Queen's Bench Division, Court of Appeal, with its famous legal phrase, "the best interests of the child." By their 1873 merger, this division had been vested with the chancery and equity powers, and the parens patriae. This masterful judgment was led by Master of the Rolls, the very famous Lord Esher, who said at page 239:

But there was another and an absolutely different and distinguishable jurisdiction, which has been exercised by the Court of Chancery from time immemorial. That was not a jurisdiction to determine rights as between a parent and a stranger, or as between a parent and a child. It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of a parent, and as if it were the parent of the child, thus superseding the natural guardianship of the parent. The present case arises after the Judicature Act, and the proceedings are in the Queen's Bench Division. The effect of that Act is, as I have often said, not to invent a new jurisdiction or to create new rights, but to alter the mode of procedure; and, there having been before two independent jurisdictions, one common law and the other equity, the Act in effect provides that, if a person proceeds in the Queen's Bench Division under the common law jurisdiction, and it turns out that the case raises questions to which the Chancery jurisdiction is applicable, the Queen's Bench Division judges are not to send the suitor to a Chancery Court, but are to exercise the Chancery jurisdiction themselves.

Citing Lord Chancellor Cottenham in re: Spence, Lord Esher said at page 240:

. . . This Court interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae, and the exercise of which is delegated to the Great Seal.

Lord Esher continued at page 241:

How is that jurisdiction to be exercised? The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.

Lord Esher quotes Lord Justice Lindley in another case, re: McGrath at page 242-243:

". . . The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded." The Court has to consider, therefore, the whole of the circumstances of the case, . . .

Honourable senators, Lord Justice Kay noted, at page 247:

. . . Lord Hardwicke, professing not to go upon guardianship and disclaiming wardship, puts it upon this: that the Court represents the King, as parens patriae.

Lord Justice Kay continues, at page 248:

This statement of the jurisdiction shews that, arising as it does from the power of the Crown delegated to the Court of Chancery, it is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child.

It is very interesting. The court developed a difference between parent and children.

He continued at page 251:

So again and again in such cases, where the child was not of very tender years, the practice has been that the judge himself saw the child, not for the purpose of obtaining the consent of the child, but for the purpose, and as one of the best modes of, determining what was really for the welfare of the child.

And added at page 252:

Denman, J., thought it right to see the child.

This is 1893. The stage for the 20th century approach to children is being set legally.

In this final quote from Queen v. Gyngall, Lord Justice Kay expressed the sensitive, well-established, and perhaps the most known words about the law of children. He said, at page 252:

As I have stated, the superintending power in respect of infants, which Lord Eldon said the Court of Chancery had always exercised by delegation from the Crown as parens patriae, must be exercised as the Court may think for the best interests of the child.

I have been wanting and intending for many years to put this case on the record here. Very few people know where to find that statement now, but there it is. Mark MacGuigan would have known a lot of this. He was a legal scholar. I knew him well.

Honourable senators, the "best interests of the child," this most famous phrase, and its pedigree, were introduced into the Canadian divorce law by Ministers Crosbie and MacGuigan. They introduced it into the lexicon and law of Canada's Divorce Act, to provide clarity in judicial and curial obligations to the children. This phrase describes the special separateness of the child, from the parent, and the legal nature of the child as an individual human entity. The most common sin with children has always been the blending of the child's interests with the mother's interests in a false unity. The Lord Chancellor's Courts of Chancery in the 19th century did much to advance the welfare of the child and its language. This is at a time when children were viewed as little adults and worked in ugly, ugly industrial settings, like chimneys. That is one of the great contributions to world jurisprudence that these English courts made.

In the 1890s in Toronto, nightly one could count several hundreds of children begging in the streets. They were then described as ragamuffins — street urchins, street arabs — a wide variety of names. One writer, one night counted 700 children in one small area, at the time when child welfare was beginning to develop in Toronto. The genius of Ministers Crosbie and Mark MacGuigan was that they were in the forefront of placing certain rights of the child into legislation — this was revolutionary — mindful that the only federal legislation that even touched children's rights were the Divorce Act and the old Juvenile Delinquents Act, now the Young Offenders Act. The child is its own person. It is a child, but it is its own person, a separate being from its parents, with distinct needs, but yet those needs are for those parents. The child's legal disabilities until majority are also privileges. These disabilities are privileges that vest adults with justified duties towards the children. It is as this separate vulnerable being that the child so desperately needs the care of its own two parents, which care is joined in both financial and affectionate spheres. We must be mindful, colleagues, that the legal phrase "the best interests of the child" is not poetry. Nor is it an earnest expression of humanity. It is the term of a "judicially administrative jurisdiction."

Honourable senators, I come now to an American defining judgment in the New York Court of Appeal. On July 15, 1925, in Finlay v. Finlay, Justice Cardozo relied on the British case Queen v. Gyngall. In his judgment, Justice Cardozo said at page 938:

The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless.

Justice Cardozo continued at page 940:

We find no sufficient reason for discarding this historic remedy and establishing in its place, or even as a supplement, a remedy of action. The difference is more than formal. The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone. He acts as parens patriae to do what is best for the interest of the child. He is to put himself in the position of a "wise, affectionate, and careful parent" (Reg. v. Gyngall, supra), and make provision for the child accordingly. He may act at the intervention or on the motion of a kinsman, if so the petition comes before him, but equally he may act at the instance of any one else. He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights "as between a parent and a child," or as between one parent and another.

He then cites his source, Regina v. Gyngall. He continues:

He "interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae." . . . . The plaintiff makes no pretense of invoking this paternal jurisdiction. . . . He invokes the jurisdiction of a court to settle a dispute. Equity does not concern itself with such disputes in their relation to the disputants. Its concern is for the child.

I repeat: Equity's concern is for the child. These two judgments reveal that the superior court judges' involvement is not to adjudicate conflicts between spouses in a divorce case, but to decide the best interests of the child in these circumstances.

Honourable senators, shared parenting, which permits the child to have the benefit of the affectionate bond of both parents, should be upheld by the courts. Truly, in the best interests of the child, shared parenting should be part of the process in divorce grants. Bill S-216 will achieve the practice of shared parenting. This tiny bill, a mere four clauses in two and a half pages, will amend the Divorce Act, section 11, titled "Duty of court," which defines the court's duties to children in its grants of divorce. My bill will amend this section to correct this well-known section 11 deficiency, which enlists the full coercive powers of state to enforce the child support monetary and financial sections.

The whole power of state is placed behind the enforcement of child support, but an equal state power is not behind the custody and access sections, the human affection relations section of the Divorce Act. This is unfair and cruel. The affectionate duty of parents to children cannot be ranked lesser or greater than their financial payments duty. Parents owe children both duties. No statute should rank one higher or lower than the other. These two duties are united in the legal phrase "the best interests of the child." This section 11 deficiency, a large imbalance in the Divorce Act, is an imbalance in justice itself.

Honourable senators, Bill S-216 will correct this legal imbalance that has caused great injustice to divorced families and incalculable heartbreak and pain. My bill will provide balance between the Divorce Act's child support and child custody access and parenting regimes. It will amend section 11 on divorce grants. Section 11(1) states:

In a divorce proceeding, it is the duty of the court

(a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;

(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made . . .

Section 11 is absolute. No reasonable child support arrangements, no divorce. But it lacks an equal court duty to stay the divorce grant if no reasonable parenting arrangements have been made. The judicial duty in child support arrangements is much more hefty than the judicial duty in parenting arrangements. The parental financial and monetary duties have been made superior to the parental affectionate duties. This section means a duty of the court to stay the divorce grant if reasonable parenting arrangements have not been made. Clearly, it is needed.

Honourable senators, Bill S-216 will give the court and the judges the just and statutory power they need. It will amend section 11(1) by adding the new clause (a.1) after paragraph (a) to mandate the court:

(a.1) to satisfy itself that reasonable arrangements have been made for the parenting of any children of the marriage, having regard to their best interests, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made;

Honourable senators, the 1998 Special Joint Committee Report, For the Sake of the Children, was conclusive and compelling. It recommended shared parenting. Canadians had strongly supported the committee's work and have expected change in the Divorce Act to correct the inequalities and the well-known defects. The then-Liberal government had so promised and did so several times, first in the May 1999 response of the Minister of Justice, in her paper, Government of Canada's Response to the Report of the Special Joint Committee on Child Custody and Access: Strategy for Reform. Nothing happened. Change was again promised in the October 12, 1999 Throne Speech read by Governor General Adrienne Clarkson, here in the Senate, where she said, on page 2 of Senate Debates, that the government:

. . . will work to reform family law and strengthen supports provided to families to ensure that, in cases of separation or divorce, the needs and best interests of children come first.

This promise of change was repeated again in the next Throne Speech, now the third time, on January 30, 2001. The Governor General read, on page 8 of Senate Debates:

The Government will work with its partners on modernizing the laws for child support, custody, and access - to ensure that these work in the best interests of children in cases of family breakdown.

The media was most critical of the inaction on the report of the joint committee, which went on for quite some time, a couple of years. I shall cite one editorial.

In the July 28, 2001 National Post editorial, headed "Obstruction at Justice," the editor wrote:

If the minister is committed to creating "positive outcomes for children" and if she genuinely respects Parliament, she should accept the conclusions of For the Sake of the Children and immediately introduce legislation incorporating them . . . To dither, obfuscate and mouth saccharine platitudes about children while thwarting the will not just of Parliament, but of Canadian citizens, is an affront to democracy.

Colleagues, shared parenting and Bill S-216 are long overdue. The courts and the judges need to be strengthened. We must support them in their duty already vested in them by the law of equity and the parens patriae.

Honourable senators, I wish again to laud Senator Jessiman in our great Senate fight here on Bill C-41, which proposed to repeal the Divorce Act sections 15.1(8) and 17(8), the sections that prescribe that, post-divorce, both spouses had obligations to financially support the children of the marriage according to their means. We won that point. Minister Rock accepted the Senate's amendment to this bill, and we reinstated the principle of joint child support obligations, which is now section 26.1(2) of the Divorce Act, in the Federal Child Support Guidelines, under the heading "Principle." It states:

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, I shall now provide some insight as to why shared parenting is so important for families and why we need to uphold and clarify the true role and power of the judges in this as so much misunderstanding had arisen about the meaning of the term "the best interests of the child." I shall cite some case law that revealed the need for clarity in the meaning of this legal phrase. In the Supreme Court of Canada's 1993 judgment, Young v. Young, Madame Justice L'Heureux-Dubé, in her dissent, wrote, on page 7:

The role of the access parent is that of a very interested observer, giving love and support to the child in the background.

At page 41:

The need for continuity generally requires that the custodial parent have the autonomy to raise the child as he or she sees fit, without interference with that authority by the . . . non-custodial parent.

Again, at page 47:

. . . the non-custodial spouse with access privileges is a passive bystander who is excluded from the decision-making process in matters relating to the child's welfare, growth and development.

Again, at page 49:

. . . men as a group have not yet embraced responsibility for child care.

In his 1995 article in the Supreme Court law review, titled, In the Best Interests of the Child, Nicholas Bala, Queen's University law professor, wrote at page 461:

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

Bala continued 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 . . .

As I said, great misunderstanding had arisen around the meaning of "best interests of the child" as though different persons could think it meant different things, whereas in point of fact, the precedence and jurisprudence are quite clear that the judge in such cases is to look at the child, not the dispute or the conflict between the parents. The judge's focus is the child.

Interestingly, in the same case, Mr. Justice Sopinka said the polar opposite. He wrote, at page 15:

The best interests of a child are more aptly served by a law which recognizes the right of that child to a meaningful post-divorce relationship with both parents. The "rights" must be distributed between the custodial and the access parent so as to encourage such a relationship.

Honourable senators, I come now to another judgment: Ontario Court General Division June 27, 1991. The case was Oldfield v. Oldfield. About the father's relationship with the children, Justice Robert Blair wrote, at page 237, paragraph 5:

That this is a loving and caring relationship is apparent. Clearly, it is "in the best interests of the children" to see that that relationship continues. If they are allowed to go, it is equally obvious that the nature of his access relationship will change.

The mother wanted to move the children to France, which would change the nature of the father's access.

About the wife's desire to move with their children to France, for her expected new marriage, Justice Blair wrote, at page 238, 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?

The wife was allowed to move to France with the children; but the marriage never occurred. In consequence, the husband's child support payments were increased to finance the children's trips to Canada for visits with him. Justice Blair, in another judgment, on February 10, 1995, said, at paragraph 18:

Someone has to pay for their passage. The reality is that it cannot be Ms. Marechal alone, given her limited income and the discrepancy between her income and that of Mr. Oldfield. I have come to the conclusion, in the circumstances, that the costs of their travel to and from Canada must be factored in to the overall expenses of their upkeep.

Honourable senators, I just have three pages left. May I have permission?

The Hon. the Speaker: Is it agreed?

Some Hon. Senators: Agreed.

Senator Cools: Honourable senators, the objective of my bill is to strengthen the court and the judges, and to clarify and support their legal and judicial role in the Divorce Act. Insufficient, defective and unclear statutes will inevitably plunge the judges into difficult and muddy waters. As senators, we have a duty to avoid this and to give them well-drafted statutes that are clear and allow them to do their work well. Sadly, for many years the field of family and divorce law was afflicted by much ideological warfare. Many excellent judges were damaged by this. I say that family relations in divorce, ever delicate, are not wise forums for ideological disputes. As senators, our first duty is to give the judges good laws that allow them to do that which they are constitutionally ordained and trained to do in their own rites of judicial independence, thereby to adjudicate the causes of the children. The focus is the children, not the differences between husband and wife.

Honourable senators, I come now to my conclusion. Bill S-216 will also amend the Divorce Act to provide for parenting plans. It will add a new subsection 16.1 after section 16. Subsection 16.1 has 7 sub-subsections. Subsection 16.1(1) reads:

16.1(1) In this section, "parenting plan" means a plan that sets out, in whole or in part, the responsibilities and authority of each spouse with respect to the care, development and upbringing of a child of the marriage, providing for matters such as . . .

The matters are listed very carefully. Subsections 16.1(1) to (7) lay out the parenting plan and the principles that it must recognize. The parenting plan occupies two pages of my two-and-a-half page bill.

These subsections rely on the legal phrase "the best interests of the child" and employ it six times. Honourable senators, I shall read some of my bill's subsections on parenting plans.

Subsection 16.1(4):

(a) the purpose of the plan is to serve the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child;

Subsection 16.1(4):

(c) the dissolution of the parents' marriage does not alter the fundamental nature of parenting, which remains a shared responsibility, nor does it sever the enduring nature of the parent-child bond;

Subsection 16.1(4):

(d) the child has the right to know and be cared for by each parent, including the right to have a personal, meaningful and ongoing relationship with each parent on a regular basis;

Subsection 16.1(4):

(e) the child has the right to spend time with, and communicate with, other persons with whom the child has a significant relationship, such as grandparents and other relatives;

Subsection 16.1(4):

(g) each parent retains authority and responsibility for the care, development and upbringing of the child, including the right to participate in major decisions respecting the child's health, education, and moral or religious upbringing.

Honourable senators, a parenting plan may be included in an application for a custody or access order brought by one or both spouses under the act. My bill sets out to describe and depict the principles that will govern good parenting plans and arrangements. The parenting plans intended by Bill S-216 will contain all that "a wise, affectionate and careful parent" would do for their child.

Honourable senators, I wish to record here the excellent work that our Law Clerk and his staff did on this bill. It was two years in the making, and I took advice from great scholars like Dr. Julien Payne and those I have known for years. I know this file well. I have done much work on it. I wish to note here the quality of the work that was done by our personnel at the Law Clerk's office. The Law Clerk then was Mark Audcent, who worked on it, as did Michel Patrice, Melanie Mortensen and Janice Tokar. The quality of their work was stupendous. It is an area of law that can polarize the most balanced persons very quickly, but it is an area of law that has been so disfigured.

Honourable senators, as we saw, child support and spousal support payments become means of transferring wealth from men to women on the grounds that, for hundreds of years, women were oppressed.

Whether or not that is true is a different matter, but society cannot make innocent individuals pay for historical inhumanity.

Family and divorce law is such a vast subject that I had to do many hours of work to crush all of this content into this small speech. Forty-five minutes is nothing in the history of the jurisprudence, or trends in divorce or children's rights.

The main fact I wanted senators to grasp is that the judges who were under these burdens quite often need to be reinforced, supported and given the kinds of laws that steady them in their observations, their knowledge of precedents and jurisprudence past, to allow them to find their way into the future, and to justice and fairness.

Honourable senators, I sincerely believe that it is possible to be fair and just even in the midst of conflict. We have a body of law called the law of equity, which essentially tells us that we must do precisely that, to find the true and just peace.

I thank all honourable senators for listening. This is a subject matter that has been very close to my heart for many years. I offer this bill to colleagues in the hopes that they will study it with great care, and that we will do the duty that we, as members of Parliament, owe to the children of this land.

I thank my colleagues very much. I thank you again.

(On motion of Senator Cools, for Senator McCoy, debate adjourned.)

The remainder of this day's Senate Debates are available here.