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Speech in Senate Chamber: Bill to Amend - Second Reading Bill S-202 - An Act to Amend the Divorce Act (Shared Parenting Act)

Honourable senators, I speak to second reading of my Bill S-202, An Act to Amend the Divorce Act (Shared Parenting Plans).  Its short title is the Shared Parenting Act.   In divorce, children’s needs, meaning child support, child custody and access are large problems for the spouses and the court.  One such problem is the court’s need that both parent’s duties to the children be defined.  My four clause Bill will amend the Divorce Act to order divorcing spouses’ obligations to provide the court with parenting plans that set out each spouse’s authorityand responsibility for the children’s care and upbringing.

 

Honourable senators,  mindful that children need both parents emotionally and financially, for, over a century, the law has given large powers for their protection to our judges and superior courts.  The Divorce Act section 11.(1), reads:

           11.(1)  In a divorce proceeding, it is the duty of the court  .  .  .  ; 

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

 

No reasonable child support arrangements, no divorce.  This section is absolute on the court’s duty in child support payments, but not so on the court‘s duty in child parenting.  It has no equal court duty to stay the divorce if reasonable arrangements have not been made for the children’s parenting.  The Divorce Act ranks the court’s duty in the monetary child support realm higher than its duty in the affectionate child-parenting realm. This section needs an equal duty for the court to stay the divorce if reasonable arrangements have not been for the children’s parenting.

 

Honourable senators, my Bill’s clause 2 will correct this imbalance and give the court this missing duty.   It will add a new subsection (a.1) after section 11.(1)(a),  to give the  court the duty:

11.( 1)(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;

 

Bill S-202 will correct this injustice that has caused families incalculable pain.  It will bring balance between the Divorce Act’s financial parenting child support regime, and its affectionate parenting, child custody-access regime.  It will allow the court to satisfy itself that the spouses have made reasonable arrangements for parenting their children, and, if they have not, to stay the divorce until they do.  This will harmonize the two distinct parental duties, the financial-monetary child support and the emotional-affectionate child parenting.  I ask colleagues to support this.  I thank Senator Elaine McCoy my seconder.  In Canada, public support for post-divorce shared parenting has been large since our 1998 Special Senate-House of Commons Joint Committee on Child Custody and Access, which travelled Canada and heard 500 witnesses.  I served on it, and had a large role in its creation.  Its 1998 Report, For the Sake of the Children recommended “shared parenting.``  From sea to sea, Canadians gave strong support to this Committee’s work and Report , and since then,  have awaited  the promised correction of this harshdefect.

 

Honourable senators, in1984, mindful that the previous decade had brought the provinces` family law reform acts that set out gender equality and sharing of the matrimonial home, assets and debts, Canadians then eager to share the children, had expected a new divorce act.  That year, Liberal Justice Minister Mark  MacGuigan  introduced his Bill C-10, An Act to amend the Divorce Act, intending that his Bill would bring gender equality in divorce, as in marriage, and, that shared parenting would become the divorce standard.  For this he employed the settled law, called the best interests of the child.  His Bill died on July 4 by parliament’s dissolution for the September 4 federal general election.  This brought Prime Minister Brian Mulroney`s Progressive Conservative Government.  New Justice Minister John Crosbie reworked Bill C-10.  Retaining its best interests of the child conceptual framework, in 1985, he brought his Bill C-47, the Divorce and Corollary Relief Act. This received royal assent on February 13, 1986.  This Act, amended by Justice Minister Allan Rock’s 1996 Bill C-41 on the Federal Child Support Guidelines, are largely the current Divorce Act. It uses the  term best interests of the child twice in its Custody Orders sections 16.(8) and 16.(10),and thrice in  its Variation, Rescission or Suspension of Orders sections17.(5), 17.(5.1),  and 17.(9). Called the friendly parent rule by lawyers, section 16(10), reads: 

16(10) in making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom that custody is sought to facilitate such contact.

 

Honourable senators,  scholar  Minister MacGuigan, had been the founding Dean of Windsor University’s Faculty of Law, and law professor at York University’s Osgoode Hall and at the University of Toronto.  He knew the law and pedigree of the best interests of the child in the Sovereign King’s parens patriae in the law of equity in the British Lord Chancellor’s Courts of Chancery and Equity.  He used it to vest divorce`s children with the superior courts and judges protection that is children’s due.  By the enactment of Minister Crosbie’s Bill, the Divorce Act vested divorce`s children with statutory rights, inherent rights to both their parents` financial and affectionate care.  These two rights, like the parent-child bond, are inseparable.  The child’s first interest of its  best interests of the child, is that child’s interest in its relationship with its own two parents, mother and father.  Unsure that the term “shared parenting” would endure, Mark MacGuigan  employed this phrase and its pedigree to achieve children’s justice.  My Bill follows his and Minister Crosbie’s lead, and also the 1998 Report, For the Sake of the Children, that recommended post-divorce shared parenting, with continuous and meaningful involvement of children with both their parents.  These ministers’ separate efforts gave us the1985 Divorce Act that  upheld  gender equality in child support, child custody and child access. This Act’s section 15.(8) before its repeal said:

15.(8)  An  order made under this section that provides for the support of a 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.

 

 

My Bill S-202 uses the term “shared parenting” only in its title, and the phrase the best interests of the child six times.  I shall soon explain its pedigree in the British nineteenth-century jurisprudence that shaped Canada’s twentieth-century welfare of the child approach.

 

Honourable senators,  Canada  enacted  its first federal Divorce Act in 1968.  Till then, rare, difficult and costly,  divorce  proceeded  by the  old British  Matrimonial Causes Act, in all provinces except Quebec and Newfoundland, where divorce was by individual private bills in parliament.  Begun as petitions in this Senate, these private bills were debated and voted here, then adopted in the House of Commons, then given Royal Assent.  Each divorce bill was unique to the couple identified by name in both their petition and private bill of divorce.  These parliament divorces ended in 1968.

 

Honourable senators, in 1996, Liberal Justice Minister Alan Rock introduced his Bill C-41 and its Federal Child Support Guidelines, a wholly new child support regime that changed the MacGuigan-Crosbie gender equality model.  Made legal as regulations and subordinated legislation, these Guidelines weakened judicial independence and the judges’ role in setting child support quantums.   These Guidelines preordained child support amounts set out in tables, were based solely on the income of the non-custodial parent, mostly fathers.   Custodial parents, mostly mothers,’ income was not factored into these amounts, in the claim that custodial parents’ financial contributions were assumed.  These Federal Child Support Guidelines birthed  both the pre-eminence of spouses financial duties over their affectionate  parenting duties, and its Divorce Act section 11.(1)(b) on the court`s duty to stay the divorce if reasonable arrangements are not made for child support  per the  guidelines.

 

Honourable senators, our Senate then played a large role for fairness in these Child Support Guidelines.  Progressive Conservative  Senator  Jessiman  and  I, then a Liberal, fought for the children.  We upheld their need for the financial and emotional support of both parents, both mothers and fathers.  We held that divorce ruptures the spouses’ marital bond, but not the enduring child-parent bond, and that parliament never intended the Divorce Act to dispossess children of their parents, nor parents of their children.  We upheld the birthright of children in the ancient common law of our Sovereign Queen’s absolute royal prerogative power to protect children, known as the parens patriae in the law of equity.   In ancient Britain, the King had delegated this power to the most powerful judge after himself, the Lord Chancellor who was the Keeper of the King’s conscience and the Keeper of the Great Seal in his Courts of Chancery and Equity, in their unique jurisdiction for children.  The Lord Chancellor later received the powers of the King’s ancient Courts of Wards and Liveries, by which the King owed to his knights fallen in battle, his duty to protect their minor children, his wards, and their estates, delivered to them on reaching the age.

Honourable senators, now Canada’s Chancery and Equity courts, and their large powers for children.  In 1837, Upper Canada, by its Act to Establish a Court of Chancery in this Province created a British type chancery court with powers to protect children.  The Act’s section II reads, 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,  .  .  .   .

 

 

Nova Scotia had a chancery court.  Later, the British, by their Supreme Court of Judicature Act, 1873, merged their common law, chancery, and equity jurisdictions, thus vesting their superior and high courts with the chancery courts’ royal equity powers for children.  This British 1873 Act, section 25.(10), reads:  

 

In questions relating to the custody and education of infants the Rules of Equity shall prevail.

 

Jowitt’s 1959 Dictionary of  English  Law, volume 1 explains “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  imputes  an intent to fulfill an obligation;  .  .  .  ;  delay defeats equities;  he who comes to equity must come with clean hands;  .  .  .   .

 

 

Equity is conscience.  Like the  British 1873 Act`s  union of their chancery, common law, and equity courts, my province in 1881, by its Ontario Judicature Act, also merged its courts, giving our high and superior courts and judges the chancery courts’ equity powers for children.  Like the British, the Ontario Judicature Act sections 17.(9) and 17.(10) said: 

(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.

Equity’s rules in conscience prevail.  Once for children who owned property, and administered by the King as parens patriae, the law for children is ancient and true.  Black’s Law Dictionary, sixth edition, defines this term,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.

 

Jowitt’s   Dictionary of English Law 1959, 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.

 

Honourable  senators, the legal phrase the best interests of the child, was set out in  Britain’s Queen Bench Division, Court of Appeal, in its’ defining and stunning 1893 child protection judgment, Queen v. Gyngall.   By their 1873 court merger, this court had received the parens patriae and the chancery court`s equity powers.  In Queen v. Gyngall, the child barely knew her poor birth mother, ever unable to care for her.  Much bounced around, this 15 year old girl of delicate health was thriving in Miss Gyngall’s care, training to be a teacher’s aide. She strongly resisted her mother’s efforts to reclaim her custody.  The judges talked with her.  They ordered her to Gyngall’s custody.  The great Lord Esher, Master of the Rolls, the highest judge after the Lord Chancellor, led this great judgment.  About their jurisdiction, he wrote, 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,   .  .  .  ,  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.

 

Lord Esher said, at page 240:

In the case of In re Spence (1), Lord Cottenham, L.C., said:  “I have no doubt about the jurisdiction.  The cases in which this Court interferes on behalf of infants are not confined to those in which there is property.   .   .  .  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 added, 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 continued, at page 242:

Then we have the case of In re McGrath (2), in which Lindley, L.J., said:  “.   .  .  .  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.  .  .  .   Nor can the ties of affection be disregarded.”  The Court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child .  .  . , and the happiness of the child.

 

 

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.

 

Adding, 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.

 

In its “parental jurisdiction” the court  must  distinguish the child from the parent.   Lord Justice Kay 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.

 

 

Honourable  senators, this 1893 case Gyngall, set the stage for the twentieth century’s enriched legal-judicial welfare of the child treatment of children as young, fully human beings with their own needs, separate and distinct from their parents.  For the world and humanity, Lord Justice Kay stated the established and most famous words ever on the law for children, that, at page 252:

.  .  .  ,  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.

 

 

Honourable senators, Ministers MacGuigan and Crosbie put the legal term “the best interests of the child” and its pedigree into our Divorce Act lexiconto express the curial-judicial power to protect divorce’s children, a power delegated to the courts, by the crown, as parens patriae. That the child is a complete human person with its own needs and rights is our law.  It is a common mistake to unite the child’s interests with one or both parents, and a common sin to unite the child’s interests with the mother’s.  In the late nineteenth century, the Lord Chancellor’s Chancery Courts advanced child welfare.  Children, then seen as small adults, worked in dirty, dangerous factories.  In Toronto,  in the 1890s as child welfare was emerging, one writer noted that on one night, on one street, he counted 700 children, ragamuffins, street urchins, street arabs, begging and scrounging.  Ministers MacGuigan and Crosbie enshrined children’s positive rights in the federal divorce act, distinct from the provincial child protection laws.  At the forefront of putting children`s rights into law, these Ministers knew that the only federal legislation on children’s rights were the Divorce Act, and the then Young Offender’s Act, formerly the Juvenile Delinquents Act, and now the Youth Criminal Justice Act.  Its own person, the child has unique needs which include adult parental care.  The child`s disabilities are privileges that vest adults with duties to them.  A vulnerable, separate being, the child needs the love and care of its two parents, which care is united in both the financial and affectionate spheres.  The term, the best interests of the child is not poetry.  It is the term of a “judicially administrative jurisdiction,” that is administered by judges in courts.

 

Honourable senators, now thedefining American judgment in the New York Court of Appeal 1925 case Finlay v. Finlay.  Here Justice Benjamin Cardozo applies Queen v. Gyngall, writing, 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 invoked the Lord Chancellor’s common law and equity jurisdiction in Gyngall, at page 940 that:

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 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.

 

 

Justice Cardozo cites equity, at page 940:

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.

 

Equity’s concern is the child.  These two judgments, Gyngall and Finlay, clarified the law that the superior and high court judges’ duty is not to adjudicate or settle the disputes and differences between the parents.  Their duty is to protect the child, and to decide the best interests of the child in the circumstances. 

 

Honourable senators, shared parenting allows the child to have the benefit of the affectionate bonds of both parents.  For the best interests of the child,shared parenting must be part of the divorce process.  Bill S-202 will achieve this.  It will amend the Divorce Act section 11 to correct this known defect that enlists the full coercive powers of state to enforce the child support monetary-financial sections of the Divorce Act, but orders no equal power to enforce their     affectionate child parenting duties.  Parents owe children both duties.  Parents’ affectionate duties to their children are not inferior to their monetary payments duty.  No statute can rank one higher or lower than the other, particularly when both duties are joined in the law “the best interests of the child.”  This Divorce Act imbalance is an imbalance in justice.

 

Honourable senators, we must strengthen the judges’ powers.  In recent years, misunderstanding had arisen about the term the best interests of the child, for example, the Supreme Court of Canada’s 1993 judgment Young v. Young, where Justice Claire L’Heureux-Dubé dissented.   About access parents, mostly fathers, she said, at 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.

About custodial parents, mostly mothers, she said, 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,  .  .  .   .

About non-custodial parents, mostly fathers, she mused, 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.

 

About men, she mused, at page 49:

 

.  .  .   men as  a  group have not yet embraced responsibility for childcare.

 

 

These words jolt the sensibilities.

 

Honourable senators, in his 1995 article, in the Supreme Court Law Review, In the Best Interests of the Child, Queen’s University Professor Nicholas Bala wrote on Young v. Young.  About this judge, he said, 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  .  .  .   .

 He said, at page 461:

As in her 1992 spousal support judgment in Moge v. Moge, she offers an explicitly feminist analysis, discussing social science literature about gendered child care roles in marriage and after separation.

Equity only knows the law, conscience and the best interests of the child. It knows no feminist analysis, nor that non-custodial parents, mostly fathers,  are  bystanders in their children’s lives.  As law in equity, the best interests of the child is not open to judges’ musing.  The jurisprudence is clear that the judges’ concern is for the child, not the parents’ quarrel, nor their gender roles.  Justice Sopinka said the opposite, that, 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, now the June 27, 1991 judgment in the Ontario Court General Division in Oldfield v. Oldfield,.   About the father’s good relationship with his 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 wished to move their children with her to France in her plan to remarry and live there.  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?

 

Allowed to, she moved the children to France.  But the marriage never was.  Consequently, the father’s child support payments were increased to finance the children’s trips to  Canada to visit him.  Justice Blair, 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.

 

 

My Bill will support the judges, who need clear laws.  Sadly, for years, family and divorce law were afflicted by ideological gender-warfare,  though all know that family relations, so delicate in divorce, are not good forums for idea-wars.   

 

 

Honourable  senators,  my Bill S-202’s  clause 4 will amend the Divorce Actsection 16toadd a new section 16.1 on parenting plans, being 16.1 (1) to 16.1 (7).  These state the principles that divorcing spouses parenting plans must contain.  I shall read them in part. 

subsection 16.1 (1):

(1) .  .  .  ,  “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,  .  .  .

 

subsections 16.1(4)(a) and (c):

 

          (4)(a)  the purpose of the plan is to serve the best interests of the child  .  .  .  ;

 

 (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;

 

subsections 16.1(4)(d) and (e):

 

(4)(d)  the  child has the right to know and   .  .  .   ,  to  have  a  .  .  .  ,  meaningful and ongoing  relationship with each parent  .  .  .  ;

 

(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):

(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.

 

 

Colleagues, my Bill’s parenting  plans  must  contain all that “a wise, affectionate and careful parent” would do.  I thank senators for their attention.