Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 21 - Evidence
OTTAWA, Wednesday, February 12, 1997
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-41, 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, met this day at 12:08 p.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chair: Honourable senators, I call this meeting to order and welcome you all back. Since we are now into our meeting, I would please ask the photographers to shut off their cameras.
Senators, as we begin, I should like to read a report.
The Subcommittee on Agenda and Procedure of the Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its
FIRST REPORT
Your Subcommittee notes that, since the meeting of the Committee on January 29, 1997, further discussions have taken place between members of the Committee and the Department of Justice.
Your Subcommittee therefore recommends that the clause-by-clause study of Bill C-41 be recommenced at clause 1.
This is signed by myself on behalf of the members of the steering committee.
Do I have your agreement on this, honourable senators?
Hon. Senators: Agreed.
The Chair: We will proceed with reading clause 1.
Senator Cools: Before we proceed into clause-by-clause: We have not reconvened on this issue subsequently. The manoeuvre Senator Bosa used to halt the proceedings during the last attempt at clause-by-clause study was novel and somewhat unusual. At some point in time we should have a debate on its procedural propriety and the propriety of it from the point of view of Parliament's privileges. I am not proposing that we do that now because I am mindful that raising it as an issue would to divert us from the major issue before us, which is to determine whether we can come to certain agreements. I have consulted quite widely on the subject matter, even including with the Clerk of the Senate of Australia, who informs me that the technique is so devious that even they have never thought of it. I simply mention that at some point in time we should look back at that to determine if we could come to a conclusion as to whether that is a fitting parliamentary practice to be employed by anyone else at a future date in history.
I was about to make the recommendation that our Committee on Privileges, Standing Rules and Orders should study the issue. At some point in time, this will arise again. I would not like it to be established as a precedent that could be employed at any moment in time when someone wanted to simply halt the proceedings of a committee, especially when a motion to adjourn was defeated.
The Chair: We shall proceed then. Shall clause 1 carry?
Senator Jessiman: I should like to propose an amendment to clause 1.
I move that Bill C-41, in Clause 1, be amended by replacing lines 9 and 10 on page 2 with the following:
of illness, disability or other cause, to with-
By way of explanation, that would delete from the bill the new educational liability that the government was proposing, so the bill would now read as the act presently is. That is the effect of that amendment. I have that both in English and French, and I assume the chair has copies.
The Chair: All the members have copies as well, senator.
Shall the amendment to clause 1 carry?
Hon. Senators: Agreed.
The Chair: The amendment carries.
Shall clause 1 carry as amended?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 2 carry?
Senator Cools: I have an amendment to clause 2.
I move that clause 2 of Bill C-41 be amended on page 6 by replacing line 15 with the following:
marriage, unless the conduct is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
This amendment was proposed to us by a lawyer from Mississauga.
Senator Bosa: Mr. Day.
Senator Cools: Would you like to speak to the amendment?
Senator Bosa: No.
Senator Cools: Oh, good.
Mr. Michael Day, a lawyer from Mississauga, west of Toronto, brought before us what I thought was compelling evidence. He put before us several examples of case law, but the particular example he brought to us was especially compelling. A man's behaviour throughout the relationship with his ex-wife had been quite pristine, while his spouse's behaviour was quite violent, in truth and in fact. The particular case which he brought to us, about which there was no dispute, described the occasion where this ex-spouse drove a butcher's knife six inches into his chest.
The part of the Divorce Act this amendment is seeking to correct, or to give judges certain leverage, is the area to do with spousal support, not child support. Let us just make that clear. The section of the bill is before us, so it is quite in order procedurally.
In the instance of Mr. Day's client, the gentleman's name was Mr. Toby Mutka. Mr. Mutka is locked into a situation with his ex-wife where he has to pay her spousal support in the amount of $1,500 on a monthly basis. I would submit to honourable senators that there are not too many instances in law anywhere in this country where any human being is compelled to pay substantial amounts of money of support to their assailant.
The proposed amendment is already part of the family law. It is a clause in the current Family Law Act of Ontario. Mr. Day proposed to us that the Divorce Act, which constitutionally always takes pre-eminence over family law provincial legislation, adopt the exact same words from the provincial Family Law Act. There is nothing novel or new about this from a legal point of view or from a practitioner's point of view. He is proposing to harmonize family law in the divorce courts with family law in the provincial situation.
We are speaking here about grossly unconscionable conduct. We are not talking about morality, and we are not talking about two spouses who are quarrelling because one had a love affair with someone else. We are talking about conduct which is so grossly unconscionable as to repudiate entitlement to spousal support. There is a great deal of history on this which I can bring forward at some point in time. The point is that it is grossly unconscionable.
Another example could be two ex-spouses who are locked into spousal payments and one spouse kills the child of the other one. The conduct is grossly unconscionable.
Perhaps Senator Bosa would like to second this amendment.
Senator Jessiman: Madam Chair, I do not think the senator explained this amendment to my satisfaction. This is about spousal support, but it is more about the fact that the act now provides that the conduct of the parties is not to be taken into consideration when getting a divorce and trying to determine spousal support. In the old days, your conduct could be grounds for a divorce, but that was taken out.
The senator is now suggesting that, under some circumstances such as those she mentioned, conduct should be taken into account. It seems reasonable to me, and I support the motion.
Senator Bosa: Madam Chair, since Senator Cools invited me to second the motion, which is not required, I wish to say a few words.
First, I am very sympathetic to this case. When Mr. Day appeared before the committee, I was the first one to say that I was shocked at the case he related to us. I am on record as having said that. Senator Cools followed me by saying that she felt the same way. My feelings have not changed.
However, I took it a step further. I went to Mr. Thompson, the Deputy Minister of Justice, because I am not a lawyer. I wished to obtain his advice on the effects of accepting such an amendment.
First, this bill is not about the situation that Senator Cools has presented; this bill is about child support.
Second, I am told -- and I have no reason to dispute it -- that making an amendment such as this to the present bill will have other repercussions on other cases. Therefore, he suggested that we did not deal with this matter.
It is not a question of obeying civil servants, et cetera, but I think we are obligated to accept their advice because they are the experts. We intend to do so.
There are other ways in which Senator Cools can focus attention on this issue. She can present a Private Members' bill.
Senator Cools: You do not have to tell me.
Senator Bosa: I am sure I do not have to lecture her on these other ways because she knows more than I. Having said that, I will not support this amendment.
Senator Cohen: Senator Bosa, did Mr. Thompson give you any examples of other areas which would constitute unconscionable conduct?
Senator Bosa: He did not give me specific examples, but he did say it would have repercussions in other areas, because then you must define what is "unconscionable" and what is "grossly unconscionable". There are degrees of interpretation to the word "unconscionable". What may be unconscionable to me may not be unconscionable to you. Consequently, it leads to legal disputes. This is not the time or place to deal with something like that.
Senator Cools: Madam Chair, we have before us a clause of the bill which is open to us for amendment. It is quite in order for us to bring such an amendment.
I would like to put one question only -- well, maybe more -- to Senator Bosa. He searched his advice from the Deputy Minister, Mr. George Thompson. Would he share with us what Mr. George Thompson had to say about the application of the Family Law Act in Ontario, where the clause sits quite comfortably and is used.
Senator Bosa: Madam Chair, Senator Cools makes two points.
First, I am not disputing the validity of her amendment. We have a bill before us. Clause-by-clause study is the appropriate time for her to be proposing amendments. I am not disputing that.
Second, when I spoke to Mr. Thompson, I did not revisit the whole gamut of the law having to do with divorce or child support. I asked him that question specifically, and I was satisfied that he gave me a valid answer.
Senator Cools: Honourable senators, as I said before, we have made enormous advances in this country in the field of domestic violence. Before us is a serious policy issue about which the final decision rests with Parliament. I would hope that any amendment we would make to this bill would have serious repercussions because it is obviously making a change, and that is the intention. A change is obviously intended to have a repercussion.
I would rest my case, honourable senators, in the sincere belief that the Divorce Act should send a strong message that it will not countenance violence of such a degree as to void contractual obligations. It would not happen in any other contract.
The Chair: Would you put your amendment again, please?
Senator Cools: I move:
That Clause 2 of Bill C-41 be amended, on page 6, by replacing line 15 with the following:
"marriage, unless the conduct is so unconscionable as to constitute an obvious and gross repudiation of the relationship."
Obviously attempted murder is a strong and obvious repudiation of an obligation.
The Chair: Honourable senators, shall the amendment to clause 2 carry?
All those in favour?
All those against?
The motion is tied. I declare the amendment defeated.
Shall clause 2 carry unamended?
Hon. Senators: Agreed.
The Chair: Clause 2 carries.
Shall clause 3 carry?
Some Hon. Senators: Agreed.
Senator Bosa: Are you going clause by clause now?
Senator Jessiman: We are having copies made of Senator Cools' amendment. There were not sufficient copies. I have asked the clerk, and five minutes ago she said she would get copies so we could all have a copy.
The Chair: To which clause are you referring, senator?
Senator Jessiman: I am talking about the amendments Senator Cools has provided to you and me , but not everyone has a copy.
The Chair: I am asking for the next clause that she wishes to amend.
Senator Jessiman: I cannot tell you because I do not have it in front of me. I have given it to the clerk. I am asking you to hold proceedings for a moment or two until we get the copies made.
The Chair: We are at clause 3.
Senator Cools: I think we should be mindful that all of this is being done in a rather rushed way. We did not have ample time to prepare. In point of fact, I just received some of this material barely an hour ago. I think we could just slow it down a bit and move it slowly so that we can cover the ground we need to cover and make the necessary copies.
The Chair: Senator Cools, I would think that if you had been preparing amendments for a week or so, you would know what clauses you wanted to amend.
Senator Cools: I was responding to Senator Jessiman.
The Chair: Honourable senators, shall clause 3 to clause 10 carry?
Hon. Senators: Agreed.
The Chair: Clauses 3 to 10 carry.
Shall clause 11 carry?
Senator Jessiman: I have an amendment to propose to clause 11. It reads as follows:
That Bill C-41, Clause 11, be amended by replacing line 40 on page 13 with the following:
Principles
(2) 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.
Following that is:
Definition of "order for child support"
(3) In subsection (1), "order for child"
Clause 11 of the bill says:
11. The Act is amended by adding the following after section 26:
26.1 (1) The Governor in Council may establish guidelines respecting the making of orders for child support, including, but without limiting the generality of the foregoing guidelines...
Then it sets out the guidelines and goes on to principles. These words are taken from sections 15(8) and 17(8) of the act. Section 15(8) dealt with orders in the first instance. Section 17(8) dealt with amending orders. The bill would have deleted both subsections 15(8) and 17(8). It has now been agreed to leave in the act that the guidelines will be drawn with those principles involved.
It is important that this amendment pass.
The Chair: Shall the amendment to clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11, as amended, carry?
Hon. Senators: Agreed.
The Chair: Clause 11, as amended, carries.
Shall clauses 12 to 21 carry?
Hon. Senators: Agreed.
The Chair: Clauses 12 to 21 carry.
Senator Cools: Honourable senators, I wish to move an amendment to clause 22. The amendment is simple but lengthy because the provision itself is lengthy.
I have consulted widely on this rather troublesome business of invoking the Royal Prerogative without Parliament's knowledge or agreement to confiscate, suspend or take people's passports for offences which are not related to a violation of the use of a passport. I have done a fair amount of research on this. Obviously, those speeches will be given in the Senate chamber.
From what I have been able to glean in today's community, especially with the advent of the Charter of Rights in 1982, even in the instance of persons who are convicted of criminal offences, passports are rarely suspended or taken away. There are certain sections of the Charter which guarantee mobility rights across this country.
I have personally taken an interest in that. I understand that many senators were a little cautious about touching the passport issue. My research has shown me that it is unprecedented, but the door is then open for invading Canadian citizenship rights. From there forward, this technique can be used as a government will see fit.
Bill C-41 invokes this censure as a penalty for defaulting payers. Since withholding, revoking or suspending of a passport is to be used in the instance of persons who violate court orders in divorce cases, I thought we should be even-handed. If we are take it from the gander, let us take it from the goose.
I move:
THAT clause 22 of Bill C-41 be amended
(a) on page 17, by adding after line 38 the following:
"access order" means an order or judgment relating to a right of access to or visitation of a child that is enforceable under provincial law.
"access provision" means a provision in an agreement relating to a right of access to or visitation of a child that is enforceable under provincial law.
(b) on page 18, by adding after line 2 the following:
"defaulter" means a debtor or a person who denies a right granted in an access order or an access provision.
"family provision" means a support order, a support provision, an access order or an access provision.;
(c) on page 19,
(i) by replacing lines 1 to 5 with the following:
64. The purpose of this Part is to help provincial enforcement services enforce family provisions by providing for the denial of certain licences to debtors who are in persistent arrears, and to persons who deny a right granted in an access order or an access provision for at least three visits.;
(ii) by replacing lines 16 to 20 with the following:
67.(1) Where a debtor is in persistent arrears under a support order or a support provision, or where a person has denied another a right granted in an access order or an access provision for at least three visits, a provincial enforcement service may apply to the Minister that the following actions be taken against the defaulter:
(a) that no new schedule licences be issued to the defaulter;
(b) that all schedule licences held by the defaulter be suspended; and
(c) that schedule licences held by the defaulter not be renewed.;
(iii) by replacing lines 30 and 31 with the following:
(a) the identity of the defaulter; and the family provision.;
and (iv) by replacing line 38 with the following:
is satisfied, in the case of a debtor, that the debtor is in persistent;
(d) on page 20,
(i) by replacing line 2 with the following:
support provision and, in the case of a person who denies a right granted in an access order or an access provision, that the person has denied the right for at least three visits;
(ii) by replacing line 5 with the following:
family provision;
(iii) by replacing lines 9 and 10 with the following:
has sent a notice to the defaulter, at the defaulter's last known address,;
(iv) by replacing line 13 with the following:
believe, in the case of a debtor, that the debtor is in persistent;
(v) by replacing line 15 with the following:
provision and, in the case of a person who denies a right granted in an access order or an access provision, that the person has denied the right for at least three visits,;
(vi) by replacing line 19 with the following:
defaulter,;
(vii) by replacing line 20 and 21 with the following:
(iii) informing the defaulter of the consequences to the defaulter of a licence denial,;
(viii) by replacing lines 23 to 31 with the following:
(iv) advising the defaulter that a licence denial application will not be made,
(A) in the case of a debtor, if the debtor enters into a payment plan that is acceptable to the provincial enforcement service or satisfies the provincial enforcement service that the debtor is unable to pay the amount in arrears and that the making of the application is not reasonable in the circumstances, and
(B) in the case of a person who denies a right granted in an access order or an access provision, if the person satisfies the provincial enforcement service that the person was unable to grant the right for the relevant period and that the making of the application is not reasonable in the circumstances.;
(ix) by replacing line 35 with the following:
the defaulter.;
and (x) by replacing lines 37 and 38 with the following:
deemed to have been received by a defaulter ten days after it is sent to the defaulter.;
(e) on page 21,
(i) by replacing line 1 with the following:
determine whether the defaulter to whom the;
(ii) by replacing line 5 with the following:
denial application in respect of a defaulter, an;
(iii) by replacing line 7 with the following:
mine whether the defaulter is the holder of a;
(iv) by replacing line 11 with the following:
that a defaulter is the holder of a schedule;
(v) by replacing lines 16 to 18 with the following:
action under subsection (2) against a defaulter shall send the defaulter a notice in writing informing the defaulter that the action has been;
and (vi) by replacing lines 22 and 23 with the following:
respect of a defaulter shall refuse to issue a schedule licence to the defaulter.;
(f) on page 22,
(i) by adding the following after line 13:
(1.1) A provincial enforcement service shall immediately request that all actions taken under this Part in respect of a person who denies a right granted in an access order or an access provision be terminated where
(a) the provincial enforcement service is satisfied that the person
(i) is no longer denying any right that has been enforced by a licence denial application, or
(ii) is unable to grant the right and that the application of this Part against the person is not reasonable in the circumstances; or
(b) the provincial enforcement service ceases to enforce all access orders or access provisions that have been enforced by a licence denial application.;
and (ii) by replacing line 14 with the following:
(2) A request under subsection (1) or (1.1) must be;
(g) by replacing line 27 with the following:
of the defaulter solely on the basis of this Part;
and (h) by replacing line 30 with the following:
to the defaulter solely on the basis of this Part.
Honourable senators, the government has told us that their wish is to use this extremely and, I believe, Draconian, vindictive, vengeful -- whatever terminology we wish to use -- measure to take a passport from a Canadian. That would deny Canadians their mobility rights and, I would add, even their Charter rights.
My response would be, "Very well. If we feel compelled to use such a drastic measure to send a message to delinquent parents that the government will not tolerate delinquency, then let us send a message to all delinquents that the government will not accept and tolerate delinquency."
Therefore, to the extent that the Bill C-41 proposes that passports be removed or suspended from individuals who violate certain court orders, let us use it for those individuals who violate other court orders. In other words, if we are to use the removal of passports as a penalty for violating a court order, let us go across the board and use it for all violations of court orders.
If I could summarize, Bill C-41 proposes that a debtor or a payer who is in default of three payments can be determined to be a persistent debtor and the government will take his passport. I propose to add to the legislation this initiative that if any spouse denies another spouse access to the children of the marriage for three visits, then the passport of that person be taken as well.
Senator Bosa: Madam Chair, again, I must say that the bill before us has to do with child support and not access.
Before I say anything else, I should like to state for the record that we are not confronting one another here. This is not a Liberal or a Conservative issue; this is an issue with respect to which the government is trying to come to grips with some sad situations. It is not meant to deprive children of maintenance. It is not designed to make life difficult for couples who have decided to divorce and who are in a child support situation. We are breaking new ground because the guidelines are something new in Canada.
Therefore, I would not want anyone to think that just because we sit on this side and other senators are sitting on the other side that this is a partisan confrontation. We all have one thing in common in that we want to be fair. We want to devise a system which alleviates the things that are presently wrong with the divorce law.
We have a letter from the minister recognizing that the next step is to deal with access because there have been many abuses. The letter states that he will move that a joint Senate and House of Commons committee be constituted for the purpose of looking at all the issues related to access and custody. This is in writing. We all have copies of the letter.
Senator Cools: That is out of order.
Senator Jessiman: Should we agree to have the letter put on the record at some point?
The Chair: It will be put on the record.
Senator Cools: It will be; but we have to discuss it.
Senator Bosa: We are familiar with the negotiations which have gone on. I do not see how you can deal with this topic without referring to the negotiations which have taken place.
Senator Cools: That is a slightly different matter. We are dealing with a section of Bill C-41 which is entitled "Licence denial". I am not dealing with the issue of access here. I am not proposing that a judge should order a certain amount of access. We are dealing here with what we, as a government, consider to be suitable punishment or penalty for disobedience of court orders.
Senator Losier-Cool: However, you are including access in it.
Senator Cools: Senator Losier-Cool, it is an access order. Bill C-41 says that we can take passports away from people who violate court orders.
Senator Losier-Cool: Which includes access and visitation of a child.
Senator Cools: No, it is an order. The issue is order. In other words, the bill indicates that we should take a passport from an individual who violates a court order.
Let us differentiate between penalty and wrongdoing. This penalty is for violating a court order. I am not saying we should tell a judge to compel anyone to give more visits or more access or more visitation. I am saying that the censure that is applied for the violation of a court order should also be employed for the violation of another court order.
Senator Bosa: I wish to make one additional point. Senator Cools states that the suspension of a passport is denying a person his or her rights of citizenship. With this amendment, she would extend the measure to deny the custodial parent their citizenship rights.
That is not a point with which we should be dealing. We have an amendment before us. I stated previously that access will be dealt with at a future date. Having said that, we should put the matter to a vote.
Senator Cohen: I do not have a legal background, as do many of my colleagues. However, I bring to the attention of the committee that there was a letter to the editor in today's paper signed by Elizabeth Beattie, one of our committee witnesses who has been almost an ad hoc member of this committee.
Senator Haidasz: Which paper?
Senator Cohen: Ms Beattie suggests an answer to your question about sauce for the goose and sauce for the gander.
Senator Jessiman: Which paper?
Senator Cohen: It was in this morning's Globe and Mail.
Ms Beattie advises that if a custodial parent wilfully denies access, the non-custodial parent has a remedy in section 127(1) of the Criminal Code of Canada, which deals with disobeying a court order. The laying of a criminal charge would permit the revocation or cancellation of a custodial parent's passport.
This is something of which I was not aware.
Senator Cools: The issue here is not access. Senator Bosa is dragging a red herring. The issue is not access; the issue is penalties for the disobedience of court orders. That is the bottom line.
Senator Jessiman: I wish to reiterate in a different way what Senator Cools is saying. It has nothing to do with access per se. Senator Cools is saying that we have a bill indicating that if you have a defaulter as far as payments to a custodial parent are concerned, then that defaulter can have his passport taken. She is saying they also make orders in courts ordering that certain people have access. When certain custodial parents deny access, they are committing a breach of that order.
Senator Cools' amendment is suggesting that if they have committed three breaches of that order, they should also have the same penalty imposed upon them. It makes sense, and I am in favour of the motion.
The Chair: Honourable senators, shall the amendment to clause 22 carry?
All those in favour?
Those against?
We have a tie; therefore, the amendment is defeated.
The Chair: Honourable senators, shall clause 22 carry?
Some Hon. Senators: Agreed.
The Chair: Did you have another motion?
Senator Cools: I had another motion on clause 22.
The Chair: It is later, page 18, clause 22.
Senator Cools: I proposed to the government that if they were taking passports from some, then should take them from all violators of custody orders. In the failure of that, I shall try for the premise to take them from no one.
The Chair: Senator Cools, I have a procedural problem here. We just agreed that clause 22 shall carry. I would have to ask the committee to reopen it.
Senator Jessiman: I would think we should.
Senator Bosa: We have no objections.
Senator Cools: I thought it was the amendment.
The Chair: Perhaps I moved a little too quickly.
Senator Cools: Yes.
The Chair: It is agreed that we agree that we reopen clause 22?
Hon. Senators: Agreed.
Senator Cools: I thank you for that.
Since we will not take away passports evenly, I propose that we not take away passports from anyone.
I move that clause 22 of Bill C-41 be amended:
(a) on page 18, by replacing lines 4 and 5 with the following:
care or an authorization of any kind, but does not include a passport within the meaning of sec-;
(b) on page 19, by deleting lines 13 to 15.
(c) on page 22, by
(i) deleting the title immediately preceding line 36, and
(ii) deleting lines 36 to 46; and
(d) on pages 19 to 24, by renumbering sections 67 to 82 as 66 to 80, and any cross-references thereto accordingly.
Honourable senators, there is an addendum to that motion because the word "passport" is also mentioned in the schedule.
The Chair: We shall do that when we get to the schedule.
Senator Cools: Do you prefer to do it then?
The Chair: By agreement, you can move it now.
Senator Cools: It would be better, because it fits together.
The Chair: All right.
Senator Cools: I move that the schedule of Bill C-41 be amended on page 33 by deleting the title "Canadian Passport Order" and the item "passport/passeport" thereunder.
Watch all the civil libertarians come to the fore.
The Chair: Honourable senators, we have before us an amendment to clause 22. We also have an amendment relating to the schedule. Shall these amendments to clause 22 in the schedule carry?
Senator Jessiman: Madam Chair, I think the senator said she wanted to speak.
The Chair: She sat back, and I thought she was finished.
Senator Cools: I should like to say clearly that I speak as a Liberal. I speak as a member of the Liberal caucus. I also belong to the group of people who in this country who feel an enormous concern that the Government of Canada has wandered into an area which is unprecedented.
I feel significant disappointment that my colleagues on the other side have not seen fit to support this initiative. I feel encouraged and enlightened that conservative senators are standing for civil liberties.
In closing, a door has been opened in this country of assaulting Canadian citizenship. We shall hear more about it in the future. The record will show that this committee attempted to amend the bill in this regard and that we shall live to see the day when many of us will regret that we did not stand strongly enough on the issue of assailing and undermining the issue of Canadian citizenship in this country.
The Chair: Shall clause 22 carry as amended and shall the schedule as amended carry? All those in favour, please.
Senator Jessiman: What is the motion?
The Chair: The motion is: Shall the amendment dealing with clause 22 and an amendment dealing with the schedule carry?
All those in favour?
All those against?
The motion is defeated. The amendment does not carry. I shall ask once again: Shall clause 22 carry?
Hon. Senators: Agreed.
The Chair: Clause 22 is carried.
We will continue with clauses 23 through to 42. Shall clauses 23 to 42 carry?
Hon. Senators: Agreed.
The Chair: Clauses 23 to 42 carry. Shall the schedule carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the title of the bill carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the bill as amended carry?
Hon. Senators: Agreed.
The Chair: Carried. We have before us three documents with which we should deal at this point. They shall be read into the record.
The first one is a letter from George Thomson, the deputy minister, dealing with Bill C-41, the amendment to the federal child support guidelines. This would be attached as an appendix; correct?
Senator Cools: No, it is not an appendix. It is a full part of the report. It is a part of the report which, once adopted, is included and then becomes an order of the Senate.
The Chair: I shall read it into the record:
Re Bill C-41 -- Amendment to the Federal Child Support Guidelines
Please find enclosed an amendment to Section 9 of the January draft of the Federal Child Support Guidelines. This amendment will be included in the Guidelines which we hope will be in effect on May 1, 1997 (depending on the date that Bill C-41 receives Royal Assent) and will remain in effect for a period of time thereafter sufficient to allow it to be evaluated.
Yours truly,
George Thomson.
This relates to so-called shared custody, and it replaces section 9 of the January 22, 1997 draft federal child support guidelines with the following:
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year, the amount of the child support order shall be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
the increased costs of shared custody arrangements; and
the conditions, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought.
Senator Cools: My clear understanding is that the minister, through his deputy, has committed that the guidelines -- which are not before us as statute but only in an enabling clause -- will include section 9 in the form just read. Are we all agreed that that is what is happening here?
Some Hon. Senators: Yes.
Senator Cools: Very well. We fought very hard to get this. As this goes forward as a part of the committee report, it then carries the full force of the Senate. Any violation of that means we can bring any person who violates it before us in a contempt of Parliament.
I move that this letter be included in the report and form part of the body of the report of this committee to the Senate.
The Chair: It would be in the report if it was an appendix to the report.
Senator Cools: No, it is the report. This document can be an appendix, but the report must show very clearly that the bill was reported in the following way with these items. It must be in the body of the report of the Senate.
The Chair: Whatever we report must be the words of the senators. These are not our words; they are the words of the deputy minister.
Senator Cools: We have a commitment. I will word it so that we have it in my words.
The Chair: We must refer to it in the Senate report.
Senator Cools: No, the Senate report must show very clearly that the guidelines will say this.
The Chair: It will, but it is a question of format. What the senators say goes into the report. What someone else says, such as this letter from Mr. Thomson, is not our words.
Senator Cools: The letter is attached, but the report can say that the letter came and it says such and such a thing, and, furthermore, that the guidelines will include these words. Then you can also attach the letter itself. The report can easily indicate that the letter was received, dated, and stating et cetera. That is very much in order.
The Chair: I need permission to format this letter and add it to the report.
Senator Cools: Absolutely. We are all watching you.
The Chair: Does everyone approve of including the letter and the intent of the letter and that it be attached?
Hon. Senators: Agreed.
The Chair: Carried. The next letter I will read is from Senator Joyce Fairbairn, Leader of the Government in the Senate:
This is to confirm that I would support a motion to ask your committee to monitor the implementation and application of Bill C-41, and its associated guidelines.
Sincerely,
Joyce Fairbairn.
Senator Jessiman: Will that motion be made in the Senate, or will it be made in the committee and become a part of our report?
The Chair: In the Senate --
Senator Cools: It will be both. We must say in the report that we have received such a letter, and that this is what the letter says.
The Chair: Then a motion must be made in the Senate.
Senator Cools: Otherwise, it is not in the report.
Senator Jessiman: Do we have such a motion drafted?
The Chair: Yes, we do.
Senator Jessiman: May we see a copy of that?
Senator Cools: That is later, but let us finish the report before we miss the opportunity.
Could I also thank Senator Fairbairn very publicly? This is obviously Senator Fairbairn's initiative. Quite frankly, she has acted magnificently and responsibly. I commend her for that, and I thank her profoundly. This initiative of Senator Fairbairn allows those of us who have raised these concerns to bring those guidelines and the implementation and the monitoring of the bill into our purview. It will allow us to call witnesses, to look at it, to examine what is happening, and to formulate recommendations. Very publicly here, I thank Senator Fairbairn. I have known Senator Fairbairn for many years, and I intend to know her for many more.
Senator Cohen: I should like to add my name to that commendation.
The Chair: May we deal with this letter in the same format as Mr. Thomson's?
Hon. Senators: Agreed.
The Chair: The third letter is from the Honourable Mr. Rock:
I am writing further to discussions that have taken place over the past days with respect to Bill C-41, the government's child support initiative.
Please accept this letter as confirmation that this government will take the steps necessary to introduce a motion in this session to establish a Joint Senate-House of Commons Committee to study issues related to custody and access under the Divorce Act. The government is offering this commitment in response to concerns raised by some Senators, on behalf of non-custodial parents, who believe that this issue should be re-examined.
I would be grateful if you could convey this information to all members of your committee. Thank you for your assistance with this matter.
It is signed by Allan Rock.
I ask the committee's permission to follow the same format.
Hon. Senators: Agreed.
Senator Cools: The committee report should show clearly that such a letter was received by us, as well as indicating the contents, that we agreed to it, that we wanted it in the report, and that the letter itself can be appended as needed.
The Chair: Correct.
Senator Cools: Also, I take it that the minister or the government will be acting swiftly to introduce such a motion establishing such a joint committee.
I think I speak for many colleagues here. We are all mindful that the Parliamentary clock is ticking and that this session may be drawing to a dramatic close with the issue of a writ. This committee should now indicate its wish that if and when such a joint committee is established, and if its powers are ended or terminated by the issue of a writ, that it would be the will of this committee and of senators that immediately after a new Parliament, the joint committee be up and running again.
In other words, it would be nice if the minister can make his commitment not just to this Parliament but into the future.
The Chair: Honourable senators, shall I report the bill, as amended, to the Senate, with appendices?
Senator Cools: The motion should say we report the bill as amended with all of the agreements that we have made here and the appendices.
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: The motion is carried. Honourable senators, I thank you very much for your patience with the Chair.
Senator Losier-Cool: I should like to thank the Chair for her patience.
The Chair: I did feel that the concerns expressed by the Canadian public required that this bill be vented the way it was, and I appreciate your time and effort on our study.
The committee adjourned.