Best Interest of Children
Sean Casey, MP for Charlottetown
Justice spokesperson for the Liberal Party of Canada on Best Interest
Thank you for your email on Bill C-560 which is currently before the House of Commons. From the outset, I wish to convey to you that I have reviewed the Bill thoroughly and I have sought and heard advice from individuals and groups both for and against this initiative.
As Justice spokesperson for the Liberal Party of Canada, it is my duty to assess any given Bills that touch upon the Justice portfolio.
After careful consideration of the facts, I forwarded my views to my colleagues in our parliamentary caucus. The Liberal Caucus had the opportunity to consider the Bill, from a perspective based in facts, and in this instance, taking into consideration the particular sensitivities that arise when dealing with divorce.
After much discussion in our Caucus, it was recommended that the Liberal Party not support this Bill in its current form. I have included a link to my speech on this Bill given in the House of Commons during this Bill’s First Hour of debate. I provide it for your review and to give you a more in-depth perspective of my concerns with the Bill.
The concerns I raised in my speech, specifically, include the “best interest of the child” approach, which is a view that is shared by the former Justice Minister Rob Nicholson as well as the current Conservative Justice Minister, Mr. MacKay. These two senior Conservative Cabinet Ministers have clearly expressed their concern about changing the standard from the “best interest of the child” to one of equal parenting.
As you likely know, there will be a Second Hour debate on this Bill soon. After that Second Hour debate, there will be a vote at Second Reading. It is not clear whether the Bill will pass Second Reading and make its way to Committee. Should it pass Second Reading, and then go to Committee, I can assure you that the legislation will get a fair and open hearing, from all sides and all parties including an opportunity to hear from experts.
I realise that you support this Bill. I also realise that my opposition to the Bill, and that of my colleagues in the Liberal Party, may be of some disappointment to you. I applaud your efforts to bring forth your views on this important issue. It is the proper role of Parliament to debate tough issues, and more importantly, that the debate be robust and respectful of differing opinions.
Again, thank you for your time in writing me and for making your voice heard.
A Matter of Child Safety
The Divorce Act Creates An Unacceptable Risk To Children
Dear Honourable Mr. Casey,
It was an honour to receive your email regarding the position of the Liberal Party of Canada on Bill C-560. It would be interesting to know if Mr. Trudeau intends to whip the vote on this Bill. If the Bill goes to committee I have already written Mr. Vellacott to express my willingness to be a committee witness.
I was only recently separated and our children were very young during the original For The Sake of Our Children Committee hearings. I never managed to testify then. Later, the seemingly permanent Justice Committee hearings were not as widely advertised. I have never testified yet. The ongoing nature of all these justice hearings would seem to put to rest your suggestion that family law will not reform, when it has done nothing but make considerable corrections and reforms since those early days.
With all due respect to you and all our Honourable Members of Parliament, I hope I can further address your concern regarding either the form of this Bill or the name of the man who brings it. The retroactive form is reasonable given the Constitutional nature of these proposed remedies. Your concern that many parents might try to re-connect with their children if given a chance expresses the exact purpose of the Bill quite nicely. As to Mr. Vellacott, like the Prime Minister I lend my full support to Mr. Vellacott’s Bill. I have called it Canada’s Bill because it comes with solid grassroots support for the benefit of our children.
In preparing for the May 7 vote for Equal Shared Parenting I hope you and our other Honourable Members of Parliament will ask yourselves one question: Is it a grave error in law – a palpable and significant material error in law – and a serious violation of the Section 7 Charter right to life, liberty, and security of person that the Divorce Act(Canada) creates an unacceptable risk Canada’s Honourable Courts will NEVER be able to determine the best interest of our children?
Here are three examples of the irrational, arbitrary and hurtful outcomes for children from the Divorce Act.
1) Many parents, like me, are prevented from parenting on their holy day, or rest day each week, which prevents their children from learning about their religion or even fully learning about their parent. This is an egregious error in law and a serious violation of children’s fundamental Charter rights to freedom of religion, expression and association, requiring Parliament’s immediate and retroactive remedy.
2) Many Canadian parents, who like me, were once shift workers are legally declared permanently unfit parents, but only after they are separated. Sometimes, even when their co-parent is also a shift worker, but not declared unfit. This creates parentlessness and is a serious violation of both the parent’s and children’s Section 15 Charter equality right to equal protection under the law requiring an immediate and retroactive remedy.
3) Almost all Canadian parents found by a family court to be unfit parents are prevented from rehabilitating themselves and are considered permanently unfit. This is both irrational and a serious violation of Canadian’s Section 7 Charter legal rights to reconsideration which creates the worst possible outcome for our children, either losing one or both parents permanently. This absurd, devastating and unequal outcome for children caused by the Divorce Act requires an immediate and retroactive Constitutional remedy either by Canada’s Parliament or by Canada’s Guardians of the Charter. Any Honourable Canadian Judge is a Guardian of our Charter of Rights and Freedoms.
Public Law vs Private Law Custody Cases
Canada has always contended that there is a difference between the public law found to be unlawful in the G.(J.). case and the private law found to be lawful in any Canadian divorce case. The landmark case which the Honourable Attorney General of British Columbia relied on in March 2014 to prove this difference was De Fehr v. De Fehr, 2002 in the British Columbia Court of Appeal. Although all custody hearings engage serious interests, the seriousness varies according to the length of the proposed separation of parent from child and the length of any previous separation. Custody hearings in divorce proceedings can result in a permanent separation of parent from child.
The question is not is the best interest standard in public law cases, like G.(J.), the same as the best interest standard in private law cases, like De Fehr. All Canadian law cases are heard following the same rules of court, the same principles of law, and under the same Constitution. All the fundamental rights and responsibilities of every Canadian citizen expressed in our Constitution are meaningless – even our MOST fundamental Section 2 rights are meaningless – unless our Section 7 legal rights to a fair process are first upheld. Further, it is unethical for the British Columbia Minister of Children and Families to avoid public custody law cases by threatening protective parents with child abandonment charges if they do not bring a private custody law case that cost as much as $100,000. The Honourable Minister Lois Boone gave me ten days to bring on a private custody case that she had a statutory duty to bring as a public case. Finally, both private law and public law custody cases have been problematic as noted in the 1995 Gove Inquiry into Child Protection and the 2014 ruling of bad faith against the London-Middlesex Children’s Aid Society.
“This was exacerbated by the actions of the Society, some police officers, some women’s groups, a school board and her employers . . . many of whom accepted without any level of scrutiny the (woman’s) self-reports.” ~ Superior Court Justice John Harper on the largest financial penalty ever dished out to a child-protection agency in Ontario
So the burning question is how can we ever find the best interest of children in custody cases with poorly trained judges and untrained, self-represented parents and still claim we followed the high standard set out in the G.(J.). case or even followed elementary principles of due process. Since we are not going to provide state-funded lawyers for all custody cases, then Bill C-560 proposes we follow the the rebuttable presumption of equal parenting time if parents cannot agree on their own parenting plan (which can divide time and responsibility as the parents wish). I believe this standard of reduced conflict will work for most Canadian families, especially now that society frowns on such scandals, and being a matter of child safety.
It was very ethical of you to assure me that our Equal Shared Parenting legislation will get a fair and open hearing, from all sides and all parties including an opportunity to hear from experts. As we have seen in G.(J.). not all hearings are open and fair. If you are successful in blocking Bill C-560, I hope to have my Constitutional Question certified over the objections of the Honourable Minister MacKay, although the only expert I can afford is myself.
Again, it was an honour to hear from you. Thank you for taking the time to try to help our children.