2011 Legislative Session: Fourth Session, 39th Parliament
The following electronic version is for informational purposes only.
The printed version remains the official version.
official report of
Debates of the Legislative Assembly
Monday, November 21, 2011
Volume 28, Number 5
Introductions by Members
Statements(Standing Order 25B)
B.C. Child and Youth Day and rights of children
Chef competition and local foods
Pacific NorthWest Economic Region
Recreation infrastructure funding for small communities
Prevention of cruelty to animals
Inner-city school funding and child poverty
CLBC report and community living services review
Hon. S. Cadieux
Housing industry jobs and information on harmonized sales tax transition period
Hon. K. Falcon
Impact of harmonized sales tax on resort municipality agreements
Hon. K. Falcon
Recovery home registration and regulation
Hon. M. de Jong
Reports from Committees
Select Standing Committee on Children and Youth, report for the fourth session of the 39th parliament
Orders of the Day
Committee of the Whole House
Bill 16 — Family Law Act
Hon. S. Bond
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MONDAY, NOVEMBER 21, 2011
The House met at 1:34 p.m.
[Mr. Speaker in the chair.]
Introductions by Members
M. Karagianis: Hon. Speaker, I actually have two introductions today, if you'll bear with me. First, I have an introduction on behalf of my good friend the member for Victoria–Beacon Hill. There's a group of very dynamic women in the gallery today, guests of hers: Carole McIntosh, Diana Heal, Lorraine Carlow, June Fletcher, Joy Olson, Carole Sabiston and the very hard-working Donna Jones. I hope we'd all make them very welcome.
Secondly, I understand that today we have three provincial executive members of the BCGEU here for meetings with government. They are Sandi McLean, who is the chairperson, administrative services; Doug Kinna, BCGEU social, information and health services component chairperson; and James Cavalluzzo, BCGEU community social services component chairperson. Please make them very welcome as well.
Hon. T. Lake: Joining us in the gallery today are Blair Qualey and Jeff Thiessen from the New Car Dealers Association of B.C. As we are all well aware, new car dealers are a very important economic driver for our province. Recently the New Car Dealers Association supported and will administer for the government the clean energy vehicle rebate program, which will help British Columbians afford clean energy vehicles that produce lower emissions, foster growth in the green economy, create new jobs and, of course, provide us all with cleaner air. Will the House please make them very welcome.
M. Elmore: I'm very happy that my friend Josie Gariguez is here visiting us today. She's a Victoria constituent and is also joined by her sister, Lilia Dimaano, and her husband, Placido Dimaano. They're visiting from Unisan, Quezon province in the Philippines. I'd ask everyone to please make them very welcome.
Hon. G. Abbott: One of our colleagues in the House is enjoying a birthday today. Not to surrender her anonymity, but we often refer to her affectionately as the General, because she's both the Solicitor General and the Attorney General. I'm pleased to advise her and advise the House that she has a surprise birthday guest here today, who has flown down from Prince George for this — oh, shouldn't have said it — surprise birthday party. Mrs. Sandy Damours is here from Prince George. She is looking forward to joining the Attorney General/Solicitor General later for what will undoubtedly be a most robust birthday party, given the number of years involved here.
Hon. M. McNeil: A week ago today I spoke about someone very dear to me who had passed away. Today I'd like to talk about the other cycle of life and introduce a new member of my family, a new grandson, Charlie Niels Gratton Turner, who arrived on Friday at 5:15 weighing in at 8 pounds 14 ounces. I know, Mr. Speaker, that you're looking and trying to decide whether or not it's possible for someone like me, looking like I do, to have a grandchild, but this is lucky No. 13.
R. Chouhan: I would like to wish a very happy birthday to my dear friend His Worship Derek Corrigan, mayor of Burnaby. He turns 60 today. I would also like to congratulate him for a huge victory that he had over the weekend. I also want to congratulate all the council members and all the school board, wall to wall. It's a double celebration today — his birthday and celebration. Please join me in celebrating Derek Corrigan's birthday today.
Introductions by Members
J. van Dongen: Visiting the Legislature today from the community of Abbotsford is Mark Duyns, and I ask the House to please make him very welcome.
H. Bains: In the vicinity I have four guests, two from Surrey: Praneet Kaur Sandhu/Aujla and her husband, Jastej Singh Aujla. Their guests are from India, Praneet Kaur Majitha and Jagteswar Singh Majitha. They're visiting us here — a beautiful part of our province. Please help me to give them a great, warm welcome.
(Standing Order 25B)
B.C. CHILD AND YOUTH DAY
AND RIGHTS OF CHILDREN
J. McIntyre: The children in B.C. today are the promise of our future. As such, it's our duty to ensure their safety and well-being and to commit to providing the positive supports that help children build healthy lives and brighter futures, to allow them in turn to inspire and guide the generation following them.
In recognition of this, the province of British Columbia has proclaimed November 20 as Child and Youth Day in
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B.C., following similar national and international proclamations. It's a day each year that reminds us to respect all of our children and support the basic human rights.
The UN convention on the rights of the child, signed by our national government and endorsed by the province of B.C., has 54 articles in all. One of them states that government, all governments, has a responsibility to inform children of their rights, to make the convention known to their parents and to provide parents with the support they need to care for their children. Another declares that children have the right to have their opinions taken into account when adults are making decisions that affect them.
Children have the right to education, to medical care, to privacy, and to meet and play with friends. They have the right to practise their religion, to learn about and retain their cultural identity, and to speak the traditional language of their families.
I was pleased to see these rights being translated to a level where young children can understand, by attending a children's circle time last Friday, November 18 at the West Van child and family hub at the community centre. Led by Laura Lee Kent, the hub coordinator, there were stories, songs, discussions and art activities, all designed for children three to six years and all centring on identifying children's needs.
I call upon all British Columbians to join me, particularly in my role as Chair of the Select Standing Committee on Children and Youth, in honouring the rights of all children and youth today, tomorrow and throughout the year, and to commit to work towards ensuring children here in B.C. are safe, supported and cared for.
CHEF COMPETITION AND LOCAL FOODS
L. Popham: I would like to report to this House that last night I prepared dinner for the member for Burnaby-Lougheed. Yes, that's right. I prepared a four-course meal made from scratch. The preparation took over 7½ hours. Each course was timed, judged, tasted and photographed. I began with an appetizer made with freshly baked bread, sliced butternut squash, pancetta and Comox brie cheese. I moved on to an appetizer made from Saltspring Island baked garlic, pomegranate seeds, Vancouver Island Natural Pastures boerenkaas smoked cheese.
From there, the main course. I presented a dish made from sautéed wild B.C. mushrooms, garlic, shallots and a cream sauce served on top of roasted Cowichan Bay chicken basted with Victoria gin and finished with crushed, roasted almonds. On the side I added roasted beets, carrots and red potatoes. For dessert I created individual dishes with baked chocolate cake, a hot sauce and whipped cream infused with more Victoria gin.
Now, I don't think anyone in this House believes for a moment that I only made dinner for the member across the way. In fact, I participated in the 2011 Chef of the Year Competition at Camosun College with my assistant Gordon Murray, a first-year cook in training. I never had any delusions that I would come close to presenting the calibre of dishes I saw over the day yesterday.
The chefs were outstanding, and the member for Burnaby-Lougheed's son-in-law, Travis Rawluk, from Saanich, and the Monkey Tree Pub won the People's Choice Award, while I received compliments on my organizational skills and kitchen cleanliness.
The opportunity that chefs and cooks have in B.C. to highlight our B.C. products is enormous. The more we support organizations like the Canadian Culinary Federation and college chef programs, the more chance we have to connect farmers, chefs and food appreciators. I may never be an award-winning Red Seal chef, but I'll always be a foodie.
PACIFIC NORTHWEST ECONOMIC REGION
J. Yap: A very important group met in Victoria from Wednesday through Saturday last week. The Pacific NorthWest Economic Region — or PNWER, as it's called — brings together legislators, governors and premiers from three western provinces, five states and two Canadian territories.
Established in 1991, PNWER is a collaborative regionwide organization which works to address common interests and issues. I should mention that two of my colleagues are past presidents of PNWER — the members for Chilliwack-Hope and for Abbotsford South.
Successes have come with the help of this forum, such as the enhanced driver's licence, improved Amtrak service and initiatives to facilitate cross-border trade. PNWER is pleased to see that the governments of Canada and the United States have formed a beyond-the-border work group, which is similar to PNWER's 2020 vision for the U.S.-Canada border — an initiative to advocate for increased binational cooperation towards greater competitiveness, enhanced security and a smarter border.
PNWER may not be well known, but it has been and will be a very positive impact on citizens and businesses on both sides of the border.
The Premier has just returned from the jobs and trade mission to China and India. These and other Asian economies represent outstanding opportunities for B.C. to grow our export markets and to serve as the shipping point for exports for members of PNWER. Asia provides B.C. a great opportunity to serve as a hub for imports destined for our partners in PNWER and all across the United States and the rest of Canada.
Even though PNWER focuses on the Pacific Northwest, the work this organization has done and will continue to do will facilitate cross-border trade and help British Columbia as we increasingly fulfil our role as the Asia-Pacific gateway.
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RECREATION INFRASTRUCTURE FUNDING
FOR SMALL COMMUNITIES
D. Donaldson: Earlier this month I attended a Central Interior Hockey League match, a hard-fought match, between the Hazelton Wolverines and Smithers Steelheads at the Skeena ice arena in Hazelton. Everyone was fully bundled up in their outdoor winter clothes, and the smart ones remembered to bring their blankets for extra warmth as well. It was freezing inside, but the packed arena did produce some body heat. By the second period it was enough to start the roof leaking.
The Skeena ice arena needs a new building. That is what the engineers say, that is what the communities say, and that is what those of us who use the arena for all types of activities know. The problem is funding. Most small rural communities struggle when it comes to financing their portion of the capital grant system, especially in places like Hazelton, where the captains of industry — in particular, the big forest companies — did not leave much of a legacy.
It's why people in the Hazeltons and other communities in Stikine, like Smithers, where the new community infrastructure needs include a new ice arena facility, a new library building and a new museum space, want to see provincial natural resource revenue-sharing within the region. In the northwest there is no such resource revenue-sharing tool in place, unlike in other parts of the province.
The gatherings that happen regularly at the Skeena ice arena reinforce the relationships that make the community strong and resilient. The healthy recreational activities are essential for addressing the type 2 diabetes problem we face in northern communities. The economic spinoff to the local economy is undeniable. Hosting tournaments and events leaves local restaurants packed, and motels as well.
The Steelheads came out on top of that night with a goal-scoring outburst in the third period, but hometown fans were warmed by the dedication of the game to longtime supporter Mike Jack and former player Cory Potskin, both of whom passed away suddenly this year. Hopefully, those warm thoughts will also turn into a warmer environment with the building of a new Skeena ice arena with provincial support in the near future.
PREVENTION OF CRUELTY TO ANIMALS
J. Thornthwaite: Gandhi once said that a nation's greatness is measured by how it treats its weakest members. Our Premier has stated that British Columbians have made it clear that cruel or inhumane treatment of sled dogs is not acceptable. That is why we launched Bill 9, Prevention of Cruelty to Animals Amendment Act, which has been hailed as an excellent first step in trying to alleviate animal cruelty.
However, animal abuse occurs every day to more than just sled dogs. In 2010 alone the BCSPCA rescued more than 33,000 injured, homeless, neglected or abused animals. We hear of kittens being drowned in burlap sacks. We hear of beaten dogs and cats thrown into dumpsters to die. We hear of dogs dragged to their death from cars along the road. Sadly, the SPCA continues to deal with unsupervised puppy mills where female dogs are condemned to a life of being constantly impregnated and living under inhumane conditions in order to feed the pet store market for designer dogs.
It has been years since we looked at the animal cruelty prevention system in British Columbia. It is time that we do so now, for all companion animals.
Over the next few months we will meet with key stakeholders to evaluate the options for a more effective cruelty prevention and response system. We need a system that ensures that there are clear standards for animal care and protection, a system that is accountable and transparent. We can and will make British Columbia the leader in preventing animal cruelty. I am personally committed to bringing in private member's legislation in the coming days to address this issue.
I hope all members of the House will join me in my vision to help and protect all companion animals in British Columbia.
INNER-CITY SCHOOL FUNDING
AND CHILD POVERTY
J. Kwan: Carrie Gelson, a teacher at Seymour School, wrote an incredibly poignant letter about the everyday experience of the least influential in our city — children living in poverty. She appealed to the people of Vancouver and asked: "Are you willing to advocate for a child that is not your own?" The people in our good city and beyond responded. Carrie notes that people gave kindness along with their donations. Her appeal to the public has reignited the conversation about education in the inner city, and on November 14 Carrie organized a forum in Vancouver about inner-city children living in poverty and their school experience.
Many children in the inner city do not have their basic needs met. Children come to school hungry. They do not have socks, and they have holes in their shoes. Winter jackets are worn thin, or they do not have one at all. Sadness sometimes overwhelms them, and the cloakroom is used as a counsellor's office. For some students, home is a shelter or a relative's couch. This is just a sampling of what some inner-city kids face. More and more, teachers are not just teachers. They're social workers, and they're advocates.
Staffing has been stripped. Funding has not kept up. Donor dollars are being used to buy things like speech and language therapy. Schools are left to compete
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against each other for donations to meet some of their basic needs.
This summer Thunderbird Elementary School competed against another inner-city school for donations to buy playground equipment. They lost, and the kids continue to play in the mud pit where the old playground equipment was torn down 2½ years ago. In the words of Janey Lee, a teacher at Thunderbird, it's the needy versus the needy. Cutbacks create an inequitable system. More than ever, schools need sustainable funding from government to meet their needs. Without it, equality of outcome is just a dream.
So, my colleagues at the Legislature, are you willing to advocate for a child that is not your own? I hope the answer is yes, and if it is yes, what are we going to do about it?
CLBC REPORT AND
COMMUNITY LIVING SERVICES REVIEW
A. Dix: My question is to the minister responsible for CLBC. The minister on Friday, along with the Liberal chair of CLBC, tabled an interim report on the ongoing crisis of the agency. The report said, amongst other things, that CLBC has "lost sight of its core values." It's consistently unable to meet its service goals. One of the most important areas where it fails to do so is in the case of the roughly 2,800 people on wait-lists, and 750 get no service at all from CLBC. The other 2,000 get less than adequate services or are waiting for other services.
The report suggests that CLBC has a goal of providing first services within six months but that it is no longer able to achieve that goal. What share of CLBC prospective clients — because they're on wait-lists to become clients — get services within six months? And what specifically in the report does anything to address this problem?
Hon. S. Cadieux: As the member well knows, we're in the middle of an internal audit, which is looking at how CLBC is funded and how they assess and prioritize needs. We are also doing a thorough look across ministry at all of the ways we support people with developmental disabilities and, in fact, in the transition period, which does seem to be causing some challenge at the current time.
I am not going to pre-empt the results of reports which are not yet complete and investigations which are not yet complete.
Mr. Speaker: The Leader of the Opposition has a supplemental.
A. Dix: The existence of these internal reviews for the minister is a reason not to respond to the fact that people out there are really suffering. They're waiting for services. I think the report itself, even CLBC's own report, acknowledges the extent of their suffering, which is a pretty serious situation.
So I'll ask the minister another question then. If in fact the minister is waiting for these internal reviews of ministers and deputy ministers — they don't involve the public, but that's the way it goes — in order come to a decision, since we've had 65 group home closures in less than a year and a half, why not today put a moratorium in place? If it's good enough for the minister not to answer questions, surely that's a justification to have a moratorium in place on the closure of group homes until at least her reviews are done.
Hon. S. Cadieux: Obviously, the member opposite did not bother to thoroughly review my response to the report. Indeed, I made note to CLBC in my response that it was my…. I wanted to make sure that they view everybody's home as a home and that nobody will be forced to move during this period while we are making a full review of what's going on. That's first.
Secondly, I want to assure the member opposite that, in fact, we are involving the public and stakeholders in the review process. I myself am out speaking with individuals on a weekly basis. I spent Friday afternoon visiting with a number of families in their homes, asking about their experience, listening to what their concerns were. All of those opinions will be included in my response.
Mr. Speaker: The Leader of the Opposition has a further supplemental.
A. Dix: Well, the report is unequivocal. It was a report presented by the Liberal-appointed chair of the board and the minister. It said that group homes "will continue to close in the future." So it seems to me, having read the report fully, it's the same justification for the closure of 65 group homes we've seen over the last number of years.
The problem here, I guess, is that these reports, these processes, continue to be discussions between the government and itself and fail to involve people. In fact, in the creation of the interim report there was no consultation with any of the groups that support people on…. CLBC, any of the advocacy groups — none of them were consulted in that. The audit presumably won't involve them. The deputy ministers won't involve them.
Clearly, even the board at CLBC doesn't have confidence in CLBC anymore, if you read this report in detail. Surely, these are all reasons why the minister today should put into place an external review of CLBC so we can get to the bottom of these problems and restore credibility, or some credibility, to the organization.
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Hon. S. Cadieux: Well, obviously, the member opposite would like to form an opinion before getting all the facts. I, on the other hand, would not. I am getting to the bottom of this. There are a number of processes in place in order for that to happen, the first of which is an internal audit and the second of which is the deputy minister working group looking at all the services we provide to people with development disabilities, both of which are expected before the end of year and I have committed to making public.
In addition, I think it's incredibly important that I myself have the opportunity to meet with families, service providers, advocates, family members, folks that work supporting individuals with developmental disabilities in all the array of services and all the array of residential arrangements we currently support through CLBC, because I think it's important that I have an understanding firsthand of what those families experience. I am doing that, and that will all be included into the decisions going forward.
N. Simons: So we have an internal report that tells us absolutely nothing. We know that the public wasn't involved in the creation of that report. No families were consulted. We have an internal deputy ministers review which, as it says, is being conducted by the very same people who put us in this situation. We have other reviews that don't seem to be getting to the crux of it. We've got 2,800 people on a waiting list. We have 1,200 people waiting for a home. If that is not a crisis, I don't know what is.
Will the minister recognize that this internal self-examination is not going to regain the trust of people in this province? Community Living B.C. has lost its way under the direction of three previous ministers and, apparently, under the direction of the current minister.
This is a crisis that needs to be addressed. I would ask that the minister take actual action in this case and order an external review to get to the bottom of it.
Hon. S. Cadieux: What the members opposite fail to understand, I believe, is that this is an incredibly complex situation involving an incredibly diverse clientele. I have admitted from the beginning that I think there are some issues that need to be resolved.
I am doing a thorough review. The reviews are underway from the deputy ministers in the internal audit, which I will take into consideration as well. Most importantly, I am meeting with families and service providers and people in the community to learn what their experiences are and to hear from folks who were involved in the creation of CLBC what they feel needs to change. I'm doing that, and when that process completes, we will be able to move forward in a positive way.
N. Simons: The board chair called it outside noise. This minister called it just not a problem as big as others would like to make it. There's a denial. There's a denial on this government's side that there's a serious problem. We have hundreds of people waiting for services, and these are families who are desperate. We have consultation and talking from within the little offices of Community Living and the government, but nothing, fundamentally, has come out of those discussions.
Families are waiting. Families are waiting now, and they're in desperation. Who's going to check to see if the people evicted from their group homes are doing well? Who's checking to see if the home-share contract cuts are not impacting on people, or the day programs no longer accessible to people living in group homes? Not the reviews that this government has announced. And that's why I think….
The minister can smile and think that it's not a big problem, as we've heard repeatedly — repeatedly — over the last few months. This is a problem that's been going on for years. There is nothing in this report that is going to put people's minds at ease. They're going to continue to force people out of group homes unless we get a commitment that the entire process is reviewed by an external expert.
Hon. S. Cadieux: Well, I am concerned about what's happening in the community. It's why we're doing the thorough review of all of the operations of CLBC and the supporting ministries that also support these people. In fact, it's exactly why I made sure we had a client service team in place, so that folks and families who were feeling desperate had a place to come and have their current situation addressed right now.
Sixty-three families have come forward; 21 of those situations have been resolved. The further two-thirds are in review now, and I am looking forward to those being resolved as well. And best of all, those circumstances are helping to inform the review process.
M. Karagianis: Clients, families, advocates — all the very people that have brought forward the crisis at CLBC — have actually dismissed this report outright. The report largely just recycles the government's own messaging on this and does not offer up any help at all or put forward any solutions that will make things better in the future.
But you know, one aspect of the report that was interesting and that comes closest to a real step forward is where it says that an independent review of CLBC employees and managers who are receiving home-share contracts from the agency should be reviewed externally, and rightly so. There's a recognition that an assessment of that controversial policy needs to be done at arm's length, so I don't understand why the same logic does not apply to the whole of CLBC.
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To the minister: why will she not call for an external review of CLBC today?
Hon. S. Cadieux: Again, although the members opposite would like to prejudge what the reviews that are underway will result in, I will not, because it is my responsibility to take those reviews and all of the information that is found as a result of the internal audit, the deputy minister working group and all of my consultations with family and stakeholders, and to decide what the best route forward is for CLBC.
Mr. Speaker: The member has a supplemental.
M. Karagianis: There are some solid interim steps that could help stabilize the lives of families and clients until an external review can be done. Even the report issued on Friday concedes that youth losing their services when they transition from the Ministry of Children and Families to CLBC, although their needs remain exactly the same — unchanged — is a systemic problem dating back many years in this government. One measure proposed for some time now is to make the Representative for Children and Youth responsible to help these youth transition into adulthood.
So I would ask, through to the minister: will she commit to that measure today?
Hon. S. Cadieux: Once again, I am not about to prejudge the results of the review and what the review suggests needs to be in place to move forward in a positive way for families and people with developmental disabilities in this province. I am waiting for the results of the review.
HOUSING INDUSTRY JOBS AND
INFORMATION ON HARMONIZED SALES TAX
S. Simpson: The housing industry in B.C. generates tens of billions of dollars of economic activity, probably in excess of 200,000 direct and indirect jobs. It's an industry that's critical to our economy, and it's an industry that is in some trouble because of either inaction or ineptness on the part of the Finance Minister and the B.C. Liberals around the HST transition.
The industry is looking for certainty and clear rules on the transition back to the PST. They haven't received that to date. The Urban Development Institute, the Canadian Home Builders Association and the B.C. Real Estate Association have all said it's hurting their industries, with the UDI telling us they're putting 2,000 units on hold — probably 8,000 jobs that won't happen because this government can't come up with a set of clear rules.
When is the industry going to get those rules? When is the Minister of Finance going to produce clear rules for the transition back to the PST?
Hon. K. Falcon: I was going to say I'd really like to take this question, but thank you for directing it to me, Member.
Member, it's rather remarkable that the group that campaigned to go back to a very cumbersome, complex, inefficient tax is the same group that is now complaining about the process of going back. It's rather remarkable that they campaigned to go back to an inefficient tax, and then they complain about the fact that it takes time to go back to an inefficient tax. That is a remarkable, remarkable series of positioning from the members of the opposition.
What I can tell the member…. The member should well know that there was an independent panel report. The NDP used to go around quoting from this independent panel report quite happily. But you know, they are no longer quoting from the section that warned that it would take 18 to 24 months in order to go back to a PST-GST world. They should perhaps refer to the report that they were fond of quoting.
Mr. Speaker: The member has a supplemental.
S. Simpson: The Minister of Finance should listen to the questions that are coming from the Urban Development Institute, from the homebuilders and the real estate association. They are asking for certainty. They're asking for this government to at least do as much work as to tell them what the rules will be and what they can expect at the end of the day. The UDI tells me they can't even write a presale agreement. They don't know what rules they can put in the contract, because this minister can't get it together to make it happen. The government knew they were going to lose the HST referendum before the vote. They ignored it. They've ignored it for months since. They've done nothing.
This industry is hurting. Thousands of jobs are on the line. The Canadian Home Builders Association in a recent report of its members on the HST said that the HST "is choking the ability for builders and renovators to continue as the small business owners that form the backbone of the province." Their members went on to say that it demonstrates "the anxiety and devastation that is becoming a reality in our industry, and the resulting fallout of lost human capital as jobs are lost."
They're not saying: "Change the dates." They're saying: "Just tell people what's going on." Or tell them you don't know what you're doing and you don't know what's going on.
Hon. K. Falcon: I'm encouraged to hear the member for Vancouver-Hastings actually expressing a concern about the business community. That is certainly the first time I've heard that, Mr. Speaker. You know, during the
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decade in which the party of the member opposite held power, I didn't hear the same concern when housing starts went down 66 percent under the NDP government. I didn't hear any of that concern about jobs and how concerned they were.
You know, I understand. I understand the NDP. I mean, I know the Leader of the Opposition is phoning around and begging for meetings with senior business leaders, going to them so he can go around and pretend that he has talked to business. He wants to pretend they're friendlier. But I note that they're not talking about their agenda.
They're not talking about the 20 percent corporate tax increase they want to put through. They're not talking about the corporate capital tax they're bringing back. They're not talking about raising the small business tax 80 percent. No, they're not talking about any of the job-killing tools they implemented in the 1990s in the most disastrous government we have known in the history of the province of British Columbia.
B. Ralston: Well, the Minister of Finance is clearly not prepared to listen to the Urban Development Institute, the Real Estate Association and the homebuilders.
Let's try someone else. Maybe this will catch his attention. One of the earliest prominent supporters of the Premier in her bid for the leadership of the B.C. Liberals was Vancouver realtor Bob Rennie. He said recently: "I need someone to stand up and tell me what the rules are. What day does the HST go away?" He continued: "I'm just looking for my government to give me certainty as soon as possible."
Does that catch the interest of the Minister of Finance, now that a prominent supporter of the Premier has raised this issue? When is he going to step in, clean up the mess the Liberals have created and bring some certainty to the HST regime?
Hon. K. Falcon: You know, I met with representatives of UDI. I meet with folks from the housing industry all the time. Naturally, I tell them the same thing I've said in this House before, and that is that the federal government, which is responsible for drafting the transitional rules, are moving as fast as they can to put those transitional rules together.
But none of this escapes the irony of the fact that it is the NDP who campaigned to go back to this cumbersome, inefficient tax that is hated by everyone in the business community, virtually without fail. Now they're complaining about the fact that the result they got is causing impacts as a result of having to go backwards. It's a remarkable position for the Finance critic to be complaining now about the fact that it takes time. They should have thought about that when they were out campaigning to go back to a stupid, inefficient tax.
Mr. Speaker: Just take your seat, Member.
The member has a supplemental.
B. Ralston: It's hard to imagine something more arrogant and contemptuous of democracy than what the Finance Minister just said. Clearly, he didn't like the result of the referendum, but he is obliged to follow it.
During the Finance Committee hearings in Chilliwack just recently on the 2012 budget consultation, M.J. Whitemarsh, the president of the Canadian Home Builders Association of B.C., said that their industry is in crisis. "Now that the referendum is over, we are in another 18 to 24 — maybe longer; we don't know — wait-and-see period, and our industry is dying." Thousands of jobs are at stake, and they're real jobs. This industry exists. It's here now. It's not offshore somewhere, waiting to come here. It's here right now. People are waiting to get to work.
When will the Finance Minister step in and speed up the transition process — don't blame the federal government — step in and do his job and bring certainty to that regime here in British Columbia?
Hon. K. Falcon: Well, this is the same Finance critic that back in July came out and said that our 2 percent GDP growth forecast that we had in our budget was lowballing and that we were trying to lowball things so that we would look better at the end of the year.
Well, I hear only silence from the opposition benches today — only silence. Once again, in the NDP world, being responsible and cautious in your estimates of GDP growth at a time when there's a sovereign debt crisis in Europe, at a time when the U.S. is undergoing severe challenges in their economy…. That's the time that the NDP says we ought to have a high rate of growth forecast and we need to spend more in every single ministry of government. That is what we hear from these folks across the way.
I'll tell you this much. We're very concerned about the housing sector. I can tell you that when the number of housing starts came out in October, it showed that in B.C. the numbers rose 2.4 percent, which bucks the national trend. It bucks the national trend, which saw a decline.
Nevertheless, I can tell you that what's happening around the world is bound to impact confidence in the housing sector. We're very concerned about that. We're working as quickly as we can with the federal government to bring forward those transitional rules that will give additional comfort to those in the housing sector.
IMPACT OF HARMONIZED SALES TAX
ON RESORT MUNICIPALITY AGREEMENTS
N. Macdonald: Here it is almost three years later, and I think everybody would have to be struck by the mess
[ Page 8926 ]
that this government made when they decided to deceive British Columbians with the HST. It's a mess.
One more example of that is with resort municipality agreements which are in place with 12 local governments, including five in Columbia River–Revelstoke. The bungled implementation of the HST inadvertently wiped out the funding mechanism for these agreements. A grant system is being used as a stopgap.
But as the government very slowly reinstates our PST, resort communities want assurance that we will also return to the pre-existing resort municipality funding mechanism. Can the Minister of Finance give that assurance today in the Legislature?
Hon. K. Falcon: Mr. Speaker, I may get the member to repeat the question. I thought he was going down another track, and I'm not sure that I caught the gist of it.
What I can tell the member that he might find interesting is, you know, housing starts…. Particularly in the member's area, he should be concerned. We're all concerned about a slowdown in housing activity. What is interesting to me, though, is that coming out of the worst economic downturn we've seen in at least 60 years around the world in late '09, in 2010 we saw housing starts return to more than 26,000. We're currently forecast to see an increase this year — a modest increase but nevertheless an increase.
I think what is interesting to me is that during the decade of the '90s, when we saw global economic growth and we saw the President of the United States, President Clinton, balance the budget and we saw generally good times right across North America, amazingly enough, in British Columbia housing starts fell 66 percent.
That is a really unfortunate testament to what happens when you have that kind of government in power.
REGISTRATION AND REGULATION
M. Farnworth: In 2001 the B.C. Liberals deregulated recovery homes for people living with alcohol and drug addictions. By 2006 they'd recognized that this was a huge mistake and was not working. The minister of the day promised that there would be regulation, registration, which is what local government wanted. In 2009 nothing had been done. Yet again, the minister at that time stated that yes, they were working on regulations and that they would be in place.
Well, it's now almost to the end of 2011, and still nothing has been done. My question to the Health Minister is this. Why have those regulations that have been promised now on more than three separate occasions not been put in place?
Hon. M. de Jong: Indeed, there is work taking place, and the consultation that is part and parcel of settling upon a final set of regulations that can be presented is in the final stages. I'm hopeful that that work will be completed early in the new year, and I'll keep the member apprised.
Mr. Speaker: The member has a supplemental.
M. Farnworth: Well, I appreciate the answer from the minister. However, documents obtained by the opposition under freedom of information paint a completely different picture. Let me quote from the registrar of assisted living in June of this year. "At the moment the registration project is on hold. I am unsure when and whether we will move forward." There are further quotes. "The project to register recovery houses is not active."
So the minister may have a point of view, but clearly, the people who are responsible for drafting regulations are seeing it entirely different. My question is to the minister. What's the delay? Local government has been asking for it. The government recognizes that unregulated recovery homes are not the way to go. They have consistently promised, and once again, as we are seeing, government doesn't know what's taking place within the work of government.
When will these regulations be in place? Will the minister give a firm commitment so that recovery houses are regulated in the province of British Columbia the way they used to be and should be today?
Hon. M. de Jong: Actually, there is work taking place, and we are engaged with municipalities who have expressed a particular point of view. I'm not privy to the documents that the member has, but recently, I have encountered situations in this House where, believe it or not, the documents that are quoted from are not quoted accurately. So I would like to have….
Hon. M. de Jong: I know that's shocking to all of us in the House, Mr. Speaker, and this hon. member would never succumb to that temptation.
But there is work taking place. It involves consultation with a whole range of stakeholders, and I'm advised that includes municipalities who have a particular interest in this. Our commitment to ensuring that those who are accessing addictions services in this province are doing so in facilities that are qualified to provide those services and that they are accessing them in a safe way remains as firm as ever, and that work will continue.
[End of question period.]
Reports from Committees
J. McIntyre: I have the honour to present the report of the Select Standing Committee on Children and Youth for the fourth session of the 39th parliament.
[ Page 8927 ]
I move that the report be taken as read and received.
Mr. Speaker: Continue, Member.
J. McIntyre: I ask leave of the House to permit the moving of a motion to adopt the report.
Mr. Speaker: Proceed.
J. McIntyre: I move that the report be adopted.
In doing so, I wish to make some brief comments. This annual report summarizes the activities of this committee since November 2010 and includes several reviews of reports from the Representative for Children and Youth. It also includes a brief summary of the three key witnesses we've heard from this fall as we embark on our statutory review of the Representative for Children and Youth Act, in accordance with section 30 of that act.
I'd also like to point out that 2011 marks the fifth year that this committee has been in existence and my second full year serving as Chair. During this time the committee has proven to be a successful non-partisan forum for discussion of issues of vital importance for B.C. children and youth. In fact, the success was recently recognized by the Hon. Ted Hughes when he appeared before the committee. It was his 2006 report that first proposed the all-party committee be created to work to address the challenges in the child welfare system.
As Chair, I think I speak for all committee members when I say that we look forward to continuing this valuable work in the future. In closing, I'd like to thank the Representative for Children and Youth and her staff, as well as senior officials and staff in the Ministry of Children and Family Development, for the important work that they do each and every day to support children and youth.
Finally, I'd like to personally thank the Deputy Chair, the member for North Island, along with all the other members of the committee for their dedication and hard work and commitment to work together, regardless of political stripe.
C. Trevena: I'd like to just note at this time that it's a pleasure for the opposition to work on a committee that really does bring together all different views, and all different views are listened to. I think that this committee — I've been a comparatively new member on it, since it's been working for five years — is an example of how committees can work within this Legislature, and I hope that other committees do look at the work of this.
I would like to echo the Chair, thank the Chair for her hard work and her dedication, all the members for their dedication and their work. I'd like to echo the Chair on the congratulations to the representative's office and for their help, and the ministry. I'd also like to thank the Clerk of the House for their constant support of our committee's work.
Thank you very much. I'm very pleased to be serving on this committee.
V. Huntington: I seek leave to present a petition.
Mr. Speaker: Proceed.
V. Huntington: I'm pleased to present a petition of three volumes from VAPOR, which contains over 5,000 signatures of individuals opposed to the Vancouver Airport jet fuel delivery project on the Fraser Estuary. The petition is supported by the David Suzuki Foundation, the Federation of Canadian Naturists, the Garden City Lands Coalition Society, the Pacific Spirit Park Society and Waterstone Pier, among many other groups.
The petition voices significant concerns about the ecological and human impacts of future spills or disasters and includes a letter from Environment Canada with the formal advice that the project poses a risk…
Mr. Speaker: Member.
V. Huntington: Yes?
Mr. Speaker: I advise you that you're just presenting the petition, not making a report on it.
V. Huntington: I'm finished right this minute, sir.
…to the Fraser River Estuary and its wildlife that is quite simply too great.
Orders of the Day
Hon. R. Coleman: This afternoon we'll be doing committee stage of Bill 16, intituled the Family Law Act.
Committee of the Whole House
Bill 16 — Family Law Act
The House in Committee of the Whole on Bill 16; L. Reid in the chair.
The committee met at 2:34 p.m.
On section 1.
[ Page 8928 ]
L. Krog: I'm sure in a moment the minister will take a second or you'll give her an opportunity to introduce her able staff, who appear to have walked in here with enough paper to bury the average lawyer — which I certainly hope won't be the case by the end of committee stage of this bill.
I just want to confirm. In terms of the definition of "child," I take it that there's no significant change in the definition as it exists now in the Family Relations Act. Fair comment?
Hon. S. Bond: The opposition critic is correct. There's virtually no change there.
I would also like to take the opportunity to introduce some of the staff who have been an unbelievably important part of bringing this bill to the House. They have been — in my time, at least, as the Attorney General — just exceptional in both helping me understand the bill and helping me work through the last-minute details that we needed to bring the bill to the Legislature.
This staff is from the Ministry of Attorney General, civil policy and legislation office. I'm very pleased to be joined by Nancy Carter, who is the executive director — and I know that she's not new at all to the opposition critic; Jill Dempster, who is legal counsel; Darryl Hrenyk, who is also legal counsel; and Michelle Kinney.
We are here to work our way through this bill, and we hope to be as helpful as possible to the opposition in their questions.
L. Krog: In the definitions section, again, with respect to "child support guidelines," can the minister give the House any indication of what her intention is with respect to those, or are we simply implementing the federal child support guidelines again?
Hon. S. Bond: There's no change.
L. Krog: I take it the definition of "'contact with a child' or 'contact with the child'" is going to mean that that will apply across the board to all individuals other than the guardians of the child, who by definition in the act, as I understand it, are essentially the parents of the child.
Hon. S. Bond: That's correct.
L. Krog: With respect to the definition of "excluded property," I wonder if the minister…. Obviously, we'll get into this in more detail when we actually get to the sections dealing with property division, in particular part 5, but what other jurisdictions did the government look at when it came to deciding on how we would use the property exclusions?
Under the existing act, of course, the court can take into consideration the extent to which property was acquired through inheritance, a gift, the duration of the marriage when it comes to division. But obviously, when we're talking about excluding property, that is a bit of a new concept, in a sense. It's certainly a broadening of the existing provisions in the act, where we talked about excluded business assets. So what jurisdictions were considered, and how did we end up with the definition of "excluded property" as it is now?
Hon. S. Bond: The jurisdictions that were most primarily reviewed were Alberta and Saskatchewan, and in fact, there is some variation. Other jurisdictions have a slightly different definition as well. We made the determination based on Alberta and Saskatchewan, and ours is shaped based on theirs.
L. Krog: As I indicated to the minister during second reading debate, I intend, quite deliberately, to use this as an opportunity for a bit of public education. The minister will have to excuse some of the questions that may seem somewhat tedious as a result.
In terms of her comments about the reliance on Alberta and Saskatchewan as sources of the property law division provisions, I'm just wondering: what's the length of their legislative experience? Are we talking five, ten, 15, 20 years? Certainly, in British Columbia we've had essentially the same definition for 30-plus years now.
Hon. S. Bond: We will attempt to get a more quantitative period of time — years, we think. In fact, in some cases it may be more than ten. We'll get that answer for the opposition critic.
But what is informative, I think, is that British Columbia and the Yukon are the only ones that currently have the family purpose designation. This is one of the examples where, in fact, we're catching up, I think it's fair to say.
L. Krog: With respect to the definition of "family debt," it makes reference to section 86, so I'm jumping ahead somewhat. Is it fair to say that with respect to the minister's comments about British Columbia catching up…? Are we in fact in this definition catching up with other jurisdictions in Canada when it comes to empowering the courts to deal with the question of family debt?
As the minister probably knows now and certainly will be told if she doesn't, British Columbia courts have no jurisdiction to deal with family debt under the existing Family Relations Act. Obviously, now we're taking a significant step forward. The courts can deal with it in a very specific way. I'm just wondering, again: are we in a catch-up situation, and are there any other experiences that might have suggested, perhaps, that including family debt was not a good idea?
[ Page 8929 ]
Hon. S. Bond: In fact, there is a difference. When we look at excluded property, we're catching up. Actually, very few others have a definition. We're thinking, potentially, New Brunswick. In essence, we are moving ahead in one aspect and catching up in the other.
L. Krog: I wonder if the Attorney General can comment. I'm going to assume that obviously, the family bar in British Columbia had a great deal of input into the legislation. We all know that. I'm just wondering: was there a general consensus in the discussions with the family bar around the inclusion of the ability of courts to deal with family debt?
Hon. S. Bond: I'm told that yes, there was.
Chair, we're having trouble hearing the member opposite. I'm not sure if it's his mike. Maybe it's just because I'm a year older today. I'm not sure, but I'm having difficulty hearing.
The Chair: Members, can I ask you to conduct business in a different part of the chamber. The members are having difficulty hearing. Thank you.
L. Krog: Let me just say that I'm sure the mere passage of a birthday has not dimmed the minister's abilities in any regard, I'm quite sure.
With respect to the definition of "family dispute resolution," it makes reference to a process used by parties to a family law dispute, including assistance, etc. This is where we talk about family justice counsellors, parenting coordinators, mediation, collaboration, etc. — prescribed processes.
Obviously, none of these processes are going to work significantly if people aren't trained or able to do this kind of work. I'm wondering: is the ministry looking now at existing staff, and if so, what numbers do we have who would be available to step in? If this were proclaimed next week — which I don't expect it to be, of course — will there be courses through the Justice Institute? What is sort of the intent with respect to, particularly, family justice councillors?
Hon. S. Bond: Yes, there are family justice counsellors, and they are government employees currently. They are dispute resolution professionals, in fact. I know the member opposite is nodding, so I know he knows that. The numbers currently are that we have 70 family justice counsellors, including seven custody and access evaluators; five child support officers; and nine family justice interviewers.
Regarding the parenting coordination, there is currently a parenting coordination roster society. In fact, we have work to do. There is clearly work to be done, and that's one of the reasons it's going to take us some time to implement the new work.
One of the things we're doing is reviewing their current training model to assess whether or not, from our perspective, that is something we could endorse, and look at the current training model. So yes, we have a large number of family justice counsellors, and we have work to do regarding parent coordination.
L. Krog: Is it the government's intention that this will allow for what I will call, for lack of a better term, a great deal of privatization of this kind of work? I mean, we now have mediators, arbitrators, etc., available who practise in various areas in the province. Is it the intention for the government to set up some kind of what I will call a regulatory process, a licensing process, that would enable private individuals, corporations, etc., to deliver these kinds of services?
Hon. S. Bond: You know, as we discuss this — and, obviously, we still have work to do as we work on the implementation — it's not intended that it be a privatization for sure. But it's not a matter of either-or. In terms of capacity, there will need to be, probably, a combination of both.
C. Trevena: I just wanted to ask: when the Attorney is talking about getting, preparing and looking at training, what sorts of resources will be put into the training — particularly as, answering the question from my colleague from Nanaimo, there could be a combination of private and ministry involvement on this?
Hon. S. Bond: Family justice counsellors, for example, already receive training in dealing with a number of issues. For certification, if they are going to be annually certified, they have to have professional development education on various topics that include, for example, cultural issues. That was a really important point. I know that one of the members opposite brought up the importance of doing this in a culturally appropriate way. So there is training in place for family justice counsellors.
In fact, we will have to assess what additional responsibilities and training need to be done. For example, there will need to be additional training for lawyers, potentially, in some of these areas.
Not all of those responsibilities belong to the government. While we have a key role to play, I don't think we should make an assumption that all of the resource issues will be related to government role. We intend for this to work, and we're going to work our way through this systematically to ensure that appropriate staff opportunities for families are in place.
C. Trevena: I understand that there will be a bit of give-and-take on where the resources come from. It's just that everybody wants to make sure that the intention does work, that this bill really becomes an act with real
[ Page 8930 ]
teeth and that we are all working the best way possible. So there is a concern, because of the ambitious scope of this and the shift, that there will be the resources there.
One of the specific areas is…. There is a clear focus — and I think everybody welcomes it — on family violence. I was wondering whether there is going to be, in preparing the family justice court counsellors, the parenting coordinators — this range of family dispute resolution professionals — focus on training, on risk assessment tools to recognize the dynamics of violence.
Hon. S. Bond: Certainly, the issue of family violence is a critical element that's addressed in the Family Law Act. As I said earlier, we are reviewing the current training models and will be, particularly related to parenting coordination but other positions as well, to look at how the issue of family violence is addressed in those training models. We're going to review them, assess them and look for any gaps that may exist.
L. Krog: I'm not going to go through absolutely every definition section, but with respect to the issue of family property, which is section 84, I just want to make it clear to the minister as we pass over this that I will be looking, obviously, for a great deal of discussion around that particular issue.
But I am interested in the issue my friend just raised. That is family violence. A fairly lengthy definition of what "family violence" includes. Obviously, that is not exclusionary. It "includes" and obviously could include other things. That definition — where does it come from? Is there precedent for it?
Hon. S. Bond: In fact, I tried to find that spectrum of where we're catching up and where we're moving ahead, and I think it's fair to say that this is another area where we need to catch up — in terms of the definition of "family violence."
We reviewed…. We created a chart, actually, which looks at where every Canadian jurisdiction sort of stands on which issue. So for example, if you look at Saskatchewan, physical or emotional abuse is not included in their definition and in their Victims of Domestic Violence Act; Ontario, no; the Yukon, yes; Northwest Territories…. There's a variety of places with differing definitions that have been laid out.
One of the things that was really critical to us in the work that was done is that we wanted to be sure there was, first of all, a consistent approach. By articulating the definition, we assume that that will help improve consistency.
For example, when we looked at psychological abuse, it's one of the most important predictors of physical or sexual violence, and where there's psychological abuse, the severity of physical violence is often higher. The definition was crafted very carefully to be quite broad but to provide consistency, so it's certainly not precedent-setting. Again, I would capture this, and I'm sure staff would agree that this is an area where we're catching up.
C. Trevena: It is great to see that we're trying to bring together the language and definitions used across the country.
I have one question that I raised in my response at second reading. That is the issue of some of the psychological violence that is inflicted on immigrant women — who are told that if they don't do whatever their husbands or their partners want, there is this threat of being sent home, threat of deportation — and the specific language around that. I wondered if the minister could explain why that wasn't specifically addressed in this definition.
Hon. S. Bond: In fact, we do believe that the threat of deportation is covered by the new and broad definition that we've put in place.
If you look at the definition of "family violence," it does include "intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property" as part of "psychological or emotional abuse." So we do believe that the concern the member opposite raises today and did previously is actually covered, though perhaps not specifically mentioned. We do believe it's covered in a way that would see that applied under this definition.
L. Krog: Just by way of understanding…. I suspect, I would hope, many British Columbians are paying attention to this, because it is important. Nowhere in this act does the term "custody" or "access" appear, because those definitions are gone for practical purposes. What people have to understand is that this act will apply only in those situations where the persons live in a common-law relationship with respect to parenting arrangements or, alternatively, are married but no order has been made under the Divorce Act.
I'm just curious to know. Has the minister, in light of British Columbia moving ahead with this and talking about parenting arrangements, had any discussions with the federal government with respect to this at a ministerial level so that we can bring the Divorce Act into line with what I think is a far more progressive regime than exists now?
Hon. S. Bond: We want to assure the member opposite that we have had — certainly, the staff has had on a regular basis — discussions with the federal government.
L. Krog: I'm not asking the minister to breach any confidentiality of discussions she may have had with the
[ Page 8931 ]
federal minister. But for practical purposes, the average practitioner is going to have to be saying, "Well, on one hand, we're going to talk about custody under the Divorce Act," but to the same client: "On the other hand, we're going to have to talk about parenting time under the Family Relations Act."
Can the minister give any hint as to whether the federal government is considering this kind of change? I would presume that other provinces are likewise in the same boat.
Hon. S. Bond: I certainly don't want to speak on behalf of or for the federal government. We don't anticipate a change, I think it's fair to say. One of the things, though, we did specifically consult about was that very dilemma — that it will be more challenging.
We did look at Alberta's experience, though, and they certainly have managed with the two sets of language and the approach. In fact, when we had discussions with the bar, for example, we asked that very question: "We want to move forward with this. Do you think it's manageable? Is it workable?" We were encouraged, in fact, to move forward with the changes, despite the fact that there would be those existing differences.
L. Krog: When we talk about "written agreement," it just simply says: "…means an agreement that is in writing and signed by all parties." In terms of its definition for the purposes of this statute, then, does that cover every kind of written agreement that might exist between partners, spouses? I'm thinking of the language that…. It's not a prenuptial agreement, a marriage agreement, a separation agreement. Is all of that captured by the term "written agreement" now?
Hon. S. Bond: Yes, it does.
Section 1 approved.
On section 2.
L. Krog: I wonder if the minister can just explain what section 2 actually means — trying to put it in language that would be understandable to the average person on the street.
Hon. S. Bond: Well, I will do my very best to attempt to simplify this for all of us. This is a section that is intended to give direction about how the bill should be interpreted. There are two key points, the first being that in 2(1) there can be an agreement or an order but there can be a part of that used. It doesn't have to be the whole thing. So in other words, it can be a part of either of those.
The second point is that when it comes to a child's parent or guardian, it simply clarifies it, that it could be one or the other as well. It is one or the other as well. In essence, it really just helps provide interpretation for how the bill will be read. I'm going to just make sure that's correct.
Section 2 approved.
On section 3.
L. Krog: This is the section that defines what a spouse is for purposes of the act: is married to or has lived with another person "in a marriage-like relationship" and has done so at least two years, or except in part 5, property division, and part 6, "has a child with another person."
So you're going to be a spouse if you have a child with another person, whether or not you're living together. Is that…? It's the way I understand it. As long as you are the parent of a child, then you're deemed to be a…. When I say "parent," it's a parent the way we understand it — a natural parent, if you will. Does that mean that you're going to be a spouse within the meaning of the act if you've lived in that marriage-like relationship? It talks about "has lived in a marriage-like relationship and (i) has done so for a continuous…" or has a child with another person.
Hon. S. Bond: In fact, the key in terms of being…. If you have a child, you are a spouse if you have lived together in a marriage-like relationship for less than two years and have a child together. The key, critical element is having lived together in a marriage-like relationship.
L. Krog: In terms of a marriage-like relationship, I note there's no definition in the act of a marriage-like relationship. So are we going to rely on an interpretation of how the court has used that language before?
Hon. S. Bond: Yes, case law.
Sections 3 and 4 approved.
On section 5.
L. Krog: It says: "A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute."
I take it that this will be an overriding duty, and I take it that that will form the basis of the usual requirements for disclosure — for instance, a demand for a financial statement or whatever other information is appropriate. But I'm going to assume that this may go further, because it talks about "full and true information for the purposes of resolving a family law dispute," and a family law dispute "means a dispute respecting a matter to which this Act relates." That would include parenting, spousal, child support and property division.
[ Page 8932 ]
Is this a new section, in terms of its more general requirements for disclosure, and if so, why this section?
Hon. S. Bond: Yes, this is a new level of disclosure.
One of the major, I think, goals of the act is to try to find ways for people to resolve their difficulties without ending up in courtrooms across the province. What we hope is that this will encourage full and truthful disclosure very early in the process so that it promotes settlement and ensures that people have all the information that they need, to have a more optimistic attempt to be fair and sound in their decision-making. So yes, it's a new level of disclosure, trying to get information out into the process as early as possible and, hopefully, to keep people out of courtrooms.
L. Krog: I'm just trying to understand exactly how this is going to work, and I was just checking with the authority in the act that relates to the making of regulation.
Is it anticipated that there'll be regulations beyond a regulatory power, if you will, that are not so specific? I mean, for instance, it talks, in regulatory sections, about other regulatory powers. I'm not trying to jump ahead here, but section 245, for instance, makes reference to "for the purposes of section 8" — prescribing, etc., for other purposes, for section 12, — but it doesn't talk about this particular section.
I'm just wondering: is it anticipated that there will be something quite specific? Or is this just a very general duty, trying to encourage a change in philosophy?
Hon. S. Bond: I think the member opposite captured it in the last part of his comments to us. It is more specifically about changing the process, so it is general. It is a sense of trying to shift people's thinking — disclosing information, not requiring people to go to court, those kinds of things — to get that information.
The other thing that was pointed out to me is the fact that if it does get to court, court rules — as the member opposite would know — would define what is required. But this is meant to be a general sense of how we're making that shift to a more collaborative, a different approach in finding resolution.
L. Krog: I'm just trying to understand this from a practical perspective, and perhaps I can try and give an example. I mean, right now a person is subject to an examination for discovery, subject to a financial demand — you've got to produce your tax returns, etc. — those kinds of things. This talks about full and true information for the purposes of resolving a family law dispute.
For instance, in an issue over who is going to have the majority of parenting time with the child, a person's history of alcohol abuse would probably be relevant and, you know, police reports and visits — your calendar with visits to your alcohol counsellor or those kinds of pieces of information. I think the minister is probably getting an idea of what I'm trying to get at here.
How is this section going to be used, I guess, for practical purposes? I appreciate the philosophical approach, but how is it going to play out in terms of real practice? Are the types of information that I've thrown out as examples — they're not the best — the kind of information that that section may well be aimed at and that isn't covered in a nice, very specific way?
Lawyers tend to like things that are terribly specific — "this is what you get" — as opposed to asking questions in discovery. But I'm going to presume, given the thrust of the act, that the hope is you're going to go into mediation, you're going to see a family justice counsellor, and you're going to, for want of a better term, spill your guts fearlessly because it's not going to be thrown back at you.
So all of the information that would be useful in resolving…. I use the parenting one because they're often the most difficult to resolve. Does that mean, essentially, you're going to be forced to disclose everything that may be relevant? And, if so, how is that going to be enforced?
Hon. S. Bond: I certainly understand what the member opposite is trying to understand. How do we make people do this? I guess, you know, we would hope that we have a brand-new Family Law Act, and everything is going to change.
One of the things that we discovered in our consultation was that lawyers did say to us that this section and this type of language is helpful even in being able to point it out to their clients — to say that you have a duty and a requirement to actually give us all this information. All of the information that you have, you should bring to the table. So that was a tool.
I'm going to deal with, for example, the issues around calendars and history of alcohol abuse. Yes, parenting information like that will be required, because as we create the test that puts the child's interest at the centre of this process, those are the kinds of things that we certainly expect will be part of the discussion.
There is an expectation that the bill would require that to happen. But if there's a failure to disclose, the party would need to apply to the courts, and court rules would then require disclosure. Sections 212 and 213 provide the courts with the authority to make orders for disclosure and to enforce disclosure.
Ultimately, I guess, there's a hope and an expectation that this will change the disclosure practice currently, but if all else fails, there are other provisions. Section 213(2)(d) — I believe it's subsection (i) — allows the courts to order a party to pay the expenses incurred to the other person, including dispute resolution fees.
So there are some consequences. There are some processes attached. But I think it's fair to say…. Lawyers
[ Page 8933 ]
have told us that even this language gives them another tool to say to their clients, "We need to just have this information disclosed," and that, we're hopeful, will be at least some incentive for people to do just that.
L. Krog: Again, not trying to jump ahead, but the minister has made reference to 212 and 213. That section 212 talks about: "A court may at any stage of a proceeding make an order to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules."
Is it anticipated that those rules, which will be passed in accordance with the passage of this bill, will in fact, perhaps, put in more concrete terms the general thrust of the language in section 5? How shall I say…? If the court can't order it, telling people they have to do it is a bit of an empty remedy.
What I'm getting at is…. This is a very general duty to disclose, and I'm not disputing that's a good thing. But I'm just curious to try and understand. Is it going to be enforced by court order?
If so, is it anticipated that section 212 inferentially will give that power to the court because we're going to make changes to the Supreme Court family rules or the Provincial Court family rules as a result — to give that general authority to say: "Look, Your Honour, we were in a discovery, or I've demanded this information. I know it's relevant, and he or she has not provided it. Under section 5 you've got a duty to disclose, and the rules specifically say…. Provincial Court family rules say this, this and this. So cough up"?
Hon. S. Bond: That's pretty much exactly how we would expect it to work.
Section 5 approved.
On section 6.
L. Krog: This is the section that talks about agreements, which I assume refers back to written agreements, as in the definition section. It says that "2 or more persons may make an agreement (a) to resolve a family law dispute, or (b) respecting (i) a matter that may be the subject of a family law dispute in the future, (ii) the means of resolving a family law dispute…(iii) the implementation of an agreement or order."
I take it that that very broad language — "that may be the subject of a family law dispute in the future" — would take into account what historically we would have called a marriage agreement or a prenuptial agreement? Is that the intention — that it is just as broad as it seems? So in other words, if you think there's ever going to be an argument over the bank account or the car or the pension or whatever, this section says that you can make an agreement and it will be binding?
Hon. S. Bond: Yes, that's correct.
L. Krog: Subsection (3) says that "an agreement respecting a family law dispute is binding on the parties," subject to this agreement. That will be subject to the court's ability to set it aside, and there are other sections to deal with that. I presume that's what we're talking about. In subsection (3) it says very specifically: "applies whether or not (a) there is consideration."
So in other words, if there is what we would think of now as a cohabitation agreement or a marriage agreement, prenuptial agreement — whatever language you want to use…. If there is an agreement from which, arguably, on the face of it, there is no consideration other than saying, you know, there's a dollar of valuable consideration — something as silly as that — where there is clearly a totally one-sided agreement, what this act is saying is that it's binding on the parties.
In other words, the thrust of this section is to make it very clear that given the cases that have gone to the Supreme Court of Canada…. It's the cases that have said, "You know, you're going to get out of this agreement, because it's unfair, etc., on the face," and all of those things. The thrust of this section, if I understand it, is to make it absolutely clear. If it's an unfair agreement on the face of it, arguably, but you've understood what you were signing, you weren't under duress or coercion and you signed it, the court is going to say: "Tough luck. It's enforceable."
Hon. S. Bond: I understand the discussion and the point. But I'm not sure whether or not the fairness…. The member opposite is asking a question about fairness. There is a section in the bill which allows for an agreement to be set aside. An example of that is in section 93. It would point out the criteria that a court must consider to determine if an agreement is procedurally flawed — whether, for example, a spouse failed to disclose significant property relevant to the negotiation or a spouse took improper advantage of the other spouse's vulnerability. So there is still a process wherein which an agreement could be set aside by the courts, and one of the sections that addresses that is section 93.
L. Krog: I appreciate the Attorney General's answer, but I'm more specifically thinking of an agreement that's…. Look, everybody understands what it says. It basically says you come into the relationship and you walk out of it with nothing. That historically wouldn't be seen as terribly fair over time — after a ten- or 15-year marriage or relationship you walk out with nothing.
I just want to understand that subject to section 93, which I don't think necessarily deals specifically with what I've suggested about obvious unfairness…. I just want to confirm that this section is essentially saying: "Look,
[ Page 8934 ]
if you understood it, and you did disclose everything, and all the information was there, and the spouse wasn't vulnerable — they weren't in need or under distress, etc…."
I'll give a simple example, because it's more common than not nowadays. Entering into that second relationship, the party is a well-educated spendthrift. They have a good job. They spend their income. They enter into a relationship with somebody who has assets, who is careful and a saver.
I would interpret this to say that if you have an agreement under this act that says, "When we separate, everything we brought in, we keep, and we walk out and go away separately," at the end of a ten- or 15-year relationship the spendthrift still has nothing in their name and the saver still has everything, even though it goes against the terms of the…. You know, because it's an agreement, it should bind the parties. That, in fact, would be defensible under this section.
Hon. S. Bond: I knew I stopped reading the section at my own peril, because I didn't want to take a lot of time. But there is actually additional criteria that the court has to consider to determine if the substance of the agreement is significantly unfair. There is actually a specific reference, for example, to "the length of time that has passed since the agreement was made" that would, I think, speak to the member opposite's concern that they've been in a relationship for 15 years or whatever it is; "the intention of the spouses"; and also "the degree to which the spouses have relied on the agreement."
We are raising the threshold for interfering with an agreement on substantive grounds from "unfair," which was in the Family Relations Act, to "significantly unfair," so there is a higher test. Certainly, there is a standard, a threshold in place, and so I should have continued to read that. But there is a way for the court to interfere.
L. Krog: I think the minister understands what I am getting at. So although we are hopefully narrowing the gap, we actually haven't closed the door, in the sense that if you get independent legal advice and your lawyer tells you, "You know what? You're stuck with this the rest of your living days," in fact, at some point to be decided through case law, the courts will still be in a position to set aside agreements.
The reason I'm raising this is the concern that was discussed during second reading: this litigious province and the courts looking for every angle to deal with each unique set of facts. In other words, we're not going to necessarily get the certainty we think.
This may be a better question for when we get to section 93 about significant unfairness, but if the minister is agreeable — just to ask, because it relates to this section: has there been…? I understand the Chair may rule me out of order. Is the term "significant unfairness" used in other legislation across the country? In other words, is there a history of case law that defines it, or are we embarking on something more exciting and new?
Hon. S. Bond: No, other jurisdictions do not use the term. To our understanding, they don't use "significantly unfair." I think what has been attempted here is that our act currently uses the word "unfair." By changing that to "significantly unfair," we assume that that will raise the threshold.
While there still will be room for the courts to interfere, we believe that hopefully, on the passing of this act, we will actually see an increase in the threshold for interference. We do think that's a step in the right direction. Again, this is not language used by others.
Sections 6 and 7 approved.
On section 8.
L. Krog: This is the section that in the general heading talks about the duties of family law dispute resolution professionals and sets out what they must do in terms of assessing the dispute, in accordance with the regulations, whether family violence may be present, etc. Again, I see this, particularly as it relates to "the best interest of the child only" — to use the Attorney General's words — as raising the bar. Is that fair to say? If so, are we raising the bar in accordance with some other jurisdiction that's used similar kind of language, or again, are we doing something that is quite unique here?
Hon. S. Bond: I just continue to be really impressed by the ministry staff who have worked so hard for a long time to put this together. It's amazing. They know what jurisdictions, just off the top of their heads, have done what, and I'm very impressed.
Section 8(1) is new. What is new there is the requirement to do the assessment, and really, what's new there is the requirement piece. It's based on best practice and research. That is, I would say, British Columbia, on our scale that we're developing here, moving ahead.
On the other hand, 8(2) is something that is contained or at least dealt with in a similar way in the federal Divorce Act and also, we believe, off the top of our heads, in Saskatchewan as well. So (2) is not new; definitely (1) is, and again, it's the requirement that's new.
Section 8 approved.
On section 9.
[D. Black in the chair.]
L. Krog: Section 9 says that "The parties to a family law dispute must comply with any requirements set out in the
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regulations respecting mandatory family dispute resolution or prescribed procedures." I take it that would make reference to requirements under the act if you become involved with family justice counsellors. Is that correct, or is there a broader definition or group of parties that it would apply to?
And is this the precursor to saying that if you wish to make a claim under the Family Law Act, you will have to go through these steps? For instance, the parenting after separation course is a requirement now. Will it be that kind of thing that we're talking about? In other words, you have to take certain out-of-court dispute resolution processes that will be set out in the regulations, and you must do those first, before you can kick the courthouse door open, to use an expression one of my friends uses.
Hon. S. Bond: That's correct. We're, in essence, setting the groundwork for future development of mandatory processes and programs. This act currently would not require that, but we are looking at other jurisdictional work. There are jurisdictions that, for example, require a dispute resolution mechanism before you, in the member opposite's words, kick open the courthouse door.
If government designates mandatory mediation and other processes, obviously the parties would have to comply with that requirement. This is just setting the stage for that if government made that choice in the future.
Section 9 approved.
On section 10.
L. Krog: With respect to section 10, the definition of family justice counsellors and what they may provide in terms of assistance — is it substantially different from what is in fact in practice now? If I went to the justice access centre and saw someone, would what they're doing now be substantially different from what is provided for in section 10?
Hon. S. Bond: The best way to describe this is that while the language may have changed from the Family Relations Act into the Family Law Act, what it is doing is capturing current practice. So what's happening on the ground is actually being captured in the Family Law Act.
Section 10 approved.
On section 11.
L. Krog: I'm just wondering. It talks about confidentiality here, and except in accordance with the regulations, you can't disclose. Again, are we anticipating any change from what exists now? And apart from the court compelling, what exactly does it mean that "(a) a family justice counsellor must not disclose information obtained in the course of providing assistance…"? How is that going to work on the ground? In other words, if the minister can give a practical example of how that's going to work in terms of someone who goes in and deals with a family justice counsellor.
Hon. S. Bond: Again, I think this would most accurately be characterized as not a dramatic change in practice. In fact, it is, again, clarifying. There is a high degree of uncertainty at the moment, and there needs to be clarity. So it is carrying current practice into language, and the major issue we're trying to protect here is settlement discussions, obviously. So not a major a shift but capturing practice and moving that into language to provide certainty.
Sections 11 to 13 inclusive approved.
On section 14.
L. Krog: "A person meeting the requirements set out in the regulations may be a parenting coordinator." So how does the minister see that playing out? A "'parenting coordinator' means a person who may act as a parenting coordinator under section 14." Then we talk about describing that person in regulations. So a bit of a roundabout here. I need to understand exactly what's being anticipated by this.
Hon. S. Bond: In the spirit of the member opposite's desire to help people learn about this bill — and I totally agree with that approach — parenting coordination in the province is a relatively new mechanism, a dispute resolution mechanism, and it is being practised in our province.
Parenting coordinators are typically people who help very high-conflict families implement agreements or orders. It's being used in a lot of other jurisdictions in North America. It actually started in the United States. So to the member's point: yes, we are going to be setting out the requirements around becoming a parenting coordinator in regulation. It's a very evolving field.
For me, what's more critical about that is that we want to develop the regulations in collaboration with the B.C. parenting coordination roster. There's already a society in place, and we want to take some time to actually develop those regulations. They may designate direct requirements on parenting coordinators. Or, for example, the other way you could do that is designate an organization that's responsible for developing those requirements and qualifications.
So new practice for us in British Columbia, but we do want to have some consultation about how best to put the parenting coordinator regulations into place.
L. Krog: If I can understand…. I mean, in a highly difficult situation now, you know, you might have someone
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who is supervising, for instance, the pickup and drop-off of a child, and that's their job. Or maybe they'll supervise the whole access visit, using the existing language. Is the parenting coordinating role under the legislation, as it's proposed, to be something different from that, or will it include that?
Hon. S. Bond: Probably, again, an important point for clarity. When you have a title like "parenting coordinators," I assume there are a lot of things that a lot of busy families today could probably use or do have one of those in their own homes themselves. But parenting coordinators are often lawyers or social workers or psychologists who help parents actually implement an agreement or an order related to their parenting arrangements.
They can provide two types of services. One is consensus-building. The other would be making decisions. Those are called determinations in the bill. We call them determinations.
But parenting coordinators — their first job is to help parents resolve difficulties using mediation. It really is about how they can help a family work through a process, and if the process is unsuccessful, they make a binding decision. So there's a very significant role for parenting coordinators. They don't create or change parenting arrangements. They only assist in the problems that result as a result of those arrangements, so they help to sort through the issues.
An example that I was given, and I'll share it, is: a parenting coordinator may assist parents who are having difficulty negotiating the terms for a pickup or drop-off of a child that was previously agreed to or may assist with rearranging parenting time days. So they don't actually do the drop-off or the pickup, but what they do is, if there's an agreement in place and parents can't figure out how to sort it out, the parenting coordinator would help find resolution to that. It is different than mediation because mediators can't make binding decisions, but parenting coordinators can.
L. Krog: Just so I can understand. Really what this section is doing is talking about — and I don't mean this in a critical way — something that is fairly narrow in terms of what a parenting coordinator will be entitled to do. They're, presumably, going to have to have some kind of training under the regulation. There will presumably be some recognition of qualifications — you know? Perhaps Vancouver Island University is going to teach a course for parenting coordinators — that kind of thing.
In other words, we're talking about regulating what is seen as a new profession, if you will, as opposed to encompassing, as I said, that kind of access supervision sort of role. This is a much narrower concept. Is my understanding correct?
Hon. S. Bond: We do believe that the work…. The way this is being captured is within the current scope of what parenting coordinators do. But I think, maybe, to differentiate this, because…. I was trying to think of a way to capture it, and I think one of the best ways is that a parenting coordinator isn't required for the vast majority of people who have an agreement. So this is for high-conflict parents.
What we're trying to do here is that…. Ninety percent of court time related to family issues is taken up with high-conflict parents like these ones, and so what the goal here is, is to have another step in that process, which allows there to be someone to sort through those issues before they end up back in a courtroom saying: "We have to sort out this agreement." So really, this is another step in a process that will deal with 90 percent of what currently is in the courtroom and trying to move that outside of the courtroom.
L. Krog: Just for the point of clarification, I take it from the specific wording in section 10, where we talk about the minister appointing "as family justice counsellors persons employed under the Public Service Act" — no similar reference in this, in division 3 — that we're not anticipating hiring public servants to provide this service or role through a justice access centre or whatever. Or are we anticipating this will be a service delivered by non-profits or private individuals?
Hon. S. Bond: It's not anticipated that family justice services would be hiring parenting coordinators. Again, a good reminder to me and others is the fact that family justice counsellors, for example, would not do the work of a parenting coordinator, because there is more specialized training required to do the parenting coordinator. For example, you would need to have arbitration skills if you're a parenting coordinator. So we're not anticipating seeing family justice services become involved in the hiring of those professionals.
The Chair: Member for North Coast on section 14.
C. Trevena: North Island.
The Chair: Sorry, North Island.
C. Trevena: It's okay, Madam Chair. My constituents get concerned.
I thank the Attorney for the explanation. I just wanted to clarify, then. A family justice counsellor under this act will be providing their service to a couple who are going through separation, or what have you, and working out the best interests of the child. They'll be able to receive that service without having to pay anything.
If it escalates, there will be the potential intervention of the parenting coordinator, again to help work things
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through. I'm wondering how that will be financed for the individuals who are going to be using their service.
Hon. S. Bond: Again, we anticipate that family coordinators actually would deal with high-conflict families, so they are not involved if things escalate. They're involved only when there is already an agreement or an order in place, so there has to be an agreement or order in place.
What would happen under today's model is this would…. If issues arose when there is an agreement or an order in place, there's an automatic place that goes. At least, the next step under the Family Law Act and under the Family Relations Act would be the courtroom. Those families already pay, and pay a fair bit, to go back through the court legal process.
So yes, they would be required to pay. But we believe that there would be not only a savings financially for those families by using a parenting coordinator; we also believe that the results would be far more effective and, certainly, far less combative. So those families are already in the court system. They're there because they have an agreement or an order. They can't sort it out.
This is one step that says: "Here's another way of trying this. This is another way you can manage this." With a parenting coordinator, in fact, we hope to be able to save them financial resources but, more importantly, to reduce the conflict and the challenges that people face when they're consistently in courtrooms.
C. Trevena: Will there be any assistance for families to access the parenting coordinator? One of the problems that many families face, particularly women who are trying to leave abusive relationships, is the cost that is prohibitive for them, particularly when they reach the court system and they discover that there is no financial help, that they can't get access to legal aid for this. So I'm wondering if the Attorney is looking at ensuring that there will be financial support for women who will be accessing this?
Hon. S. Bond: As I just said to the member opposite, we actually see that, potentially, this alleviates financial concerns that currently exist for those families. So there's not an intention here to provide additional dollars in an area where currently those families would be in the courtrooms and probably paying a fairly significant financial impact for going through the court system.
What we believe this will do is alleviate some of those costs. More importantly, in many ways, from our perspective, it will hopefully find resolution without the kinds of conflict and combative circumstances that are in courtrooms today. So this is about cost reductions for those families.
C. Trevena: So what the Attorney is saying is: "No, there won't be financial assistance for those families who are looking for that sort of support, nor will there be any extra assistance for those who still end up, however unfortunately, in the court system." As I think the Attorney is well aware from her role both as Solicitor General and Attorney General, this is a huge problem for women who are trying to leave abusive relationships — that they cannot afford to access counsel.
If there is still going to be some sort of charge for the parenting coordinators, I'm interested to find out how the Attorney can explain how that is still going to be in the best interest of the child and the family — the woman trying to leave the abusive relationship — if they are still faced with a charge that many women in that sort of situation don't have the money to pay.
Hon. S. Bond: I think there are difficult decisions to be made, and one of the things I think this demonstrates is that we recognize that there are a small group of high-conflict families that take up 90 percent of court time related to family issues. We want to be sure that the resources that we have are being used most effectively and to support the majority.
So our view here is that by providing an option that includes a parenting coordinator…. The families we're talking about are already in courtrooms, and they're taking up 90 percent of court time in a very unproductive, very conflictual way.
We're going to continue to provide resources to families who need support in a number of areas. The majority of families will not require parenting coordinators, so it's not our intention to begin to look at significant resources relating to this.
We simply recognize that by moving these high-conflict parents out of the court system and giving them a more appropriate way to resolve their issues, we certainly will lessen financial responsibilities that they may have as a result of going to court. These are already families who have agreements or orders in place. So this is a minority of the families that have issues that they have to resolve.
Section 14 approved.
On section 15.
L. Krog: It talks in this section about a "parenting coordinator may assist only (a) if there is a parenting coordination agreement or order…" which the minister has mentioned, and then it says: "…and (b) for the purpose of implementing an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters."
Now I'm not going to give the usual speech I do about government and regulation in cabinet and never getting to debate those things in here. I'm sure that the members on the other side have heard it so many times they
[ Page 8938 ]
can probably do it for me, but I wanted to make that point on the record. The increasing amount of important, what I will call, legislation — because it is legislation in a very direct sense — that gets passed through cabinet without the scrutiny of this House is a bad thing. But having said that, I am sure that the Attorney General has some contemplation of what things might constitute "other prescribed matters." So I'm just wondering what we're thinking about.
Hon. S. Bond: In essence, it's an opportunity for us to build in some flexibility for the future. Clearly, property will not be one of the items because it expressly states that it cannot be and won't be. But down the road — and I want to be really clear about that point — child support, for example. Again, it's about building in flexibility for the future as the process evolves. This is new, and we are building that in for some flexibility moving forward.
L. Krog: Sub 15(4) talks about the "parenting coordinator's authority to act ends 2 years after the parenting coordination agreement or order is made…" unless it provides that it ends at an earlier date. Then it goes on to talk about the possibility of an extension. I'm just curious: how did we end up with two years as opposed to one year or six months or, indeed, until the child turns 19?
Hon. S. Bond: I know that the member opposite would understand and embrace the principle of it, which is that we don't want parenting coordination to go on forever. I mean, we want it to be limited because we hope that parents become more able, hopefully with the new process and that kind of support, to work through their own implementation disagreements on their own. So we did believe that it was important to limit the period of time.
We consulted with the parenting coordination roster, and it was believed that two years was a reasonable period of time. I don't think that there was anything overly scientific, necessarily, but there was consultation. The principle, again, is to bring this to closure within a reasonable period of time with the hope that those parents can actually do that on their own.
Section 15 approved.
On section 16.
L. Krog: This section, again, similarly to section 5, "Duty to disclose," generally talks about: "A party must, for the purposes of facilitating parenting coordination, provide the parenting coordinator with (a) information requested… and (b) authorization to request and receive information, respecting a child…from a person who is not a party."
Again, I take it that this is giving a fairly broad and independent authority to a parenting coordinator. So I'm trying to anticipate how this will look.
Obviously, if parents are engaging a parenting coordinator and they've agreed on the fees, etc., if the parenting coordination agreement — and I'm talking about an agreement, as opposed to a court order — doesn't include a provision about disclosure, I interpret this section to mean that, in essence, a parenting coordinator will have the same authority to demand and potentially, I suppose, arguably, even go to court — would I be wrong? — in order to require parties to provide the information demanded.
Hon. S. Bond: Again, it's important. The consultation that we had was critical to creating the legislation. Parenting coordinators that are practising in the province have said that this hasn't been an issue, in terms of information-sharing. Having said that, if the requirement to have a parenting coordinator is court-ordered, then, obviously, the court could order disclosure of information. That's one way that there could be an order involved.
The second outcome, probably unfortunate but possible, is that if, to the parenting coordinator's view, it's not going to work, the parenting coordinator can actually withdraw from the process and ultimately, by that default, say it's going through the court system. The coordinator does not have the ability to make the order for disclosure, but there are a couple of other ways that could happen, as I've just described.
Sections 16 and 17 approved.
On section 18.
L. Krog: This section talks about determinations made by the parenting coordinator, and it sort of follows on the response of the Attorney General to my last question. It says that they "(a) may make determinations respecting prescribed matters only, subject to any limits or conditions…(b) must not make a determination respecting any matter excluded by the parenting coordination agreement or order, even if the matter is a prescribed matter, and (c) must not make a determination that would affect the division…of property," etc.
So it takes you out of that and sort of limits things. But I guess the general nature…. When it talks about "prescribed matters," is this the section that anticipates what the Attorney General talked about earlier? In other words, maybe we will be asking them to deal with child support issues, so we're leaving it open in this section. Will that be a prescribed matter that they'll be able to make determinations on?
Hon. S. Bond: Yes.
Section 18 approved.
[ Page 8939 ]
On section 19.
L. Krog: This talks about application by a party to a determination made by a parenting coordinator, and the court may change or set aside the determination. So to use the simplest example, now we have references to the registrar. The court orders a reference to the registrar and the registrar master deals with the issues, making recommendations under the existing rules for maintenance or support or whatever.
I take it that the parenting coordinator, insofar as they're acting within the regulations prescribing the matters they can deal with, will in fact make similar kinds of recommendations which will be binding on the parties, subject to the court confirming or setting it aside. Or am I misinterpreting this section entirely? I'd be happy to hear the minister's explanation.
Hon. S. Bond: No, that's correct.
L. Krog: I guess what I'm getting at is that under section 19, then, the parenting coordinator is going to have a fair bit of authority, because it says that you can set it aside if they determine that they've "made an error of law or of mixed law and fact."
In other words, we're talking here, really, about what I would call an administrative law process, essentially. I mean, we're really giving similar kinds of authority to the parenting coordinator. Is that the way this section should be interpreted?
Hon. S. Bond: Yes, certainly, this is an arbitration-like function, so there is a significant role. There is a significant responsibility here. Obviously, court rules will be developed. We'll develop the court process that's needed to actually have a determination changed. We'll actually have the court rules developed that will allow for a change to the determinations. So yes, it's a significant process, and I think the best way to describe it is as an arbitration-like process.
Section 19 approved.
On section 20.
L. Krog: This is the cutting-edge stuff and is maybe somewhat difficult for my limited intelligence to comprehend, so I know that the minister and her staff are going to help educate all of us in this.
L. Krog: I see the member from Kamloops is paying attention as usual. I'm always delighted.
The definitions section talks about "assisted reproduction." That's a method of conception "other than by sexual intercourse." I take it that it is intended to cover every possible nuance — and I am a history major, not a science student — of every other possibility of the creation of human life. Is that the way we're to interpret it?
Hon. S. Bond: That's correct.
L. Krog: We are talking about "birth mother." That's the person that gives birth to the child, and again, "regardless of whether her human reproductive material was used in the child's conception." So it could be an anonymous donor. It could be a known donor. It could be, arguably…. Is it a fertilized egg that's placed in utero? I mean, again, every possibility. That person who actually delivers the child, natural or Caesarean — that's going to be the birth mother?
Hon. S. Bond: That's correct.
L. Krog: So when we're talking about the definition of "donor," that is someone "who, for the purposes of assisted reproduction other than for the person's own reproductive use, provides (a) his or her own human reproductive material…." So whether that's the sperm, the egg, the whatever, that's the donor, and that person, again, can be any human being.
I take it, without going into it…. Dealing with the issue of, perhaps, payment or compensation for that, does the definition of "donor" include someone who is just generous and anonymous? Does it include someone who may be paid or in some form compensated for the provision of that human reproductive material?
Hon. S. Bond: We have not specified payment because it's not provincial jurisdiction. That's actually federal jurisdiction.
L. Krog: When we talk about "'embryo' means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended," where does the 56 days come from? I'm no expert in this area. My experience is entirely limited to two children.
Hon. S. Bond: What we did was we adopted the definition that's in the federal Assisted Human Reproduction Act.
L. Krog: Just out of pure curiosity, if nothing else, what has the 56 days got to do with anything? Where does that time come from?
Hon. S. Bond: No one here has the background to that. We simply used the federal jurisdiction's definition.
L. Krog: The definitions section refers to:
[ Page 8940 ]
"'intended parent' or 'intended parents' means a person who intends, or 2 persons who are married or in a marriage-like relationship who intend, to be a parent of a child and, for that purpose, the person…or the 2 persons make an agreement with another person before the child is conceived that (a) the other person will be the birth mother…conceived through assisted reproduction, and (b) the person, or the 2 persons, will be the child's parent or parents on the child's birth, regardless of whether that person's…" etc.
I take it that we're certainly contemplating the likelihood, indeed the possibility, that human reproductive material will be obtained from one person, implanted in another, and that the donor, so to speak, will be quite literally out of the picture for practical purposes. In other words, they're not going to be…. Or do you have to be a person who intends to be in a married relationship? No, you don't have to be. Just so I'm clear, you don't have to be in a relationship, so you're out of the picture. We've got one parent. That's the end of the story.
Hon. S. Bond: Very important section. What it does is clarify that the intended parents are the parents once and for all. So there can be an agreement made, which we will discuss. For example, if there is an agreement between the donor and the intended parents that the donor wants to be part of a parenting arrangement, wants to have a role, that agreement has to be signed in advance of conception. What this does is clarify that the intended parents are the parents, and the intended parents are the legal parents of the child.
L. Krog: And so in theory, then, could you have more than two parents?
Hon. S. Bond: I know this is coming up in a section just down the road, but we might as well deal with it while we're here, and that's a good thing. What it means is that a child will have two legal parents unless there is an agreement made to involve an additional person, who may be the donor or the surrogate, by agreement in advance of conception. So it clarifies that the intended parents are the legal parents and only by agreement in advance would there be additional legal parents.
L. Krog: As we're in this section and dealing with these new and involved concepts, are potentially all three of those parents liable for support of the child?
Hon. S. Bond: Yes. I am very glad the member asked that question, because yes, they are. This is about responsibility — parenting responsibility and legal responsibility. Should there be a decision to be involved in the legal parenting of a child, along with that goes legal responsibility.
Section 20 approved.
On section 21.
L. Krog: This is the section that talks about void and voidable marriages. This is — how shall I say? — a somewhat more pedestrian topic, I take it, and not as complex as the definitions section. As I understand it, essentially, even if you've been tricked, if you go through the marriage ceremony and believe your marriage is valid for other purposes of this act — for instance, property division — then you would have legal rights to claim, obviously, although it doesn't really matter anymore because common law provides. But essentially what we're saying is that if you live together and you thought you were married, you get the benefit of being married for that period of time that you lived together, even though, in fact, the marriage was voidable or void.
Hon. S. Bond: I think the best way to describe this is: while you may want to argue about whether or not you're a spouse and whether or not your marriage is void, this applies in the parenting section. There is no voiding your legal responsibility as a parent.
Sections 21 and 22 approved.
On section 23.
L. Krog: I just want to raise this as a matter of interest. Did the Assisted Human Reproduction Act, the federal statute, have any impact on this division? If not, does this division raise any issues with respect to the Assisted Human Reproduction Act?
Hon. S. Bond: I think we're going to answer the question from a different perspective, and maybe this helps. If not, I'm sure the member will try again.
What this does is provides that…. For all the purposes of the law of British Columbia, this part determines who the child's legal parents are. So we are determining in British Columbia who the child's legal parents are. I'm not sure if that addresses the question around the federal act, but we don't believe there's an impact other than to say that we need to do this because it is our jurisdiction to do so.
Section 23 approved.
On section 24.
L. Krog: I take it that section 24 is basically the protection for the donor section, if I can call it that. In other words, unless you want to become one of the parents, which is what the Attorney General talked about in her previous answer, then simply by reason of the donation of the human reproductive material — which I think is
[ Page 8941 ]
the correct term — you cannot be forced to take on the responsibilities and obligations of being a parent of a child in this province.
Hon. S. Bond: Yes, that's correct — the member's interpretation. I think a matter that matters to me just as much is that you also cannot assume that you are a parent of that child in terms of the legal definition of "child." So while it's about not having responsibility, it's also about not assuming that you have any or have a role as the legal parent. So I think there are two sides to that.
But the bottom line is that the donor cannot be declared a parent by virtue of donation, in essence. Even though there's a genetic link between the child and the donor, they cannot be declared a parent simply by virtue of that donation.
Section 24 approved.
On section 25.
L. Krog: Section 25. I think it simply means: look, regardless of how this child was created, whether through — I'll call it, for want of a better term — traditional methods or assisted reproduction or whatever, it doesn't have any effect on the Adoption Act. If you're adopted, your parents are the persons under the Adoption Act who adopt you.
Hon. S. Bond: That's correct.
Section 25 approved.
On section 26.
L. Krog: So this is just as clear, as I see it. "(1) On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father." I think this is the section. This deals with what we used to call the presumption of legitimacy, if I'm not mistaken. So we are now…. How shall I say? Is that law completely supplanted by section 26 now?
Hon. S. Bond: I think the presumption is around paternity — presumptions of paternity. What this does is it carries forward the presumptions of paternity in section 95.1 of the Family Relations Act — so it brings that forward — which apply if parentage is an issue in a claim for child support and expands them to apply to determining who a child's father is in all cases where assisted reproduction is not used.
L. Krog: And just so I'm clear, as a simple example: where a mother has had an affair, the person who assumes they're the natural father, even though she's involved with an individual who is presumed by this section to be the father for all purposes…. This doesn't prevent what I will call the natural, the real, father from petitioning the court for a declaration that they are, in fact, a parent — right?
Hon. S. Bond: No, it doesn't.
Section 26 approved.
On section 27.
L. Krog: I wonder if the minister could just be so kind as to explain exactly what this section means.
Hon. S. Bond: I'm sure that all of us have heard and talked to families for whom infertility is a real issue. In Canada, actually, for many Canadians who wish to have children, infertility is a major issue. In fact, we're seeing the rate in Canada at between 7 to 8½ percent of couples.
What this does is it gives us the general rule for determining parentage if assisted reproduction is used in a child's conception. So this is the general rule. It is new; there was not an existing provision. The general rule is that a child's parents are the birth mother and the person married to or in a marriage-like relationship with the birth mother at the time of conception.
Section 27 approved.
On section 28.
L. Krog: This section I take as basically saying that if you're conceiving through assisted reproduction and it was intended that you would be a parent but you died before conception but gave permission, then in fact you're going to be a parent. I'm thinking particularly of, I suppose, claims under, for instance, the Wills Variation Act or something of that nature. Is that really what we're saying here?
In other words, we're guaranteeing that if you intended to be at some point, and you died before the material is used, and the child is born subsequently, then you're going to be a parent and your estate, arguably, will have those legal responsibilities.
Hon. S. Bond: Yes, the member is correct that this provision does set out a criteria to determine, when an unbelievably horrible set of circumstances might occur like that, where it's appropriate to declare a deceased person a parent. Also, there will be some consequential amendments as a result of that. But yes, it does clearly lay out that criteria, so the member is correct.
Section 28 approved.
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On section 29.
L. Krog: If the minister can just give an explanation, essentially, of what a "surrogate" parent means. This is a fairly long section. Could you just sort of summarize, in practical terms, the effect of it?
Hon. S. Bond: Yes. Section 29 does determine parentage. It lays out for the provision of parentage when a surrogacy arrangement is used in assisted reproduction. What it does is define a surrogacy arrangement as an arrangement — I'm going to just read the definition so that we have it clearly — "where a person or a couple who intend to be parents enter into an arrangement with a woman who does not intend to be a parent, under which the woman agrees to give birth to a child conceived through assisted reproduction with the intent of relinquishing the child to the intended parents after the child's birth."
Again, the intended parent becomes the legal parent. Where the surrogacy agreement is in writing and is carried out according to its terms, the intended parents, as we've said, are the child's legal parents. Where this is a surrogacy agreement but, after the child's birth, the surrogate does not consent to surrender the child, the agreement is not sufficient to require her to relinquish the child. The agreement can only be used as evidence of the party's intention with regard to parentage.
L. Krog: For practical purposes, the parties who hoped to be the parents cannot in any way be held legally responsible for the child, whether that be for child support purposes or otherwise. If birth mother says, "I've changed my mind. I'm keeping the child," then that cuts off any legal obligation or ability to enforce the legal obligation, if you will, against that child.
Hon. S. Bond: That's one of the circumstances where the court would likely have to make the determination about the legal parentage, unless the intended parents withdrew.
Sections 29 to 31 inclusive approved.
On section 32.
L. Krog: This section talks about "if evidence becomes available that was not available at the time an application for a declaration of parentage…was heard." I'm just wondering: what would be an example of that kind of evidence?
Hon. S. Bond: It certainly prompts discussion. I think an example would be that if another man stepped forward and made a claim to be the father, a paternity test would be considered.
[D. Horne in the chair.]
L. Krog: The reason I asked the question…. I think the presumption is under section 31…. Surely, there would have been evidence given at that hearing that there would have been genetic testing done to determine who was going to be the parent. I'm just trying to imagine. I think it would almost be inconceivable that you'd get to a situation where there would become evidence that would be available. So when the Attorney General uses the example of someone stepping forward….
I mean, for practical purposes, I would expect that the court would demand or expect all of the evidence to be brought forward at that time that would presumably conclusively determine that the child is the child of whoever is alleging that they're the parents.
Hon. S. Bond: As the member opposite rightly points out, I mean, we think this would be a very remote type of circumstances. But one of the things that we did contemplate and probably weighed more heavily than actual circumstances is the fact that the Uniform Child Status Act actually has this similar provision in it — so for consistency.
To the member opposite: we're struggling to find an example. I think that's point that he is making.
Sections 32 and 33 approved.
On section 34.
L. Krog: This section, in the definition section, talks about "an order of an extraprovincial tribunal that declares whether a person is a child's parent; 'extraprovincial tribunal' means a court or tribunal, outside British Columbia, having authority to make orders declaring whether a person is a child's parent."
Is this taking into account legislation that exists in other provinces or jurisdictions outside of Canada? In other words, are we talking the globe? Are we talking the rest of Canada? For instance, is it contemplated that every party to an application of this nature would have to prove that the extraprovincial tribunal had authority or jurisdiction? Or is the province intending to keep a list and say that if the Court of Queen's bench in New South Wales or whatever makes an order, then we respect that automatically? Or do individuals have to prove each time that this is a jurisdiction that has a tribunal that's appropriate to make that decision?
In other words, I'm trying to work this through the court process — and in terms of costs and difficulty and complexity.
Hon. S. Bond: From a practical perspective, I think the approach would be only if someone questioned it. If there was a question, there would be a follow-up process,
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but it wouldn't be a routine expectation. But if someone questioned it, then there would be the necessity for further work.
L. Krog: Just to anticipate, sections 35 and 36 talk about the recognition of extraprovincial orders and non-Canadian extraprovincial orders, etc. I'm just wondering. Is there any intention on the part of the government to maintain what I will call a registry that says: "Look, as long as we get a court order, then there is a presumption…"? If there is an order from a tribunal in Austria, there is a presumption that if it appears to be a valid order, then we will recognize it, as opposed to having to lead evidence through other means that an order of the Austrian court is, in fact, recognized as an order in British Columbia.
Hon. S. Bond: We haven't contemplated a registry, and we're not contemplating one. But I'm going to have staff do a little bit more background on that question, and we'll get back to the member opposite about that, but we're not contemplating a registry.
Sections 34 to 36 inclusive approved.
On section 37.
L. Krog: This is one of what I will call the new sections, if you will. It says very specifically that "(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only."
It does, however, go on, as the Family Relations Act does now, to enumerate a number of provisions that must be considered in determining what the best interests of the child are and all of the needs and circumstances. Then we've got (a) through (j). I'm just wondering. What are the significant changes from the existing Family Relations Act, and what was the philosophical basis behind the changes?
Hon. S. Bond: Maybe I'll ask the member opposite. What I could do, if it's his preference, is I could list some of the current factors and then the proposed factor. Would that be helpful, just to explain the rationale? Okay.
So for example, in the current act, "(a) the health and emotional well being of the child including any special needs for care and treatment" is the current factor. The proposed factor is actually "(a) the child's health and emotional well-being." So we're actually tightening that up a little bit in terms of the language.
One of the things I should point out, again — since we've discussed this so many times, about: are we catching up, or are we moving ahead? — is that this is a combination of both. It's a catch-up and a moving ahead in some of these areas.
A change that is taking place. The current factor is that if appropriate, the views of the child would be considered. The proposed factor is: "(b) the child's views, unless it would be inappropriate to consider them." So that's a shift. Instead of looking at it from the perspective of where it's appropriate, we're saying it's appropriate. Unless it's inappropriate to consider them, they will be considered.
So "(d) education and training for the child" — actually, that has been deleted. Since education is a primary factor in a child's upbringing, it will be covered, we believe, by both section 37(2)(a) and (f). We don't need a specific reference there, so we did remove that.
We looked at "(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights…." The new proposed factor in 37(2)(f) is "the ability of each person who is a guardian or seeks guardianship…or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities." Again, the shift away from custody and access.
These are all new and were not referenced — the ones I will now note: "(d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development" — obviously important for that to be considered when the only test we're looking at is what is in the child's best interest.
Most significantly, "(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member" — not at all in the previous act — "(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs" — again, a brand-new factor that is being considered.
Additionally, "(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child…" — again, related to increased risk; we want to make sure that safety is a priority — "…security or well-being of the child or other family members" — again, not referenced in the previous act.
An important factor that will be considered is "(j) any civil or criminal proceeding relevant to the child's safety…" — again, completely missing in the current act.
Very significant changes, particularly related to family violence. I would suggest to the member opposite that those are the most significant changes. The things that are most significant are things we're adding that are not reflected in the current act.
L. Krog: I guess what I'm looking for, as well, appreciating those changes, is the philosophical driver behind this and also the issue of what other jurisdictions were considered. Are we going to find similar provisions in other jurisdictions in Canada, and how long have they had that experience?
[ Page 8944 ]
Hon. S. Bond: I think the heart of the bill, actually, even though it is a 200-page bill, really is summed up by moving the best interests of the child test from what is paramount to being the only test. That is consistent with other jurisdictions, as the member opposite has asked, including it's recently been reformed in Alberta.
Family violence as a factor for consideration — we actually have looked at that. There are other jurisdictions, such as Alberta, Ontario, Newfoundland. It is important. Its inclusion addresses a very important gap in British Columbia's law and recognizes that violence, even if it is directed exclusively at the spouse, can still impact and be harmful for a child. So we did look at other jurisdictions, and it is consistent to include in British Columbia. It is included in other jurisdictions.
C. Trevena: I think that the government is being rightfully applauded for putting the best interests of the child at the centre of all determination. I just had a question about this section. It says that family violence should be considered when the court is determining what is in the best interests of the child. There is no presumption. So it's not clear that violence is never in the child's best interest.
I was wondering what the thinking was — why it is inferred rather than presumptive. When we are saying that family violence…. It's always looking at the best interests of the child, and violence is never in the interests of the child.
You do get those instances where — I'll use a male-female relationship — the male is a violent abuser. I know that is not the only way, but using that as an example. So significant abuse of his spouse, but he is perceived to still be a good dad. There is significant violence in the home, but because of that perception, there could be a decision which wouldn't necessarily put the best interests of the child at the fore when making a determination, without having that presumption there.
Hon. S. Bond: I think our view is…. Certainly, during our consultations and particularly with the White Paper, a lot of organizations, including many women's groups and victim-serving organizations, applauded the approach that we have taken.
So instead of providing a presumption about how family violence must be treated, what the act does is provide a list of factors that the court has to consider when looking at parenting arrangements where there has been family violence. Rather than providing a presumption about that, we've given a list of factors that the court has to look at when looking at parenting arrangements.
I'm the first to admit: I'm not an expert in family violence. I'm horrified by what happens in homes where children are impacted. While it may never be in the child's best interests to be exposed to family violence, different types of violence carry different risks.
We think this is a prudent approach. This is an attempt to provide some flexibility and to avoid a one-size-fits-all set of circumstances. It is based on legal practice — family law, actually, in New Zealand — and is also held up worldwide as best practice, in terms of how you should approach this.
You know, we made the decision after talking to many, many organizations and experts that, instead of presuming how family violence must be treated, we provide the courts with a list of factors that must be considered.
L. Krog: Turning to section 37(4), it says: "In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor."
I take it that what's being given here is recognition, as my friend has pointed out in her question — that unless it actually substantially affects a factor, it's not going to be taken or considered seriously. In other words, the court has the ability to consider that someone who smashes the barn door is not necessarily going to be a danger to a child.
Hon. S. Bond: The subsection is carried over from the Family Relations Act. It does limit consideration of a guardian's conduct to matters that are relevant. I think the goal is to prevent matters that are irrelevant, in terms of the conduct of an individual, to the process. It does limit consideration, and it is carried over from the Family Relations Act.
L. Krog: In the change that says, "the child's views, unless it would be inappropriate to consider them," there's a presumption in favour of taking the children's views but — how shall I say? — nothing specific as to at what age you consider the child's views.
My general advice to parents has always been that if you start allowing them to make decisions at 11 and 12 about who they get to live with and where they get to go, then you're done until they're an adult. Once they have that power you truly are finished.
So my concern in this section is: is that the point of where "it would be inappropriate to consider them"? And that's a poor example. In other words: is it just for the very young children? Or are you considering…?
Is it the out for the judge to say, "I'm not going to consider this child's views because, well, the parenting time has been exclusively with dad for the last year, and I suspect that there has been some undue influence here; therefore, I'm not going to consider the child's views" — even though the child makes it adamantly clear: "I will not live with my mother; I will live with my father only"? Is that the import of this section?
Hon. S. Bond: I think it's important to recognize that it's not about the child making the decision. It's about
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hearing their views where that's appropriate. It is an important change in emphasis. There's no doubt about that — the views of the child. It does create a presumption, as the member opposite points out, that will be considered unless there is a reason why it should not be.
I think we expect that courts, for example, would contemplate age. Obviously, age is an appropriate reason where a child may not be able to express their views. Maturity is another issue. So we expect that the court would consider whether or not it's appropriate to hear the views of the child, but it does become the presumption, and we think that's an important step.
They may also — and I'm sure the member opposite has even experienced this — involve experts in whether or not there is an appropriate role for a particular child. Children are very different. Their age can certainly be a factor but so can their maturity, depending upon their circumstances.
I think that the significant shift is recognizing that a child's views are important, and the court will use a process to determine whether or not it is appropriate in each individual child's case whether or not their views would be included.
L. Krog: In 37(2)(b), the section that we've just been discussing, is that language, "…unless it would be inappropriate to consider them," found in other jurisdictions in Canada? If so, has it been tested in court cases, or again, is this British Columbia's own unique creation?
Hon. S. Bond: The exact language may not be replicated in other jurisdictions, but certainly, views of the child are considered in a variety of ways in other jurisdictions. I think one of the compelling reasons for changing this was that during the consultation period we heard a lot about this issue and the need to strengthen it, to reinforce or enhance the provision for considering a child's views in guiding the courts in their decision-making. We were influenced by consultation, and there seemed to be a fairly high degree of consensus that we needed to enhance — or strengthen, I guess, is the best way to describe it — the role of the views of the child.
L. Krog: This is a general question around these factors. You create legislation because you want to remedy a problem or solve some issue, whatever the case may be. The extension of the factors to be considered and the circumstances, "including the following," is a substantial increase in the existing list, if you will, in the Family Relations Act.
I guess what I'm getting at is: what's the hope behind this? In other words, is it that courts will perhaps now consider more flexible parenting arrangements, as opposed to: "Well, you get custody" and "You get access"? This has been changing quite dramatically in practice in private life, anyway. I mean, that's what a lot of parents are doing now. They're splitting the time with the children. In other words, is that the hope? Or is it the hope that, somehow, judges are going to be able to make those difficult decisions about who gets more exclusive parenting versus another?
In other words, what's the driving rationale and the hope behind these factors and the addition of these factors? It's a fairly big-P philosophical question, but I think it's important because, obviously, if you're making these changes we're expecting some changes in practice with children. So I think the public needs to hear: what's the driver?
Hon. S. Bond: You know, I do believe that this is the heart of the bill, in many ways. I think that what we observe is that for most people, if you want to make a decision that is only based on the best interests of the child, you would assume that these factors are considered. I'm sure that in many cases, and maybe in all of them, they are, but we wanted to be perfectly transparent and clear that these specific factors are expected to be considered in every case when a child is involved.
Maybe it's just the sense that — maybe it is about — one would assume that this is what you'd consider. We want to be perfectly clear that each one of these factors is critical in making a determination that is in the child's best interest, and that is now the only test. So I think it is about transparency, reducing inconsistency and creating certainty around the expectations that when you say you're going to make a decision in the best interests of the child, these are the factors that must be considered.
L. Krog: If I can try and put the question more specifically, is there any intention or hope on the part of the government, through this legislation, that we're going to see a drive to more equal parenting arrangements? Or is that simply a factor that is of no consequence to this? In other words, it's not like this is a goal of the legislation.
In other words, is there a goal in this legislation that says, "Look, we want to see children spend more time with both parents," as opposed to what historically was fairly traditional? You know, every second weekend, a day in between — that's the way the world worked, and you split the holidays. That was parenting when there was a separation or a divorce between the parents.
Is there some hope that with the inclusion of all of these factors, in fact we are going to — I don't use the term pejoratively — "drive" society towards arrangements that are more equal in terms of the amount of parenting time? If that's not a factor, that's fine. I'm not looking for an answer that doesn't exist, but I'm interested in knowing.
Hon. S. Bond: I think that the Family Law Act, the new act, actually provides very generally that both par-
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ents will continue to be guardians after separation. I think that's an important starting point, but it doesn't presume the starting point when making parenting arrangements between guardians. So it doesn't assume a position in terms of where that starts, but I think it's important that there is an assumption that both parents will continue to be guardians.
What the act does allow, I think, here is flexibility for parents to tailor their parenting arrangements, most importantly, so that they're suitable and in the child's best interests. So I think that while there is not…. I think the goal — let's put it in the positive, a better way to state it — of this is to ensure that the parenting arrangements that are put in place are suitable and in the best interests of the child. That's really the absolute, critical factor, but we do allow for the fact that parents will continue to be guardians after they're separated — both parents.
C. Trevena: Something that I think is relevant to this section — it might be section 38. Again, it's looking at the test of violence and working on the assumption that if the issue goes to court. And so we are trying to resolve the situation in court rather than through what we were discussing earlier with the mediation possibilities.
It seems, on reading it and thinking through it and hearing some of the debate, that listening to "for the child's best interests" also in this would necessitate the child actually testifying in court. So that's that question. As I say, it might not be in this section. It might be section 38.
Secondly, it's then testifying in court and testifying about violence, when there should be the assumption that no violence is going to be good for a child for witnessing or suffering.
Hon. S. Bond: Certainly, we are not prescribing having children testify, and certainly, the intent is not for that to be considered routinely. In fact, we believe there are lots of ways to learn the views of children. We think that's an important consideration, where it's appropriate, that children's views are important and significant, but certainly we're not prescribing or even necessarily recommending whether or not a child testifies in court.
One of the things that we've had a discussion about is…. The best way to obtain the views of a child is under much discussion. They're a really new direction in family law, so there isn't a consensus on the best approach. Certainly, that's why we're contemplating regulation-making power, the ability to develop future programs and services so that…. We want to tie those programs and services to the best possible research and practice.
As I said, I think it is important to promote the inclusion of the child's view, where appropriate. We're going to spend some time learning more, as is the legal profession, about how to do that appropriately, but certainly not prescribing or indicating that we believe that a child testifying is the only or even an appropriate way, necessarily, for particular children to be involved in this process.
The Chair: As the member stated, I think the question was to the assessment of family violence.
Shall we move to section 38? Are there any questions on 37?
C. Trevena: I have a follow-up on that question to the Attorney's question if she feels comfortable answering it right now. It really is on the best interests of the child, because what I was asking earlier is that surely the best interests of the child is never to witness or experience violence. I think we can all be agreed on that.
So we are then looking at finding ways for the child to have to testify, in some ways, on the effects of violence to that child, to her or him. So I'm just wanting a bit of clarification about the best interests of the child vis-à-vis the impact of family violence on the child and then having to share that experience in a more public forum.
Hon. S. Bond: I know we are discussing section 38, but we're going to get there anyways, so we'll just do it.
We want to be very clear, and that's why, I think, we've added the definition of family violence. People would assume that in making decisions about children's well-being in British Columbia, a history of family violence is considered.
But to make a presumption that, for example…. Let's use a practical example. Let's suggest that someone, on the day of their divorce or separation, threw their coffee mug across the room. Would that mean that we would make a presumption, if we were to take that approach, that that person would never have access to their child, or would it impact the parenting arrangements?
What we've decided to do is look at…. That's a trivial example, and I use it only to simplify the process we've used. We believe that through our consultation…. In the White Paper, for example, many, many groups approved of or appreciated the approach we're taking here.
We're saying that the court must consider, when determining parenting arrangements, family violence. We believe that that is the most appropriate way to make those determinations. Experts tell us that family violence is not all the same. Of course, we want to protect children. That's why this bill talks about the only consideration being what's in the best interests of the child.
So we believe that rather than providing a presumption, we're going to make sure that it is transparent and clear that the courts must consider a number of criteria, which we have clearly outlined. I think, certainly, I'm comfortable that, after the consultations that have been
[ Page 8947 ]
done, looking at what's happened in other jurisdictions, it is the best practice that we can incorporate in British Columbia's law.
C. Trevena: Thank you, Attorney. I appreciate that. I have one question that goes back to some of the questions I was asking earlier, and that is for support for the families as they're working their way through this, and we were talking about "culturally appropriate." I was wondering if there are going to be translation services, interpretation services, all way through this process, both for the children and for the women who are working their way through the system.
Hon. S. Bond: It was really, I think, very helpful to listen to all of the comments in second reading by members on both sides of the House, and this was one that really interested me: are there services, and is there a culturally appropriate process? So, in fact, we went back and did some homework about some of the comments that were made. All Family Justice Centres actually have access to interpreter services to assist clients at no charge. So there is access.
In fact, when we looked back over the last 18 months to see when, where or how interpretation services were most frequently used, the most frequent services were provided in Cantonese, Punjabi, Spanish, Mandarin and Vietnamese languages. So there is support through our Family Justice Centres, but would be provided in any language.
I think another important program is that there is also a parenting after separation program that's offered, and they are also available in some languages other than English. I think we're certainly aware and tuned into the fact that it does need to be culturally appropriate and provide access for a wide variety of parents.
N. Simons: Thank you to the minister and her staff. My question is regarding section (i), and I'm just trying to figure out here where the role of child protection comes in, because it's clearly stated that "the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members."
Now, clearly the safety of a child is covered under the Child, Family and Community Service Act, and the determination as to whether a child is safe or not is made by the delegated authority under the Child, Family and Community Service Act. So I'm wondering: how does the minister explain where the roles intersect?
Hon. S. Bond: I mean, the straightforward answer is that the Family Law Act doesn't deal with child protection issues. Child protection issues are dealt with, administered by, the Ministry of Children and Family Development, which has social workers under the authority of the Child, Family and Community Service Act. Clearly, that is not an issue under the jurisdiction of the Family Law Act.
Does that mean that there isn't often or potentially an intersection? Yes, there is. And so the requirement would be that in the process of dealing with the issues that the Family Law Act is mandated to look after, which is really decisions about parenting arrangements, we want to be sure, first of all, that they don't place children in potentially dangerous situations. I mean, that's obviously the primary concern.
But if a child protection issue is discovered, it must be reported to the Ministry of Children and Family Development. They then would investigate, as is their mandate, and feed that information back to the decision-making process about the child's parenting arrangements.
Undoubtedly, in some cases that connection would be made, but if there is a child protection issue, that information is required to be considered as part of the "best interests of the child" test. So if there's a child protection issue discovered in the course of the work that's being done, MCFD would investigate, and that information would become part of the process, part of the test to determine whether or not and how a child is placed in a parenting arrangement.
N. Simons: So I'm to assume that's subsection (2)(j) — any civil or criminal proceeding that includes any action taken under the CF&CS Act?
Hon. S. Bond: That's correct.
N. Simons: I'm wondering if the minister, in drafting of this legislation, was aware of the fact that many cases that come before social workers that are reported as protection concerns may or may not be founded or may or may not even require much more than a cursory investigation. Would records of what basically would become disputes between parents and teens or disputes between parents end up bogging down the process under this current act?
If so, I'm concerned about the muddiness that could result, the involvement of probably more than one social worker in the case and any other family support service provider that may or may not have been involved with the family. I just know from experience that social workers are very hesitant to get involved in cases where they believe that the root of the issue is a longstanding dispute between parents. As difficult as it is to help mediate those situations, it looks to me like we have a new venue in which to discuss those same things that were discussed outside this new venue.
[ Page 8948 ]
I'm wondering if there's any anticipation of social workers becoming more heavily involved in custody disputes simply because it is enacted in the Family Law Act?
Hon. S. Bond: While the Family Law Act, the mandate, does not include child protection specifically, I think one of the discussion points that we certainly hear a lot, both in the public and elsewhere, is about the siloed approach that's taken to managing issues like this. So I think this provides a good opportunity for us to talk, for example, to the Ministry of Children and Family Development about where our interests intersect in relation to families and the legal issues they're facing.
We certainly don't expect social workers to be heavily involved in private family law issues, so we should be clear about that. But having said that, our primary goal is to ensure that children are safe, and as I said, if there is any information discovered that is a child protection issue, it would be referred to MCFD for their process. Information would be fed back so that that becomes part of the consideration in the "best interests of the child" test.
Does it give us an opportunity to have discussions about how we can work together in those areas of overlap? I think absolutely. You know, we are interested very much in moving away from a siloed approach, but our bill is also not going to cross the clear mandate line that is in place with MCFD, related specifically to child protection.
N. Simons: I would just say that under current legislation, the only authority given the jurisdiction to assess safety or well-being of a child under the act is a child protection social worker. I will tell you that sometimes certain grains go in certain silos, and there's good reason for that. In this particular case I don't think you'll find that families who are involved in resolving their issues around custody and access are going to want to go into the child protection silo, even if, in fact, there have been allegations, substantiated or not, about the actions of one or the other parent. You know, when you speak of risk to the safety and security of a child, if it's not the social worker making that determination, who is it?
Hon. S. Bond: It's because we're not dealing with, specifically, a child protection issue. If, in the course of trying to help families come to resolution on the issues that are a challenge for them, an issue of child protection is discovered, there is an appropriate process.
We're certainly not suggesting that families enter, in the member's words, the "child protection silo." We're not suggesting that. In fact, what we're trying to do is create a process that provides families with more tools to reach resolution. What is most important to this bill is the fact that what's in the best interests of the child will be the only consideration, and the court will have a series of criteria that actually need to be contemplated before any parenting arrangements are made.
My point was simply that if there's an area here where there needs to be discussion about potential overlap, obviously, we'll have that discussion. But the mandate of this bill is not to deal with, specifically, child protection issues. There is a process in place, and this would intersect in the way that I've described in that if child protection became an issue, obviously, the child protection process mandated through MCFD would begin.
N. Simons: So it's already in the silo. We found this, and it's in the silo. It's in the child protection silo. It can't help but be in the child protection silo. Under the act, if you're aware of a situation that may cause harm to a child, or the child's safety is at risk, it must become a child protection issue. It is law that it becomes a child protection issue. If there's an allegation of violence previously not raised, it's the responsibility of any adult to make a report, even if it was previously unreported.
So we're going to be finding ourselves — perhaps, and I don't know, in these family law cases — suddenly introducing issues that may be historical issues, may be issues of varying degrees of severity. But you have specifically the impact of any family violence on a child's safety.
Under current protocols the existence of family violence has to be reported to a child protection social worker. I'm just concerned that not an adequate contemplation of the mixture of these silos is taking place. I'm not saying that it can't be fixed, but I certainly hope that careful monitoring of cases will take place and assessment as to whether or not this creates an undue burden either on the child protection service or on the families, who are simply trying to find a way of getting on with their lives.
I don't think that by indicating that someone is making a determination as to the safety of a child, and it is done in the absence of a child protection social worker…. I think we've got a bit of a problem — do we not?
Hon. S. Bond: Well, I can only say to the member opposite that there has been a lot of consultation. To suggest we didn't talk to people…. The bottom line is that we've been talking to people for over five years. We've included in this bill, for the first time in British Columbia, explicit "direction," if you will — and I put that in quotations so I don't get a phone call from the judiciary — that family violence must be contemplated in decisions around a child. The child's interests will be the only consideration.
The Family Law Act does not deal with child protection issues specifically. Child protection issues are dealt with by MCFD social workers under the authority of the
[ Page 8949 ]
Child, Family and Community Service Act. All I have suggested is that wherever there is a way, as we move forward, to contemplate how we continually put the best interests of the child at the centre of this agenda, that's exactly what we're going to do.
[L. Reid in the chair.]
N. Simons: First of all, certainly, I'm not questioning the degree of consultation. I'm sure that perhaps the minister also recognizes that this is part of debate, and this is part of what improves legislation under many cases — perhaps not in the experience of this minister. But there are times when…. For heaven's sake. I would say, hon. Chair, that the defensiveness so clearly demonstrated on simple questions about factual information before me….
I hope I'm not offending the minister with my questions about legal processes and the safety of children. It just happens to be an issue close to my heart and a sector in which I've worked for many, many years. Perhaps I have some insight that the minister has yet to hear. Isn't that part of the process of debating legislation? This is not a perfunctory exercise in rubber-stamping legislation that is going to impact on children's safety, and to suggest such is somewhat embarrassing — embarrassing for a minister to become so defensive on simple questions about child safety.
The Child, Family and Community Service Act sets out quite clearly when a child needs protection or may need protection. Maybe that act is flawed, and maybe it's going to be fixed subsequent to this act being passed. But I think that maybe the minister should have stopped at the health and emotional well-being of the child and allowed other factors to just be included. Obviously, violence is one of those factors — obviously. But the determination of the degree of family violence is certainly one that has to be contemplated. I can give the minister examples far more interesting than throwing a cup against the wall.
We're not talking about breaking dishes; we're talking about parents who are making allegations towards each other about their conduct in relation to the well-being of their child — everything from curfews to food to friends to books to where they live to rock-climbing to skydiving.
All these things have been brought as issues in custody battles. I've seen them. I've seen the allegations that families make against one another. I think to dismiss this with a shake of the head or a curled-up nose would be wrong for anyone in the province to do.
So I simply ask this. Does the minister commit to ensuring that there is careful follow-up on the impact that these changes have on both the child protection system as well as the family law system, which is certainly going to be going through a lot of learning curves on this?
I mean no disrespect to the minister in those comments, nor should I be expected to simply put up with it without doing my job, for which I was duly elected to represent my constituents, which some people may find problematic to their current level of comfort.
Hon. S. Bond: Certainly, Madam Chair, I want to be absolutely clear about the commitment of this government and this minister to stand in this House and debate every "i" that's been dotted and "t" that's been crossed. That's actually the completely respectful and civil discussion that's taken place up until the last two or three minutes. I fully intend to defend, and to stand and debate, the issues related to this bill and have answered every single question.
To the member's suggestion that we remove factors that are listed in this bill…. I'm certainly not prepared to even contemplate removing a factor that talks about the impact of family violence on a child's safety, security or well-being. In fact, that has been canvassed and supported by organizations across this province, including the child and youth representative.
My intent here today and in the days that lie ahead is to walk our way through this bill in an informed and respectful manner so that at the end of it I'm confident we'll be able to support this bill together, ensuring that British Columbia's families have new options in terms of the resolution of their issues, and also that we are absolutely assured that this bill reflects what will put the best interests of the child at the centre of the Family Law Act.
This bill isn't going to solve every problem that exists with child protection or family violence or anything else, for that matter. What it does do is reflect that it's time to change the Family Relations Act in British Columbia to include factors like the ones that are included here.
I look forward to debating this as appropriate and have done that for the last almost three hours now in a respectful and thoughtful way, and I will continue to do that.
N. Simons: I want to say to the minister that there was absolutely no disrespect to her or anybody else. Why she would consider that as the reason for my questions is really beyond me. I must have stepped into something that I wasn't aware was happening.
I'm simply trying to find out if there is a concern about muddying of the jurisdictions between the child protection system and the family law system, which is something that we've always had problems with. Has this helped to alleviate it, or has it complicated it more? I suggest that it might be more complicated now. If the minister wants to cast aspersions on me, on my manner of making questions, that's fine. That's up to the minister.
But that was my intent. Any disrespect was unintended, and I'm sorry if I'm wasting the minister's time with my questions. I thought they were important to have answered, and in due course we'll see if I was right.
[ Page 8950 ]
Section 37 approved.
On section 38.
L. Krog: The minister has talked about this section of the bill being the heart of the bill. Obviously, a number of factors included now are considered under 37(2), dealing with violence, and then, for the purpose of assessing violence…. That's what section 38 is talking about, saying: "a court must consider all of the following…." Then it's quite specific. You've got a long definition of family violence. I guess it comes back to one of those big-P philosophy questions. Is it the government's intent clearly to send a message, if you will, to the public that violence…?
I mean, violence isn't acceptable in our society generally. In criminal law, etc., there are all sorts of social sanctions and so on.
But my impression is that — by the specificity of the sections in 37 and then following with section 38, saying you've got to look at this, this and this, and then a fairly extended definition of "family violence" — really, the message here is: look, if you're going to engage in any kind of violence, when it comes to the question of children, then if this was a factor that was, say, seven out of ten before this bill is passed, now it's nine out of ten.
I think that the minister understands what I'm getting at. That's the way I interpret this section: that it's a message. The fact that the bill continues to talk about it and define it — that's the message I'm getting from it. I just want to hear the minister's comments on that.
Hon. S. Bond: I think that certainly is part of the answer. I think it is about being very transparent and very clear about the impacts that family violence has on a child and that we need to consider that in every single circumstance. I think it is about clearly, also, outlining the steps that the court must go through.
Again, I think the member opposite is absolutely correct. We know that very likely it is considered in most cases. We want to send the message that we expect it to be considered in every case, and we expect there to be a significant contemplation of the impacts.
As I stated on the record earlier, we know that certain types of violence are the precursors to far more serious types of violence. I think that it was something…. And we certainly heard this very loudly in our consultation: the importance of articulating a transparent process that said it must be contemplated in every case.
I think it's one of the strengths of the bill, actually, as we look at British Columbia's position previously and the new sections, and we walked through that chart together. I think this is brand-new territory in terms of the expectations that are clearly laid out in the bill. Practice may be the seven out of ten, as the member opposite points out, but we want to make sure that there's a ten out of ten in terms of the consideration of those elements in every single circumstance.
N. Simons: Here we have a list of things to consider:
"(a) the nature and seriousness of the family violence; (b) how recently the family violence occurred…(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (e) whether the family violence was directed toward the child; (f) whether the child was exposed to family violence that was not directed toward the child; (g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (i) any other relevant matter."
Who makes that assessment?
Hon. S. Bond: In fact, in the opening statement: the court makes the decision. They may rely on expert evidence or others to provide advice, but in fact the court makes the decision.
Section 38 approved.
The Chair: Shall section 39 pass?
Some Hon. Members: Aye.
The Chair: So ordered.
Shall section 40 pass?
L. Krog: On section 39.
The Chair: My apologies. On section 39, Nanaimo.
On section 39.
L. Krog: I appreciate the speed with which the Chair wishes to accomplish this task. But thank you. I'm a little slow.
"Parents are generally guardians." This section sets out an entirely different approach to parenting in terms of custody and access, the way we think of it. I have to fight to try and abandon the old language, obviously, when we're discussing this. I mean, essentially parenting is now a presumed generality that applies to both parents, and what we're really going to be talking about is the amount of time that a child spends with the parent, but ultimately, the same responsibilities and equal responsibilities are to be exercised while you have your parenting time with the child. That is what I understand to be the sort of presumption under this section. Is that really what we're saying when we talk about a parent being the guardian?
Hon. S. Bond: I will just recount it as I heard it. I think it was absolutely correct. There is a starting point that says that both parents continue to be guardians, and I
[ Page 8951 ]
think that's a very important statement. Then, the purpose of the section is to do exactly what the member opposite has suggested. It is to sort out the amount of time. And I guess we could be as blunt as to say it could be zero to, you know, anything beyond that, depending upon the test and the criteria. The same would be true of responsibility. It is about determining time and responsibility, and there is a general understanding that parents are guardians even after separation.
L. Krog: With respect to subsection 39(4), it talks about: "If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship." So how would that person become a guardian of the child within the meaning of the act, and under what circumstances would you contemplate that happening?
Hon. S. Bond: Subsection (4) actually carries over a section from the Family Relations Act, and what that says is that the marriage or marriage-like relationship between a child's guardian and another person does not make the other person a guardian. So we're carrying the language over from the old act. Again, an example could be that the court could appoint. That would be one way of doing it.
Section 39 approved.
On section 40.
L. Krog: This section talks about parenting arrangements, saying: "(1) Only a guardian may have parental responsibilities and parenting time with respect to a child." So this is in contrast to "contact with a child," which we will come to in due course through this bill.
In other words — how shall I say? — this is the A-team, as opposed to the B-team. The B-team is gramma and grampa spending time with the child. The A-team are the parents, who are, generally speaking, the guardians, unless the guardian is appointed by a court, in which case they step into the same position. This is essentially what we're talking about with this section?
Hon. S. Bond: Yes.
L. Krog: I notice that in sub (4) it talks about:
"(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not" — must not — "be presumed: (a) that parental responsibilities should be allocated equally among guardians; (b) that parenting time should be shared equally among guardians; (c) that decisions among guardians should be made separately or together."
I'm just wondering: what's the intention of that section? Because, as I alluded to in second reading debate, in practice, more and more parents are now dividing time with the children.
It doesn't necessarily make sense in every case, but there seems to be a growing presumption in the world outside of this chamber that it's a good thing for a child to have equal time with both parents, and yet this section is almost sending an opposite message, in a sense, saying that in making these arrangements, it must not be presumed that there is any presumption in its favour.
Hon. S. Bond: Subsection (4). I think the best way to describe it is that it doesn't make presumptions about what type of parenting arrangement is best for a particular child. The member opposite is correct that the assumption now is that you remain a guardian after separation, but it doesn't assume equal parenting. The only way that the degree of shared parenting will be determined is after a careful consideration by the courts of all of those things that are tests to ensure that the best interests of the child is the determining factor.
Is it possible that there would be equal parenting? Absolutely. Is it a guarantee? No. It would be based on the test, based on the court's view of what is in the best circumstances for the child. It provides, obviously, for that to be an option, but it may not always be the best set of circumstances. We've actually seen….
There has been work done in Australia. Australia mandated equal parenting time, parenting presumption, so there was a parenting presumption made. In fact, I think the experience they've had in Australia has shown that that may not always be in the best interests of the child. So they do have that mandate, but I think they are learning that, in fact, that may not always be in the best interests of the child. That's why we've taken the approach that we have.
L. Krog: I notice, again in section 40, that it says that unless an agreement or order allocates parental responsibilities differently — and they're outlined in some detail in section 41 — each parent may exercise all parental responsibilities. Again, I come back to…. There is this presumption which is somewhat inconsistent with sub (4), because you are basically saying: "Look, including applying for a passport, licence, permit, benefit, privilege, etc., making decisions respecting where the child will reside, all of those things may be exercised by both parents unless an agreement or an order allocates those responsibilities differently."
So the presumption is a high degree of cooperation right from the start, and I think, I might add, that's a good thing. But that's what I interpret this section to be saying to parents. If you're looking for guidance from the provincial Legislature, we're saying, "Look, unless the court
[ Page 8952 ]
orders otherwise, you're each going to be able to exercise all of these responsibilities," presumably while the child is with you, certainly, but, I would trust and expect, in some consultation with the child's other guardians. It talks about that. Each "may exercise all parental responsibilities with respect to the child in consultation…." The presumption is that you're going to talk, and everybody is going to get to do it all together. That's the way I understand it.
Hon. R. Coleman: Madam Chair, we'd request a ten-minute recess.
The Chair: This House stands recessed until 6:10.
The committee recessed from 5:56 p.m. to 6:08 p.m.
[L. Reid in the chair.]
L. Krog: The minister was about to give me a response before she was interrupted by more pressing matters.
Hon. S. Bond: I really very much appreciate the patience of the Legislature. There are some unfolding issues that needed to be dealt with.
I think the member opposite, in his description, captured the spirit of what the bill is doing. But I do want to clarify this. Each of a child's guardians exercises all of their parental responsibilities, unless there is an order or agreement, and I think that's what the member opposite said. In making an order or an agreement, however, there is no presumption of equal time or equal responsibilities. That's where the test comes in.
There is an overarching assumption that, unless there's an order or an agreement, each of the child's guardians exercises all the parental responsibilities. What we've placed at the centre of this is that the child's interests will be the only test, so there won't be a presumption that it's a 50-50 kind of arrangement. The court will make that decision, and they will base their decision on the test that has been laid out in the bill.
I'm fairly confident that that's what the member opposite outlined. If there are any further questions or clarifications, I can certainly try to make those.
Section 40 approved.
On section 41.
L. Krog: It strikes me that section 41 is almost the good parenting guide. It sets out in some detail, (a) to (l), what things a parent…. Parental responsibilities "are as follows," and that's "For the purposes of this Part." The intention of it is that it's an exhaustive list. In other words, it doesn't leave anything open, the way I read it. It says: "For the purposes of this Part, parental responsibilities with respect to a child are as follows…." So that's it.
Is there any reason for that specific wording — in other words, saying: "Look, this is the exhaustive list. This is what it is"?
Hon. S. Bond: Perhaps I missed something. But in my view, in looking at the section, I thought that 41(l) actually covers off anything else that we may have not contemplated. So it says: "(l) exercising any other responsibilities reasonably necessary to nurture the child's development."
So I think the point is well taken — that it's pretty hard to come up with an exhaustive list of what the reasonable and appropriate parental responsibilities are. I think the list is significant, but we did leave enough room, I'm hoping, to cover off anything else that might be necessary, in sub (l).
Sections 41 and 42 approved.
On section 43.
L. Krog: Just to confirm, this section implies, then, that everything that a parent does has to be always focused back on the test that the courts are going to be applying if it ends up in front of a judge. Best interests — right? "(1) A child's guardian must exercise his or her parental responsibilities in the best interests of the child." That takes us back to the way the court will look at it. That's the import of this section. I believe I'm correct.
Hon. S. Bond: Absolutely. In all decisions regarding a child, "A child's guardian must exercise his or her parental responsibilities in the best interests of the child."
L. Krog: Just to be clear here, there's nothing different about an agreement we talk about here than the term "written agreement" in the definitions section, which is to cover all agreements that might be contemplated under the act.
The Chair: The member is referencing section 44.
Section 43 approved.
On section 44.
Hon. S. Bond: Again, I hope I'm answering the right question. It could be an agreement other than written. So if it is specifically a written agreement, that would be articulated. But an agreement could be, for example, a verbal agreement. If we specifically say "written," then it would include all of the agreements we've talked about, in a written form. But in this case, this could also be an oral agreement.
[ Page 8953 ]
L. Krog: Hon. Chair, I appreciate that.
So when we talk, in sub (2), "An agreement respecting parenting arrangements is binding only if the agreement is made (a) after separation, or (b) when the parties are about to separate…" if you've entered an oral arrangement, it will be binding and is enforceable by the courts. Entered into an oral arrangement — correct?
Hon. S. Bond: In order for it to be enforceable as if it were a court order, it would be need to be a written agreement.
L. Krog: So in other words, you can't rely on an oral agreement in terms of enforceability, relying on the sanctioning sections of the act, unless it is reduced to writing and only if it's reduced to writing?
Hon. S. Bond: For enforceability, that's correct.
Section 44 approved.
On section 45.
L. Krog: This would be the equivalent…. To put it in lay language, this would amount to the old custody section, if you will, except now we're talking about "the allocation of parental responsibilities" and "parenting time." This is the section that says: "Look, this is what you…."
For an application by a guardian — who is, generally speaking, a parent — this is the section that authorizes you to go to court and say: "I want 50 percent of the time with my child" or "I want 60 percent" or "I want 100 percent of the time." This is the main authorizing section, if you will?
Hon. S. Bond: That's correct.
Sections 45 and 46 approved.
On section 47.
L. Krog: Section 47 allows for the variation of parenting arrangements. It talks about the change in circumstances, "including because of a change in the circumstance of another person." My recollection is that the change in circumstances is the absolute standard test — always has been — relating to support, etc.
But the addition of "because of a change in the circumstances of another person" — if I'm not mistaken, and the Attorney General will correct me, I'm sure: is that a new provision? And if so, what is it intended to refer to? Perhaps I could have an example.
Hon. S. Bond: It's really to clarify. I think the best example would be that if a parent were moving, and the child wasn't, there is still a change that impacts the child's life, and that is a person who is actually moving. The child might have to travel further. There might be other issues related to that. So it's to clarify that if there's a change in another person that impacts the child, that needs to be considered. If the parent is leaving and the child isn't, it still has an impact on the child.
L. Krog: Just so I'm clear, then, this is in addition to the sections relating, under division 6, to relocation. Is that…?
Hon. S. Bond: That's correct. I chose that example, so yes, this isn't specific to that. This is more general.
Section 47 approved.
On section 48.
L. Krog: I take it that the message from this section is to parents: if you've established an arrangement and there's "a period of time sufficient for those parenting arrangements to have been established," etc., as part of the routine, then you will change that routine at your peril, unless you have the court sanction it.
I interpret it to mean that. And the message to the courts from this section is: if parents have reached a recent arrangement and one parent breaches it…. I'm not going to say it will sway a parenting application, but obviously, the message here is that it is an important factor, that if this — what we used to refer to as the status quo — is established, you change it at your peril "without consulting the other guardians who are parties to those arrangements" unless it would be "unreasonable or inappropriate."
In other words, look, if this is the routine, and the child is used to it, you don't change it unless you talk, and if you do change it, essentially, the message is to a judge — the presiding judge, I take it — then you're going to consider that when it comes to deciding how you're going to allocate parenting time.
Hon. S. Bond: I think the member opposite has it exactly right. In fact, in thinking about where this came from, we think it was lawyers advisory panel members that actually recommended this and suggested it, and it is incorporated here.
Sections 48 and 49 approved.
On section 50.
L. Krog: The provision talks about…. You "cannot become a child's guardian by agreement, except (a) if the person is the child's parent, or (b) as provided under this Division…." So I'm just trying to imagine here. Parents are by definition "guardians." Maybe it's late in
[ Page 8954 ]
the day and I'm not getting the point of that section, but if someone can explain to me how it would be necessary to have an agreement, because you are, by presumption, as a parent, a guardian.
The Chair: Noting the hour.
Hon. S. Bond: Can I answer the question and then note the hour? Okay.
There is an exception to the parents or guardian rule, and so this is to allow for an agreement in that circumstance. The exception to when parents are guardians is actually if they have not taken an active role in the child's life. So this would allow for an agreement in that circumstance. The member opposite is nodding, and I think he knows that that was included earlier on.
Noting the hour, I move that the committee rise, report progress, and seek leave to sit again.
The committee rose at 6:24 p.m.
The House resumed; Mr. Speaker in the chair.
The Committee of the Whole, having reported progress, was granted leave to sit again.
Hon. M. Polak moved adjournment of the House.
Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow morning.
The House adjourned at 6:26 p.m.
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