Bill 17: The Family Law Act

 On April 25th I spoke at second reading of Bill 17.  My comments are below. 

Bill 17–The Family Law Act, The Family Support Enforcement Act and The Inter-jurisdictional Support Orders Amendment Act

Hon. Jon Gerrard (River Heights): Madam Speaker, several comments on Bill 17. In general, this bill is an im­prove­ment over previous legis­lation and we will support it. In part, it replaces the concepts of custody and access respecting children with the con­cept of parenting arrangements, parenting time and decision-making respon­si­bility.

      I think the move to have more decisions are–resolved without the courts is a good one but, clearly, where there is disputes, it is still going to have to go to courts. Although, maybe we can have mediators who are better able to get parents working together, but that we shall see.

      I think it's too bad that with the major changes being made here there wasn't more time to debate and to discuss this bill here. It should have been discussed, in my view, earlier on instead of having it debated at the deadline with very limited times.

      I welcome the comments from the MLA for St. Johns, which I interpret as being in support of a review of the maintenance payment system because there continue to be issues which come up on a regular basis. And I think–not to be, you know, critical of the individuals in the system who are doing their very best, and not to not recog­nize that there are some very positive aspects of the system–that I think there's aspects and areas where we can, in fact, do better.

      One comment on the issues of the best interests of the child: in the ex­per­ience that I have had over a number of years, one factor which is often not ade­quately considered in the best interest of the child or in this revised 'legistration'–legis­lation is breast­feed­ing of the child by the mother.

      It's well-esta­blished that breastfeeding a child in most instances is better for the child physic­ally and mentally and psychologically, and for the mother than alter­na­tive feeding approaches to the child. And yet, re­peat­edly in the past, breastfeeding has not been adequately considered in decision-making because the current and proposed law consider the child's needs, but most times, what is considered is the need for food, not the desire for breastfeeding where the mother desires to breastfeed.

      The need for breastfeeding, I suggest, needs to be added spe­cific­ally with respect to the court con­sid­ering the need the–for the mother to be able to breast­feed the child when the mother so wishes. This could put some constraints on possible parenting arrange­ments for the first few months of life, but it certainly would recog­nize the fact that breastfeeding can make a very im­por­tant con­tri­bu­tion to the whole life of the child.

      This legis­lation deals with family parenting ar­range­ments and some issues, now, with Child and Family Services, like apprehension, are separate, but there is an overlap. And I raised this briefly in the situation in the question period and look forward to comments from the minister at the committee stage.

      I think it's im­por­tant to point out that no situation, no family is perfect. Apprehension of a child by Child and Family Services and the transfer of custody from the birth family has risks, just as leaving a child with the birth family has risks. And the best interests of the child means provi­ding the best option for a child in an imperfect world.

      The decision to award all parenting in the past, at least, to one parent has certainly occurred in a number of instances. There is increasing recog­nition of the importance of having both parents involved in the life of a child, and I believe there's a special duty of the court, with respect to situations where one parent is given all or almost all parenting respon­si­bilities.

      I have seen one parent being given sole or almost all respon­si­bilities. Sometimes, this has happened where a parent who drinks alcohol excessively and is an alcoholic–even if not so diagnosed formally–is given the sole parenting respon­si­bility, sometimes be­cause the parent who drinks excessively is the better talker and persuader in the courtroom.

      It has also happened in my ex­per­ience in the past where one person–parent is given sole respon­si­bility where a parent, A, who is an abuser, is given the sole parenting. And this has happened because the alter­na­tive parent is said to be using parental alienation or other problematic actions, and this has been an excuse for the parent A to become sole custody.

* (17:30)

      Now, Child and Family Services routinely don't get involved where there's a child custody or parenting conflict case, even if there's a charge by one parent about the other parent being abusive, because they seem to be concerned that they–charge may be used inappropriately. But, certainly, in the circum­stance of where there really is abuse by one parent, this some­times needs to be taken much more seriously than it is currently.

      One 'pyrent' has been given, I have seen, sole custody, when one parent is Indigenous and the other is not Indigenous. There should not be a racial bias and discrimination, as has happened too often in the past, and there needs to be improved pro­tec­tion against it happening in the future. One parent, some­times, has been given sole custody where one parent has more financial resources than the other parent and that parent can then use the financial resources to have a better lawyer to make the case in court. There needs to be better equity in the ability of people and parents to be represented in court.

      Sometimes one parent is given custody because the one parent has autism or a neurodevelopmental con­di­tion or mental health con­di­tion. The parent with autism is often less able to present their case for being a parent and can easily be perceived as less able as a parent, when, in fact, the reality is that parents with autism can be extremely good parents.

      We have talked during question period about main­tenance support, and I have put forward my view and the minister has showed some receptivity to that, that there is a need for a greater review–a larger review of the maintenance support approach.

      I men­tion­ed as an example a person having two days a week custody, making sig­ni­fi­cant financial expenditures to enable to have the child two days a week, including a larger apartment where there's room for the child to sleep, expenses for trans­por­tation, for toys, other items for the child–and I'm informed that if this person is paying full maintenance plus all the necessary costs of looking after a child two days a week, that that person sometimes feels like they're paying twice. This could be looked at in terms of maintenance 'payntence' and maybe, in the way of looking at parenting instead of custody, that there may be better reso­lu­tion of this–we will see.

      There are circum­stances in the past where parent A and parent B, as examples, have been in dispute about payments for child care, where one payment is receiving maintenance support and paying for child care. The parent receiving maintenance support may have an income which puts them over the threshold for getting the subsidy for child support. And if that happens, then, in one case in which I was trying to help a parent, they, in fact, were not allowed to get a receipt for their maintenance payments because it would be detrimental to the other parent in that the child care would no longer be subsidized.

      I think there's a lot of other aspects within the system which could and should be reviewed and I hope that this will be an op­por­tun­ity to do that in the near future.

      Thank you.