EVIDENCE

[Recorded by Electronic Apparatus]

Monday, October 21, 1996

.1540

[English]

The Chair: Welcome.

The first item on the agenda is the sixth report of the subcommittee on agenda and procedure. You have a copy of this report. I understand it was distributed about two weeks ago.

Mr. Hanger and Mr. Ramsay both have motions. We also need to deal with the composition of the two subcommittees.

First we have the motions of Mr. Hanger. Mr. Hanger's first motion is that the Standing Committee on Justice and Legal Affairs commission a subcommittee with respect to the Federal Court. Do you want to speak to that, Mr. Hanger?

Mr. Hanger (Calgary Northeast): Yes. Are you going to read the motion, Madam Chair?

The Chair: I think everybody has it. It's your motion.

Mr. Hanger: Madam Chair, I would indeed like to speak to the first motion on my list, which deals with Ted Thompson and Justice Isaac. First, the separation of courts and judges from political branches of government is a fundamental principle of a fair and impartial legal system, and Canadians simply do not buy into the claim by the justice minister that his former third in command, Ted Thompson, acted without knowledge and/or permission of the justice minister.

The report by Charles Dubin, a political friend of the justice minister who was appointed by the justice minister to examine the propriety of the communication between justice officials and the court, does not exonerate the justice minister from taking responsibility for what many have said is a clear case of judicial interference, the precise reason why Justice Jerome stepped down from hearing the cases.

Finally, Madam Chair, only an independent investigation by a subcommittee of this body, using its probative and investigative powers, can determine the true facts of this matter. In other words, this body has powers to set the guidelines, to call witnesses, and to question those witnesses under oath. In that respect, Madam Chairman, Parliament would be considered the highest court of this land. The people put the parliamentarians there for that reason, and for that reason it is the parliamentarians, through this subcommittee that I'm moving to have struck, who would be granted the authority to question the judiciary in this country.

Ms Clancy (Halifax): Question.

The Chair: Is there any other discussion? Mr. Kirkby.

Mr. Kirkby (Prince Albert - Churchill River): Firstly, with respect to this issue, I think it has been very fully canvassed. The justice minister asked the Honourable Charles Dubin to fully investigate the issues surrounding this matter with respect to the justice department itself. It was an impartial, unbiased look at the matter, fully investigating all of the facts, and reaching conclusions based on full disclosure of the facts. The Honourable Charles Dubin is a man of unquestioned integrity and ability. Recommendations made by the Honourable Charles Dubin were followed.

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With respect to the conduct of the chief justice, it was fully looked into by the judicial council. These reports and the facts are made available in full to the public. The minister and the department have acted to ensure that this matter was investigated fully. We have received the report, so there's no need for further investigations.

Thank you, Madam Chair.

The Chair: Is there any other discussion? Mr. Ramsay.

Mr. Ramsay (Crowfoot): In spite of the fact that the Dubin inquiry has looked at the matter and rendered its decision and that the judicial council has investigated the matter and rendered its decision, this has not laid to rest some of the fears and concerns that have been expressed by Madam Justice Barbara Reed. I quote from The Toronto Star, dated October 1, 1996, where she said:

I have been presiding over a hearing all morning, my concentration wavering, wondering what our system will be like when we as judges are expected to make decisions in certain ways because the government wants them made that way, or because the media wages a campaign.

And she goes on to state:

I am shaken by the thought of the vitriolic attacks I must expect to endure, if I make a decision unfavourable to the government - or with which members of the media do not find favor.

That was the content of a letter that was written to the justice minister expressing a concern over this particular judge's judicial independence.

I feel that neither the Dubin inquiry nor the judicial council's findings and recommendations on this particular issue have allayed those fears.

That being the case, I support the motion that has been put forward by my colleague Art Hanger. The concern about there being no government interference or other interference in the judicial independence of our judiciary has not been laid to rest.

The Chair: Thank you.

Mr. Assadourian is next, and then we'll call the question.

Mr. Assadourian (Don Valley North): After hearing both sides of the issue, I am completely satisfied with the explanation given by colleague, the parliamentary secretary to the Minister of Justice. I call for a vote on the motion so we can wrap it up.

The Chair: All right. Those in favour of the motion?

Mr. Ramsay: Can we have a recorded vote, Madam Chair?

Motion negatived [See Minutes of Proceedings]

The Chair: The motion is defeated. The next motion is Mr. Hanger's motion with respect to the -

Mr. Hanger: Would you read the motion, Madam Chair, please?

The Chair: Do you not have a copy of it, Mr. Hanger?

Mr. Hanger: I do.

The Chair: It's your motion; you read it.

Mr. Hanger: Thank you.

The Chair: I'm not reading it.

Mr. Hanger: I would be pleased to do that.

I move that the Standing Committee on Justice and Legal Affairs commission a subcommittee, reporting its finding to Parliament, to investigate the role of Senator Thérèse Lavoie-Roux in the recent matter concerning alleged unemployment insurance fraud. The purpose of the subcommittee investigation would be to use its probative and investigative powers to determine (i) why, given allegations by RCMP investigators that Élisabeth Roux obtained approximately $5,500 in unemployment insurance benefits through deceit, the senator's daughter - Élisabeth Roux - was not charged with unemployment insurance fraud, and (ii) why Senator Lavoie-Roux was not charged for her participation in what has been alleged by RCMP investigators to be a clear case of unemployment insurance fraud.

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The Chair: Is there any discussion?

Mr. Hanger: No one would question that officials in two separate federal organizations, the RCMP and Human Resources Development Canada, concluded Élisabeth Roux should be charged with fraud. The RCMP said, and I quote, that Élisabeth Roux, ``by trickery, lies or other misleading methods, defrauded the government of Canada...of an amount of more than $5,000''.

Thirteen employees of Human Resources Development Canada said:

We have observed far more severe penalties than what the senator's daughter received imposed on those claimants who have committed similar fraud and who are expected to repay these moneys regardless of financial hardship.

The same employees conclude by stating:

This type of incident not only chips away at one's pride to be a Canadian, but as well has left us ashamed to say our employer is the federal government of Canada.

Madam Chairman, I have a copy of this letter, which I would like to table to this committee.

The Chair: Could I point out that you've called me Madam Chairman about five times. I'm not a man. I would like to be called Madam Chair.

Mr. Hanger: My apologies, Madam Chair. I'll certainly address you as Madam Chair from here on.

The Chair: Thank you very much.

Mr. Hanger: It is clear to the RCMP investigators and it is evident to rank-and-file government employees who administer unemployment insurance benefits that Élisabeth Roux should have been charged with fraud. Many suggest her mother, Senator Lavoie-Roux, should also be charged as an accomplice. The shallow excuse offered by Department of Justice lawyers for not prosecuting the matter has infuriated Canadians. Either the rule of law applies to all citizens or it does not. In this case it does not seem to apply.

This committee is duty-bound to provide Canadians with a full and thorough account of why fraud charges against Élisabeth Roux and her mother, Senator Lavoie-Roux, did not proceed. This is the argument for the basis of my second motion.

The Chair: Mr. Telegdi, did you want to respond?

Mr. Telegdi (Waterloo): Madam Chair, I want to make a comment.

Mr. Hanger, if you want to have credibility with these kinds of scurrilous allegations, you should have the courage to state this in the public outside the committee, where you might be held accountable for the comments you make. I wish you had gone to Singapore and stayed there, because I find your comments are bringing justice in this country into disrepute.

What you are suggesting is something almost unthinkable. You're telling us the crown attorney in a case like this would not proceed with charges because of some kind of political interference. I find your scant evidence and your lack of informing the committee with any substantive facts prior to this meeting to be nothing more than headline grabbing. To the extent that you do bring justice into disrepute I find it totally reprehensible.

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Bellehumeur (Berthier - Montcalm): I agree that we should not come to hasty conclusions on this kind of issue, but I do not agree with the last statement. The rules governing unemployment insurance are extremely restrictive and becoming increasingly so, particularly as a result of amendments made to the Unemployment Insurance Act recently.

There is a very important principle that ignorance of the law is no excuse, and that applies even more so in the case of a senator. You do not need a lot of evidence to confirm that unemployment insurance cards were signed by a senator while her daughter was outside Canada. Those are the facts. Everyone has read in newspapers what happened, and even the main parties concerned have not denied the facts. Did they act in good faith or not? That is not the issue we should be examining here. Rather, we should look at what happened.

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Did government officials, the RCMP and everyone else involved do their work properly? Was all relevant information obtained? If so, why were there prosecutions in other cases, but not in this specific case? Was she treated fairly? Those are the questions you must consider. We are not dealing with the case of an average member of the public. Whether we like it or not, politicians, particularly given the reputation that they have at the present time, have to be even more careful in the way they behave.

We are looking at the case of a senator. It could have been a member of the House of Commons, a mayor or anyone else in political life. I think you have to be very careful and look closely at what happened, particularly as current events seem to support the position of those people who are asking for a small inquiry.

Furthermore, according to newspaper headlines, the department is preparing to make claims for cases which are pending and go back three years. I consider that people who took a vacation while receiving unemployment insurance benefits committed a far less serious offense. Those claimants were not required to sign a card for a two-week period, whereas in the other case, which covers a longer period of time, cards were completed and sent to the department every two weeks. I think that amounts to fraud. If there is in fact fraud, we must examine it. I don't want to draw hasty conclusions, but I believe that this arrangement aimed at obtaining money from the department when the person concerned was not, under the Act entitled to it, is more serious.

I don't want to draw conclusions as the members of the Reform Party and the Liberal Party have done. This subject deserves careful thought; it is a serious issue, given the people involved. I think we should examine it and come to a conclusion. It is possible that Ms. Lavoie-Roux has nothing to apologize for. At least the committee will have served to clarify that issue.

If, however, there was political interference, will our system allow that to occur again in the case of such a crucial piece of legislation as the Unemployment Insurance Act, which we are making more and more restrictive? As a result of this legislation, will it be possible, following political interference for people to benefit while others not able to receive such political assistance will not benefit? This is the right time to look at that question. There is a striking case which is topical and with which everyone is familiar, but we don't have all the information about it. I do not have with me a copy of the investigation report conducted by the RCMP or their findings? I would like to obtain that information and find out what really happened in this case?

[English]

The Chair: Thanks, Mr. Bellehumeur. Mr. Kirkby.

Mr. Kirkby: Thank you, Madam Chair.

With respect to this motion, I would like to point out that, as with the previous motion, the matter has been fully and carefully dealt with. For federal prosectors, guidelines for prosecution exist. These guidelines are public and available to one and all. The prosecutors in the case followed these guidelines in making a decision as to whether or not prosecution should result. Further to that, the prosecutor consulted superiors as to whether or not the prosecution should result. The same conclusion - that no prosecution would result - was reached.

This matter was carefully dealt with by the individuals charged with the responsibility of prosecuting offences. This is the procedure that ought to be used and it has been fully dealt with by those who make those decisions.

It is not uncommon in various circumstances for prosecutors to disagree with recommendations brought forward by police services, whether these police services are municipal or RCMP across the country. It is something that happens on a day-by-day basis.

.1600

I would like to add that this is a very specific case. While the committee certainly has the ability to look at any specific case, I think we have to be careful about reviewing specific cases. There are many thousands of cases across the country where decisions are reached. To get involved in the particulars of potentially each and every case that might arise is certainly overloading this committee. It already has very significant legislative work to do.

If we look at the legislative agenda before this committee, the time required to fully deal with all the legislation in an effective and full fashion is certainly going to take up our time for the foreseeable future. In general this matter has already been dealt with. Secondly, we have to be very careful about time.

The Chair: Do you want a recorded vote, Mr. Ramsay?

Mr. Ramsay: I just want to speak to it.

The Chair: Go ahead.

Mr. Ramsay: Thank you, Madam Chair.

This issue came forward while the House was recessed. Madam Chair, I received a copy of a letter to you from Mrs. Venne, who was the chief justice critic for the Bloc, expressing her concern and making almost the identical request contained within this motion. I also received your letter to me indicating the matter would be looked at and we could expect a teleconference call, I think it was, near the end of July or August. I waited in vain for this call. So there is not just concern from this party but also from Mrs. Venne. This concern is expressed in her letter and is on record with the committee. I would hope your letter is still there too, Madam Chair. I'm sure it is.

The issue here is not whether this committee has time. This is not the issue. The issue is the grounds for the RCMP and the other investigators recommending charges be laid. Were the grounds substantial? What were the grounds for the original crown prosecutor to reject those recommendations? Was this rejection based on fact and was it sound? If this was the case, then why did the crown attorney not rely on his own decision? Why did he have it referred to his superiors if there was not some concern in this particular area?

Obviously there is concern on this side of the committee. I also heard it in my riding when this thing came out. There is concern. If we're going to say we should not look at this because we don't have time, I think that is wrong. I rebuke my honourable colleague from across the way and reject his comments on this issue. I don't think we should hide our eyes from it.

I'm asking for a recorded vote, Madam Chair. We will see in the vote who is prepared to stand and examine this issue to ensure justice has been done and who is not prepared to do so.

This is all I have to say, Madam Chair. Thank you.

The Chair: So you want a recorded vote?

Mr. Ramsay: Please.

Motion negatived: nays 7; yeas 4

The Chair: Next is a motion by Mr. Ramsay. Mr. Ramsay, do you want to make your motion and speak to it?

Mr. Ramsay: Yes, Madam Chair.

.1605

As members of the committee know, we asked the chair to rule on this question. I might indicate that at the time Bill C-234 died in this committee, as it did, there was some concern about not reporting it back to the House. I listened to the comments of members, they're on record, and the comments indicated clearly that the committee had the authority not to return it to the House. It seems it goes a bit further than that. If the committee fails to return this bill to the House, then a motion can be made in the House, to be voted on by the members, as to whether or not the bill is to be sent back by this committee.

So I would move that in the interest of this particular bill, which deals with a very important item, it be returned to the House for consideration by the full House.

The Chair: Any discussion? Ms Torsney.

Ms Torsney (Burlington): First I want to clarify that it was the Speaker who was asked for a ruling on this, not the chair, and secondly that the Speaker in fact upheld our chair's ruling on this. In fact, if you look at what the bill is at this point, since we defeated each and every clause of the bill, what we would be reporting to the House would be just that, Bill C-234. There is nothing after that. There is the number of a bill and nothing else, because all of it was defeated in committee. Is that really what the member opposite wants, a number reported to the House? You couldn't vote on any contents, since all the content, by the work done by this committee, was eliminated. What does he really want reported to the House?

Mr. Ramsay: I want the bill reported back to the House.

Ms Torsney: There is no bill.

The Chair: Do you want a recorded vote, Mr. Ramsay?

Mr. Ramsay: Yes, please.

Motion negatived: nays 8; yeas 3

The Chair: We're still on our report of the subcommittee. Paragraph 2 on that report is that the committee proceed with the following bills in the following order: Bill C-41, for which we have witnesses here today; Bill C-17; Bill C-53; and then Bill C-27. That was the recommendation of the steering committee. Is there any objection to that order of bills?

Some hon. members: No.

The Chair: In paragraph 3, on Bill C-41, which we again are beginning today, the steering committee is recommending a list of witnesses. What happened was that we had a very long list of witnesses, which we were grateful to have some advice on. I think this narrows it down to the witnesses we needed to have. If there are no objections to that, I'll move on to Bill C-17. Bill C-17 is the omnibus bill, paragraph 4.

Mr. Bellehumeur, we apparently have a new copy of that bill coming, with the annotations you requested. We have invited the Ontario Criminal Code Review Board, or we will, subject to your approval, the Quebec bar association, and the Canadian Bar Association. They've all indicated an interest and they want to appear on it.

If there's no objection to that, I'll move on to paragraph 5, which is on Bill C-27, the bill on child prostitution, child sex tourism, criminal harassment, and female genital mutilation.

Madam Gagnon, I know you may wish to speak to this. I just wanted to point out that we will be in Vancouver next week on the Young Offenders Act. Some very specific witnesses from Vancouver want to appear, and we want to take that time to hear from them, primarily because we're trying to save the money of their travelling and that sort of thing. They are the only witnesses who appear on paragraph 5.

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We've asked, because we have such an extensive list on this one, that the clerk prepare a list of witnesses in consultation with all of us, but also in consultation with Madam Gagnon because she has her private member's bill before us and that will come back to the committee for approval. It will be ready tomorrow, so we can take a look at it. If there's a problem with it we can deal with it some time during this week.

Is there any disagreement?

Mr. Kirkby: For the clause-by-clause consideration of Bill C-41, when would it be appropriate to make a motion with respect to that issue?

The Chair: Do you have a motion?

Mr. Kirkby: Yes, I have a motion.

The Chair: You can make it at the end. We will just finish the report.

On Bill C-205, paragraph 6 of the steering committee's report, this is Mr. Wappel's private member's bill and is in keeping with our procedure to bring private members' business forward in an expeditious fashion. So I'm asking that the committee agree that we have Mr. Wappel here to introduce his bill.

If there's no disagreement to any of those, I'll consider that report adopted. Mr. Kirkby, you had a motion.

Mr. Kirkby: I move that the committee proceed with consideration of Bill C-41 on Thursday, October 24, 1996, at 7:30 p.m.

The Chair: That's in keeping with the schedule of witnesses we've set and will allow us to do clause-by-clause on Thursday.

I'm not hearing any objection to that.

Mrs. Jennings (Mission - Coquitlam): Excuse me, Madam Chair, could you just explain? I didn't quite follow what we're going to do.

The Chair: Mr. Kirkby is proposing that we do our clause-by-clause consideration of Bill C-41 on Thursday evening. We don't have the luxury on this committee of a lot of time. We have too many government and private members' bills in front of us.

So we will have clause-by-clause Thursday night. There's no objection to that. That's it.

[Translation]

Mr. Bellehumeur: That is the evening of Thursday October 24th.

[English]

The Chair: Thursday.

[Translation]

Mr. Bellehumeur: We could perhaps sit on Wednesday. Do we have witnesses? When we sit on Thursday afternoons, there are usually new members coming to attend. They haven't followed the debate, they don't know what we are discussing, and they vote yes or no according to the order given to them, if we can ensure that everyone who has followed the committee's discussions will be here for Thursday evening, there is no problem. But if there are new people, alternates or members who are not aware of what they will be voting about, I would prefer to postpone the vote until next Monday, in the morning if necessary. The members present must know what they are voting on.

On the basis of my experience over the past three years, I would say that votes held on Thursdays are not taken very seriously, the government gets what it wants adopted. I would like members to be aware of the issue on which they are going to vote.

I am against the vote being held on Thursday. I would prefer it be held the following week, on Monday.

[English]

Motion agreed to

The Chair: We'll go to clause-by-clause Thursday night.

[Translation]

Mr. Bellehumeur: Fifty percent of the members will not be present. Also, their convention will be held the next day. Three quarters will have left.

[English]

The Chair: The next thing we have to deal with is the membership of our subcommittees. We approved two subcommittees. The membership proposed by the various whips of the subcommittee on national security - could I have order please - would be Mr. Lee, Mr. Rideout, Mr. Discepola and Mr. Gallaway for the government; Mr. Langlois for the Bloc Québécois; and Mr. Hanger for the Reform Party. Could I have a motion to that effect?

Ms Torsney: I so move.

Motion agreed to

The Chair: With respect to the subcommittee on Bill C-25, which is the subcommittee on draft regulations, it's proposed by the various party whips that the members include Mr. MacLellan, Mr. Kirkby, Ms Whelan and Mr. Maloney for the government; Mr. Lebel for the Bloc; and Mr. Ted White for the Reform Party. Is there any discussion on that?

.1615

Motion agreed to

The Chair: On Bill C-41, I'd like to invite the minister and his officials to take the table please.

Let me just take this moment, colleagues, to tell you that there are visitors here in the room from Windsor.

Some hon. members: Hear, hear.

The Chair: If they will stand up, we'll recognize them.

Ms Clancy: I presume they're from Windsor, Nova Scotia, Madam Chair.

The Chair: They're from Windsor, Ontario.

Ms Clancy: Oh well, they're welcome anyway.

The Chair: Welcome, Minister Rock.

Hon. Allan Rock (Minister of Justice and Attorney General of Canada): Good afternoon, Madam Chair. It's a pleasure to be back before the committee.

The Chair: We're happy to hear from you.

Mr. Rock: Madam Chair, I'm happy to appear before the committee in relation to Bill C-41, which, as you know, is intended to change the rules with respect to the calculation and the awarding of amounts of child support on divorce, as well as to provide more effective means of enforcing such orders. I shall also speak briefly about the manner in which the federal government intends to use the revenue that will derive from making the change.

I really should start with the proposition that the nature of the Canadian family is changing, which is quite evident from statistics. There are more single-parent families today than ever. When parents divide there are two households to support and fewer resources to go around. Too often, it's the children who suffer. Over the last 20 years, families headed by an individual parent have doubled in number and there are now almost one million such families in Canada.

In 1990, 61% of single-parent families headed by women lived below the poverty line, and that compares to just 10% of two-parent families with children. The steps we're proposing in Bill C-41, in relation to Canada's child support system, will not end child poverty, but we believe they're going to help.

[Translation]

The strategy we have adopted has four interdependent elements. First, we are introducing child support guidelines to establish appropriate and consistent support levels, and to reduce the degree of conflict between separating parents.

Second, we are changing the way child support payments are taxed to make things fairer and simpler.

Third, we are enhancing federal and provincial enforcement measures targeting the wilful defaulters.

[English]

Last, we propose to help working-poor families by doubling the level of the working income supplement of the federal child tax benefit over the next two years.

I would like to take a few moments to develop each of those pillars in somewhat greater detail.

[Translation]

At the heart of this approach are the guidelines and standard amounts, that will be used across Canada by the courts, by lawyers and by parents, to establish appropriate levels of support payments for children.

At present, courts determine child support levels on a case by case basis. The issue prolongs litigation, and adds to the anguish of the parents. Not all judges take the same approach, or have the same philosophy. As a result, levels vary greatly, not just across Canada, but even from family to family.

[English]

The amount that is available to pay for a child's needs should not depend on which province you live in, on which courtroom your case is assigned to, or on which party has the more persuasive lawyer. The idea behind guidelines is that they will establish, without the need for a trial, the levels of child support to be paid according to the income of the person paying.

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The amounts are calculated by a formula that takes into account average expenditures on children at various income levels. As income levels increase or decrease, so will the parent's contributions to the needs of the children, just as they would if a family were living together. The guidelines are standard, but they're also flexible, because no two families are exactly alike.

Exceptional expenses for children can be added, such as uninsured medical expenses and child care costs for pre-schoolers. A court can also change the amounts if undue hardship can be established.

[Translation]

This approach has tremendous strengths. It's simple and it's standard. It ensures that support-paying parents with the same level of income pay the same amount of child support.

[English]

It's also easy to use and the end result is easy to understand. There will be less reason for parents to argue about what is and what is not an appropriate level of support. That means less conflict, lower legal bills, reduced legal aid costs, and diminished court expense. The result is that a lot of money that is now being spent on lawyers and courts can be kept in the hands of parents for the benefit of children.

The second pillar of the strategy is a change in the way child support payments are taxed. Currently child support payments are tax-deductible for the payer and taxable for the recipient. That rule was put in place 54 years ago. After carefully considering all the circumstances, we've concluded that approach is unfair and outdated.

To begin with, in the present age it's understood that fathers do not need an incentive or a reward to encourage them to pay support for their children and that a general subsidy by all taxpayers toward families that are separated or divorced is not appropriate. In any event, the subsidy works best where there's a large income spread between the mother and the father, which is less and less common. Shifting income patterns have brought their earnings close together. Where the mother earns the same as or more than the support-paying father, the present system actually penalizes her. That's the case in over one-third of all separated couples, and that proportion is growing.

Even when the incomes are different, the subsidy works only if the court takes care in each case to make complex calculations to gross up the amount awarded to take tax into account. This does not happen in every case. The result is that the tax liability eats into the support award and the losers are the children.

Furthermore, custodial parents do not want to have to administer the tax system. They're the ones who now have to calculate the amount due and pay it on April 30 of each year, whether or not the support payments arrive late during the year.

More fundamentally, child support is not income for the parent, it's money intended for the children, and therefore it should not be taxed in the hands of the recipient.

Let me speak briefly about the element of enforcement, which is the third aspect of these proposals.

[Translation]

Of course, a fair child support system is more than just setting levels evenly and taxing them fairly. It's also a matter of ensuring that the payments are made - in full and on time. Enforcement is crucial.

[English]

Let me make it clear that the great many parents who make their payments on time and in full deserve our continued respect. They take their responsibility seriously and they follow through. There are some who cannot pay because of misfortune. They've lost a job or they've fallen ill and they must ask the court to relieve them of responsibilities they cannot meet. But there are also too many who are in wilful default. As of September a year ago, almost half the cases registered with the Ontario Family Support Plan involved child-support orders where absolutely no money had been paid. Of the remaining half, only one in four was paid in full.

Wilful and chronic default by people who can pay but who refuse to pay child support is simply unacceptable in this country. These are people who just turn their backs on their sons and daughters. They're also walking away from their responsibility as citizens. Because they cheat their children, all other Canadians are obligated to take up the slack.

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The prime responsibility for seeing to the execution of court-ordered child support rests with the provinces, and a lot is already being done by provincial agencies. But the Canadian government also has a role to play, a role of leadership in coordinating, encouraging and complementing provincial efforts.

The measures we are proposing support and enhance the strategies of provincial and territorial governments. We want to work with them in common cause. There's a long list of measures we will now take. Let me mention just a few of them.

Federal legislation will authorize us to suspend federal licences and certificates, such as passports, in cases of persistent default.

[Translation]

We will allow access by the provinces to the data base of Revenue Canada, to help trace persistent defaulters. We will also invest money and effort in upgrading computer systems to share information among provinces and coordinate their efforts.

[English]

The fourth aspect of the child support strategy involves a measure that's intended to help working poor families, whether they're separated or still living together. The Canadian government contributes to basic income security for children through the child tax benefit. One component of that benefit is the working income supplement that provides a non-taxable payment to supplement the employment earnings of families with net incomes below $25,900. At present, the maximum amount payable under the working income supplement is $500 per family each year. Over the next two years the Canadian government will double that supplement to $1,000 per family.

We'll use the revenue we derive from ending the deduction on child support payments to fund the increase in that supplement. The result is that over the next five years we will put over $1 billion of additional revenue into the hands of about 700,000 low-income families in the labour force. About one-third of them will be lone-parent families.

[Translation]

The advantages of this strategy are obvious. The increased Working Income Supplement is tax-free and will go right to the bottom line for families who need dollars for their children.

[English]

It's distributed fairly, benefiting children of separated families and families that remain intact. It's targeted to those most in need.

Let me conclude, Madam Chair, by saying that what will make these reforms work, I believe, is that they're going to work together. Guidelines will ensure consistent awards at appropriate levels with diminished conflict and expense. A tax rule that reflects the social conditions and values of 1942 will be changed to conform with current needs. Effective tools will enhance enforcement so that the good people who make their payments will know that those in wilful default will be pursued, and every dollar of increased revenue Ottawa derives from the tax changes will be plowed directly back into the system for the benefit of children of low-income families.

With that introduction, I commend the bill to the committee. I'd be happy to respond to any questions the committee might have.

The Chair: Thank you.

Mr. Bellehumeur, ten minutes.

[Translation]

Mr. Bellehumeur: Mr. Minister, you will not be surprised to hear me say that all members of the Bloc québécois consider that family-related issues, such as divorce, separation support payments and custody of children, should be under provincial jurisdiction. However, while waiting until the situation is changed for the better, I think that generally speaking the amendments you are proposing are good.

I would like to take this opportunity while you are here to address a technical point concerning sub-clause 1(4) of the bill, which amends section 2 of the Act. The proposed sub-clause 2(5) reads as follows:

(5) The Governor in Council may, by order, designate a province for the purposes of the definition ``applicable guidelines'' in sub-section (1) if the laws of the province establish comprehensive guidelines for the determination of child support that deals with the matters referred to in section 26.1.

In your capacity as a minister, can you explain to us how you see the proposed sub-clause 2(5) working?

Mr. Rock: Our objective is to develop a consistent national system. One of the shortcomings of the current system is its unpredictability. Our overall objective is to establish a system to determine child support payments which would be predictable, consistent and national.

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We recognize that each province might wish to develop its own support level and guidelines, but it is very important that there be some consistency so as to achieve the objective of a national system.

In answer to your question, I would very much like to know whether the amounts, as well as the guidelines, proposed by a province are generally comparable with the amounts provided for in federal guidelines. If there is a major disparity, that could cause a problem when families move to a different part of the country. That is why it is important to establish some consistency.

We know that Quebec wants to have its own guideline and we are close to reaching an agreement with the Quebec government on that issue. They have established acceptable amounts in their guidelines. In fact the amounts are very close to those which we ourselves established.

Mr. Bellehumeur: I would like to refer once again to clause 1(4) of the bill. Please correct me if I am mistaken. The power of the Governor in Council is a regulatory power, therefore legislative. Is that correct?

Mr. Rock: Generally, yes.

Mr. Bellehumeur: Consequently, as in the case of a judicial or quasi-judicial power, the term ``may'', in a provision of the type proposed in sub-clause 1(4), indicates a power attached to the body concerned.

In the case before us, sub-clause 1(4) states that ``The Governor in Council may, by order,'' act if the provinces meet certain criteria. If the provinces meet those criteria, should the term ``may'' not be replaced by ``shall'', so as to leave no discretion to the Governor in Council, and so as to give the provinces control over the criteria or grids since they are far closer to the population than is the federal government?

Mr. Rock: The creation of guidelines for child support payments is a new subject for the government of Canada. This is the first time we have addressed it. It is difficult to determine before hand all the questions which will arise in the future. We have therefore used the terminology generally found in legislative provisions so as to leave the government some flexibility.

[English]

I'm not sure I'd want to say now that we can exhaustively list all of the factors and then impose an inflexible obligation on the Governor in Council. As the hon. member knows, sometimes the word ``may'' is in any event read as ``shall'' by the courts. This may be such a situation.

I can say that certainly the spirit and intent is to accommodate provinces who wish to develop their own guidelines for their own purposes while at the same time preserving a national uniformity, which is in the public interest, in my respectful view. I don't think I'd like to replace ``may'' with ``shall'' and tie the hands of the government, because in this new area where our experience is very limited we would rather leave the question open, since there could be factors arising that we haven't yet predicted. If experience accumulates over the next several years, demonstrating that we can identify and articulate in the legislation all the possible factors, then perhaps we can look at making it mandatory at that point.

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[Translation]

Mr. Bellehumeur: Mr. Minister, what you said does not reassure me, particularly since in the proposed paragraph 26.1(1) a series of guidelines is listed. The French text contains the term ``notamment'', and the English ``without limiting the generality of the foregoing'', which means that other things could possibly be added. ``Notamment'' may perhaps mean that the present liberal government could interpret that by order in one way, whereas another government could interpret it quite differently, and by order amend those particular guidelines. Why would you not want to give the provinces, which so desire, complete jurisdiction over these much-discussed guidelines?

Take the case of Quebec. Quebec has clearly stated its intention to move in that direction and has already drafted a bill. Looking at it, we see that there are major differences between the criteria of the federal government and those of the provincial government. However, I am very pleased to hear you say that negotiations are going well.

I would also like to say that I do not feel very reassured when I read the words ``may'', ``the Governor in Council may'' and ``without limiting the generality of the foregoing'' and the proposed paragraph 26.1(1). I believe in your sincerity, Mr. Minister, and I am sure that everything will work out all right, but an act is not drafted only for one minister; it is written for a community and with the future of that community in mind. Personally, I would prefer not to take any risks and give full jurisdiction to the provinces. I would like to replace ``may'' by ``shall'', so that the Governor in Council would not have any choice and replaced ``without limiting the generality of the foregoing'' by a more specific term.

Mr. Rock: But we used the expression ``without limiting the generality of the foregoing'' for those very reasons. We cannot say right now what will happen in the future, since this is the first time we have adopted such an approach, that is the creation of guidelines. We used the expression ``without limiting the generality of the foregoing'' because it is quite possible that other considerations may have to be taken into account. And the Governor General in Council also has the right to recognize the guidelines developed by the provinces.

Mr. Bellehumeur, given that we are given something new, I think it is preferable to give some flexibility to the government of Canada and, for the moment, not to bind ourselves as regards each of the cases which could possibly be presented.

[English]

I think it's better to have that flexibility. I think it's better to try this approach for a few years. If we can work toward a better system, where we have a better understanding of all the factors, then we can make that change at some future time.

The Chair: We'll come back to you, Mr. Bellehumeur.

Mrs. Jennings: Mr. Minister, Bill C-41 deals with support payment violations and penalties thereof. I'm not a lawyer; I probably come to the table more as a mother and a grandmother. I foresee in this piece of legislation that while we try to eradicate some problems we might make it worse and actually create greater problems.

If a divorcing couple or a divorced couple don't sit down through mediation and decide on a realistic payment, one they can meet and can actually pay, one that is not going to be a case of good intentions the first month and then the following few months not meet the criteria that are needed, if they don't sit down and do this and if they don't do it according to the needs of the child and the ability to pay, I foresee some serious problems in this. Custodial parents need those payments. Mothers - and I say mothers because in most cases the custodial parent is a mother - rely on those payments. In many cases they need them just for bare sustenance, I would suggest. It goes without saying that children too need those payments. I suppose they just give them the bare necessities of life, in some cases.

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At the same time, we must recognize that for the non-custodial parent, the one who is doing the support payment, it is a debt. It is a debt that has to be recognized. It's a bill owing, in other words.

But while we are saying all that, we have to make sure that whatever agreement is decided on is going to be paid. I would suggest to you that's one of the reasons why we have so many in arrears in this country. Somewhere in this country we went wrong and those payments decided on were not realistic, for whatever reasons. We all know we're facing high unemployment in the country. We know there are a lot of reasons why somebody might be out of a job and not able to meet their commitments.

Clause 2 of the bill amends section 15 of the Divorce Act. It recognizes that a judge in both child and spousal award situations may look at agreements made between the parties, the ability to pay, and matters that would be of benefit to the children. But first the judge is to take into consideration the guidelines, the grid established under the bill.

My first major concerns are right there. If they look first at the grid, that's going to be the guideline the judge uses. I would like your comments on this. Would it not be better to have compulsory mediation? I know we have mediation now. I also have it on good authority mediation is seldom used in a logistic sense. Would it not be better to have these parents sit down and work out a realistic agreement, one they'll both agree to, which would probably enable the father, who is usually the non-custodial parent, to keep in touch with the children or child? I think it would better for the children in every way. Would that not be more realistic than looking at a grid system?

I'm asking you two things in this first question. Do you believe child support should be awarded on the basis of the best interests of the child and ability to pay; and if you do not, why not? Second, do you see where we could reverse that and take a look at a settlement agreement first rather than the grid first, which I'm sure the judge would select nine times out of ten if the opportunity were there?

Mr. Rock: I practised law for twenty years. In the first ten years of my practice the majority of my work was matrimonial: family law, acting for one spouse or another in cases where there was litigation involving support for the spouse or the children, or custody or access. I couldn't agree more that in the best of all possible worlds the interests of all are served when people can come to an agreement that is in the best interests of the children. But I'm afraid my experience is that it can't be relied on, because human nature being what it is, feelings are strong, emotions are engaged, and it isn't always the best interests of the child that govern. It isn't always possible to achieve a mediated or negotiated agreement.

So what we've had over the last couple of decades in this country is litigation over family disputes. I can give personal testimony that it's often ruinously expensive, it's highly imperfect, it prolongs the anguish of the parties, and it doesn't always work out to the best interests of the children - not at all.

One of the very purposes of this approach, of creating this grid, is to take one of the issues off the table, often a very divisive and contentious issue. It will put one of the issues beyond dispute. It is to make it unnecessary, indeed impossible, for the parties to fight about it, and we hope to that extent to diminish the expense and anguish and duration of these disputes.

I say we can achieve the objectives Ms Jennings has identified more likely through creating a presumptive guideline than we can by leaving it to the parties and their mediators, because it isn't going to work. It will in some cases, but not in an awful lot of cases.

So yes, I believe in determining child support amounts that are in the best interests of the child, and I believe the amounts required to be paid should reflect the means of the parties. I also believe these guidelines do just that, and they do it in a fashion that is going to reduce the legal costs, diminish the number of issues parties have to quarrel over, and in the final analysis make it better for the children.

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Mrs. Jennings: Mr. Minister, in spite of what you say, and based on some of the items I brought out, I'd like to draw your attention to an article on a program that is now in force in Alberta. A new Alberta divorce program is forcing people in the Edmonton area to take a six-hour course before they can start court action over child access and custody. The reason is that it is intended to help children and save the courts time and money. The focus is on minimizing the impact of divorce on children. We have to keep in mind here that we're talking about children. I, at least, feel children should be the topic, not adults and avoiding future problems with the law. If they're damaged psychologically and emotionally, there's a very good chance they're going to end up in our criminal justice system.

What I am saying is that I don't think we can separate this into little cubbyholes and say that this is for the support parent, that this is the one for the custodial parent, and this is the child, and that we may see an impact on the criminal justice system somewhere down the road because of someone who didn't follow through. I think we have to look at this in the whole scene. And this program that I have mentioned, which has already started and seems to be working quite effectively, has recognized that it is essential that a mediation process be followed prior to any grid system being followed.

The grid system, again, is not dealing with reality. The grid system is based on percentages and numbers. I've looked at it. It's not based on this gentleman here who is in this position today, or at someone else who is in another position. It has to be an agreement between the two parties involved. They're the ones who are going to have to have a workable solution.

In light of this fact, could you comment further on that?

Mr. Rock: Don't misunderstand me. I'm all in favour of people settling their differences if they can, and I'm in favour of courts sensitizing the parties to the cost - emotional and otherwise - on children if they don't settle. I'm delighted to know of the success of that Edmonton pilot project; I know of a dozen others around the country that are doing the same thing, and some of them are working quite well.

At the same time, if the parties are not able to settle, we have to have a method for dealing with the issue. What this guideline will do is give us a method for dealing with the issue, and that will minimize court time, legal costs and the intensity of the fight. It takes an issue out of play. It says that if you can't settle what child support should be, here is the amount you will pay. I think that's a very helpful dynamic.

Furthermore, even where parties are settling, Madam Chair, I think these guidelines are also very important. I think the majority of support agreements reached by parties are reached over the kitchen table in the farmhouse or in the matrimonial home, where they can agree and can often get the amounts for themselves. But too often those amounts are insufficient because the parties are out of touch with what's required or what's appropriate.

My friend from Crowfoot knows how much I am in touch with the rural vote and the rural farmhouse position. He has commented already, I know, on my grasp of those issues.

Another advantage of these guidelines, Madam Chair, is that they will tell all the world what Parliament thinks are appropriate amounts, depending on income levels. When they are sitting at the farmhouse kitchen table or they are working out an agreement for themselves directly with the other spouse, they can look at what's in this guideline, they can see what the person would be required to pay if the matter went to court, and they can understand their rights and entitlements when it comes to negotiating the payments for children.

The Chair: Thank you, Mrs. Jennings. Your time is up.

Mrs. Jennings: Are the 10 minutes up?

The Chair: Yes, 10 minutes and 23 seconds, exactly.

Mr. Telegdi.

Mr. Telegdi: Thank you very much, Madam Chair.

Certainly, Minister, the whole issue of mediation and coming to a settlement is probably the most effective way to go. I'm cognizant of the tables here. In your presentation you mentioned that in one-third of the cases the custodial parent - who was the mother - made as much or more money than the spouse, and the tax system penalizes her. Do you have a figure on what this estranged family will effectively lose from their fiscal envelope because of the changes to have it taxed at the source, where the non-custodial parent pays?

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Mr. Rock: Yes. The figure we have is in the aggregate, and it estimates the additional revenues the federal government will collect as a result of ending the deduction. Is that what you mean?

Mr. Telegdi: Yes.

Mr. Rock: Yes, we do. I think it's $200 million in the first year and it rises over time from there to a source of income that.... I can't remember the specific numbers, but I can certainly get them for you, Mr. Telegdi.

Mr. Telegdi: You're saying it rises. If the trend is that the custodial parents, as you're mentioning, are making the same or more, then why would the $200 million rise? Wouldn't it diminish?

Mr. Rock: Because more and more orders will be affected by the no-deduction regime. New orders will be made under the new system. Old orders will be made where the parties won't necessarily change the ground rules; the deduction will continue. The changes are not retroactive. But as more and more orders are made under the new rules, more and more orders will be made where there's no deduction, so people will be paying tax on that.

Mr. Telegdi: So initially this estranged family group, if you look at that, will have $200 million less available to them to split up.

Mr. Rock: I think you have to look at who has the $200 million advantage now. One of the reasons why we think as a policy matter the deduction should not be continued is that predominantly it assists the high-income non-custodial parent. The person who gets the best advantage of the present system is the non-custodial parent who is in a high income bracket and the custodial parent is in a lower bracket. There's a big gap between them. The payer gets to deduct the amount paid. That's the person who gets the principal benefit of the present system. So when you say the family's going to lose this, I'm not quite sure who you're referring to.

Mr. Telegdi: When the courts look at income as they're allocating payments, it seems to me the higher the income, the greater your payments. But the income obviously gets reduced when you're paying tax on that and you have to pay the two-thirds recipient custodial parent who happens to make less of an income than the supporting payer.

Mr. Rock: I'm not sure I know what I'm being asked, but -

Mr. Telegdi: Let me put it another way, Minister. I guess my concern is that there is going to be less money in the package that can be divided up, by $200 million.

Mr. Rock: The value of the deduction now enjoyed by paying non-custodial parents is going to be about $200 million in the first year, but that money is going to be redirected to children of lower-income families, every nickel of it, and then some.

Mr. Telegdi: It's a very important point, which we have to keep making.

Mr. Rock: It's not as though we're taking the money and buying submarines with it.

Mr. Telegdi: I certainly hope not.

Ms Clancy: If only.

Mr. Rock: Yes, of course; I forget about the Halifax sensitivity.

What we're doing is we're keeping it in the system for children of low-income families. That's an essential element of this package.

The Chair: Mr. Assadourian.

Mr. Assadourian: My question is very simple, Mr. Minister. I'm sure you have an answer for it, but I couldn't find it in this presentation.

When you go over this table here, Mr. Minister, the last line says in excess of $150,000 of income. If you take three provinces, Ontario, P.E.I., and the Northwest Territories, the Northwest Territories has the highest payment. Why is that? Is that because of income? I know, as you know, in Toronto a two-bedroom apartment is $1,200. I'm sure if you go to Yellowknife you won't pay as much as $1,200 for an apartment to live in.

Ms Clancy: Oh yes you would.

Mr. Assadourian: Or P.E.I. You don't pay $1,200 to live in a two-bedroom apartment. How come in Ontario it's $3,268 and in P.E.I. it's $3,795? Either P.E.I. is too high or Ontario is too low. That's what I'm trying to get to. Do you have a formula that was used?

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Mr. Rock: We took the average proportion of income spent on children and applied that to the income levels. The only adjustment between the provinces was to take into account provincial tax rates. So what you're looking at is differentials that derive from tax rates between one province or territory and another.

Mr. Assadourian: Let's go over this again. Ontario is paying less tax than P.E.I. Is that -

Mr. Rock: May I ask what income level you're looking at?

Mr. Assadourian: The last line, $150,000 and above, the percentage line on the bottom.

Mr. Rock: You're looking at -

Mr. Assadourian: Say Ontario, page 21, the last line, percentage income in excess of $150,000, the last column, six or more children. It says 2.18%.

Mr. Rock: Yes.

Mr. Assadourian: But P.E.I. is 2.26% and Northwest Territories 2.46%, which is almost....

The Chair: It is more expensive to live there.

Mr. Rock: For six or more children.

Mr. Assadourian: Six or more, yes.

The Chair: The taxes are higher.

Mr. Rock: It's intended to reflect the different tax rates in the provinces or territories.

Mr. Assadourian: Okay. Thank you.

The Chair: Ms Clancy.

Mr. Rock: The proportion of income was used across the country in all provinces and territories. Now, the officials may -

The Chair: They're nodding.

Ms Clancy, there's about two and a half minutes left.

Ms Clancy: Thank you. I have basically a comment and would ask for your comment, Mr. Minister. I love this grid. I wish I'd had something like it in the ten years that I practised that particularly mind-numbing area of law known as family law. Given your comments in response to Mrs. Jennings' comments about mediation, I'd just like to ask for your comments.

I remember one case in particular that I dealt with where I and the lawyer on the other side were each the fourth lawyer used by the parties. The case had been going on for upwards of five years in preparation for going to court. There were 38 computerized pages of chattels that could not be agreed upon. The questions of custody, support, maintenance, etc., were absolutely, after four years, no closer to resolution in spite of the fact that eight lawyers had probably been making a lot of money off this case for a very long time. Eventually, in a weak moment, my colleague on the other side and I got the two parties to agree to an enforced maintenance. I don't know how we ever did it. I don't recall using a gun, God forbid. It couldn't have been me. But I do know that we did get them to sign, and we did finally get a mediation order.

In your experience, would you think that particular situation might be slightly out of the ordinary but not hugely out of the ordinary in the circumstances?

Mr. Rock: It's too common, and even after these changes we'll still find cases like that. This only resolves child support, not spousal support, not times of access. It doesn't deal with enforcement of access. It doesn't deal with division of property. So there are still a lot of things for parties to fight over if they want to, and it's tragic for them and for the children. But as I said in response to Mrs. Jennings, at least this takes one issue off the table, and it makes it that much easier. It also restores some semblance of uniformity.

I hope, Madam Chair, you're going to hear from members of the bar who helped us develop these proposals. The Canadian Bar Association was very active on the family law committee.

I should say, by the way, and I meant to do so earlier - it was in my notes, and I guess I overlooked it - it took six years to develop this package. Yes, six years. It started in 1990. I remember just after March, when it was announced, I went to Vancouver to speak with some lawyers and some parents, and one of the people who was at the meeting remembered that it was six years to the day since the inaugural meeting of the family law committee looking at child support.

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In those six years the committee, which was made up of provincial officials, federal officials, and family law practitioners from the bar, looked at a wide variety of alternatives. They looked at different amounts for guidelines and enforcement mechanisms, and produced an interim report in 1992, I think it was, that was the subject of broad comment, some of it quite critical.

They went back to the drawing table and came out in January 1995 with a report, which again was the subject of comment, mostly on the amounts. As a result of those comments, they increased all the guideline amounts below $40,000 in income by 15%.

So these have been tested. They have been looked at from every conceivable angle. They've been the subject of professional and governmental discussion literally for years. They come with the hope that by at least taking one issue away from the parties, resolution without litigation will be that much more likely. It's not by any means assured, but it's that much more likely.

Ms Clancy: I think it's great stuff.

The Chair: Mrs. Gagnon, five minutes.

[Translation]

Mrs. Gagnon (Québec): You referred earlier to the guidelines proposed by the federal government and those proposed by the provinces. I will speak about the province of Quebec because, as we know, their guidelines are very different. You tell us that you could accept provincial guidelines if they were consistent with those of the federal government. However, when we look particularly at the guidelines of the province of Quebec, we see that they are different in many respects. But you say that the negotiations are going well and that you think you will be able to reach an agreement with Quebec and accept its guidelines without any problem.

I would like to take as an example the guidelines concerning Quebec's programs on income security and taxation. You say that you don't want harmonization with those programs. How do you think you will be able to accept guidelines such as Quebec's, given such enormous differences in the way they are implemented?

We might also consider the question of place of residence. In Quebec, the place of residence is that of the child whereas for the federal government, it is that of the payer. The two approaches are not at all consistent with each other. Personally, I do not see how you can agree to a province having guidelines which conflict with your standards, particularly with such significant disparities.

Mr. Rock: We are discussing all these issues with officials from the Quebec government. There are still some questions we have to look at, including those which you mentioned, and we are sure that we will be able to reach an agreement and approve the guidelines proposed by the government of Quebec.

I recently received the report prepared by the Barreau of the Province of Quebec on a comparative study of provincial and federal guidelines. I noted that the amounts were very similar. It is true that there are more significant differences at the higher levels, but in most cases the amounts are very similar.

As concerns the place of residence of the parents, I think that the officials are discussing this question at the present time. We hope we will be able to develop a common approach.

One of the people accompanying me was involved in the discussions and, if you wish, you can obtain more detailed answers from her.

Mrs. Gagnon: Under that regulation, the paying parent could move elsewhere if he or she found that they would be required to pay less in support.

Mr. Rock: Madam Chair, I would like to introduce Ms. Lise Lafrenière Henrie.

Ms. Lise Lafrenière Henrie (Legal Counsel, Child Support Team, Family, Children and Youth Section, Department of Justice): If the guidelines of a province were accepted, they would apply if both parents lived in the same province. For example, if Quebec's guidelines were approved, there would be no problem in applying them if both spouses lived in Quebec.

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However, if one of these spouses lived outside Quebec, the federal guidelines would then be applied so as to ensure consistency across the country.

Because of the application of federal guidelines, the province where a parent resides would not be required to obtain an interim order which would have to be confirmed by the other province, or enforce the legislation of another province, which would require each provincial court to be familiar with the guideline of 12 different jurisdictions in addition to those of the federal government. That is why we want a standard, consistent system.

Mr. Bellehumeur: Madam Chair, it is therefore important that the provinces have complete jurisdiction in these areas. I can understand that there would not be any problem when both spouses live in the same province and I also understand that another system may have to be applied when the spouses do not live in the same province, but it seems to me that our sole concern here is the children. Therefore, why don't we simply accept the guidelines relating to place of residence of the children?

I appreciate that judges would have to familiarize themselves with the various guidelines, but I think that the lawyers could do their work and help the judges.

Mr. Minister, am I to understand that you are negotiating with the government of Quebec on these issues?

Ms. Lafrenière Henrie: We haven't yet begun to negotiate. These are not official negotiations, but we have began discussions.

Mr. Bellehumeur: I was surprised when the minister said earlier that the negotiations with Quebec were going well. In fact, when I spoke with people from Quebec, they told me that they clearly thought that their guidelines were automatically accepted by the federal government. When I informed them that, as a result of the combined effect of the term ``may'' in sub-clause 1(4) of the bill and ``without limiting the generality of the foregoing'' in paragraph 26.1(1), that was not automatic, they were very surprised.

If there is no agreement, is there some conciliation or other procedure to ensure that the provincial situation is respected? How are you going to operate? Who is going to decide in the final analysis? The phrase ``without limiting the generality of the foregoing'' does not mean that the guidelines given must be respected in full. It means ``in keeping with the spirit of, as a whole...'', and there could be more precise criteria. Therefore, I would like to know who will be responsible for deciding.

Mr. Rock: Ms. Lafrenière will answer, but I would just like to say that it's important to keep in mind that all the work which I described and which has gone on for six years was done jointly by the federal government and the provinces. The committee was made up of federal, provincial and territorial representatives. We all shared the same objective, that is to try to establish a more predictable and consistent system.

Therefore, we are not dealing here with two opposite viewpoints, that of the federal government and that of the provincial government, which in this case is Quebec. We do in fact share the same objective.

Mr. Bellehumeur: Quebec would like there to be a consistent system for all the provinces.

Mr. Rock: No. In the case of divorce, Quebec would like to have a consistent and predictable system, and we clearly stated that it was possible to use the guidelines created by the provinces in accordance with the criteria identified in the provision which you read, but there must also be some federal consistency giving discretionary power to the Governor in Council.

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As I referred to the negotiations, I would like to add that I spoke last week with the deputy minister for the purpose of preparing my appearance before you today. He told me that he had discussed these issues with his counterparts in Quebec and that progress had been made. Formal negotiations may not yet have begun, but there is no doubt that senior officials have had discussions on these points.

Ms. Lafrenière Henrie might perhaps like to add something.

[English]

The Chair: Go ahead.

[Translation]

Ms. Lafrenière Henrie: I would just like to add, as the minister said, that there have not yet been formal negotiations on this subject, but that we are already talking with officials of the Quebec government. However, the reason why no decision can be taken at the present time is that we have not yet received the final version of Quebec's guidelines. If I understand correctly, amendments may still be made to them.

[English]

The Chair: Ms Torsney.

Ms Torsney: Thank you.

Minister, the bill before us does not do two of the four parts. Am I correct? It does not do the taxation or the working income supplement. Those parts have to be done in the budget implementation bill. When can we expect them?

Mr. Rock: We can expect those perhaps in November, I'm told.

Ms Torsney: Second, some people have raised two issues. While these are minimum guidelines for the non-custodial parent, what is the responsibility for the custodial parent? And as a part of that, what about the accountability for the spending? While these are great for people who are clearly employed by an employer who sets out a T-4 slip that is very specific, self-employed individuals can do a lot of things to hide income. Of course we wouldn't call it hiding income, we just have different reporting mechanisms. It becomes much more difficult to work through these kinds of levels of support if you are becoming divorced from somebody who is self-employed.

Mr. Rock: In answer to the first question, which I take to be a reference to the fact that the guidelines are calculated solely with reference to the income of the payer, the family law committee struggled for some time with the question of whether they should adopt a model that worked on the income of both parties or whether it was appropriate to work just from one. The approach you see reflected in these guidelines is based on the following assumptions, which the committee eventually decided were sound.

First, the standards of living of a child and of the parent with whom that child lives are inseparable. If I have sole custody of the child, that child has my standard of living. If I have two children in my sole custody they have my standard of living. They're inseparable.

Second, parents spend an average proportion of their income on children no matter what their income level. If I'm making $10,000 a year or $100,000 a year, it can be statistically determined what average proportion of my income I spend on my children.

The third assumption is that when parents divide, the child's standard of living should as much as possible be what the child would have enjoyed had they remained together.

When you put those assumptions into one composite to produce a policy for determining guidelines, the result is what you have before you. For the purpose of determining what the payer should remit, you look at the payer's income and apply the average proportion that people spend on children, depending on how many children are involved, because the person who has custody of the children is already paying that proportion of his or her income.

If you look at it that way, the child is then the beneficiary of both incomes as to the average proportion, rather than the old-fashioned approach we used when I practised law. If I acted for the custodial parent I'd be obligated to tote up bits of receipts for toothpaste, groceries, dry-cleaning and tutoring, put them all together and come up with an affidavit that spelled out the total monthly expenses. Then I'd be cross-examined - or my client would be - and then the judge would eventually determine....

We've gone beyond that with these guidelines and have applied average proportions instead.

Why is it fair to disregard the income of the custodial spouse? Because the custodial spouse is already paying the average proportion. It's inescapable.

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Why is it fair to look at the non-custodial spouse by income level and take the average proportion? Suppose the non-custodial spouse is making $60,000 a year and then gets a promotion and suddenly earns $80,000 a year. According to this system, the guideline amount would increase on the grid from the $60,000 category to the $80,000 category. That's regardless of what the custodial parent is making. If those parents had still been together, the child would be the beneficiary of that parent's raise. That child's standard of living would have reflected the fact that one of the parents was bringing in an extra $20,000 a year income.

One of the assumptions we take in our approach is that the child should be the beneficiary, even after separation, as it was before. So that is the concept behind looking at just the non-custodial spouse's income.

Ms Torsney: But we've all heard of lots of cases where people say ``Listen, I send her $1,000 a month and every time the kids come over to visit me their clothes are in tatters. I don't understand what she's spending the money on.'' We've all heard of the stereotypical single mother who apparently doesn't spend any money to feed her kids and is out spending all her money on herself. These fathers tell me this all the time. I'm not sure I've met any of these people. Is there a mechanism to ensure that the children are in fact enjoying the standard of living that both of their parents are supporting?

Before you forget, there's also my question about the self-employed.

Mr. Rock: Yes, I have a note about the second question that deals with the self-employed, but before I get to that let me respond to the question you just asked.

Ms Torsney: Shaughnessy will close me down.

Mr. Rock: It may be that those considerations go to the question of custody. We're talking here about a custodial parent. The court has made the determination that it's in the best interest of the child that it reside with that parent. If there are factors that would establish that the custodial parent is not spending the money on the children, is ignoring the children, and is devoting the income to some other purpose, that might go to the merits of an application to change custody, but I'm not sure it's relevant otherwise.

In relation to your question about the self-employed, I invite your attention to those parts of the regulation that deal with the calculation of income. They have been drafted to take into account the fact that some support-paying, non-custodial parents are self-employed. It is possible to make it difficult to determine what that person's income is.

In drafting the income definition provisions of the regulations, we've included devices that are intended to get at the real income. If, for example, some payments for expenses are for non-arm's-length persons, they're to be brought back into income for the purpose of calculating income.

Similarly, if the person is a shareholder and there are benefits that are disguised in the books of the company, they're taken back into income. So to the extent to which it's possible, we've tried in the definition of income to make it possible for the court to get a clear picture of the true disposable dollars available to the non-custodial parent.

The Chair: Thank you, Ms Torsney. Those were five Bellehumeur minutes.

Who is going to speak from the Reform Party? Mr. Ramsay.

Mr. Ramsay: Mr. Minister, thank you for attending today.

I have just a couple of questions and they touch on what Ms Torsney was speaking about. You have a guideline set out that the court is to follow, and of course you have used the coercive powers of the state to penalize a parent who does not live up to his or her obligations in terms of support payments.

What I have heard from many of these non-custodial parents is that although they are faithfully making their payments, their rights of visitation are simply being denied them. There is nothing within this bill that would address that issue, and that's a very important issue for these people. They're separated, their marital situation has broken down, and then they cannot visit their children, even though a court order may exist that grants them visiting rights.

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I've had more than one individual come to me as a result of these proposals and say ``Look, I'm paying this much. I'm paying what the court has asked and yet I am denied my right to visit my children.'' It's not here, and I wonder if you would comment on that. But before you do, I'd like to ask another question, because you're going to waste my...use up my five minutes. You wouldn't waste it, of course.

Mr. Rock: You mean I may take up time actually answering your question.

Mr. Ramsay: Yes.

Mr. Rock: How horrible.

Mr. Ramsay: That would be terrible.

Mr. Rock: Everybody knows questions are intended only for the effect of asking them.

Mr. Ramsay: Right. Considering the measures you've taken with regard to licensing and passports, is there a model you've followed?

Those are two questions. The third is with regard to the issue of mediation you discussed with Mrs. Jennings. You seem to lean toward the possibility that it would be a good idea, but there is nothing within the bill that would support that. Would you or your department consider including something along those lines, inasmuch as amendments to the bill coming from the department have a much greater chance of getting through this committee than when they come from the opposition side?

Those are the three items, Mr. Minister, if you'd comment on them.

Mr. Rock: I hope not to waste too much time responding to your questions, not that responding to your questions is a waste of time, Mr. Ramsay.

First of all, in terms of access, there are few cases sadder than the case of the non-custodial parent who has been awarded access by the court but can't get access because the custodial parent is not being reasonable or is simply not complying with the order. I've had those cases. They're very sad and they're very frustrating.

I think it is very important for us to separate the quarrels between the parents from the needs of the children. The children need the financial support, whether or not the parents have worked out their difficulties about access. I would never ever want to see access tied to support, because once you do that, you're walking down the road of saying that children are hostages to the parents having an agreement on the issues between them. You simply can't do that.

The children have to be supported regardless of what's going on between the parents. You just cannot use child support to lever access. It's unconscionable. I would never take that approach and I would never recommend it.

In terms of all the problems with access, ultimately the only solution is to get the two parties to behave maturely and responsibly, to respect each other's interests, and to recognize that it's almost always in the best interests of the kids to have a relationship with both parents.

Madam Chair, I don't want Mr. Ramsay to think that the Divorce Act is silent on this point. It's true to say that there's nothing in Bill C-41 that deals with access, but the court is required to take access into account in determining custody. If you look at subsection 16(10) of the Divorce Act - and it's been there for ten years now, Madam Chair - headed ``Maximum Contact'' it provides the following.

In making an order under this section,

- which is custody -

the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

In other words, the court will take into consideration the willingness of the custodial parent to give access to the other parent. That is the principle that governs the court in determining custody.

Mr. Ramsay: There's no enforcement provision.

Mr. Rock: The statute law can only do so much. By changing the laws in Parliament, we can't change people's attitudes. We can't reach into homes and make them see things differently. All we can do is reflect principles that should govern, and that's what this section does.

At a certain point the provinces have a role, the police sometimes have a role and the parents have to be mature. To the extent to which legislation can do it, I would think that subsection 16(10) reflects the principle we're talking about. But I would not want to see access and child support tied together.

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Let me also say, in answer to the second question, I'm not quite sure what Mr. Ramsay means in asking whether we would follow the model in the passport and licensing provisions of enforcement.

Mr. Ramsay: Is there a model? Did you have a model from any country?

Mr. Rock: I don't know.

Marilyn Bongard is with me; perhaps she can respond. I don't know whether we had another country in mind.

Ms Marilyn Bongard (Counsel, Family, Child Support Initiative, Department of Justice): A number of states have some kind of licence denial scheme. We did not follow any particular model. We have a uniquely Canadian approach that really was negotiated with the provinces.

The way the licence denial scheme works here, it's dependent on an application by the provincial enforcement office. The reason for that is we're using this as a measure to get at persistent default, chronic default.

Mr. Ramsay: Does it work?

Ms Bongard: We hope it will work.

Mr. Ramsay: Has it worked in other jurisdictions?

Ms Bongard: In other jurisdictions it has proven to be useful, yes, in collecting money. There are different models. They do it differently in different states. I do have some literature I can send you about how it's working in different states.

Mr. Ramsay: Perhaps you can table it with the committee.

Mr. Rock: Yes, by all means. We'd be delighted to do that.

In his last question Mr. Ramsay asked us about mediation. I would not support an amendment to add a requirement for mediation. I think it's good to have those resources available, but you'll find, among people who are going to appear before the committee, mixed views about whether it should be mandatory. There are some who contend that enforced mediation perpetuates relational imbalances between the spouses and results in unfairness and that we should not impose it on the parties. I think it's good to encourage negotiated resolutions, it's good to try to keep people out of court, it's fine to make services available to them, but I wouldn't want to make it mandatory. In any event, we would be spending provincial money without asking, because the provinces must administer the statute, and frankly, they may have to spend money to put those services in place.

Mr. Ramsay: I wasn't asking about mandatory, just whether it would simply be a provision that would allow the court that consideration. It doesn't allow it here.

Mr. Rock: But the courts already have sufficient jurisdiction to do whatever is required. Indeed, in some provinces - and the administration of justice is a provincial matter, which I know you, as a stalwart defender of provincial rights, will be aware of - the courts have already added formal dispute resolution mechanisms to their family law rules, and some of them are working quite well.

The Chair: Mr. Discepola.

Mr. Discepola (Vaudreuil): I have two questions for the minister. First, what happens with people who already have agreements on child support payments? More precisely, if there is already an agreement for net-after-tax for support payments, for example, will they have to be renegotiated to take the grid into account?

Second, in answering Ms Torsney's question about the grid you answered quite a lot of my concerns, but I'm wondering, if you're taking the best interests of the children to heart, why you or the family counsel chose strictly annual income, as opposed to the age factor and the quality of life they had. It seems to me, having four children myself, that as the children grow older the requirements drastically increase.

Also, as opposed to just using income as a factor, the cost of living in various provinces is substantially different from that in other provinces. Even in urban centres versus rural centres the cost of living is quite different. I know the benefit of the grid and I think it has tremendous merit, but could you explain why that was chosen, as opposed to something else?

Mr. Rock: If I could take the second question first, the scientific studies demonstrate that the proportion of income, according to income level, that parents spend on children remains the same regardless of the age of the children, regardless of whether they are urban or rural, and regardless of the cost of living where they're situated - the proportion of income. That's what the studies demonstrate.

The second thing is you asked about pre-existing agreements. If there are parents today who have agreements or orders in place governing the calculation of payment of child support, as of next May 1 nothing will change. These are not retroactive. They tried to make them retroactive in England and chaos resulted. It was just awful.

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We're not going to reopen all those agreements. We think if parties negotiated their own agreements or courts made orders in the past they should stand. At the same time, it will be permissible after May 1 for parties to existing agreements or court orders to go to court and ask to have the child support component changed to reflect these guidelines and the new tax rules. It will be permissible, but not mandatory. Two parents may agree what they have right now is fine and no change should be made. A parent might look at what is here, say he or she would be better off under that system, and go back to court and ask for a change.

The reason this is permissible is we've included the introduction of these guidelines by statute as a material change in circumstance. So a variation in application can be brought. But let me hasten to add that, at the same time, we said in these provisions that upon receiving an application by such a parent to vary an existing order or agreement, the court can look at the existing agreement in its entirety. If it finds that having regard to arrangements made, whether for the payment of support or the transfer of an asset or the payment of capital, it would be inequitable to open up the award and adjust the child support amount to reflect the guidelines, the court can refuse to do so.

Suppose five years ago I made an agreement with my spouse and the agreement included RRSPs, capital - as though I had any - distribution of assets, who was to get the matrimonial home, shares in corporations and also spousal and child support. Because of other considerations, the amount awarded for child support was relatively small, smaller than it otherwise would be. It is recognized in this bill that for next May 2, for the recipient spouse to come forward and ask for a change to reflect the guidelines might be inequitable because changing only this one component with all the rest of them remaining the same might not be fair.

So we've made it a provision of Bill C-41 that on any application to vary, the court can look at the whole picture and may reject an application if it is thought to be inequitable with respect to all elements of the package.

Mr. Discepola: Thank you.

The Chair: Thanks, Mr. Discepola.

Minister Rock, thank you very much for your time. We appreciate it.

Mr. Rock: Not at all.

The Chair: Did you have a closing statement? I'm sorry, I didn't mean to cut you off.

Mr. Rock: I don't think so. I think this is very important legislation. I'm delighted the committee is looking at it and giving it priority. If the department can be of any help, we have an awful lot of material and would be happy to make it available to you. Officials will be available to the committee at your convenience.

The Chair: Thank you.

Mr. Rock: Thank you very much.

The Chair: Colleagues, there is one more item of business, please. Mr. Thompson has given us a notice of motion.

Mr. Thompson, just so you're clear, because you're not a permanent member of the committee I have to rule it out of order. You may wish to have someone else serve the notice on it, but we can't accept it as it is today.

That's it. Thanks.

We're adjourned.

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