Meeting of the Continuing Committee of Ministers on the Constitution, Family Law, Statement by the Honourable Jean Chrétien (8-11 July 1980)
By: Jean Chrétien
Citation: Meeting of the Continuing Committee of Ministers on the Constitution, Family Law, Statement by the Honourable Jean Chrétien, Doc 830-81/014 (Montreal: 8-11 July 1980).
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MEETING OF THE CONTINUING COMMITTEE OF MINISTERS ON THE CONSTITUTION FAMILY LAW
Statement by The Honourable Jean Chretien
July 8-11, 1980
Montreal, July 8, 1980
STATEMENT BY THE HONOURABLE JEAN CHRETIEN CONTINUING COMMITTEE OF MINISTERS ON THE CONSTITUTION FAMILY LAW
I want to begin by emphasizing that the federal government supports the principles of the “best effort draft” on family law discussed at the February 1979 First Ministers Conference. At that time, there was general agreement among the governments that certain changes in the constitution were necessary.
I am well aware that, since then, some governments have had second thoughts about aspects of this proposed arrangement. In addition, the federal government has taken a lot of criticism over the pro- posals during the last year, particularly from womens’ groups. The comments we have received on the draft pro- posal have been valuable to us, even though we do not agree with all of them.
Womens’ groups are concerned that the proposals would have the effect of worsening the already unsatisfac- tory state of enforcement of maintenance and custody orders in Canada. They call for greater, not less, federal power over enforcement of these orders. They are opposed as well to the transfer of the substantive law of divorce to the provincial jurisdiction because they contend that there should be a uniform law applying across the country. They also raise concerns about divorce “havens” or Canadian “Renos”, i.e. provinces where persons could go for a quick and easy divorce.
We are prepared to continue our support for the proposal to give legislative jurisdiction over divorce grounds to those provinces who wish to exercise it. The Federal Divorce Act would continue to apply in those provinces who do not wish to legislate on divorce grounds. The proposal is justified in our view because we have to recognize the diversity among the provinces in matters of private law and the desire of some provinces to exercise this jurisdiction. We must allow for that diversity in the Constitution.
There has been some rather unfortunate comment from certain critics to the effect that the proposals make possible the creation of “divorce havens”. We believe, however, that the retention of federal power over both the recognition of divorce decrees and the jurisdictional basis upon which they are granted will effectively prevent a person from running off to another province to get a quick divorce which will be recognized in other provinces. The assumption underlying the “best effort” proposal is that federal jurisdiction would be exercised much in the way that the Federal Divorce Act now provides for a minimum period of residence (one year) in the province in which the decree is requested.
We are also in favour of the establishment of unified family courts so that all family law problems can be dealt with in one court. We therefore continue to support that part of the proposal that would allow flexibility in the organization of unified family courts from province to province by enabling a province that wishes to do so to establish its unified family courts at the -2- Provincial court level. I might say that there has been a good deal of support for this aspect of the proposal from outside government and very little (if any) criticism.
From our point of view the one aspect of the proposal that must be reconsidered is that dealing with the enforcement of maintenance and custody orders. This is the feature of the proposed amendment that is causing most concern to Canadian women. The state of enforcement of these orders arising out of separations, and I refer particularly to maintenance orders, is a serious social problem in Canada today. While the solution to the problem does not lie wholly (or even mainly) in constitutional change,we must be certain that what we do will improve, and not worsen the present situation. It is not enough that we do not make things worse. We must make them better than they are now.
We should ask ourselves whether the transfer of jurisdiction over orders ancillary to divorce would improve enforcement of these orders, particularly when the parties are in different provinces. If it does not then we clearly have an obligation to search for better ways to ensure enforcement. Among the options that we might explore, in regard to ancillary orders arising out of separation or divorce, are the following: 1) federal jurisdiction over enforcement of extra- provincial orders; 2) a constitutional provision requiring enforcement of extra-provincial orders; by that I have in mind that orders made in one province would be enforceable in another province because the Constitution required it.
To assist the constitutional discussion on the issue we might explore as well the possibility of establishing a joint federal-provincial registry of family law orders to improve the enforcement process.