FÉDÉRATION DES ASSOCIATIONS DE JURISTES D’EXPRESSION FRANÇAISE DE COMMON LAW INC. Bill C-78, Divorce Act Brief submitted to the Standing Committee on Justice and Human Rights on November 19, 2018 Foreword The mandate of the Fédération des associations de juristes d’expression française (FAJEF), which encompasses seven associations of French-speaking lawyers (AJEFs), is to promote access to justice in French in the majority anglophone provinces and territories of Canada. There are associations of French-speaking lawyers in the four Western provinces and in Ontario, New Brunswick and Nova Scotia. The seven associations of French-speaking lawyers together represent approximately 1,700 legal professionals and the number of French-speaking lawyers increases every year. The FAJEF works closely with the network of AJEFs, national legal organizations such as the Canadian Bar Association (CBA), and the Fédération des communautés francophones et acadienne du Canada (FCFA). In fact, the FAJEF is a member of the FCFA. In addition, the FAJEF has worked actively for about four years within the Réseau national de formation en justice (RNFJ). The RNFJ membership is made up of educational institutions outside Quebec such as the jurilinguistic centres in Moncton and Ottawa, the Centre canadien de français juridique inc., a number of francophone colleges and universities in Canada, and several anglophone Canadian universities that offer programs in French. TABLE OF CONTENTS I. INTRODUCTION ......................................................................................................... 1 II. REASONS FOR LANGUAGE RIGHTS IN DIVORCE PROCEEDINGS ................. 2 III. RECOMMENDATIONS AND SUGGESTED LANGUAGE ...................................... 3 IV. CONCLUSION ............................................................................................................. 5 I. INTRODUCTION In 1998, the Special Joint Committee on Child Custody and Access recommended an amendment to the Divorce Act “to ensure that parties to proceedings under the Divorce Act can choose to have such proceedings conducted in either of Canada's official languages”. The Committee recommended that the amendment be modelled on the language rights provisions in section 530.1 of the Criminal Code: “This Committee recommends that the Divorce Act be amended to ensure that parties to proceedings under the Divorce Act can choose to have such proceedings conducted in either of Canada's official languages.”1 In 2002, the Department of Justice Canada stated in its report entitled Environmental Scan: Access to Justice in Both Official Languages that Parliament may demand compliance with language requirements if it “decides to delegate the enforcement of those laws” to the provinces.2 The report also states expressly that the Divorce Act is one of those federal laws. In spite of that recommendation and the federal government’s ability to demand compliance with language requirements in divorce proceedings, the Divorce Act currently in force still does not recognize the right of all Canadians to obtain a divorce in the official language of their choice. As a result, French-speaking Canadians in a number of provinces, in particular those who live in Newfoundland and Labrador and British Columbia, have no right under the Divorce Act to bring proceedings in French, to file pleadings and exhibits written in French, or to use French in oral proceedings at hearings. What this means in practice, in some provinces, is that a francophone couple who want to obtain a divorce or corollary relief have no choice but to proceed in English in the court 1 Government of Canada, Department of Justice. “ Final Federal-Provincial-Territorial Report on Custody and Access and Child Support – Appendix A: Recommendations of the Special Joint Committee on Child Custody and Access” [online]. https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/flc2002/flc2002a.html?wbdisable=true (Page accessed on November 15, 2018). 2 Government of Canada, Department of Justice. “Environmental Scan: Access to Justice in Both Official Languages” [online]. https://www.justice.gc.ca/eng/rp-pr/csj-sjc/franc/enviro/1.html (Page accessed on November 15, 2018). 1 having jurisdiction, even if the proceeding is initiated under the Divorce Act, which is a federal law. The table below3 illustrates our members’ experience concerning the current availability of divorces in French and English in Canada: territories and provinces where divorce is Ontario, Quebec, New Brunswick, available in French and English Manitoba, Saskatchewan, Northwest Territories, Yukon and Nunavut provinces where divorce is sometimes Nova Scotia, Prince Edward Island and available in French, at considerable effort Alberta (uncontested divorces only) provinces where divorce is available only British Columbia and Newfoundland and in English Labrador At present, there is no provision in Bill C-78 that deals with language rights. The FAJEF believes that to fill that void, Bill C-78 should expressly recognize language rights in any proceeding introduced under the Divorce Act. II. REASONS FOR LANGUAGE RIGHTS IN DIVORCE PROCEEDINGS The scheme created by the Divorce Act applies to divorce and to corollary relief such as support and child custody and access. Divorce therefore has a very direct effect on the personal lives of many people in Canada. In fact, divorce is common in Canadian society and often has major financial and emotional consequences for children and families. For those reasons, and in order to honour the federal government’s commitment in section 41 of the Official Languages Act of Canada to promote the use of French in Canadian society, recognition of language rights must be added to Bill C-78.4 An addition of that nature would not be without precedent, since Parliament has already provided in 3 The availability of divorces in French or English varies from province to province, for various legal or even practical reasons, such as the availability of bilingual judges: that is, divorces are sometimes available in French in a particular province or territory because of constitutional obligations, provincial legislation, or the policies or practices in place and bilingual resources available. It should also be noted that the fact that divorces are available in French does not mean that a divorce can always be obtained as quickly and easily in French as in English. 4 Subsection 41(1) The Government of Canada is committed to (a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and (b) fostering the full recognition and use of both English and French in Canadian society. 2 Part XVII of the Criminal Code that all accused persons in criminal cases in Canada are entitled to be tried in the official language of their choice, regardless of their province or territory of residence. In order to implement and enforce the right to a criminal trial in the official language of an individual’s choice, the federal government has already adopted a number of measures to support the provinces and territories and expand their capacities in French. The FAJEF believes that a number of those measures could also help to implement the language rights set out in any amended divorce law. There are also existing tools and resources in Canada that can support and facilitate the implementation of a right to obtain a divorce in the official language of n individual’s choice. For example, there is the Réseau national de formation en justice (RNFJ), which is composed of jurilinguistic centres, universities and colleges that are francophone or offer programs in French, bilingual law faculties, centres that offer training in legal French and language training for provincial and territorial public servants, and other organizations. There is also the fact that, as in other areas of the law, growing numbers of Canadians do not have the financial resources to retain a lawyer to represent them in a divorce proceeding. Each of them then has the ability to represent themself. However, if the option of proceeding in French is not provided, a Canadian who communicates poorly in English no longer has access to the same rights and options as one who communicates well in English. The result would be a serious infringement of access to justice. III. RECOMMENDATIONS AND SUGGESTED LANGUAGE The FAJEF recommends that language be added to Bill C-78 that would expressly recognize certain language rights. The FAJEF recommends that the following amendments, which draw primarily on language rights in criminal law proceedings, be inserted after section 21 of the Divorce Act or in any other part of that Act that is deemed appropriate. 3 Official languages in divorce proceedings 1.1 English and French have the status of official languages in proceedings introduced under this Act. 1.2 Everyone has the right to use English or French in proceedings under this Act and to file pleadings and exhibits written in either English or French. 1.3 The right to use English or French applies to the stages of a proceeding that take place out of court, including any settlement and mediation hearing. Duty relating to understanding of English and French 2. The court has a duty to ensure that the judge or court officer who hears any stage of a proceeding: (a) understands English without the assistance of an interpreter, where the parties have chosen to proceed in English; (b) understands French without the assistance of an interpreter, where the parties have chosen to proceed in French; (c) understands English and French without the assistance of an interpreter, where the parties have chosen to proceed in both languages. Right of witnesses 3. The court has a duty to ensure that any witness who appears before it can be understood in the official language of their choice without being disadvantaged by the fact that they do not speak the other official language. Language in which testimony and submissions are recorded 4.1 Testimony given and submissions made in English or French will be received, recorded and transcribed in the language in which they are given or made.