SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

COMITÉ MIXTE SPÉCIAL SUR LA GARDE ET LE DROIT DE VISITE DES ENFANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 11, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.): We'll call this meeting to order. I want to welcome everyone today.

Before I start, I should say that I have to leave at about 5.20 p.m. to go over to the House for a few minutes to speak. I'm going to ask Senator Cools to assume the chair during that period in the absence of Senator Pearson.

We have with us today two groups of two. Welcome to our meeting. From the National Shared Parenting Association, we have Danny Guspie and Heidi Nabert. From Fathers Are Capable Too, or FACT, as they're known, we have Malcolm Mansfield, who's the president—welcome, sir—and Deborah Powell, who is their media spokesperson.

I'm assuming you've been told what the procedure is here. We welcome a short summary of points you want to make, then it's open for questioning. Whichever of you two will speak first, I invite you to start.

Mr. Danny Guspie (Executive Director, National Shared Parenting Association): Thank you, Mr. Chairman, for inviting Ms. Nabert and me to attend these committee hearings.

The National Shared Parenting Association became a federally incorporated, non-profit corporation in November 1997. We are in the process of organizing our provincial organizations. So far, we have provincial chapters in New Brunswick, Nova Scotia, Quebec, Ontario, and Saskatchewan. Beginning in May, our Alberta chapter will be opening. We expect to be in every area of Canada at the provincial and territorial level by the end of 1998, with chapters in every major city of Canada.

We held two conferences. One was in Toronto, and the other was in Halifax last year. There are three more planned for this year. The next conference is in Montreal in April, followed by one in Regina in September, and another one in Calgary in November 1998.

Our focus is on providing shared parenting solutions to parents. The benefits of such arrangements for the children, parents, and our nation are as follows.

Children no longer will need to worry about who they will be with and where they will be once the divorce begins. They will be secure in the knowledge that everything will work out.

Parents will get time off to deal with their issues through education and professional help. They will be able to restructure their lives and have the necessary insights to help their children make this transition.

Our nation will benefit from the shift in attitudes as those 10 million people in our country affected either directly or indirectly by divorce begin to learn new coping skills as they begin to understand that it's no longer socially acceptable to subject children to the emotional abuse that comes about from unresolved conflict during divorce.

The goal of the National Shared Parenting Association is to eradicate the “divorce from hell” in Canada, especially when it involves children. We will achieve this goal by helping parents to make peace during divorce through creating a national network of helpful resources that can be delivered at the community level across Canada through self-help organizations, associations, professionals, and community-based resources.

The National Shared Parenting Association helps parents understand that they have the ability to learn the skills that make life better for their children during divorce. Children learn most of their problem-solving skills from their parents. However, without such education, parents often teach their children how to avoid solutions.

Heidi and I are adult children of divorce. Based on our projections of Statistics Canada's 1991 data on families, there are approximately 7 million families in Canada. More than 1.25 million families have been directly involved in a divorce. This translates into approximately 2 million people in our country who have faced divorce as children. If you add mom and dad, the figure doubles to 4 million. Then add grandparents. Let's say half of them are still alive. The figure increases to 6 million. When you factor in other extended family members such as aunts, uncles, cousins, step-family members, the conservative figure is almost one-third of the Canadian population.

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No-fault divorce in this country is a myth. Ms. Nabert and I ask you to keep an open mind as we share our experiences with you as children of divorce growing up in the 1960s and the 1970s.

At this point I'm going to yield the floor to Ms. Nabert, and then I will have some closing comments.

Ms. Heidi Nabert (Director, National Shared Parenting Association): Who am I? I was a very, very happy child, full of curiosity and fascination. This is a photograph of me at five. I was fascinated about the world and all it had to offer. My father's diaries, five years' worth, share his observations about my daily discoveries. I looked up to him. He was my hero. He was the first man I loved and the first man who loved me. We were inseparable and we did so many things together, as the old photos testify.

At the age of five everything changed, and it led to the dark years that were defined by the big adult words that I could barely pronounce, let alone understand: abandonment, rejection, alienation, low self-esteem, molestation, incest, dark depression, suicide attempts, rape, anger, disappointment, fear, self-loathing, and finally rage. I felt responsible for my mother's psychological state of mind and never had a clear understanding of what I had done that made my daddy go away.

By age eight I was telling my father, on my mother's encouragement, that he was bad and that I didn't want to see him any more. My survival mantra from childhood was that it doesn't matter. Whatever happens to me, it doesn't matter. That was my survival mechanism.

Divorce was shameful. When my family died in 1960 no one talked, not even the priest in our church. The pain of my family's death defined who I was and who I became. There isn't a day that goes by when I am free of the deep pain and sorrow of the loss of my family.

At age 25 I was strong enough to contact my father, wanting to heal my relationship with him. This was never to be. On the day before we were to meet, he died of a massive heart attack. I have never been able to find closure with my father.

It has taken 35 years of healing for me to find a sense of peace in my life and the courage to speak on the one issue that has plagued most of my life. I see my role today as the voice of Canada's children of divorce who have no voice.

Today I am a 42-year-old successful business woman running a graphics company. I am co-founder and director of Fathers' Resources International and co-founder and newly elected president of the National Shared Parenting Association of Canada.

Divorce changes everything for children. Divorce is a different experience for children than it is for adults. Most importantly, children lose the most fundamental component to their own development. They lose their family structure. The support network that most families need when there is tragedy doesn't exist. And it still doesn't exist today to help the biggest victims, the children.

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A child's life is like a house: the bricks represent the financial, the mortar is the love that strengthens the bricks and fuses them together as the house is built. The foundation, childhood, is built first. As the child grows, so does the house. Without the financial contributions, there aren't any bricks to add to the building. Without the love and emotional support from both parents, there isn't any mortar to keep those bricks together.

So what is the cost to today's children of divorce? Statistical information backs up the high cost of fatherlessness or father absence. For girls, never feeling worthy of love from a man, it's teenage pregnancies. Among daughters of fatherless homes, 53% are more likely to marry as a teen, 111% are more likely to bear children as a teen, 164% are more likely to have premarital birth, and 92% are more likely to end their marriages. This is from a book called Single Moms and their Children.

Secondly, daughters who are deprived of a stable relationship with a non-exploitive adult male who loves them remain stuck, struggling with issues of security and trust that well-fathered girls successfully resolve. The self-voice asks, what do I need to do, who do I need to be, to find a man who won't abandon me, as have all the men in my life and my mother's life?

For boys, it's not knowing how to be man or how to interact with women. Often violence masks their anger in their father's absence. I quote from Growing Up in Canada, page 128:

Family breakdown creates stress and poverty, and can lead to problems of discipline and supervision; all of these are associated with delinquent behaviour.

The future is bleak for both boys and girls as they share low self-esteem, high school dropouts, welfare, unskilled labour, drug abuse, prostitution, crime, living on the street, and the ultimate tragedy, an untimely death.

There are several children I knew as a child who are not here today, ladies and gentlemen. They're dead. It is catastrophic how much the children of divorce must suffer today in our present system, yet there are so many cost-effective solutions to address the issues, ultimately saving millions of taxpayers' dollars and healing the tiny broken hearts of divorced children in Canada.

Bill C-41 is incomplete. Bill C-41 provided the mechanisms to ensure the financial needs of children, the bricks. Conversely, the bill did not address the paramount need for that mortar that children need, the emotional support from both parents, especially post-divorce. Without the guarantee of ongoing contact with the non-custodial parent, half of a child's foundation is shaky.

Children define themselves by their parents. They form their identity through modelling after the parents. Denying the right of the child to a dependable schedule of parenting contact with non-custodial parents is nothing less than child abuse, which leads to many costly societal problems as a child grows.

So why should the committee care? What are the societal costs? Children of divorce are raging. The statistics do not surprise me whatsoever. My own experience testifies to that.

Many attempt to deal with these issues through the court system. I want to share with the committee today an experience of my own divorce. I have no children. I contacted the Law Society of Upper Canada and got my 30 minutes with a lawyer for a free consultation—this cost me nothing. I told the lawyer I didn't know what my rights were, that I wanted to end my marriage, and I wanted to know, if I left the house, would I lose my entitlement to the property.

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His response to me shocked me. He asked why I was leaving. I said, “Because I am the one who is unhappy, and my husband feels that if I get therapy and fix myself up, we'll be fine. So obviously marriage counselling is not an issue.” He said to me, and I quote, and I have been quoted in the Globe and Mail having said this: “Get him to hit you.” This is what a lawyer said to me. In 17 years of marriage, my husband never raised a hand to me. But he went on to say, “If you get him to hit you, we can have him forcibly removed from your home; you'll get spousal support.”

Parliament has a duty to the taxpayers of this country to uphold the standards and practices of the courts and the costs of the courts' activities, especially in family law matters. Ladies and gentlemen, tell me how this advice from a legal professional, which is basically suggesting to me that I lie for my own benefit...? What are the ramifications to the little children of this country?

I did not follow suit with the advice of this lawyer. It is despicable that a legal professional has suggested this to me when it's not true, and it's despicable because the women who are being hit aren't being heard because the courts are clogged with those women who are saying they are and they aren't.

In closing, what are the solutions? There are many solutions. I will cite one and be very brief: the SMILE program, Michigan. Parents who are going through the beginning stages of divorce are forced in the United States—believe this or not—to sit through a video of children who are interviewed, talking about what divorce was like for them, and it's an eye-opener. Parents wake up and realize, my God, the fighting is killing our children; let's stop fighting; let's find some common ground. It's working, ladies and gentlemen. If it can work in the United States, it surely can work in this country.

In conclusion, I want you to imagine a Canada where we reduce juvenile crime to 10% of what it is today, reduce teenage pregnancies and drug abuse, where the welfare rolls are decreased to only those who are incapacitated, and violence within the family is the exception, 1% of what is being brought forth today.

For those of you on the committee who are elected, with our national divorce rate rising to almost 50%, affecting over 10 million people in this country either directly or indirectly, this is your opportunity to speak on behalf of your constituents and make Canada a better place for children to grow up, especially Canada's children of divorce.

Thank you.

Mr. Danny Guspie: I have some closing comments and to share a little bit of my own experience.

As I said previously, no-fault divorce in this country is a myth. That's what the Divorce Act is supposed to accomplish, no-fault divorce.

I have waited my entire life for someone to understand what I have been through. I have waited my entire life to be here to tell someone.

My family is dead. It is gone. It doesn't exist. The system gave it the final death blow. Here is how I was helped by the system: It cost me everything—my self-esteem, my confidence, my self-assuredness as a young man, security, peace of mind and the ability to cope with life. For my parents, it cost them a heck of a lot of money and estrangement from me for many years. Our entire extended family was destroyed.

Most children of divorce seek to escape this painful reality they are trapped in with petty crime, substance abuse, and promiscuity. Too often, it leads to gang violence, organized crime, lifelong addictions, and prostitution. For the kids involved, it is escapism when reality is far too painful to cope with. When their family ceases to exist, kids begin parenting themselves and they begin parenting their friends. My escape was into a world of drugs. I numbed myself to the point of overdosing five times. I simply should not be here today. I should be dead.

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The divorce was the straw that broke the camel's back. However, like Ms. Nabert, many of my friends who also went through this are not here today either. I lost at least a dozen friends through drug overdoses that I can directly attribute to starting from when their parents split up, from the first time they sat down and rolled that first joint.

Why? Do you know why? It is because our society has an attitude towards divorce that...perhaps I shouldn't get involved, how can I help? There is a complete lack of mercy, compassion, truth, justice, and, above all, love for the people who are going through this. Where is the love? How is it possible for a child like myself to learn love in this situation? How can I ever love someone else when I can't even love myself?

That is what the Divorce Act is sorely lacking: love, love for those children whose parents are temporarily insane with grief and immobilized with the devastation that comes with a divorce.

I have waited my entire life for someone to understand that pain, and then I met Heidi, and she is my partner in every sense of the word. Today, finally, I have love, someone who knows exactly what I'm talking about.

We have met countless other adult children of divorce in this nation who are going through exactly the same sort of experience, who are starting to wake up. They're finally able to articulate their experiences, what happened to them as children.

It's hard to conceive that I could share a lifetime of experience with divorce with you in a few minutes. It's also ironic because a child's entire life, when placed in the hands of a section 96 judge for the first time at the interim hearing, is usually decided in 90 seconds. That is the major legal problem children of divorce face. No one is taking the time to observe, to listen, to watch, not even those charged by the law to do so. Section 96 judges routinely violate the best interests of children because they do not have a clue what is in their best interest. They lack the required sensitivity.

I have personally witnessed many, many judges treat those in family court rudely, disrespectfully, snapping at legal stenographers to go off the record, to stop the transcript so no evidence exists of the abuse of their judicial privileges. Most of this abuse is hurled at men, at fathers who are presumed to be guilty of something. Rarely do I ever hear a judge talk of healing the family and how to go about it.

It is Parliament's duty to ensure fairness, balance and justice. Section 99 of the Constitution Act gives Parliament the authority to uphold these standards. Parliament must insist. It must ensure and it must guarantee that justice is served. It must require those section 96 judges to be of good behaviour under section 99 of the Constitution Act. It must insist that the superior courts do not become the instrument of injury through perjury, prevarication, deceit, or malice. Not to do so brings the administration of justice into disrepute and creates a loss of public confidence in our institutions.

Subsection 16(8) of the Divorce Act is the critical point for children of divorce. Judges cannot do what it requires of them in 90 seconds. The subsection says:

In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

If a judge does not make reference to this—the condition, means, needs and other circumstances of the child—how can they consider only the best interests of the child? How can they do it?

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The use of the word “shall” in this part of the act means a judge has no discretion whatsoever. Parliament is insisting they get it right every time. There is a right of appeal for many judgments or orders, whether file or interim, rendered or made by a court under this act. Therefore, we wish to know if the committee agrees that there is a duty or need for the federal government to ensure the accountability and responsibility of the section 96 judges. We hope you agree.

We're not asking for anything extraordinary. We're asking for efficiency of process rather than abuse. Parliament should guarantee fiscal responsibility in this institution, just like any other parliamentary institution. We, the public, should get value for our tax dollars.

Why? Because when you run out of money and your problems remain unsolved when you're going through a divorce, you can expect absolutely no help from the system.

That's wrong. Justice without mercy, compassion, care, truth, integrity, honesty, dignity—simple human dignity—and the will to do what we ought to do, not what we feel like doing, is not justice. It's fraud. It breeds total disrespect for our way of life.

I never met anyone who felt hopeful coming out of family court, but that is what people need: hope. Wouldn't you agree that we should be healing our children rather than blaming each other? With the presumption of shared parenting, the rights of children to love and be loved by both parents during and after the divorce will be protected and guaranteed. No one questions that right of the child in an intact family. If divorce is truly supposed to be no-fault, then why do children not enjoy such a presumption? Isn't it their God-given right?

Once upon a time, I dared to dream when I was about 14 years old that I would someday find a cure for divorce, that this scourge would be banished from our land. I'm still working on that one.

Divorce is an angry, angry process for most. Why wouldn't it be?

We need a process that is easy to remember and simple to implement. Ms. Nabert and I did a lot of research based upon our experiences and the people we've met.

We have some literature. Unfortunately, we were unable to get it translated in time for you. We sincerely hope that you will take a look at it, though, afterwards. It's called “Divorce 101”. We will leave it here for the clerks.

If parents were encouraged through divorce education and mediation, family court would become the very last option during divorce instead of the only option enshrined in law. We must make it more difficult for parents to continue the fight during divorce and much easier to get to the tools they need to make the issues like custody and access irrelevant. As long as we hold our children out like a prize to fight over, parents will fight over them.

Last year before my Grandma Caroline died, my father, stepmother, stepsister, and other members of my family had Easter dinner. Both of my grandmothers, my mother's sister, and my aunt came. It was the first time I had seen my family in one room for more than 25 years. No child should have to wait that long for a solution.

You have an opportunity to change that. I cannot think of a more serious issue facing our country today. If we cannot get along with one another in our family, how can we expect to get along with one another as a nation. How can we?

When King Solomon asked for a sword to divide the child in two, wisdom prevailed. He saw that one of the two mothers claiming to be the parent was putting their child's needs before their own, and from this he knew who the true mother of the child was.

It's about time we used this as the standard of conduct we expect from parents during divorce and those section 96 judges. They should have the same insight and mercy.

We stopped owning people more than 150 years ago in this country. Will this government give us true no-fault divorce by presuming that I need the love, guidance, and nurturing from both my parents?

Thank you.

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The Chairman: Thank you. I'm sorry, but I understand that we have sent instructions that submissions are not to run much more than 10 minutes, and we've allowed this group to do so. I would ask you to try to limit your comments. We're not trying in any way to temper what you say, but there are time constraints and this is a large committee.

Mr. Malcolm Mansfield (President, Fathers Are Capable Too (FACT)): Thank you, Mr. Chairman. I appreciate your giving me a chance to speak here today on behalf of FACT and on behalf of the children of Canada and the children of divorce everywhere. I want to thank you and the committee members for allowing me this chance. I'm somewhat in awe of being in these hollowed halls and having an opportunity to speak on behalf of so many children across this country.

I'd like to start by introducing myself. You have done it already, but my name is Malcolm Mansfield and I'm from FACT. Deborah Powell is media relations, also from FACT.

I'm a father, a business consultant, and politically active. I'll tell you in a minute why I've taken this direction.

I'm here on behalf of children of divorce everywhere. What is FACT? We're a very moderate family justice group. We're inclusive of both men and women. We stand for children's rights to family. We stand for a positive image of fatherhood and shared parenting.

The things I would like to present to you today are the children's right to family, a positive image of fatherhood, shared parenting, and expenditures on feminism and the needed expenditures to restore balance.

I have some notes, but I don't have a written script. When you go through all the charts, the presentations, the research, the intellectual callisthenics, and all of those things presented to you, some of which are very glitzy, some of which are just from the heart, if you listen very carefully to all the people across Canada, you'll notice voices of children saying to please stop their parents from arguing, that they want to see their daddies. You will hear that if you listen carefully.

I want to relate a short story to you. Just before I came here, I was frantically trying to put our brief together with the help of Deborah, because we didn't have a whole lot of lead time to get this brief in order. As we were doing it, one of our other FACT members came in. I was also in the midst of going to see my daughter. She was the lead in a play at her school, which made me very proud. I was showing the other member of FACT this little brochure from her school and saying that it was the play The Hobbit and that she was Bilbo. I was so proud of that, and I was relaying this to the other member. As I looked at him, I looked in his eyes and the sadness there showed me he couldn't rejoice with me. He couldn't, because he has a child who's seven years old and he hasn't seen that child for four years. There have been four years of fighting, and he hasn't seen his child.

It was so striking to me that I thought when I come here today I have to relate it to you. That's just one example of what happens in this country. Fathers everywhere are desperately trying to be a part of their family's life, and they are blocked by vindictiveness in most cases.

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The federal government has an obligation to understand what is happening to the judiciary of Canada and what's happening on the ground. We want to understand what's happening to the taxpayers' dollars. Lawyers introduce delay tactics in courts, and court costs are higher as a result. We have children's lawyers who sometimes are ineffective. We have social workers, legal aid costs, health costs, stress, emotional problems, physical sickness, workplace absenteeism, accidental injury, a higher incidence of automobile accidents, depression, and violence—all associated with family law because there's so much fighting and fighting going on within the family law system. We have to put an end to it whatever way we can.

The second part is the positive image of fatherhood. In the past the father was the protector, the breadwinner, the sex role model, but more recently we've seen a different image of father come forward in that of nurturer and participant. This is more the role of the father in the 21st century.

We think eventually fathers will take on that role, and they will do it through a shared and equal parenting concept. We need to ensure the continuance of pre-existing parental relationships. The children should not lose when there is a marriage breakdown. They should not lose one parent.

The advantages of shared parenting are that it's a win-win situation. The children will continue to be with both parents and have loving and nurturing parents. When there's a divorce, the children have more of a need for both members of the family. They have a need for more influence and more affection and love from both parents. If they have just one parent, the insecurity makes them feel stressed. Different things, such as teenage pregnancies and increased behavioural problems, are a direct result of that stress.

What I would like to share with you today is that there should be a continuance, a presumption of shared parenting. When sole custody is awarded and the children's father is relegated to that of the uncle dad or Disneyland dad, the children lose. The child's insecurity that's caused by divorce—if mommy and daddy don't love each other, will they stop loving me as well? Kids don't suffer from too much parenting. They need as much love and affection from both parents as absolutely possible.

One of the things I wanted to discuss was the expenditures we have on feminism and the erroneous statistics that come from the Status of Women. For instance, one of the statistics I was reading about was that the Status of Women's operating budget for 1996 was $16.563 million. For the men's group we know there is absolutely zero. We don't have the time and the staff to put these briefs together as the women's groups do.

The statistics in the reports are wildly inflated, simply imaginary in some cases, and a product of multiple extrapolations and a persistent confusion of correlation with causation.

For instance, $4 billion was the economic total of abuse, the cost of violence against women—this is the Status of Women's report—but the annual economic costs of violence against women in Canada is estimated in another article at $4.227 billion. According to Margaret Wente, the business editor of the Globe and Mail, neither is correct. She says that $4.2 billion is wildly inflated and quite simply imaginary. This was on August 24, 1996.

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We have to have some balance. We have to have more funding to balance it and have an even playing field. We have absolutely no funding whatsoever, and we're not able to put forward the arguments the other groups can.

Maybe you would like some finishing remarks, Deborah.

Ms. Deborah Powell (Spokesperson, Fathers Are Capable Too (FACT)): I was raised in an intact family in a small town. Unfortunately my father's been dead for...it'll be 21 years this year since our small, quiet town was invaded. Somebody broke into our home and shot my father.

One thing my father taught me, however, before he died was to stand up for what I believed to be just and to be fair. Our father was taken away violently.

I have a twin brother. My brother has a son, and when the mother of his son decided to leave, we went into family court. I thought, my god, he's losing his son to violence. He lost his father to violence, now it's legislated violence. My heart broke.

I see these fathers daily and my heart breaks for them. The father that Gene was talking about yesterday spoke with the lawyer, because he has to go back to court again. This has been seven years without a trial. The lawyer told him that once he accepts the fact he will never see his daughter again...it won't matter how he responds in court. He said he had to accept that fact, because there's nothing in this country to reunite a father with a child; it's only to tear them apart.

I'm going to summarize with a poem I wrote because of the frustration and the anger when my brother was going through this. You walk into family court and you recognize there's no justice there, no fairness, no balance.

This is for my nephew Laine:

When God brought Mommy and Daddy a dear little boy
There was supposed to be nothing but feelings of joy
So tell me now, how did it all turn out so wrong
The miracle of birth became a sad sad song.



Mommy left Daddy, and to hurt him some more
She ran off with me and changed the locks on the door
I'd like to see Daddy every day
But now Mom says just a two-hour stay



At birth Daddy held me and kissed my cheek
He worried 'cuz I was so small and so weak
I'd like to grow up and fill Daddy's shoes
But I'm not allowed to love Mommy and love Daddy too



She's cut off the branches to my family tree
'Cuz she thinks this will have no effect on me
Mommy's even planning to change my last name
Get Daddy out of my life is the name of her game



Mommy says Daddy will pay through the nose
But there's no way she'll let Daddy watch me grow
She knows the courts will help and be on her side
'Cuz everyone knows mommies don't lie



So Daddy will pay his child support
To get even more Mom will take him to court
If she can't pay her share - don't worry, don't pout
She knows the government will help her out



Why can't people see that when moms and dads split
Their love for their children doesn't just quit
The lawyers don't care 'cuz they're getting rich
“Take 'em to court” is their opening pitch



I'm just a baby, but I'll talk in time
And I'll tell the world it's an awful crime
To not let me see Daddy is a terrible ruse
Played out by Mom and the courts - it's child abuse

That's it. Thank you.

The Acting Joint Chair (Senator Anne C. Cools (Toronto Centre, Lib.): Thank you very much, Ms. Powell. I'm just getting organized, as you can see.

I'd like to thank all of you for very deep and very moving presentations. At the same time, I would like to say, especially to Mr. Guspie and Ms. Nabert, that I appreciate the emotional difficulty you would have had in making your presentation before us today.

I was very deeply struck by the fact, Mr. Guspie, that you have been waiting 40 years to tell a committee of the Parliament of Canada or of the Government of Canada about your particular situation.

I would like to thank you all.

I'm not sure exactly how much time we have, but perhaps we can begin our questions with the members. The first person on my list is Senator Jessiman.

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Senator Duncan J. Jessiman (Manitoba, PC): Am I correct that you're saying to us you find that the judges of our courts really do continue to have a gender bias?

Ms. Deborah Powell: There's a perfect example from New Brunswick. The father had access to his child on Tuesdays and Thursdays, and the mother wanted to have the access reduced. The father wanted to continue to have access to his child on Tuesdays and Thursdays and every other weekend.

They went into court and the judge said “Well, most fathers don't see their children on Tuesdays and Thursdays, why should you be any different?” He took away the Tuesdays and Thursdays and said three hours on Wednesdays was sufficient.

Senator Duncan Jessiman: So your answer to me is that from your experience there's—

Ms. Deborah Powell: There's a definite gender bias.

Senator Duncan Jessiman: I know there was in the past. I thought from one of the judges who spoke to us, when Bill C-41 was before us previously, there was some change. You haven't found that to be so.

Mr. Malcolm Mansfield: Not at all.

Ms. Deborah Powell: No. I find if you go into family court as a father, you have to prove your worth to visit your child. As a mother, you're deemed intrinsically better just by being.

Senator Duncan Jessiman: What about social workers themselves? They become involved. They're sent to the homes. Do you find they're neutral, or do you find they also have a bias?

Ms. Deborah Powell: I generally find a bias there as well, simply because of some of the training and some of the skewed statistics out there. Automatically men are being stereotyped as perpetrators and women as victims.

Ms. Heidi Nabert: Senator, perhaps I could also respond to your question. I know of a case. In fact, the gentlemen in question is the gentlemen sitting next to me, who has looked after his daughter for eight years. The four years prior to those eight years of sole custody were years of joint custody, when his wife was living with him.

Now at the ripe old age of 12, his daughter decided that because he wouldn't allow her to get her legs waxed and wear make-up and nail polish, she would go and live with her mom, who would allow that. We were subsequently subjected to court over this issue.

At line 35 of the transcript of the interim hearing, you will see that custody was awarded to the mother. No inquiry was made as to how long the father had had sole custody of this child.

Senator Duncan Jessiman: One of you was suggesting that there should be a presumption of shared and equal parenting. Are you going as far as to say that they should have equal time with the child, both evenings and during the day, each week or month?

Ms. Deborah Powell: There are parenting plans that could work and be unique to each situation.

For example, there are approximately 8,000 hours in a year. Out of that 8,000 hours in a year, a non-custodial parent, who is generally the father, is granted liberal access equivalent to approximately 1,500 hours a year. So your importance in the child's life has been reduced to less than that of the school crossing guard.

There are a number of parenting plans. Danny has in fact developed several, and they would include inclusive parenting.

When a parent has access to a child, that parent is also entitled to the information pertaining to the health, education, and well-being of the child, but try to get that information. It's not being provided.

Senator Duncan Jessiman: Some jurisdictions do require that you have a parenting plan before you actually get into the courtroom. Is it your recommendation that we consider this?

Ms. Deborah Powell: Yes.

Mr. Malcolm Mansfield: Our recommendation is that you have a presumption of shared parenting. You can start with that, with a mediated process and a parenting plan on top of it. If you don't have an even playing ground, when you get into court there is the perceived bias against a father.

In my experience there is a bias. People have called me from across this country telling me of their problems. My judgment is that there is a bias.

• 1725

If you can come up with a presumption of shared equal parenting, you start the mediation process from there. You get the two people together. From that mediation you have a parenting plan in place. How the parenting plan would work depends on the individual parents. Sometimes the child might be with the father more, sometimes with the mother more, but it would depend on the arrangements made during the mediated process.

Ms. Deborah Powell: We should try to take away from the child as little as possible in order to continue the pre-existing relationship—

A voice: Exactly.

Ms. Deborah Powell: —between the child and both parents. Right now, when the child goes into court, he has two parents; when he comes out of court, he has basically one parent. You try to take away as little as possible from that child.

Senator Duncan Jessiman: Are there any statistics on those who are separated with children where both are working? In my day—and that's a long time ago—women didn't work. They stayed home and raised the family. My children, be they male or female—and I have both—as a rule work, and there's an exception too. In the old days you could see a bias because the mother was the one who really did care for the children morning, noon, and night, but now, when both are working, as a rule...

I'd like to have some statistics. I don't know whether there are any on the percentage of separated couples with children...what percentage of them both work? They're both working during the day, and they both have spare time after their work to deal with the children. Would you have any statistics on the number of separated people with children where both parents are working compared with just one of the parents working?

Ms. Deborah Powell: I don't believe I have the statistics with me here today, but I can certainly get them for you.

Ms. Heidi Nabert: Senator, I'm not aware—

Mr. Malcolm Mansfield: In 53% of all families both parents are working.

What I was alluding to earlier is that the role of the father is changing from the breadwinner to the nurturer-participant in the life of the child. When we look at what feminism stands for, I would think any feminist organization should or would endorse a situation like that. It gives the woman the chance to get out and to become equal in the workplace, and it gives the man more of an opportunity to be a participant in his child's life.

Ms. Heidi Nabert: I'd like to add to that.

It's been my observation that if you go to any park on a Sunday or Saturday, you'll find many men, who I'm assuming are the fathers of the children they are with...and no woman is around. They're spending the afternoon with their kids; perhaps the mother is shopping or out with friends. That's a sight I enjoy seeing. I think there should be an opportunity for children to spend time with their father and time with their mother, whether they're an intact family or not.

To find diaper change tables in men's washrooms is a terrific move forward to ensure shared parenting in the true sense. I think feminism was seeking that kind of equality in the home, just as feminism was seeking equality in the workplace, though I do not see that reflection in the court system. There is no sensitivity to it whatsoever. In many respects I think feminism has perhaps let that component down.

If we want our men to be more involved with our children, then let it be so post-divorce, too.

Senator Duncan Jessiman: I have one last question, if I may.

You know that guidelines have been in effect as of May 1997. When it was first raised, it was provided that before the non-custodial parent got any credit for any funds that person may spend on the child, they would have to have started with substantially equal access to the child, so really a week about, or day about, or month about, or whatever.

• 1730

Then that was changed later to at least 50% of overnights. Then we were told by many that the judges just aren't allowing children to stay overnight, so that meant the person might have the children more than 50% of the time, but if they weren't overnight they'd get no credit for any account.

They then later changed that after a lot of work on our committee's part in negotiation with the government, and they said that where the guidelines provide they'd give credit to the non-custodial parent if that person had up to 40% or more of the time. We've had some come before us and say that needs some massaging or it needs some clarification. One expert said that; but he thought it was a good idea, that at least it was a marker and the judges could work that out.

But we had the Canadian Bar and although they represented 34,000 lawyers, when you got down to looking at who was talking to us, it was a committee of 30 who were represented by 6 people who wrote their brief. They're very unhappy with that 40% rule and want it back to substantially equal. I want you to remark on that, if you would, as to whether the Canadian Bar...

Certainly the non-custodial parents we heard from when Bill C-41 was going through were saying, look, it's not the overnight, it's not the time the children are in school, it's the time we spend parenting the children, actually spending quality time with them that should count; and the money we spend on them should count because what we spend on them the other won't have to and there should be some credit. I'd like your comments in regard to that.

Ms. Deborah Powell: First, I've read your speeches in the Senate with respect to Bill C-41 and I appreciate all the work you did in that regard, you and Senator Cools both. As I'm sure you're aware, we had hoped that the bill would get scrapped altogether. However, you take what you can get.

Senator Duncan Jessiman: Right.

Ms. Deborah Powell: We're finding there are still a number of people who are debating about whether to go back to court to change anything with respect to Bill C-41. We're getting more and more calls from women because it's affecting them in a negative manner, particularly women who are second spouses or second girlfriends, and they're recognizing the fact that...

Say, for example, you have a father who is separated, and he's paying child support to one household and he now is living in another household with another partner—we have a lot of blended families nowadays—and that partner has a child and is receiving child support from her ex. If maybe his ex wants add-ons, etc., and he wants to claim a hardship role because he says he can't afford that amount, now the new guidelines say we're going to take into account your household income; that includes your new girlfriend's income, and in her income we're including the child support she's receiving from this household over here. So now we're going to take that child support for this child and give it to this child over here. We're having a number of women call about that.

But as far as the 40% rule is concerned, it's further litigation. We have some parents who are custodial parents and who are simply vindictive, and if to get up to the 40% rule means there might be a reduction in their child support, then they're going to fight over it.

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Mr. Malcolm Mansfield: So it's an incentive really for the custodial parent to fight for less time for the non-custodial parent.

Senator Duncan Jessiman: I would have thought, and I was hoping, that it would be an incentive for the non-custodial parent to have more time with the child—

Mr. Malcolm Mansfield: But it doesn't work that way, Senator.

Senator Duncan Jessiman: No.

The Acting Joint Chair (Senator Anne Cools): Senator, I'm beginning to notice—

Senator Duncan Jessiman: Yes.

The Acting Joint Chair (Senator Anne Cools): Very well. So perhaps you could go at the second round, because other members are beginning to get a little anxious to put their questions.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you very much. I'm cognizant of the time, so I'll try to be as brief as I can.

I'm struck by a number of things—first of all, by some of the criticisms of the system. I accept that there are criticisms but some of them seem to be contradictory, and I'll tell you what I'm hearing. I heard a criticism that sometimes lawyers introduce delays into the court process, that the whole litigation process is problematic. But I've also heard that we can't make snap decisions, that it's wrong for the judge to sit there and in 10 minutes decide the interim custody of a child.

There's a problem there and I think that's what we're trying to solve. On one hand the delay is problematic, but we need the delay to get the proper evidence before the judges so that they don't make a decision in 10 minutes. Can you suggest a way to reconcile that?

Mr. Malcolm Mansfield: Maybe if the judges read the material it would help.

Mr. Danny Guspie: Very often it's the snap decisions that cause the delays, because you get a snap decision, then you go to another snap decision, and you go to another snap decision, and then the pile gets huge.

The Acting Joint Chair (Senator Anne Cools): In fairness, Mr. Mancini, to what the witnesses had to say, there really is no contradiction. When they talk about delays, they're talking about all the lawyers' delays before they actually get before the judge. So in fairness to the witnesses, there is no contradiction.

Mr. Peter Mancini: Let me ask another question, because I've heard here—and I accept it—some statements such as that children go into court with two parents and they come out with one.

First of all, would you agree that in the cases that end up in court there is a possibility that children of divorce, where parents can negotiate their own separation agreements, their own minutes of settlement of divorce, come out of the divorce still with their two parents intact because the parties have come to an agreement? They don't have it imposed on high from a judge.

So what we're talking about are those parents who cannot come to an agreement on how to parent their children jointly. That would be my starting point. I wonder if you agree with that. That's who we're talking about here, aren't we?

Ms. Deborah Powell: Not necessarily. Certainly in some cases parents can sit down and they can work out an agreement, and when it's amicable it's much better for themselves and it's much better for the children.

In many other cases what we find is that fathers seek out legal advice and they're told they might as well settle for the status quo because they're going to be spending thousands of dollars and they haven't got a hope in hell of getting custody or joint custody unless the other partner agrees. And so they do because otherwise they're wasting time, they're wasting money, they're hitting their heads against a brick wall.

Mr. Malcolm Mansfield: I think what's not understood, Mr. Mancini, is that most of the mothers do not understand the point that the father is absolutely necessary in the life of the child.

Mr. Peter Mancini: Are you telling me that the majority of mothers in this country don't understand—

Mr. Malcolm Mansfield: Most mothers from separations. This is because of the misunderstandings and things that are out there, the image of fathers and so on. They have come to the conclusion that the father is not necessary and if he isn't necessary—only to pay—then he's relegated to that role and everybody's comfortable.

The Acting Joint Chair (Senator Anne Cools): Okay, thank you.

Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Madam Chair.

I have a couple of quick questions here.

Much of the presentations we heard today reflected on your various experiences and associated pain with those experiences and those kinds of things. I'm just wondering how much the court system can actually address your pain. I'm kind of interested to know.

• 1740

For me, the purpose of this committee is to try to come up with some changes to legislation at some point in time, and I think there might be agencies outside of the court system that might be better able to address pain through painful divorces. I've heard problems with the judicial system, and some talk about shared parenting being the idea and changing our perspective: stop fighting over children and start treating them as the important people they are in the whole process.

An educational emphasis has been talked about here, but none of this stuff really brings us back down to legislative change or regulatory change that might prove conducive. Can you give any insights into that kind of thing that might help us as a committee going forward here?

Ms. Deborah Powell: Mediation, counselling, education, and—

Mr. Malcolm Mansfield: Presumption of joint custody.

Ms. Deborah Powell: But also mediation. The court system is an adversarial system designed to find a guilty party and an innocent party, which is fine in criminal law.

Mr. Eric Lowther: Are you saying then it would be a legislative requirement that the parties go through some sort of mediation?

Ms. Deborah Powell: Yes.

Mr. Eric Lowther: And the other components.

Ms. Heidi Nabert: With mediation there is an ability, an opportunity, for both parties to find common ground and build from that. Within the adversarial system it is the opposite.

If there are some disagreements, once there's common ground and some means to find some common understanding between the two parents, you can build from that, because there's a platform, there's a foundation to add to. When an adversary is involved, it just increases the anger and the bitterness between the two individuals. And let me tell you, as an adult child of divorce, that bitterness trickles down to the children.

A voice: Yes.

Ms. Heidi Nabert: And they ultimately are victimized yet again. If the fighting stops between mom and dad and the court system can assist in stopping that fighting, then the children will blossom.

Mr. Malcolm Mansfield: May I make a suggestion, though, Mr. Lowther? It's very important that the mediated process start from the presumption of equal or joint parenting. If it doesn't start from there, there is no reason for the woman in this case to mediate, because she will win in most cases in court, so why mediate?

Mr. Eric Lowther: Yes, I understand that. I guess we need to write into the—

Mr. Danny Guspie: You're looking for something specific within the Divorce Act itself.

Mr. Eric Lowther: Yes, so we could somehow take your recommendations and embrace some of these changes right in the act so it's not just something we talk about here. It's a nice idea, but we all go away, and gee, the act doesn't change and nothing really changes. We have to get this somehow into the legislation so it happens.

Mr. Danny Guspie: Our strongest recommendations would refer to section 16 of the Divorce Act, which refers to custody orders. Subsection 16(10) talks about facilitating maximum contact. We would say scrap that and replace it with a shared parenting presumption. Start from there.

If any child were in front of you and were able to articulate what they wanted, they would say, “I want to be able to love my mom and dad without anything interfering with that.” The way section 16 is structured right now, it's an impediment to a child to love their parent, because we start with the examination first, rather than the presumption. We should start with the presumption and then have the examination.

Mr. Eric Lowther: Yes, I'm with you. I think you make a really good point there.

Just before I lose my chance to ask one more quickie—

The Acting Joint Chair (Senator Anne Cools): Go ahead; one more.

Mr. Eric Lowther: Thank you, Madam Chair. You are so gracious.

The Acting Joint Chair (Senator Anne Cools): I know.

Some hon. members: Oh, oh!

• 1745

Mr. Eric Lowther: This is all well and good. Everybody comes to court mad, they get the counselling, and everybody now has the warm fuzzies and things are starting to go on the right track. I'm still concerned, though, because I've had people come to my office in my constituency, on both sides of the marital problem, and I'm not sure with a lot of these cases. You could counsel them till the cows come home and they're not going to... They have the knives out for each other, and if somebody gets hurt in the process, too bad.

It boils down to one of the parents not getting access to the children, even though the courts have ruled they're supposed to get access to the children. They're not getting it. I'm wondering what you folks are recommending for those hard-nut situations, where the court ruling is there and there's clearly no fulfilment happening on that particular ruling. We can counsel forever, but there are still going to be these cases, and then what happens?

Ms. Heidi Nabert: Your point's well taken, and I want to discuss something that occurred in Brampton a week and a half ago, when a woman was jailed for 60 days for denying access, denying the right of her daughter to see her father. In my opinion, that's going too far. It's also going too far on the other side. Why do we have to jail parents?

What is the prize? Custody is the prize. If you have custody, then all of a sudden you have all the power, all the litigant power. So take that away. If you are going to abuse your child by refusing that child the right to maintain an ongoing relationship with both parents—so, since you're the custodial parent, you're saying, “No, you can't see your daddy today”—that's harming the child. Then the court needs to address the fact that that is a form of child abuse.

Mr. Eric Lowther: So if I'm hearing you right, you're saying don't penalize the person through some sort of punitive to the person who doesn't allow access, but—

Ms. Heidi Nabert: Change custody.

Mr. Eric Lowther: Yes, make it clear that they risk custody.

Ms. Heidi Nabert: Change custody.

Mr. Eric Lowther: Okay.

Mr. Malcolm Mansfield: Invoke the friendly parent rule, the one who is willing to give the most access to both parents.

A voice: Yes.

Mr. Danny Guspie: There are some social work programs that would be helpful in this respect. If the court had the ability to order people into mediation or to order them into social work programs...

A parenting coordinator program is suggested in a book, Caught in the Middle: Protecting the Children of High-Conflict Divorce, by Garrity and Baris, on sale in the United States. What they suggest is that a psychologist or psychiatrist get involved, try to figure out what the parenting relationship was prior to the divorce, and then reconfigure that within two homes. That person becomes the parenting coordinator for maybe 16 months to allow the dust to settle, let the emotions cool down, and piece by piece, they're removed from the situation so the parents can cope. That's a support system. That's what we're suggesting. The punitive approach must come out.

The Acting Joint Chair (Senator Anne Cools): Could I just interrupt for a moment, Mr. Lowther?

I'd like to clarify something and to give you, Ms. Nabert, an opportunity to put on the record that particular case you made a reference to so our researcher will have access to the case. You cited a particular instance, I think it was in Ontario. Could you put that case on the record for us, please?

Ms. Heidi Nabert: Yes, it was in Brampton, Ontario.

The Acting Joint Chair (Senator Anne Cools): And the name of the case?

Ms. Heidi Nabert: Barbosa v. Dadd.

Ms. Deborah Powell: It was Judge Dunn.

The Acting Joint Chair (Senator Anne Cools): I believe it was Judge Patrick Dunn, and I believe the case is Barbosa v. Dadd.

Ms. Heidi Nabert: Yes.

The Acting Joint Chair (Senator Anne Cools): Very well.

And Mr. Lowther, in response to your particular question to Mr. Guspie, and also to augment what has been said, it would be a little difficult in the instance of a case such as Barbosa for counselling to be recommended, since what she was accused of was contempt of court. In this particular case, I believe the access order was violated 41 times, and the case had been the subject of repeated visits to the court and repeated admonitions.

So perhaps this is a case our researcher could take a look at and perhaps the committee could get a bit more insight into it and a bit more knowledge about it. But in the instance of an access order being violated, the finding the judge made here was a contempt of court, and there's no counselling that corrects that.

• 1750

Ms. Heidi Nabert: Senator Cools, perhaps I may add to that. There's another case the researchers may want to investigate.

The Acting Joint Chair (Senator Anne Cools): Thank you.

Ms. Heidi Nabert: Allan v. Grenier in the Hamilton Unified Family Court is very similar.

The Acting Joint Chair (Senator Anne Cools): Do you know who the judge was in that instance?

Mr. Danny Guspie: Every judge in the Hamilton Unified Family Court has sat in that case.

The Acting Joint Chair (Senator Anne Cools): Okay. In any case we can look up that case and bring it to us.

Ms. Heidi Nabert: I believe she was jailed around this time.

Senator Duncan Jessiman: What year?

Ms. Heidi Nabert: 1997.

The Acting Joint Chair (Senator Anne Cools): This is last year. The Barbosa case was about two weeks ago. The Allan case was sometime last year.

Also in terms of the record and for the reporters and our researchers, Ms. Nabert, when you were giving your presentation you were citing some data on fatherlessness. Could you also put on the record what documents or what research or references you were citing?

Ms. Heidi Nabert: I was referring from a book called Fatherless America: Confronting Our Most Urgent Social Problem by David Blankenhorn. There are several references from books, one was written by Judith Wallerstein entitled Second Chances. In addition to that, I referred to Single Moms and Their Children: A New American Dilemma by Garfinkel and McLanahan.

The Acting Joint Chair (Senator Anne Cools): Excellent. I thank you for that. We can start with this.

Mr. Danny Guspie: There were some other references too.

Ms. Heidi Nabert: Senator, I'm sorry there was also Growing Up in Canada, which is a Statistics Canada publication.

The Acting Joint Chair (Senator Anne Cools): Thank you. Perhaps we can move on from you, Eric.

Mr. Eric Lowther: I just want to clarify something. On this case, Barbosa v. Dadd we had the 41 times...now the mother is incarcerated. What happened to the child? Did it go to the father?

The Acting Joint Chair (Senator Anne Cools): The second judge has given it back to the mother.

Mr. Danny Guspie: Yes, a section 96 judge has reversed that.

The Acting Joint Chair (Senator Anne Cools): In any instance I just wanted the reference and the name of the case on the record so that we might want to circulate the case ourselves. Perhaps the researcher can prepare something on it.

Ms. Heidi Nabert: Perhaps I can add one more thing. In the case of Allan v. Grenier, the mother in question was also jailed for five days. During those five days the father was not allowed to look after the two-year-old child.

The Acting Joint Chair (Senator Anne Cools): Our researcher will pull those cases to bring them to our attention. Thank you you very much.

I should move now to Mrs. Dalphond-Guiral.

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): I will make my comments in French, so if you need translation you can use your earphones.

[Translation]

I listened to what you said with a lot of empathy and interest because it has the great quality of having to do with quite personal experience. What I heard when I listened to you was the remaining hatred and sadness despite the years.

I have two questions for you. Basically, I think we won't be able to decide divorce will never exist anymore. That's reality. Would one of the solutions be to learn, as a human being and as a person, to be a parent and to remain a parent notwithstanding the outcome of the conjugal relationship? That's my first question.

My second concerns the training of the different professionals who should ideally help in a human and intelligent way those families who are going through a rough patch. Do you think the judges have enough training?

• 1755

In the field of medicine, all doctors worth their salt undergo ongoing training and they're not embarrassed by it. Should this mental attitude also not be required for judges, lawyers, social workers, psychologists and also teachers who, during the week, have to be able to give adequate support to the children when they reach school age?

Those are my two questions and I thank you for your answers in advance.

[English]

Mr. Malcolm Mansfield: May I respond? On your first question, the role of a parent, regardless of the outcome, is a very important consideration. We in fact suggest that the father would still be a father, the mother would still be a mother, no matter what happens in the family. If there is a divorce, both parents would still continue looking after their children. They would continue to be a parent to those children well after a divorce, after the reorganization, we could say, of the family.

When I say “family”, I mean we also have some grandparent groups here as well. When you isolate the children from one family member, you're not just isolating them from mom or dad; you're also isolating them from aunts, uncles, grandparents, the extended family and so on. So it's very important that the children have a continuance of support from both parents.

The role of the parents has to be understood a little more, and that leads into your second question. As you mentioned, what we need to do now is educate judges, lawyers, social workers and so on. We need to educate them more on the role of both parents in society today rather than continuing on with the role of parents as they were from, say, even my father's or grandfather's generation, where the father was the breadwinner, the sex role model and so on.

Now we have to look at the 21st century ideal of what a father and a mother are. A mother now is not necessarily continuing to be at home; she is out in the workplace and doing jobs similar to what men are doing. In that instance the father has to now take on more of the role that the mother used to take on, which is the nurturer and participant in the child's life.

So many of the teachers, judges, lawyers and so on may not be holding those views. They may be holding on to old-age views of what parents are. So it does require some education.

Ms. Deborah Powell: Can I expand on that a bit?

In our schools what we're doing is teaching our children about birth control and how to prevent sexual diseases and where the body parts go and about different lifestyles and what have you. We're not teaching them about the consequences and responsibilities of becoming a parent, of the ripple effect it has on both families when there is a pregnancy.

When a young teen becomes pregnant, we have classes to teach the young mothers how to be a mother or how to parent, but we don't have any classes for the young boys on how to be a father. Just because there's a stereotype in society that mother is the nurturer and father is the provider, we haven't changed our institutions to bring us up into the nineties. This has changed, the roles are interchangeable, and we have to provide training for parenting skills. There has to be training on the effects of parental alienation in children's development for anybody who is associated with the divorce industry.

Ms. Heidi Nabert: Perhaps I can just add to that, and this may be something for the researchers to look into.

• 1800

Dr. Neil Campbell, who is I believe at the University of Western Ontario, has such an educational program, teaching fathers how to take care of babies. It has opened up the eyes of many of the participants as well as the researchers involved in this program.

Mr. Eric Lowther: My wife taught me that.

Ms. Heidi Nabert: Well, you're very fortunate. Perhaps we could instil her knowledge in this.

I believe that is an integral part that should be instilled within school systems.

In reference to your question about whether the judges and lawyers and so forth have the appropriate training, I think not. There perhaps needs to be some additional training with respect to inclusiveness of both parents. I believe that without the perception of joint or shared parenting as the main goal—that that be the outcome of the majority of most divorce cases—and without education, the parent who is always going to come under fire is the father. He is always going to have to swim that uphill swim, like the salmon, to prove his worth as a parent. That should not be.

Certainly education for both parents is an excellent idea to improve our skills. Thank you for your question.

The Acting Joint Chair (Senator Anne Cools): Ms. Nabert, I believe you made a reference to Dr. Campbell's program. Again, for our record, I believe the name of that program is DADS Canada, or something like that.

Mr. Danny Guspie: DADS Canada. There are six videos that go along with it, called Dads Under Construction.

The Acting Joint Chair (Senator Anne Cools): Okay—just to make sure we can get this onto the record.

I have a very quick question, because I've noticed that all the witnesses have, in one form or the other, raised the issue in very subtle ways of the conduct or misconduct of some lawyers and of some judges. My question, to Ms. Nabert, is not so much about the conduct of judges, but on the issue on the conduct of lawyers.

You said that you were offered some pretty heinous advice by a particular lawyer. You also told the committee that you declined to take that advice, because you thought it would cause you to lie. Basically, the advice was to falsely accuse your husband of physically assaulting you.

Do any of you have any information, or any doubt, or any experiences that you could share with us about the other side of the coin, which is those poor women who unfortunately do take such advice and do falsely accuse?

I'll tell you why. There is a very famous case now in Winnipeg, where a particular woman stayed in a women's shelter and was given similar advice by whoever gives this advice, and did what she was told, and has been talking about it quite publicly. In terms of the people you work with and the members of your different organizations, can you share anything more with us about this sort of phenomenon of false accusation?

Mr. Malcolm Mansfield: False accusation seems to be the tool of choice in family litigation. It seems to be consistently present with many...well, just about I would say 90% of the cases that come to us at FACT.

Whenever someone calls us at FACT, they're astounded by how much I know about their case even before they say anything. I can tell them exactly what's going on: you were accused falsely of abuse; or you were accused of physical or mental abuse of your wife; you were accused of this or that. The story is the same consistently across the board, from British Columbia all the way to Newfoundland, from the letters and the phone calls that I get to my office.

By the way, when I'm getting into the office—it's a part-time thing—and I take these calls, you know, I can tell the person their story before they actually tell it to me. It's consistent across the board.

The Acting Joint Chair (Senator Anne Cools): Mr. Guspie, has your organization had experience?

Mr. Danny Guspie: Yes. I'm also a paralegal and assist men who are going through this process. In the last year I've had at least, I would guess, about 18 fathers who have been through this, who have been accused, investigated by the police, investigated by the Children's Aid Society.

• 1805

By virtue of the fact that they cooperated and kept insisting on their innocence, within the majority of these cases, mom and dad came to the table eventually and negotiated something when it ran out of steam. I have to ask myself, if that's the case, why was the allegation made in the first place?

The second thing is, I had a meeting with the executive director of Pardons Canada, which is also a national non-profit organization, who is helping fathers go through, you know, obtaining pardons for whatever situations they're in. He has found a dramatic increase in the last three years of fathers coming to his organization who have faced this sort of situation.

Ms. Heidi Nabert: Senator, if I may add to that, it appears to us from our organization that this is the magic bullet. If things are not going well in court, you make an accusation. I want to leave this with the committee today. That accusation, whether it is founded or not—there are some grave concerns I have in regard to this.

Number one, only make an accusation if in fact it's true. You're subjecting those children to medical invasive work in order to determine whether the child was or was not abused. How can you possibly do that to your child if in fact you're suspecting it was or was not the case? If it's a fabrication, think twice of what you're about to put your children through. The medical examinations alone are a violation, and should only be utilized in those instances where in fact there is abuse. In those instances, absolutely prosecute. Absolutely put an end to it. But the sad thing is that it tears the parents that much further apart, and increases the litigation, increases the fighting.

The Acting Joint Chair (Senator Anne Cools): Go ahead, Ms. Powell.

Ms. Deborah Powell: In Justice Mary Lou Benotto's speech on ethics and family law, she references the Ontario Civil Justice Review's first report, where it states

...the single greatest complaint about lawyers by members of the public was with respect to the damage to family relationships caused by the allegations in these affidavits - where, it is widely acknowledged, perjury is rampant and, moreover, goes unpunished.

The Acting Joint Chair (Senator Anne Cools): Thank you very much. I believe, again for our researchers, you're referring to the Civil Justice Review report of Ontario, which was chaired by Mr. Justice Blair.

Ms. Deborah Powell: Yes.

The Acting Joint Chair (Senator Anne Cools): Our next questioner is Mrs. Finestone.

Hon. Sheila Finestone (Mount Royal, Lib.): How do you do? I've been listening for quite some time to, yes, the pain and anguish and the difficulty and the stress that divorce and unhappy marriage brings, and there's no question that this is an actual fact.

The question that runs through my mind as I've been listening to you is whether you feel there are prevention methods that could be effective. You can't be a soothsayer and you can't be there to prevent the person who decides to be miserable, machiavellian or hurtful to his or her offspring. If we had a crystal ball and could see it, we would prevent it, right?

From the way you have presented it, I presume in the amount of work you have been doing you could perhaps seize this committee with concrete suggestions. There are certain things you cannot legislate in this world. There are certain things you cannot foresee, as I'm sure you must agree.

The task of this committee is to come up with some concrete proposals. For an example, we will be having the bar associations before us—le Barreau du Québec, the bar association of Ontario, the bar associations across the country. We will have legal aid experts from across the country. We will hear from these people in each and every province. We will hear as well from parents, grandparents, and custodial and non-custodial parents.

• 1810

As you're among the first witnesses we have had, what would be most constructive and helpful is not an individual-case diagnosis on how we can help or we can't help something that happened 20 years ago or yesterday. But look at the experience of the cases that come before both of you. You say that's 18 in the last year. You say you answer your phone every day and you look after a certain number of cases. We thank you, but this committee's task is quite circumscribed. What can you expect us to find out that would stop, help, move forward the concerns you have had the misfortune of living with?

So in the first instance, I'd like to know how you differentiate between joint and shared parenting. I want to know if you believe that there is an automatic response to shared parenting or joint parenting where this is the wish or not the wish. How do you see, how do you perceive, and how do you want us to go ahead with recommending joint or shared parenting? What's the difference in the terminology? That would be my first question.

My second question is, with having all the bar associations appear before us, what type of training do you want us to suggest or recommend that would be inclusive in the training, retraining, and upgrading of the judges? What kind of recommendations shall we make?

Third, in the field of social work, given the nature of the work that's required in mediation, is the skill of the social worker the appropriate skill or not? Which is your view? Is the ability of a trained and experienced lawyer a better approach or a lesser approach?

I think we need this committee to benefit from your living experience, but we need far more concrete facts, because we are not in a small case room where we are dealing with individual diagnoses and enabling help. So I'd like a much more practical

[Translation]

approach, a down to earth approach. It would be useful for what we'll be undertaking in the context of the Bill and our report. Thank you, madam Chair.

[English]

The Acting Joint Chair (Senator Anne Cools): Who wants to go to that one first?

Mr. Malcolm Mansfield: Well, on your first point, thank you very much for those questions. They're very insightful because they almost, in essence, encapsulate everything we've been talking about.

Mrs. Sheila Finestone: Let's be practical in the response. One, two, three, and I don't want to have a big, long explanation. I want practical responses, please.

Mr. Malcolm Mansfield: Yes. Joint parenting is on the books now. What we want is physical joint parenting. For instance, one of the members of FACT has joint parenting, but his children are in Italy, while he's in Canada. So joint parenting in itself—

Mrs. Sheila Finestone: Excuse my ignorance, but what shall we do? Shall we be Solomonic and cut the children in half or shall we decide that we should send all the children to Italy? Shall we keep all the children in Canada? As a kind of approach—that means what you have just given as a model answer to a question—I find that rather far-fetched.

Are you going to uproot the children and the mother to move with the father? Are you going to tell the father he can't go to Italy, or tell the mother that she can't go to Italy? What is your practical response?

Mr. Malcolm Mansfield: Now you're into mobility rights, Mrs. Finestone.

Mrs. Sheila Finestone: Fine, then say so.

Mr. Malcolm Mansfield: As for mobility, we want to keep the kids in the area where they're growing up. We would rather see the child stay in that area. If the parents want to move, then whoever wants to stay and raise the child in that particular area should stay there.

Mrs. Sheila Finestone: Do you want legislation that says mobility rights can only apply to the parent who wishes to leave, but the family home stays intact, and whoever wants to stay, stays? Is that the nature of the—

The Acting Joint Chair (Senator Anne Cools): No, Mrs. Finestone, he did not say that he wants legislation saying that.

Mr. Malcolm Mansfield: No, I don't want legislation like that.

Mrs. Sheila Finestone: How would you apply that?

The Acting Joint Chair (Senator Anne Cools): Witness, you say what you mean.

• 1815

Mrs. Sheila Finestone: Madam Chairman, it's my turn. You're not allowed to interrupt.

Go ahead.

Mr. Malcolm Mansfield: We're discussing mobility rights. We still want to keep the best interests of the child at heart. Do you not agree with that?

Mrs. Sheila Finestone: Absolutely. That to me is fundamental.

Mr. Malcolm Mansfield: If the best interests of the child is to stay in the area where they feel comfortable, where they went to school, where they're growing up, then it should be the child's right to stay in that area. If the mother wants to move and the father decides he wants to stay there and let the child grow up in that area where they feel comfortable, then should not the child stay with the father, or with the mother if that's the case?

Ms. Deborah Powell: If you have a presumption of shared custody, you have to recognize that when you become a parent, parenting includes sacrifice. You sacrifice because of your children. When there's an intact family, if somebody gets a job offer to move somewhere else, they take into account all the circumstances of the family home, the children's schooling, their doctor, their dentist, their friends, their extracurricular activities. They may have to forgo that better job opportunity, and we have to do the same thing.

Mrs. Sheila Finestone: I understand all that, please. As I said before, I'm looking for practical answers.

Mobility issues are fundamental to the best interests of the child. There is no question about that. I want to know how you would see the application of a mobility right. How do you see that written in law, how do you see that practised by the lawyers, or how do you see that done by the mediators? Who does it?

Ms. Deborah Powell: I believe it should be implemented in an initial parenting plan through mediation.

Mrs. Sheila Finestone: Thank you very much.

The Acting Joint Chair (Senator Anne Cools): Very good.

Mr. Malcolm Mansfield: The next question was the type of training you would like to see for judges and for social workers. For instance, talking about social workers, we feel there is no accountability. They should have some accountability to some body. If there is something wrong with the social workers' initial findings on any particular parenting issue and if they're wrong and they're brought to court, then there should be an accountability factor. Right now there doesn't seem to be any accountability when it comes to social work in the province of Ontario, at least.

Ms. Heidi Nabert: I can answer that. It is my understanding—

Mrs. Sheila Finestone: We're now focusing on the issue of mediators and the people acting as mediators in this instance as social workers. Is that where you want to interrupt?

Ms. Heidi Nabert: I just want to comment further on the accountability and the training of social workers.

In any university or college social work program anywhere in this country or in the United States that is teaching social workers how to conduct their day-to-day work, I would be interested to find any text that is used where there's any reference to the importance of fathers to maintaining ongoing relationships with their children.

Mrs. Sheila Finestone: Fine. Therefore, if I understand you correctly, you are making an observation that if we are to use social workers as mediators to enable a couple to arrive at the best work plan in the best interests of their child, training programs should be so constructed at the university level where they are being trained that would be well-balanced and not biased. Is that what you're saying?

Ms. Heidi Nabert: Absolutely.

I do not believe social workers should be mediators unless they have received competent training within the mediation model. Social workers are not mediators, just as lawyers are not mediators. Lawyers, in fact, are learning through their legal training the precise opposite to what mediation is teaching.

Mrs. Sheila Finestone: Would you not suggest that this is a rather broad statement? Perhaps I can suggest to you that when Dr. Shaposnick and his wife arrive to testify in terms of mediation, the husband in this case happens to be a lawyer and the wife happens to be a social worker. They happen to run a very highly respected mediation service in Quebec.

• 1820

I was a director of youth protection. We used mediation services, and I'm quite familiar with what would be perceived to be the role of the social worker versus that of a role of a mediator. The training is different, that's accurate, but I would not use the broad brush you just used and say that no social worker can do that.

Ms. Heidi Nabert: I'm not suggesting they can't.

Mrs. Sheila Finestone: Then modify your statement, please.

Ms. Heidi Nabert: Yes, absolutely, with the correct training anyone can.

Mrs. Sheila Finestone: Thank you.

What do you feel about judges and lawyers...anyone with correct training? Therefore, what you're recommending that we need is a proper training module that would be given at university.

Ms. Heidi Nabert: Yes.

Mr. Danny Guspie: I would like to jump in at this point and add to that.

Negotiation is not very large on the scale of skills that are taught within the universities and law schools across Canada, such as the University of Toronto. The Harvard Law School negotiation project puts out the finest materials available on the subject of negotiation. I think that should become part of the required curriculum for lawyers across this country.

Mrs. Sheila Finestone: I appreciate that very much. That's a good recommendation we can bring to the Canadian Bar Association.

The Acting Joint Chair (Senator Anne Cools): I'm going to move to Dr. Bennett.

Is this a supplementary question, Mr. Mancini?

Mr. Peter Mancini: You just referred to the Harvard Law School negotiation project. Is that an overall negotiation manual for any circumstances or is it specific to family law?

Mr. Danny Guspie: They are an actual unit within Harvard Law School that is working on a series of negotiations. Several books have been published by that project.

Mr. Peter Mancini: For my own clarification, is that negotiation broadly, or is it negotiation in family matters?

Mr. Danny Guspie: Negotiation broadly.

Mr. Peter Mancini: Okay. Thank you.

The Acting Joint Chair (Senator Anne Cools): Do you have a supplementary, Mrs. Finestone?

Mrs. Sheila Finestone: I'm sorry, but the question on shared parenting versus joint parenting was not answered.

I would like to know if there is a differentiation in the presentation that's being made between the terminology “joint parenting” and the application of a joint parenting decision versus that of shared parenting and the application of shared parenting. The answer I had on the first part of that dealt with mobility rights, but I'd like to know something about terminology, if you don't mind.

Ms. Heidi Nabert: I'd like to answer that.

Joint custody or joint parenting in today's terms is a legal term. It only refers to the fact that both parents in this instance will have joint say in certain aspects of the child's life such as religion, schooling, along those lines. But it does not—and I repeat, it does not—include 50% of the time with this parent physically and 50%—

Mrs. Sheila Finestone: Thank you. That's the definition that is the difference between shared and joint.

Ms. Heidi Nabert: Absolutely. It has to do with where the child is physically spending the time with each parent.

The Acting Joint Chair (Senator Anne Cools): Dr. Bennett, it is your turn now.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you, Madam Chair.

Throughout the testimonies we've heard that language seems to be the most important thing, the bone to fight over. The word “custody”, the perception of winners and losers, and now I even think shared versus joint parenting...everybody feels the words have been misused, abused, and it's time for a new look. A lot of the literature is supporting parenting plans or parenting arrangements that actually would get rid of all of that previous language. We know that giving joint custody to two parents who aren't speaking to one another, which some judges unfortunately have done, doesn't work.

There are some parenting arrangements now, by consent of both parents—perhaps an 80-20, perhaps a 60-40—and geographically that may be what works. They may have the summer. So the idea of arithmetic and a 50-50 arrangement really doesn't matter as long as it's what is in the best interests of the child and what the parents have agreed on.

• 1825

So that was my first question, in terms of just changing the language to “parenting arrangements” and how you would see the legislation look if it was there.

This has a little corollary. The Divorce Act only deals with divorced people. Do you have any experience with common law relationships? As that is a provincial responsibility, it does tend to trickle down from what we do here at the federal level.

I have a second question. We've been hearing that 80% of dissolving relationships can work themselves out on their own, and I would assume that your groups are representing the 20% that can't.

I'd like to hear whether you think there are people who should be talking to you, who look like they're in the 80% because of the way things tend to roll out in terms of moms and dads. Alternatively, would you be comfortable saying that the 20% who end up in litigation, end up with these hard-fought battles, are really the people you're representing?

My third question was about mediation. I feel that it doesn't really matter. As a family doctor...there are lots of things lots of people do. It doesn't really matter what they study at university. Good mediators may be lawyers, social workers, or something else, but it actually is somebody who can actually find the points of agreement, and do that.

We're also finding that some people say there shouldn't be mediation, because the data always wins. That is because of the power differential. Some people say you can't make everybody go through mediation before they can file their court application.

Do you have any feelings about compulsory mediation? Also, who then does it? Should it be on site in the courtroom or in the court building?

The Acting Joint Chair (Senator Anne Cools): You have two questions.

Ms. Deborah Powell: Can I answer that? Our group represents a wide cross-section of individuals. I would not say that it would just be individuals having conflict. We have individuals who have negotiated agreements, who have amicable relationships with their former partners. We unfortunately have members who have been denied all access to their children. We have some who have restricted or limited access. I'm a custodial parent. So it's a wide cross-section there.

Basically it's an organization that is concerned about the effects of separation and divorce on children. It is also a support organization for individuals who are separated. This is if they need any counselling, any advice, where to turn for assistance—what organization—and just to discuss parenting roles, as well.

Ms. Carolyn Bennett: I apologize. I was at the health committee so I didn't hear your initial presentation. I'm grateful for that clarification.

You won't find any argument that the positive role for fathers and for both parents is the most important thing our society can try to sort out now.

We see what happens when a child perceives that they were abandoned by their father, whether that was prescribed or elective. This isn't a good generation-to-generation thing. So I think that we as a committee will—

Mr. Malcolm Mansfield: Let me answer your first question, Mrs. Bennett, and thank you very much for those questions.

The language is important. As you can see within this committee itself, there is the language of custody versus joint custody versus shared parenting. A lot of people are not quite familiar with those terms. So I think probably the first order of the day is to define the terminologies for the use of the committee.

It's important when it comes to children of divorces as well. They don't want to be understood as being in custody. Custody is not something that... They want to be parented. So that's a very important distinction.

With respect to the 80% versus 20%, I'm not exactly sure that 80% of divorce cases work out quite amicably between the parties. I think those statistics may be a little flawed. What happens is that many of the people who are in divorce situations give up. They don't continue on. A very small percentage of people in divorce actually get to court. So what we're seeing is that some of them give up and go away, and other things happen as a result.

• 1830

What we have to look at is if it is a fair assumption that only 20% litigate. If that's the case, then I don't think we would be getting as many calls as we actually do if people were just settling out... Across this country there's—

Ms. Deborah Powell: If 40% of marriages are now dissolving, 20% of that group is a lot of people. Wouldn't we like that to be smaller?

Mr. Malcolm Mansfield: We would, absolutely; we'd love it to be smaller. I would hope that it would get down to 2% or 3%, if we could, but I think even 20% may be underestimating.

The thing we have to figure out now is the best way to proceed, so that we don't have litigation, and get it out of the court system altogether. So we're talking mediation.

You asked whether compulsory mediation was good or not. I'm under the impression that compulsory mediation is of paramount importance. That mediation has to start from an assumption of some sort. If it's not from an assumption, then again, going back to a point I made earlier, there is no incentive for one party to mediate with the other party if they're going to win. If I'm going to win according to the sense of win that they understand, then there is no incentive to mediate.

Ms. Carolyn Bennett: Even if two parties can't actually sit in the same room, there seems to be some benefit from mediating, even with the mediator going between the respective parties: could you live with this, could you live with that? Is that what you're saying?

Mr. Malcolm Mansfield: Yes, it does work in most cases.

Ms. Heidi Nabert: I'd like to address one additional issue with regard to mediation, and that is the financial component. The savings in depleted family assets are enormous versus litigation.

We have had countless numbers of men coming through our doors who are bankrupt, and on welfare. They used to have six-figure incomes and $500,000 homes.

A voice: I know.

Ms. Heidi Nabert: To leave a legacy like that to their children when they cannot even support themselves, let alone perhaps support the children's ability to go to post-secondary education...and perhaps when they pass on, that there be some type of fund they can leave behind for their children or their grandchildren. The difference between mediation versus litigation is that very fact. Where do the funds go? This is money the family has worked hard to earn, perhaps over decades. Both mom and dad have contributed to it, and it's depleted.

Ms. Carolyn Bennett: I would express a caution in terms of the best interests of the child staying in the home. I guess there are situations where only one working parent gets a fabulous job opportunity somewhere else. It's almost a situation of whether they stay in the same city on welfare or they move. So I just caution about prescriptive solutions because I think what we really want is flexibility and the ability to do what is actually best in each customized situation.

A voice: In each individual case.

The Joint Chair (Mr. Roger Gallaway): The final word is Senator Jessiman's. I understand he has some supplementary questions.

Senator Duncan Jessiman: Yes, we've been talking, and both of you have said that you're referring to subsection 10 of section 16, under the heading “maximum contact”. You're suggesting it should be replaced with the presumption of joint or shared parenting.

Well, we have some literature from California. That was the first state to create a legal presumption in favour of joint custody. There's been a lot of literature since then, with writing on one side saying it hasn't worked, and the other saying, well, we think it has worked.

• 1835

It seems to me that the legislation now in California has some sense. It said:

When custody is being granted to either parent, the court must consider which parent is more likely to facilitate contact with the other parent, and must not prefer either parent on the basis of sex. The court is permitted to require that the parties submit plans for the implementation of the custody order.

There is a further provision, and then I'll stop. I just want your comments about it. It says it:

establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

Doesn't that seem to be reasonable?

Mr. Danny Guspie: The difficulty is that there is a systemic bias within society. A lot of us are still operating on the mentality that we still live in the Leave it to Beaver era, where Ward came home, got his pipe and slippers, and June made dinner. It's not like that for the vast majority of Canadians today. It's almost like expert medical research. Leading medical research starts in some remote university somewhere, and 20 years later it filters down to the GP. It's the same thing with this sort of bias.

The changes that have happened in our society over the last 30 years have been absolutely phenomenal. Fathers are involved in diaper-changing, carrying kids around on their backs in the parks. That hasn't become at all reflective within—

Senator Duncan Jessiman: So you don't think California's has the...? I thought they were one of the more progressive states.

Senator Anne Cools: Senator Jessiman was quoting or reading from a particular document, and that eluded us. Would he tell us what he was reading from?

Senator Duncan Jessiman: Yes, it's a document prepared by the Library of Parliament that was handed out to the senators recently by our researcher.

Senator Anne Cools: Good, thank you.

Senator Duncan Jessiman: It gave various states, but California—

Ms. Heidi Nabert: I would just like to respond to one aspect of what you were reading. That was that the judiciary should award custody to the parent who would most likely—I can't remember it verbatim—allow the child to maintain an ongoing relationship with the alternate parent.

Senator Duncan Jessiman: Right, that's what it said.

Ms. Heidi Nabert: I think that's an excellent statement.

Senator Duncan Jessiman: They must not prefer either parent on the basis of sex.

Mr. Malcolm Mansfield: We have that now. We have that in the friendly parent rule in Ontario, and it's not workable.

Ms. Heidi Nabert: It's not being utilized.

Senator Duncan Jessiman: Because—

A voice: Because of the systemic—

Senator Duncan Jessiman: —of the statutes, social workers, and all the people who are implementing it—

Ms. Heidi Nabert: It's a systemic bias.

Mr. Danny Guspie: How many judges do you know who are fathers who are changing diapers in chambers? You go to law school, and you do 80 hours a week trying to get that grade. Then you do 80 hours a week trying to get into the articling position, 80 hours a week to get the job, and 80 hours a week trying to make partner.

Senator Duncan Jessiman: I know. Fifty years of—

Mr. Danny Guspie: So that's what the systemic difficulty is. That's where it's at.

The Joint Chair (Mr. Roger Gallaway): I really don't want to cut anyone off here this evening, but unfortunately this room is going to be converted into another use, and it must be done within 20 minutes. I have to tell you all that we're being evicted as we sit here.

I want to thank you for coming.

A witness: Thank you.

The Joint Chair (Mr. Roger Gallaway): Certainly this has been a very lively session. I must apologize for my absence—I was in the House—but it's been a very lively session. I know we've had a good exchange, and we appreciate your contribution to that. Thank you.

The meeting is adjourned.