EVIDENCE
[Recorded by Electronic Apparatus]
Monday, April 27, 1998
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[English]
The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): It being 8.30 a.m, I'll call this meeting order.
I want to say on behalf of my colleagues how pleased we are to be here in Vancouver. Many of us are from far east of here, and we have been remarking on how beautiful it is in Vancouver, seeing the flowers and seeing the weather the way it is. It's wonderful.
We are now entering meeting number 19 of this committee, which has been struck by both the Senate and the House of Commons to examine the matters of custody and access at the time of and following divorce.
Our first witness this morning is from the Office of the Child, Youth, and Family Advocate. I'm going to ask Joyce Preston to come forward. We have talked prior to the meeting, and we have stressed the need to stay on schedule today.
Ms. Preston, welcome. I don't know if you've appeared before a committee before, but the process is that you can give us your summary and then it's followed by questions. So if you want to start, please do so.
Ms. Joyce Preston (Child, Youth and Family Advocate, Office of the Child, Youth, and Family Advocate): Thank you very much. I'm pleased to be here. I would not want to be the person who started your day off late.
And everybody who comes to Vancouver is required to say how beautiful it is, so I'm glad you fulfilled that obligation.
Voices: Oh, oh!
Ms. Joyce Preston: I will be brief. I wanted to tell you I am pleased that a committee is looking at this. It is a problem that has significant proportions. We notice it in the office of the advocate, as do my colleagues across the country.
Recent statistical analysis of the work we do out of the Office of the Child, Youth, and Family Advocate shows that for every day we are open for business, we average two phone calls requesting assistance about custody and access disputes that aren't working on behalf of children. That is very telling. We don't have a mandate in that area and we don't offer any services, and the calls continue to come.
I know in Toronto in March, Judy Finlay, on behalf of the Canadian Council of Provincial Child Advocates, made a presentation, and the brief she presented to you at that time is one we all contributed to. I just wanted to say I support what she said in that.
What I want to talk about this morning is the voice and views of children and youth. As you are aware, article 12 of the UN Convention on the Rights of the Child talks specifically about the views and voice of children being solicited in matters that affect them. The second part of that in fact says:
What I have to tell you is that in the province of British Columbia, this article of the UN convention is not followed through with in any way, shape, or form. Children in custody and access disputes in this province come under the federal Divorce Act, which I realize is in your purview, and secondly under our provincial Family Relations Act. Both have problems in them, in my view.
In the provincial legislation, the Family Relations Act, there is mention that the child may have a family advocate appointed, so there is at least acknowledgement in the legislation that the voice and views of the child or children and youth need to be there and be present.
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In fact the program that would allow this is so
woefully under-resourced that functionally it does not
happen at all. So while we have on paper something
that looks good, the play-out of it is not good. In
the vast majority of situations, the views of the
children and youth who are the subject of these debates
are simply not at that table.
In the Divorce Act, I see no mention of any obligation to solicit the voice or views of children and youth. I find that wildly inappropriate, and I'm urging you to recommend that it be changed. Children and youth have a unique perspective to contribute to that, and it is extremely important that we don't allow those proceedings that happen there to become focused on adult wars, with children being used as pawns but in fact being left sitting on the curb. They have to be there. The proceedings must stay child-centred, and the voice and views of these children must be solicited.
The Joint Chair (Mr. Roger Gallaway): We'll start questions with Senator Jessiman.
Senator Duncan J. Jessiman (Manitoba, PC): I have one question.
You say you do have in B.C. legislation on paper that says the children can be represented, but in practice it doesn't work. What is your suggestion, if we put it into the Divorce Act, as to how we're going to be able to enforce it? Is it really that you think the federal purse will help, that funds will have to be made available? Because just by placing it in the Divorce Act, it's the same as what you already have in some other provincial statutes.
Ms. Joyce Preston: I apologize that the brief I'm referencing I didn't have here ahead of time, so you don't have it. The provincial statute does say they “can” be appointed, or “may” be appointed. That's in the B.C. law.
Senator Duncan Jessiman:
[Inaudible—Editor].
Ms. Joyce Preston: I do, because then the resourcing is not discretionary.
Senator Duncan Jessiman: Right. Okay.
Ms. Joyce Preston: Without that, it will always be the chicken and the egg—“It's a good idea, but we can't afford it this year”—and so forth.
Senator Duncan Jessiman: We were told that children of certain ages really shouldn't be anywhere near the place where the hearings are taking place, and that they should be represented by somebody else. I guess you would agree with that.
Ms. Joyce Preston: I would agree with that, with a caveat. I would agree that it is not wise in all instances for children to be at a proceeding. However, for some children, it's very important that they be there, because the proceeding is about them, and for them to be there and hear it and participate is important. So I would leave that to the judgment of whoever is close to the child and is going to go in and be their advocate—be that a legal advocate or a social advocate—so their voice and views are represented.
I wouldn't assume they should never be there and I wouldn't assume they should always be there, but I wouldn't want—
Senator Duncan Jessiman: Do you have any suggestions as to age? Some thought probably the age of 12 to 14; others thought it maybe could be lower. Have you any thoughts on that at all?
Ms. Joyce Preston: I think 12 is too old. We receive in my office calls from children as young as eight and nine. For them, it is important that they be there for part of the proceedings, because this judge person is making critical decisions about their lives. For some children, it's very important that they see and experience what that's like. The youngest we've had is an eight-year-old, who phoned our office and wanted to be sure the judge knew what he thought, because he wasn't allowed to go to court because he wasn't 12.
Senator Duncan Jessiman: Thanks very much.
That's all I have.
The Joint Chair (Mr. Roger Gallaway): Thank you.
I'm not certain who wants to go next.
Senator DeWare.
Senator Mabel M. DeWare (Moncton, PC): We had come before our committee examples of three children.... Well, I shouldn't call them children, I guess. One girl was 15 and the others were of age. All of them supported their own siblings, their own sister or stepsister. One said she felt that at age 12—she's 15 now—she had the right. She felt children should have the right to make a decision or be heard at least at that age.
We're talking about advocates who would support the children in the court. We've also had a lot of people saying legal aid is not available in most of the country because of cutbacks. What is your opinion on legal aid to families? As you know, most of these families need support and help and find they can't get it because of resources. Have you had a lot of requests for legal aid?
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Ms. Joyce Preston: Yes. It is one of major criticisms we receive in my office in custody and access disputes, about the fact that lawyers are not available through the legal aid system. What you're hearing in other parts of the country is also true in British Columbia.
I want to say, however, if I can go back to your opening remarks, that you said their views should be there or they should be allowed to make a decision. I think it's extremely important to make a distinction between having their views heard and considered, as opposed to who gets to make the decision. Having voice and expressing your views doesn't mean you make the rules. But we must listen to their views seriously and not in a patronizing way. We must hear them and take them in the context but maintain our adult obligation to make good decisions on their behalf.
I think those views can be represented directly. They can certainly be represented by lawyers, which is everybody's most comfortable and common way, and we have no experience in....
I've often said to my friends who were on the bench, why couldn't I go and be the voice for a child who can't be there, for whatever set of circumstances? While they are interested in it, right now we're set up in a way that you'd have to be a lawyer to be there. I don't quite understand why we wouldn't build in some room for there to be an advocate for a child, who was simply there to be their voice and their views and to represent them in that way without also getting into the legal representation of them. I'm not convinced in all instances it must be a lawyer.
Senator Mabel DeWare: I think we could agree with you, because the interested person may be an extended family person who knows the situation better than anybody else. It may be a grandmother or an aunt or something, plus the social workers who have to deal with these issues every day. So I'd agree with you in that aspect.
Ms. Joyce Preston: The critical thing is that the person who is representing the views of the child represents their views and doesn't come in with an agenda of their own, and I think you need to guarantee some neutrality on the part of the person.
My job as the child, youth and family advocate in British Columbia is to be people's advocate, to make sure they have all the information, that they know their rights and their rights are respected, that they have voice, that they get to have a say in decisions that are about them, and that the processes are inclusive of them and everybody else who's important.
My job isn't to make a best interest decision; it's to ensure that the process around them is just.
So when we look at extended family members being advocates for children, my only niggling worry is you would have to ensure in some way that this person had neutrality, that they weren't coming from a particular point of view but were truly there to be the child's representative.
Senator Mabel DeWare: I can certainly understand how that could.... Thank you very much.
Ms. Joyce Preston: You're welcome.
The Joint Chair (Mr. Roger Gallaway): Dr. Bennett, did you have a question?
Ms. Carolyn Bennett (St. Paul's, Lib.): Yes.
I apologize for missing the bulk of your presentation, but I think we were concerned when we heard in Ontario the limited resources with which the office is able to deal with referrals, and that actually is only of the group that's going to court.
One of the thrusts or themes that keeps coming back is the education one. Do people actually know what they are due? Even in the ones that settle and don't go to court, do you have any experience that sometimes the children feel that they haven't had a voice in the way it's been settled because of the power differential in the family, where it has been decided without the children's input at all, but because it doesn't go to court there ends up being an assumption that it's all okay?
Is there anything you would think we could suggest as a committee that would put the educational component in for the family, including the children, like the video or like in Quebec, where the children also know the buffet of things that can happen, so that people feel there isn't only one way that these things get resolved when it happens to be happening to them?
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Ms. Joyce Preston: It is a very difficult question.
A friend of mine—and I have no research to back up these statistics—said about 90% of separations and divorces end up with people deciding we'll do it this way and you'll get this and we'll visit here and there, and approximately 10% are those that in fact we who work in this field hear about, and so those are the ones that become the focus of our work.
I have no question that in that 10% we need to have, in my view, mandatory parent education. I underline the word “mandatory”, because the experience everywhere, in every jurisdiction you research, is that if it is voluntary, most people don't go. If they are required to go, they almost always say at the end of it, “That was one of the best things I've ever done. I learned a lot; it has changed my thinking.” I am very much in support of mandatory education in alternative dispute resolution mechanisms, including ones that are respectful where family violence is an issue.
There's been some successful work here, and I don't know about other provinces, in the use of judicially chaired pre-trial-type conferences. We use them here in the child protection field where, before a case goes to court, the judge chairs a meeting to see what resolutions can be brought to bear and to hone down what the outstanding issues are, and then finally, if they do go to court, children are guaranteed legal representation. It isn't discretionary. If you go through those steps and you're going to go and fight it out in court, we know those are adult wars and adult processes and the child is wildly disadvantaged not to have legal representation.
To make the mandatory public education broader than that, for the other 90%, is a really attractive idea—if I get separated or divorced, I can't get my papers or do whatever until I've taken one hour or three hours, and that kind of thing. I think that is ideal. But I want us to deal first with the 10%, because what is happening in that 10% is so destructive to the children. One of my staff who does a lot of our initial intakes said to me when I was talking to her on Friday, “You know, I have days when I just want to take them both and shake them and say, for heaven's sake, will you pay attention to the children in here and stop talking about your own needs and how mad you are at the other person for whatever reason?”
Ms. Carolyn Bennett: You're right.
Ms. Joyce Preston: So I think in an ideal world that would be the other end of it, but let's do the 10% first.
Ms. Carolyn Bennett: It's a question I've asked before.
So in the 10% that end up in court, do you feel the children should always have a representative?
Ms. Joyce Preston: Yes.
The Joint Chair (Mr. Roger Gallaway): Senator Jessiman.
Senator Duncan Jessiman: We had previous hearings, when Bill C-41 was going through the House and Parliament. In some of the groups that came before us, particularly the men's groups because 90% of the non-custodial parents are men, they would say that they couldn't get access to the children as ordered by the court and they thought it was unfair that they were compelled to pay maintenance payments. They'd hold back, which they all know now was wrong. They shouldn't; one shouldn't relate to the other. But they ask, what is our alternative?
There doesn't seem to be any alternative. If a custodial parent doesn't give access, the courts are very reluctant. They make orders that you must give access. There was a case in Ontario in which, after this custodial parent refused 22 times to give access to the person who was paying, she was ordered to go to jail.
I have two questions. My first question relates to this: when the non-custodial parent doesn't pay, the law has been changed now so they can take a driver's licence away; they can take his passport away.
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I'd like to know your views, if you have
any on this particular matter, as to whether you think
it would be fair, if a custodial parent refused to give
access even though the non-custodial parent came, that
the custodial parent's passport or driver's licence
could be taken away. The courts are not going
to put them in jail for contempt.
Ms. Joyce Preston: Senator Jessiman, I always go to a service solution that would, for me, be child-centred, I hope, rather than going to a punitive solution to either one.
There are custody and access arrangements that seem to forever remain acrimonious, like “We will never get along, and every time it will be a fight”, and I think there are ways of developing service centres that can act as intermediaries in regard to those arrangements, that may even be attached to the court system or something like that. Going to a punitive system never serves the children. It sort of punishes the adults and escalates that war and doesn't do anything with respect to the children who it's about.
Senator Duncan Jessiman: I don't know if you agree with it, but certainly it's been passed, and I don't think many complained, including men's groups—at least I don't think they complained. For those who don't pay and can pay, their driver's licences and passports are taken away. So if it's good for the goose, why isn't it good for the gander?
Ms. Joyce Preston: Because I think it's a question of financial support for children. The question of access is different.
Senator Duncan Jessiman: Okay.
Ms. Joyce Preston: I don't think they should be twinned. I think it's very dangerous to twin them, because we then sort of increase the view of children as a commodity. We are talking about the lives of these children as they grow up, about the principle that it's ideal if they have two parents and have relationships with them. Then you sort of build whatever you can with that as your foundation.
Senator Duncan Jessiman: Assuming the circumstances were such that both parents had the ability to look after them—and someone else has suggested this; it isn't an original idea of mine—would you think that after access is refused a number of times we should have something in the legislation saying that under those circumstances custody should revert to the other person?
Ms. Joyce Preston: No, I wouldn't say that automatically, because that is—
Senator Duncan Jessiman: But should the judge have that authority? Well, he has it, but—
Ms. Joyce Preston: I would have mandatory alternative dispute mechanisms, because if we simply say that the judge can order it with respect to the adults, we are not making child-centred decisions. I would say that they are required to use these mandatory alternative dispute resolution mechanisms and then the judge has the power to say that he or she has heard this fight going back and forth once too often; ergo, they must use these mediation services, these negotiation services, whatever the range is.
Senator Duncan Jessiman: I don't think there has been any objection to what I am going to suggest, because we've been hearing witnesses who are on both sides of this question.
We've had complaints from non-custodial parents, in respect to payment—not the amount—to the custodial parent, as to whether or not the custodial parent is actually using it for the benefit of the children. And some of them have advocated, as have other groups acting on behalf of the custodial parents, that certainly in some circumstances and at certain ages, it would be fair that the money go directly to the child and then that the child would pay board or room to the mother or the custodial parent.
First, do you agree with that? I am telling you that groups on both sides have said that in some circumstances they think that would be fair. And if you don't agree with it, you'll tell me. My second question is, if you do agree with doing that in some circumstances, at what age? Or would that change, too, depending on the person?
Ms. Joyce Preston: The ability to administer funds on behalf of children, outside of either parent doing it, in some circumstances is probably a useful mechanism to have, as long as we never assume that we would use it in all instances. If it had the effect of neutralizing the money fights so that the focus could be on nurturing the children, I'm in favour of it. It's because money fights can dominate in such a way. I would want it to be in the judge's toolbox, but not mandatory.
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Senator Duncan Jessiman: Thank you.
The Joint Chair (Mr. Roger Gallaway): Senator Pearson.
The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): I had a quick question. I'm not sure whether it works this way, but we know that under the Divorce Act, when you first go to a lawyer to discuss divorce, they are obliged to sign a paper saying that they have told the person who has come to them about mediation. Of course it doesn't always work.
Ms. Joyce Preston: It depends on how you tell somebody.
The Joint Chair (Senator Landon Pearson): But there's no obligation for them to tell the person that in some way they have to listen to what their children have to say. Would that be a workable solution? Would that assist in any way in getting people to think about getting the child's voice?
Ms. Joyce Preston: I don't think there's a simple statement such as the one about you having a right to some mediated help if that's appropriate. I think we need to look at mandatory education, and have part of that mandatory education say why it's important to consider the views of your children. They are not nobodies in it. Doing that in one or two sentences in a handout or something like that I doubt would be effective. But say people came for one to three hours so we could demonstrate, even through the use of video material, how children's views are important and how this can change the way you behave.
“I hate it when you two guys are always fighting about money” is what a child may say to their parents. I've seen parents so absorbed in their fight that they forgot about the impact it was having on the children. I don't know whether that would be—
The Joint Chair (Senator Landon Pearson): A small mandatory program that they were obliged to go to at least would be able to make it even across the board.
Ms. Joyce Preston: Yes, I agree.
The Joint Chair (Senator Landon Pearson): The materials would be provided for every person, whereas the question about having to inform about mediation depends entirely on what the lawyer says.
Ms. Joyce Preston: Yes, you would have that consistency. You would have, as a piece of mandatory education, the views and voice of the child.
The Joint Chair (Senator Landon Pearson): Thank you.
The Joint Chair (Mr. Roger Gallaway): I don't often ask questions in this committee, but I wanted to ask one this morning. As you are aware, the voice of a child or children of a marriage may be heard at the time of divorce when custody and access is an issue. But the problems often occur many years after the fact.
I will give you an example of a case where, at the time of the divorce, custody and access was not an issue. I'm talking about one child. Six years later, at age 10, this child declares that she does not want to see her father. She declares it through her mother's voice, not her own. The mother then unilaterally shuts down access.
How can you, as a child advocate, assure the court, the other parent, and the public at large that the voice of that child is in fact an objective voice, not the voice of the mother? How can you, six years after the fact, say that you want to listen to the voice of a child when in fact the voice of that child may in fact be, I would suggest, poisoned by six years of living with a parent who has suggested to the child that the non-custodial parent is less than adequate?
Ms. Joyce Preston: Can I say at the outset that nobody in the process is untainted from influencing somebody else. If we believe that we can have pure objectivity, we are fooling ourselves, in my view of the world.
It's relative objectivity. I think what you need in situations like that are skilled family court counsellors, whatever label you would put on them, who could do an assessment on behalf of the court using people who are significant in the young child's life or the youth's life to help the court understand where this child is now in relationship to it. That's even if part of the reason they reached that point is because of the influence of the parent.
That's where that child is right now. How strongly do they hold to it? Has anybody walked them through what that will mean in terms of long-term relationships with both parents and those sorts of things? I think the child needs some independent help with that, but we need to take into account that it may be where they are at that point in time. I don't think anybody in the family can do that.
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The Joint Chair (Mr. Roger Gallaway): You're making a number of recommendations to add several layers of experts into the system. As you know, there's a great cost to that, and as you are perhaps aware, there's a shift because those types of services fall into the hands of the provincial governments. We are a federal committee and we're mindful of that.
So it's fine to make these recommendations, but I think the reality is that none of these things are likely to come to pass. I would ask you, as we embark upon bringing more experts into the system, who would you suggest then ought to pay for them? Is it the parties before the court, or is it the public purse?
Ms. Joyce Preston: I think it's both, and I also think that over time, and not initially, the costs that are saved by not having protracted and acrimonious court proceedings will in fact fund the other. But you need to do both initially, which is true in many programs.
If these are handled effectively in the early days, then I think you will avoid this situation where every time you don't return my phone call we go back into court to tell the judge that you haven't done to the letter what you said. The costs of that are outrageous. I think over time we will see savings there.
The concern about doing it as other than a public program is the impact that it has on those people who do not have means, and those are often women, which the statistics make pretty clear. That is of concern when we are making decisions about children.
The Joint Chair (Mr. Roger Gallaway): Thank you very much. Our time is up, and we've appreciated that you've been the first. It was relatively early. Thank you for coming.
Ms. Joyce Preston: You're welcome.
The Joint Chair (Mr. Roger Gallaway): Trying to keep on schedule, I will ask if Ms. McIvor is here from the British Columbia Native Women's Association.
We will suspend until the arrival of Ms. McIvor. Since we don't have a witness, we'll have a break.
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The Joint Chair (Senator Landon Pearson): I'm going to call the meeting back to order.
The person who was supposed to be here at 9 a.m. has not yet come. In the next slot we have Ruth Lea Taylor and Laraine Stuart. Is that correct? Both are here? And Dr. Colleen Varcoe and Angie Lee?
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A voice: They're from Women in Action.
The Joint Chair (Senator Landon Pearson): So it's the Vancouver Coordinating Committee that has its full complement here today?
A voice: The Vancouver Coordinating Committee is here, but they're outside. Women in Action is here.
The Joint Chair (Senator Landon Pearson): Well, they're both on the same panel.
All right. You can begin, please, with a brief presentation. Sometimes there are questions, but you never have more time than you thought you were going to have. Please go ahead.
Ms. Angie Lee (Member, Women in Action): Good morning. I am one of two representatives of Women in Action here today.
Members of Women in Action have all experienced violence. We come from different backgrounds and cultures. During our two years working together, we have met without funding from any agency. We have an article published each year in a local paper in the hopes of informing the public of the realities of women and children trying to leave a violent relationship. Women in Action has just received first-stage funding for “Action V-search”, about women who have experienced violence.
The process determining custody and access was a jolt to my sense that the system works. It doesn't. What I experienced was a system that used brutal means to assess custody and access, has no published criteria for defining the work of psychologists, has no published processes in place, no lists of psychologists available to do the assessment, and no understanding of the lifelong financial damage done to a family.
Above all this, it's a fact that my daughter has learned from law enforcement officers that they help only when a physical battering takes place, one preferably where I will be hospitalized; that judges and lawyers deal law like cards; and that psychologists are to be feared and not trusted. In fact, those professionals who are in place to help, don't. This is the view of life we are giving our young people. It has to be better.
I'm a mother of two children aged 12 and 14. We left our home one evening during Thanksgiving 1994. For years we lived in absolute terror, with the escalating verbal and emotional assaults, the increasing violence, the demeaning and humiliating in front of my children, the physical damage done to my body—hypertension, suspicions from my doctor of an enlarged heart, the warnings of kidney failure and other organ failure, and physical weakness. My body weighed 85 pounds.
I wanted to live. I knew if I stayed I would have died. He would have inflicted blows without even touching me, until I died, or he would have killed me outright. After that rampage during a Thanksgiving night, we fled.
I had been afraid to stay and afraid to leave. My confidence and self-esteem were shattered. What made me leave was my children. Every time the onslaught started I could hear my daughter sobbing in her bedroom, “Stop, stop, please stop”. My son would run to another room and turn the TV volume up until it was blaring. He pretended everything was okay. He hid his emotions.
We lived trying to please Dad, but the violence always came. We could not control images he would twist, facts or words from two days, a month, seven years, or fifteen years ago—something I had said or failed to say, or something someone else did or didn't do, or said or didn't say; it didn't matter.
We lived battling a war, a war that raged on in Burnaby, alone amidst all those people. We do not need to look to other countries for victims or casualties. They are here. Our neighbours, families, friends, colleagues and acquaintances and the children of the war do not have the energy, time or money after trying to survive their war to battle the war with those professionals we have encountered, with the failure of the process, the insensitivity, callousness and haughty attitude of those given the power to make decisions. It is too much.
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For the sake of those who, because of language barriers,
lack of support from family and/or friends,
or financial restrictions are afraid to ask
or find out more, for the sake of those who feel
cultural barriers or have weakened or poor health,
and for the sake of those who continue to live the war,
I am speaking out.
Women in Action wants all of us to be heard, and has a number of recommendations.
One, include the need for psychologists and other professionals who make assessments to: (a) have a grounding in domestic violence or terrorism in the home; (b) understand the dynamics of children who have witnessed violence; (c) believe children who say they are afraid of a parent and have witnesses, beyond the realm of family and friends, who have seen the children fearful of that parent.
Two, consider child support payments and access to their children as two distinct issues. Can I force my 14-year-old into a car to visit her father? Do I wrestle with her? This picture is as absurd as the idea that I would betray her trust. If I did, I would be forcing her to live on the streets.
Three, consider the safety of women and children a priority when determining custody and access, supervised exchanges, and visitation. Stop sending children to an abusive parent who is deemed by the psychologist to become violent with people he is close to when that parent no longer has family or friends who will associate with them. Who then is the only person that parent is close to? It is not up to a child to fill the gap. Stop allowing a non-rehabilitated parent access to his children.
Four, children who witness violence must be protected from continued and further trauma. A history of violent behaviour should be grounds for limiting contact or custody.
As well, stop insisting that a child who is terrified of a parent must confront that parent in the psychologist's office in order for that psychologist to see the fear. Stop believing that children who have learned to hide their emotions because of witnessing violence and being a victim of violence will show fear in a predetermined way. The children have been trained to pretend everything is okay. To cry, hide, or show a startled reaction has been disciplined out of the children. Stop believing that children are comfortable visiting a stranger in a strange place to talk about their feelings.
Five, consider the serious nature of emotional, verbal, or physical violence. Do my children and I have to be physically battered or die before we are believed?
Six, stop the cost of custody and access processes, which can financially devastate a family. The assessment took a year to complete. This alone cost me $10,380. Stop allowing the psychologist to charge $4,000 for no more than 15 hours of work.
In conclusion, I have risked telling my story and the story of others and used up energy and time from my job—the energy and time supporting my children with their passions; the energy and time sharing the day-to-day concerns pre-adolescent and teenage children have; and the energy and time doing the daily activities to maintain a home. I hope I am not discounted yet again.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
Dr. Varcoe, do you want to add anything?
Dr. Colleen Varcoe (Member, Women in Action): I just want to add that Angie spoke from a somewhat personal place, but she is first of all representing a group of women who have very similar experiences. We came together to try to do work to end violence. These are all women who have left relationships where they were abused and who are trying to make some kind of difference through various actions—letter writing, supporting other women, doing media campaigns, or any actions they seem to think are appropriate.
On top of that, my role is working with women doing action research, so additionally, we represent women who have spoken directly to me through this research process.
I think Angie's experience is very representative of women who are put in the position of trying to protect their children during custody and access processes when there has been violence in the home.
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The Joint Chair (Senator Landon Pearson): Thank you very much. Are there some questions?
Senator Duncan Jessiman: Tell me something about Women in Action. What is it? Are you both members of it? Where is it? Is it all within British Columbia, or just Vancouver?
Dr. Colleen Varcoe: We're from just the Vancouver, Burnaby, New Westminister region.
Senator Duncan Jessiman: How many members do you have?
Dr. Colleen Varcoe: It varies. Women kind of come and go. I would say there are about 20 members currently.
Senator Duncan Jessiman: Do you have an office?
Dr. Colleen Varcoe: We have office space at a counselling service.
Senator Duncan Jessiman: Is this funded in any way by the government?
Dr. Colleen Varcoe: We are not funded. We have received small grants, and most recently we received a small research grant from the B.C. Health Research Foundation. I should tell you that I am actually the coordinator for the VINA Coordinating Committee. I don't know if you know, but in British Columbia most communities have coordinating committees of counsellors, police, the ministry of child and family, and anyone who has a service provider that deals with violence against women and children.
Our community is unfunded. As the chair of this committee, we tried to do some evaluation of our services and how we work together. We tried to find some women who had been through the services who could help us advise on research we were attempting to do. In that process many women came forward and said they would like to be more actively involved than just as advisers to the service providers. That resulted in the birth of the committee about two years ago.
Senator Duncan Jessiman: I'm from Manitoba and I know that in our province there's zero tolerance for any kind of abuse. I also know, and I assume you people know, it's really the provincial government that has to enforce any orders that are made. Is this a current story from the last few weeks or months? Is it still happening? I'm getting a yes answer. They can't write it down if you just shake your head and we don't hear. It's not recorded.
Dr. Colleen Varcoe: I didn't know you were finished speaking.
Senator Duncan Jessiman: I'm sorry. You kept nodding, so I thought you had answered.
Dr. Colleen Varcoe: No, I'll wait until you're finished speaking, sorry.
Senator Duncan Jessiman: So the British Columbia government has no policy on zero tolerance as far as abuse to custodial parents is concerned. Is that your understanding of the British Columbia policy?
Ms. Angie Lee: If you're referring to anything other than—-
Senator Duncan Jessiman: I'm talking about abuse to women—all the kinds of abuse you've spoken about to us here.
Ms. Angie Lee: No, from my situation and those of others who have come to our committee and talked, and those who have been on the committee, we often hear of law enforcement people who laugh and say, “Well, sorry, you haven't landed in hospital; you left too early.”
Senator Duncan Jessiman: Is that your experience personally?
Ms. Angie Lee: That was my experience personally, twice.
Senator Duncan Jessiman: How many months or years ago did it happen?
Ms. Angie Lee: It's been three years and it's still going on.
Senator Duncan Jessiman: It's still happening to you.
Ms. Angie Lee: Yes. I chose my apartment according to the security it gives to me and my children. I have to pick up my son. I cannot allow his dad to drop him off, because I'm afraid if his dad knows where we are we'll be in trouble. So each time I go to pick up my son, I drive through the neighbourhood first, look on the roof and look down the driveway, because I'm afraid at any time he could be there. I don't think he's well.
Dr. Colleen Varcoe: We speak to many women, including those who are not part of our group. But certainly through my research—and my research has originated in hospital settings primarily—I have found women are continually living in fear, and when they are required to be in contact with their former spouses in order for the children to have contact, they are subjected to all sorts of abuse, ranging from emotional to physical abuse.
• 1230
We are also in contact with women who have to decide
which children they will fight for custody of. One
woman in particular has a son who continues to live
with a very violent and abusive father because she's
fearful that if she attempts to get custody of that
son, she will lose custody of her children. I think
the research that's been done in British Columbia shows
that's a very real possibility.
The Joint Chair (Senator Landon Pearson): Dr. Bennett.
Ms. Carolyn Bennett: I was interested in your assessment of the assessors. Obviously the women in your group have had bad experiences with this and there's a perception there are assessors out there who don't actually understand the situation around violence.
What would you suggest to us in terms of the accessibility of women, like the women in your group, to better assessments or appeals? Certainly my experience has been that it costs huge amounts of money once you have on the record an assessment that doesn't seem to be right. What do we do about the fact that in almost every situation one party or the other won't like what the assessor said? How would you help the committee make sure the expertise around this particular issue of violence is available to the courts?
Ms. Angie Lee: In my case, the so-called judgment regarding custody and access was in my favour in many ways, but even though it was in my favour I still disagree with that process. We're putting children, again, in situations where they are being traumatized.
I think the answer to that question could probably be best answered by those people who are in the program for children who have witnessed violence. I would certainly insist that the people who make these judgments and deal with children in emotionally fragile situations have some background in violence in the home and in children who have witnessed violence.
Coming from my perspective with my background, I would be wrong to make a suggestion other than that. You need to go to those children who have witnessed violence and the professionals who deal with kids, who see them and work with them and their parents.
Dr. Colleen Varcoe: I would just like to echo what Angie just said, that the familiarity with violence and the dynamics of abuse is absolutely essential, as well as helping women find access to psychologists and assessors who would have that kind of understanding and knowledge, who, first of all, would treat their children with sensitivity while they're going through that assessment process.
Ms. Carolyn Bennett: Is there research available on the topic of children witnessing violence? It just doesn't seem to be well known or available. Is there an educational aspect we should be helping with?
Dr. Colleen Varcoe: There is some literature, but I think you're quite right in saying there's a limited body of literature. Some very good reports have been published on custody and access and children who witness violence, but I'm not aware of any extensive research.
Ms. Carolyn Bennett: Are you aware of whether the longitudinal survey we're looking at with children will take this into consideration?
Dr. Colleen Varcoe: I don't know, I'm sorry.
The Joint Chair (Senator Landon Pearson): Thank you.
Ms. Longfield.
Mrs. Judi Longfield (Whitby—Ajax, Lib.): Thank you.
Throughout the hearings we've heard, and you've alluded to, the cost of this entire process, but at the same time we've heard about the need to have more professionals involved. How do we balance the need to get more professional assistance in resolving this and the mounting costs?
• 1235
Ms. Angie Lee: I think that if there were published criteria regarding the process and if people looked at the hourly rate of these people who are the psychologists who are making the assessments....
I felt at a loss. I didn't know what the process was. I didn't know how much it was an assessment cost. I think that having a published process, having an estimated cost attached to that process, is important.
Mrs. Judi Longfield: But even if you know the cost.... In many cases, be it man or woman, the cost of pursuing, the cost of getting the child advocate if that's what is required, of getting the independent assessor—as I say, whether I know the costs or not—when it gets to be $20,000 or $30,000 or $40,000, at some point it just becomes prohibitive.
Dr. Colleen Varcoe: I think you're pointing to something that has recently occurred, which is serious cut-backs to legal aid. I don't know if you have any power to influence this, but it's certainly very directly related. This is a big reform that needs to be attended to, reinstating and increasing legal aid, especially in conditions like this, where women are already starting with less financial power.
Mrs. Judi Longfield: Other than suggesting that we help in terms of legal aid, you don't have any other concrete proposal or suggestion for us? I know we're all struggling with that ourselves.
Ms. Angie Lee: Is there a body of people who are looking at the process that psychologists use? Is there somebody who makes sure they are doing their job?
Mrs. Judi Longfield: From my perspective, it would be unfair to assume that every professional who is charging you a fee that you find is higher than you might be willing to pay is somehow not doing their job. These are professionals and they deserve to be able to charge the rates they do.
I am concerned about what rate they are charging, but I'm concerned that even if they were charging minimal amounts, even if you were getting a better deal, a cut-rate deal as it were, by the time you continue to add layer upon layer—
Ms. Angie Lee: Even that process of where they take a year to do an assessment, I was told not to go to human resources because it would take too long. And yet it took a year for the psychologist to make up a report.
You have to understand that the initial costs of, say, $4,000 is nothing compared to the other costs involved. I was told by my lawyer that I cannot go for child support payments after two and a half years until this assessment is in. So child support payments did not happen.
I cannot go for financial division of property until this assessment is in, and so there are further incurred costs—housing costs. He's still in the house. He has about $200 left per month on a mortgage. I had $900 in rent. I think the $4,000 to me is nothing compared to the approximately $30,000 or $35,000 I owe my lawyers.
This one year of delay set off a whole bunch of reoccurring things because of that delay.
The Joint Chair (Senator Landon Pearson): I think our time is up with this group.
Dr. Colleen Varcoe: My trusty research assistant brought forward a series of references on children who are with this program. If you would like to have it, I'll hand it over.
Mrs. Judi Longfield: Thank you.
The Joint Chair (Senator Landon Pearson): If you could hand it to the clerk, then we'll share it with everybody.
Dr. Colleen Varcoe: Thank you very kindly for your attention.
The Joint Chair (Senator Landon Pearson): Thank you.
The Joint Chair (Mr. Roger Gallaway): How did you hear about the committee and therefore contact us? It's just for our own purposes. I'm going to be asking groups that today.
Ms. Angie Lee: It was through—
Dr. Colleen Varcoe: I think it's fairly well known amongst the anti-violence coordinating committees within the communities. We knew that the hearings were being held.
Ms. Angie Lee: Could I make a suggestion?
If I had not worked with Women in Action I would have not known about this, but I would have wanted to come. My concern is that oftentimes women who are experiencing these situations don't know about them. I was wondering if at some time other Senate committees would consider advertising in local papers, providing for translators for those people who have difficulty using English as a first language, and even mention that they can even recover some of the expenses lost from leaving a day job. I hope that would be in your considerations or in those of future Senate committees.
• 1240
The Joint Chair (Senator Landon Pearson): One minor correction: this is a joint parliamentary committee, so it's the House of Commons and the Senate. It's the usual question of resources. In our case as well, the question of advertising nationally is a very large sum and so we've tried to put it out through local newspapers. But if a local newspaper doesn't pick it up.... Anyway, thank you for your suggestions. They're on the record.
I would like to call our next witnesses, Ruth Lea Taylor and Laraine Stuart, please, from the Vancouver Coordinating Committee.
Good morning. We have 20 minutes, so please go ahead.
Ms. Ruth Lea Taylor (Vancouver Co-ordination Committee on Violence Against Women in Relationships): That is very heartening by way of introduction. I'm a family law lawyer and the idea of having five minutes was incredibly—
The Joint Chair (Senator Landon Pearson): No, it's 20 minutes for the entire thing, for them to ask questions as well. This is why we try to keep it down very closely, because otherwise the members of the committee have no time to ask questions. You have until 11 a.m. That is the period for the whole discussion, so please try to keep it as succinct as possible.
Ms. Ruth Lea Taylor: I will try to keep it as succinct as possible within the limitations of my profession. I'm here representing the Vancouver Co-ordination Committee on Violence Against Women in Relationships. With me is Laraine Stuart, who is the coordinator. The committee was struck was in 1989 by the provincial attorney general and its mandate is to coordinate all areas that deal with this particular very distressing area of the law.
Within the committee we have members from the Vancouver Police Department, the provincial crown counsel, the probation services, organizations that work with the multicultural members of our community, and organizations that work with our first nations people in our community. It is broken into committees. I am a member of the justice subcommittee and our concern is the law as it relates to areas of violence against women in relationships.
I have prepared simply notes on a brief that is in production and will be presented in a final form to the committee. Firstly, I might say I've been doing family law in the area of violence against women for many years and I've always been hopeful that things were heading forwards a change, both in the area of the frequency of this criminal offence and in how the system responds to it. Regrettably, I have not seen major changes happening. They are coming in very slow piece-by-piece areas.
The committee is concerned to promote a zero tolerance of violence against women and children in all areas, and the committee is addressing this committee particularly in the area as it pertains to family law.
I think the important part about family law is that it has nothing to do with families and very little to do with law. In fact it has to do with the breakdown of a relationship that had been a family relationship. It has to do with the persons within that relationship trying to come out of it with a certain degree of reasonableness, and that is the part that is the law.
• 1245
We are dealing so often in a legal area that works
under certain mythologies. My concern and the concern
of the committee is that these mythologies are driving
the laws rather than having the law actually fit the
situation. It is not possible to put the family back
to its original condition, if it ever had the original
condition that we think of in Father Knows Best
terms. It never was there, in my observation, and to
try to put it back by way of legislation is futile and
very harmful.
This seems to be the intent of directions towards mediation, towards joint custody regimes, towards enforced access in the face of providing or facilitating access or facing the loss of custody. It seems that what is driving this view is that we can somehow restructure the family in a way that is much more to our liking and much more in keeping with our fantasies. This cannot happen, does not happen, and perhaps could not happen even in the best of all possible worlds.
It is true that there are many parents who have as their major focus the reduction of trauma for their children, and these families do work through the trauma of separation with minimal disruption. But what we on the committee and myself as a family lawyer are dealing with day after day are not those people. We are dealing with the one in thirteen or so fathers who are using children to manipulate and further control their wives and ex-partners. This is what we are seeing.
The trend towards mediation, joint arrangements for children, is particularly not appropriate where there is violence within the family structure either during the course of the intact family, if there is such a thing, or after the separation. You will be hearing and have probably already heard that violence escalates after separation, and this is not assisted by the trend towards joint custody forcing a battered woman and children who have witnessed battering into a face-to-face, ongoing interaction.
The Joint Chair (Senator Landon Pearson): I don't really want to interrupt you, but our next set of witnesses comes at 10 a.m. and it's now 9.47 a.m. We would like your recommendations.
Ms. Ruth Lea Taylor: The first recommendation is that in looking at amendments to the Divorce Act, we look at bringing back the concept of conduct, particularly as it relates to custody and access. In 1985 the legislation changed and deleted conduct as something we could look at. We are recommending that mental cruelty and physical cruelty, both of which are grounds for divorce, be looked at in a positive manner, i.e., to give the court a positive obligation to weigh factors of mental and physical cruelty when weighing custody and access determinations.
Secondly, we recommend that the mandate already contained in the Divorce Act that requires judges to consider the facilitation of access vis-à-vis custody be omitted. I suggest that this mandate raises an unnecessary burden for victims of violence. It hangs as a threat over these women, this fact that if they do not cooperate with a violent offender they will lose custody.
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Thirdly, it is imperative that child support, custody
and access remain independent considerations and that
they not be overlapped. Financial threats—I almost
said “coercion”, but we are close to that when we are
talking about the situation for single mothers—should
not be used to require or not require access. In any
event, single mothers where fathers don't have access
should be given more money, because it's costing them
extra for weekends and all the other things that an
access parent provides.
Generally, that's the basis of our submission. We urge this committee to be very cognizant of this serious situation facing the women and children who are victims of violence in our society.
Thank you.
The Joint Chairman (Senator Landon Pearson): Questions? Senator Jessiman and Dr. Bennett.
Senator Duncan Jessiman: I have just one question. You were referring to that part of the act, subsection (9) of section 16, respecting custody orders, which has to do with past conduct. I'm going to read it into the record:
Isn't that enough? I have no objection, but I looked at the section when you said that and I thought there was something that said it—if we are talking about custody of children.
Ms. Ruth Lea Taylor: Exactly. What I am recommending and what the committee is recommending is that there be a positive obligation to look at mental and physical cruelty. How that section has been interpreted—over my objections, I might say, in a court of law—is that unless that conduct directly affects the child, it cannot be considered. It is only within very recent months that a court is actually saying children who witness violence are in fact affected by that violence.
It has been a long hard struggle to have the courts even look at what goes on in the relationship between the parents as it affects the child. And traditionally, it has been considered only when the child has actually experienced the result of direct physical violence—and in some cases, even that is overlooked.
What we are saying and what all the reports and non-legal sources and studies have been saying is that exposure to this situation has been found to have very serious, ongoing, traumatic effects on the children, and without the positive direction to the bench, we are not going to get those considerations into the determinations.
Senator Duncan Jessiman: Can you tell us if before—
The Joint Chairman (Senator Landon Pearson): Sorry, Senator Jessiman, quickly, please.
Senator Duncan Jessiman: Before this section was put in, did the act specifically set out to have conduct taken into account?
Ms. Ruth Lea Taylor: It did not.
Senator Duncan Jessiman: It didn't. Even before—
Ms. Ruth Lea Taylor: In that case, silence was golden.
Senator Duncan Jessiman: I see.
The Joint Chairman (Senator Landon Pearson): Thank you.
Dr. Bennett.
Ms. Carolyn Bennett: I think the committee is becoming very aware that the issue of violence in any marriage breakdown puts it into a whole separate category.
Here's my concern. A lot of people feel there should be an alternative dispute approach or that we should be trying to keep people out of court if at all possible. Is there a safe test for sorting out the existence of violence in a relationship, such that you could cleanly put those people over in a different category so that you then might be able to consider alternative dispute resolution or mediation for this other group?
• 1255
Ms. Ruth Lea Taylor: That is extremely concerning. As I said, my particular practice works with women who are survivors of wife assault. What I find is that so many refuse to call it what it is. If you have been living in a terrorist regime for a long time, you do not articulate it as violence.
What I would like to see within the providers of services is serious training around what assaultive behaviour looks like and what assaultive behaviour response looks like and training around how women adjust their thinking, their lifestyles and their being in the world to incorporate violence, in a way. It requires so much real knowledge and we're lacking that, I think, in our service providers.
Ms. Carolyn Bennett: In family medicine there are some tools. A lot of people won't admit they're depressed, but if you ask them about sleep patterns and whether at times they feel hopeless or “copeless” or worthless.... There's a test you can administer in the waiting room so that even though they won't be prepared to label themselves, if they are actually able to answer the questions honestly, this tool will show us that this person actually meets the criteria of depression. Is there such a tool in being able to sort out the existence of violence or a serious power differential, intimidation, in a relationship? With all your expertise.... Obviously the people who come to you have already acknowledged that.
Ms. Ruth Lea Taylor: Yes. Quite often the bravest step they take is coming to my office.
As for what we have, there are brochures and pamphlets and lists of things within those brochures and pamphlets that say if this, this and this is happening to you, then you are being abused. So there is a kind of self-report, but I think it behoves the professional—as has been done in the medical profession, which has only recently begun to really look at depression and that area—and it behoves us as a society to start looking at where those tools are. And it requires all of us. It requires the medical profession, the legal profession and the legislators to really say we have zero tolerance of violence in all its forms—and by this, I mean the control issues, the intimidation, the threats, the stalking.
We are getting there, but very slowly, and when we're looking at changing legislation, we need to build in an obligation for all the people involved to measure these, and the measures are not good, but they're there.
The Joint Chair (Senator Landon Pearson): Can I move on?
Ms. Carolyn Bennett: I just wanted to get on the record the issue of separating support from custody and access, in that I believe, no matter how much hard work the senators did before on the support issue, we actually have to sort out this custody and access or parenting plans or whatever it is separately, and we can't have the tail wagging the dog.
Ms. Ruth Lea Taylor: Exactly. I'm concerned about what occurred in the guidelines where we have the concept of shared custody, which was in fact the beginning of a very large wedge into tying custody, access and support together, so that what we're ending up with is battling over what “40% of the time” means. It has created, I suggest respectfully, more problems than it has needed to. And that's what happens when we're tying money together with time with a child. Those are so different as issues.
The Joint Chair (Senator Landon Pearson): Senator DeWare, we have about three minutes left of the allotment of time for these people and we have three people who wish to ask questions.
• 1300
Senator Mabel DeWare: I just have one question then, because the rest have been answered.
The judiciary has come up several times in our discussions, and there was a suggestion that judges dealing with family court divorce cases are probably not trained to be specifically sensitive to divorce cases dealing with abuse and violence. Maybe we have to create judges just for dealing with those specific cases. Would you have a comment on that?
Ms. Ruth Lea Taylor: I have some problems with that. It's there with the trend of moving violence back into family court and out of the criminal courts.
First we need to know as a society that violence in the home is a major criminal offence and should be right up there with attempted murder, in my view. Judges who are delegated to any one area begin to have what is called in journalism an archetyzing dysfunction. Unless you have an arm broken, it's no longer violence because we have seen so many worst case scenarios.
I think across the board judges should be made sensitive to it. The very idea of creating a special bench that is more than sensitive to it builds in potential desensitization, and that concerns me. It's a societal issue across the board. It is not something that can be pigeon-holed, to be in the hands of a handful of judges.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Madame St-Jacques.
[Translation]
Ms. Diane St-Jacques (Shefford, PC): Ms. Preston mentioned that, in a divorce case, it is important that the children be heard. Therefore, they are consulted in such cases. I was wondering if you recommended the same thing in the case of a divorce with violence. Can that help or traumatize the child?
[English]
Ms. Ruth Lea Taylor: The situation regarding the involvement with children on a hands-on basis gives me some concern, because what we are trying to do is protect children. Their hands-on involvement requires children to make decisions about their future when we as the adult should be protecting them and removing that kind of burden from them. I would not like to change the current situation vis-à-vis the input from the children because I suspect that would exponentially increase the amount of pressure put on those children by an opposing parent. I would like to see the training in the adult world be sufficiently broad to seriously protect children from that kind of hands-on involvement.
The Joint Chair (Senator Landon Pearson): Senator Cools, did you have a question?
Senator Anne Cools (Toronto Centre, Lib.): Yes, thank you, Chairman.
I thank you for coming before us. I think I understood you to say you want to bring back what we used to call spousal conduct or spousal misconduct. Am I clear about that?
Ms. Ruth Lea Taylor: Yes.
Senator Anne Cools: Am I to understand you to say, then, that we should do away with no-fault divorce and return to a previous era of matrimonial offences? This is what I'm hearing you say.
• 1305
Ms. Ruth Lea Taylor: What I am saying is that the era of matrimonial offences was based on a criminal system. Adultery, for example, was formerly criminal, and all the other areas. I am saying where there is violence and conduct that constitutes mental and physical cruelty, it is to be noted that this is still in our criminal law as criminal conduct. I am saying that the criminal conduct involved in physical and mental cruelty should be brought to bear on matters involving the corollary relief, particularly custody and access.
I am not saying bring back matrimonial offences. By throwing out all the matrimonial offences, we have created an environment that puts them behind the door, that draws a blanket over these situations. We can't, if we value our children, do that any more.
Senator Anne Cools: I'm very, very interested, because back in 1985-86, when the Divorce Act was amended, many thought that we had made tremendous advances by going to what was called no-fault divorce. So I find your submission to us quite interesting, because I'm hearing you say to return fault, and then it becomes matrimonial offences, however one describes it or characterizes it. I'm just curious, but it's an interesting concept, because we've heard previous testimony where some witnesses want to build up those sections on spousal conduct or spousal misconduct.
My second question to you has to do with the whole issue of violence. In your submission to us, how would violence be determined?
Ms. Ruth Lea Taylor: Violence, as you are already aware, has several components. It has the obvious one of physical violence and the less obvious one of emotional and mental violence. I would see that greater credibility be given to women's evidence in this regard.
What I'm seeing in the courts is that women's evidence is not believed. I think it's, again, my concept of archetyzing dysfunction. We are hearing now so much of it that we are refusing to accept, because it's that frequent. I am saying it is that frequent.
I would ask, where allegations are made and evidence is given from the woman's experience.... Violence within the home is not something that is carried on with witnesses. It is something that, I submit, has to be believed prima facie.
Senator Anne Cools: What you're saying is that an accusation should become a finding, which I find very interesting. You are saying that findings of violence should not be based on findings of a criminal proceeding, but should be based on a woman's evidence, which I find staggering in our community of presumption of innocence—until proven guilty, that is.
Ms. Ruth Lea Taylor: We have within the civil law.... In the family law it's a balance of probabilities.
Senator Anne Cools: Right.
Ms. Ruth Lea Taylor: It is a test that is not as strict and as far-reaching as the criminal test, as you are aware. The focus has to be that the statement of violence has to be dealt with. I am talking in terms of the children. We must err, if there is any error to be made, on the side of safety for children, and that safety includes the safety of the custodial parent. It includes the safety of those children's mothers, and mothers do not make this up. In my experience, women tend to underplay the degree of violence that is happening in the home.
• 1310
Senator Anne Cools: Okay. Just to make sure that I understand you very clearly, the burden of proof in civil actions is usually a balance of probability. The burden of proof in criminal proceedings is a reasonable—
Ms. Ruth Lea Taylor: Beyond a reasonable doubt.
Senator Anne Cools: Sorry—beyond a reasonable doubt. You were saying you are asking this committee to recommend something that would abandon a thousand years of criminal jurisprudence by moving from beyond a reasonable doubt to a balance of probability.
Ms. Ruth Lea Taylor: We are talking about amendments to the Divorce Act that are within the civil arena. I am saying that the nature of the courts taking on the role of parens patriae, which is father of the country, is a positive role, a fundamental role that transcends much of the thousands of years of jurisprudence in any area. Within that role, it is necessary to err on the side of their protection.
Senator Anne Cools: In terms of erring on the side of the children, and in terms of upholding zero tolerance on violence, what would be the impact of your recommendation on women in these circumstances, particularly in view of the fact that all of the data shows that most abuse against children is by women?
What will be the impact on women? Every slap does not mean a mother doesn't love her child. I'm asking you to consider very carefully what would be the impact of your recommendation on women in divorce, because if your standard were to be applied, the consequences for women in this country would be dire.
Ms. Ruth Lea Taylor: We have the area of child protection legislation, where our social services across the country deal with abuse and alleged abuse of children. I am saying that within the context of matrimonial breakdown the abuse that is demonstrated on women from their partners—not necessarily against the children but against the mother of those children—be taken into consideration in custody and access.
The abuse of parents against their children is an area within provincial legislation. It is the area of apprehensions—it's that area. I do not see either a contradiction or a conflict that we have two different mechanisms to deal with that. I don't see a negative impact on women coming from what I am recommending and what the committee is recommending in terms of the changes in the Divorce Act. I am talking about the relationship between the adults.
Senator Anne Cools: Okay. But the particular—
The Joint Chair (Senator Landon Pearson): Senator Cools, you've been 10 minutes. If this could be your last question.
Senator Anne Cools: Just to repeat the section that she raises.... Senator Jessiman placed on the record subsection 16(9), past conduct, which says:
I just wanted to remind us of the very section that she herself is proposing a change to. Thank you very much.
• 1315
The Joint Chair (Senator Landon Pearson): Thank you very much.
The Joint Chair (Mr. Roger Gallaway): I would now ask the next panel to come forward. We have Mr. Linde, Mr. Ken Wiebe of the Dick Freeman Society, Mr. Maiello of the Fathers' Rights Action Group, Mr. Maser of the Victoria Men's Centre, and Mr. Benoît. Is that correct?
We will ask that you limit your comments to five minutes. We have a tendency to expand our time here.
Mr. Linde, please proceed.
Mr. Carey Linde (Vancouver Men): Thank you, sir.
My practice of law is restricted to family law that's focused on helping kids see more of both parents. The vast majority of my clients are men who have lost their children. I also help women who, on rare occasions, are without custody. I have been doing this for 26 years. I'm a single parent, and I have raised three kids.
I want to speak today about what I regard as the lack of ethical practice among family lawyers. Too many family law lawyers regularly go into court on behalf of controlling, selfish parents dead set on denying the other, typically a dad, meaningful or any real role in his children's lives. These lawyers argue that the best interests are met by turning the father into a Disneyland dad whom the children can visit every other weekend.
We accept that one parent who denies meaningful access to the other parent is committing child abuse to a lesser or greater degree. Lawyers who facilitate these selfish goals by parents of either gender are potential child abusers, mercenaries with a mouth for hire. It's about time that society knew them for what they are.
The only debate is on the degree of abuse. A severe form of child abuse is when one parent alienates a child from the other parent. Statistically, this is overwhelmingly mothers more than fathers. There should be criminal sanctions against alienating parents.
Lawyers retained by an alienated parent become co-conspirators in the alienation of a child. That such lawyers have questionable ethics can be seen by watching the same lawyer acting the next day for a parent, this time the father, seeking more time with his children. Here the lawyer hypocritically attacks the position of the mother's lawyer, which was their own position a day before, with all the high moral reasoning and vigour their can muster.
From the perspective of the child, there is one simple thing family lawyers can do to clean up their act: stop acting against the best interests of children. Lawyers who act against children's best interests fall into one of three groups.
First, there are those men and women who believe that mothers are inherently, biologically superior to men when it comes to love, affection, and bonding with children. These lawyers still adhere to the discredited doctrine once known as the maternal preference or tender-years doctrine. They choose to ignore, or they rationalize away, all the evidence to the contrary. They honestly believe that the admitted and dynamic differences between men and women translate out in court as making women superior to men.
Psychologist Dr. Joan Kelly, one of North America's most renowned experts in the field, in a paper delivered in 1995 to the family law lawyers in British Columbia said that no empirical evidence supports the distinction between the primary and secondary caretaker after age 5. Yet this committee has received briefs attempting to keep kids from maximum time with fathers because mothers are primary caregivers. You are being sold a bill of goods.
Second, there are those men and women lawyers who will argue either side of an argument as long as they get paid. This, after all, is the basic credo of most lawyers.
• 1320
Third, there are the gender-feminist lawyers with a
political agenda of their own that doesn't include
children, at least not male children.
Just as criminal law lawyers constantly get asked how they can defend criminals, the public and the media should be demanding of family law lawyers how they can justify anything less than “maximizing contact between the child and each parent”. These are the words of Madame Justice McLachlin of the Supreme Court of Canada in Young v. Young in 1993.
The standard dictionary definition of maximum is “the most or the greatest”. The high principles and standards laid out by the Supreme Court as to the test of the best interests of the child get eviscerated in the lower courts daily, where the “every other weekend and Wednesday afternoon” cookie-cutter approach to access is routinely argued and applied.
This fact—the enormous gulf between the stated principles of the highest court in our land and the compromising practices in the lower courts—is the biggest single obstacle to meaningful reform in this country. Loving, caring, strong-hearted men unfairly and unjustly lose their children daily in Canada as a result, among others, of the fact that I've mentioned above.
A committee of parliamentarians concerned about fairness in custody and access issues has to realize that the gender-neutral divorce laws are not the problem. The problem is with the “judicially assumed presumptions” that govern the day-to-day determinations of the best interests of the child in the lower courts. These presumptions typically have never been put to any evidentiary test but spring from, and are maintained out of, gender biases still ingrained in the system. A legal profession concerned about its tarnished image can find no better place to apply a disinfectant than in the area of family law.
What can this committee do? It can show more leadership. It's not an understatement to say that this committee would not exist but for the outright agitation of fathers in this country, and it will be the children who will benefit.
The organized women's movement, for all the good it has brought, gave up long ago on ideas like joint custody and shared parenting. Their silence is deafening.
Having said that, it's important that I recognize and thank all the individual women, mothers, sisters, wives, and daughters with strong feminist credentials, and even more without, who support these fathers. I call these women equity feminists, and they are the vast majority of women, whether they want to avow or disavow being a feminist.
I distinguish them from the gender feminists, who should more properly be called adolescent feminists. Adolescent feminists are the ones who stridently demand all the privileges and rights without any of the responsibilities. They are the teenage children wanting to borrow the car but not willing to pay for the gas.
Beware particularly of those adolescent feminists who have a vested interest in victimization and keeping the war going. How can you tell who they are? Simple. Whenever they come before you and use the word “men” in a derogatory campaign, substitute “men” in a sentence for “black” or “Jew”, and you will see them for the bigots they are.
You have a very difficult task ahead of you. Don't be swayed from your job by those of either gender who wish to maintain the status quo. Listen not for the feminists or the masculinists, but for the humanists. Theirs is the way out of the gender wars: men and women putting the interests of children truly ahead of their own.
Was that five minutes?
The Joint Chair (Mr. Roger Gallaway): Your five minutes is up.
Okay, Mr. Wiebe.
Mr. Ken Wiebe (Member, Dick Freeman Society): My name is Ken Wiebe, and I'm a non-custodial father. I'm also a custodial father. I'm currently in a second marriage with my wife, and we have two children. So I've seen these issues from a number of different sides.
Today, I'm a member of the Dick Freeman Society, and we write on various men's issues for a newspaper in Victoria.
What I'd like to speak about today is the sort of philosophical and moral foundations of marriage, parenting, divorce, and custody. I'll just quickly go through my brief, which I submitted.
Marriage is a particular type of contract that two people will enter into, and so is parenting. What we're finding is that neither marriage nor divorce really changes the way any parent feels about their children. It doesn't change their relationship with their children, or at least that's our intent.
• 1325
The recommendation we would make is that without
evidence of serious criminal actions by either parent
towards a child, there really isn't any valid reason to
deprive either parent of the custody of their child. In
other words, the relationship they had prior to the
divorce, which is an equality relationship with respect
to parenting, should be maintained after a divorce as
well. Of course, there are certain practical
difficulties because as a general rule they don't live
together if they're divorced.
For a court or a judge or a particular piece of legislation to recommend or suggest or even allow that a perfectly fit parent could be deprived of his or her child more or less completely is a terribly cruel and unusual punishment, not just to the parent but also to the child. The Dick Freeman Society is recommending that we require all custody decisions in a court to be in accordance with the principles of justice. I think in this particular case the principles of justice suggest that parents are equal and that the equality situation of parenting prior to divorce should be maintained after divorce in the fashion that is most applicable to the particular circumstances of the parents.
We don't believe there is any conflict between respecting the principles of justice and the best interests of the child. Indeed, if there is a conflict between the principles of justice and the best interests of children, we had better rethink both very carefully. We find that a presumption of shared or alternating parenting is the only presumption that's consistent with the principles of justice in a divorce situation.
We have six recommendations for amendments to the Divorce Act:
- Require that custody decisions be in accordance with the principles of justice.
- Acknowledge that both parents are equal under the law before, during, and after divorce.
- Prohibit sex-based custody decisions.
- Provide stability of parenting for children, which basically means the children will not be deprived of either parent without cause.
- We would like to see parents required to mediate the specifics of their post-divorce situation, such as living arrangements and parenting arrangements, prior to a judge rendering a decision.
- We would like the Divorce Act amended to respect each parent's equality right in accordance with the charter.
Those are our recommendations. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Next is Mr. Maiello, who is a representative of the Fathers' Rights Action Group.
Mr. Joseph Maiello (Fathers' Rights Action Group): Thank you. My presentation is in three parts. The first part is just some statistics I want to submit to the committee.
A 1975 survey of the world's first shelter for abused women, located in England, found that of the 400 women questioned, 82.5% participated in a mutually violent relationship. Some were more violent than the men they were seeking shelter from, according to the world's first female shelter founder, Erin Pizzey.
When it comes to domestic violence, there is no higher authority than Straus and Gelles, yet they have been heckled and booed by feminists and been prevented from speaking at several forums on college campuses.
The most recent U.S. National Family Violence Survey revealed that a woman is severely assaulted every 17.5 seconds and a man is severely assaulted every 15.7 seconds. These surveys have been replicated in Canada. Eugen Lupri conducted a national survey with 1,123 usable questionnaires in which 652 females and 471 males participated, who were cohabitating. The results were similar to those in the U.S.: 2.5% of men and 6.2% of women admitted to having beaten up their partners; 18% of men and 23% of women reported overall violence against their mate; 10% of men and 13% of women reported severe violence against their mate; 0.5% of men and 0.7% of women actually used a knife or gun against a mate.
According to the U.S. Department of Justice, which in 1994 released the first detailed empirical study of murder in families by analysing nearly 10,000 cases, 44.5% of the victims were females and 55.5% of the victims were males.
• 1330
The Journal of Sex Research found that 12% of gay
males studied reported being victims of forced sex, and
31% of lesbians reported forced sex.
According to the U.S. Department of Justice, mothers kill their children more often than do fathers, 55% versus 45%.
According to Health Canada's The Invisible Boy: Revisioning The Victimization of Male Children and Teens, of which I'm sure you are all aware, page 49:
In 1993, the federal government released the report of the Canadian Panel on Violence Against Women, at a cost of $10 million, which focused on women as opposed to focusing on violence.
In British Columbia, the Ministry of the Attorney General released its policy on family violence entitled Violence Against Women and Children.
Most of the violence against children is committed by women, and both the federal and B.C. governments continue their narrowly focused violence against women and children campaign. Even the renowned Statistics Canada often refers to the report of the Canadian Panel on Violence Against Women, which has no counterpart showing concern for male victims of violence.
For a student to write a paper on violence against women, or violence against men, or violence against children or animals, and so on, is one thing, but for the government to use such a narrow focus of concern in shaping public policy is immoral and destructive to the society it is supposed to protect.
Part two is about father deprivation. Father deprivation is a more reliable predictor of criminal activity than race, environment or poverty. Father-deprived children are 72% of all teenage murderers, 60% of rapists, 70% of kids incarcerated, are twice as likely to quit school, 11 times more likely to be violent, 3 of 4 teen suicides, 80% of the adolescents in psychiatric hospitals, and 90% of runaways. Father deprivation is a serious form of child abuse that is institutionalized and entrenched within our legal system.
For the last part, how is it that the day prior to divorce both parents have equal say in where their children live, where their children go to school, what their children eat, how much time the parents spend with their children and how much money to spend on their children, and the day after divorce this equality is not respected by the courts?
To change legal status in denying equal parental authority does not appear to be just. Husbands and wives may not always be husbands and wives should they seek a divorce; however, the parents' parental authority should not be changed because they sought a divorce. The courts have the power to alter parental authority; however, the application of this power is not truly in accordance with the principles of justice.
So what is the principle of justice in this context? Mutual and equal parenting exists in intact families, and this standard must be preserved upon separation.
As subsection 16(6) of the Divorce Act states, “The court may make an order under of this section...as it thinks fit and just.” Thus, in accordance with maintaining these fit and just positions, equality after divorce needs to be kept. Divorce is not adequate cause to take kids away.
We from the Fathers' Rights Action Group ask that in subsection 16(10) of the Divorce Act, the words “consistent with the best interests of the child” be changed to read “consistent in accordance with the principles of justice”. The best interests of the child are included within the context of the principles of justice.
The Divorce Act, as currently stated, is based on theory of the best interests of children instead of accordance with the principles of justice. This misguided assumption has distracted the courts from their primary function, which is the principles of justice. As this law has resulted in injustice inflicted on families by the courts, the following is recommended: an acknowledgement that a flaw exists and an apology for the injustices, damage and pain inflicted by the courts on the families of those affected by this law.
The Fathers' Rights Action Group has heard countless accounts of funds taken away from parents, anywhere from $5,000 to over $150,000, from going to court to be allowed to see their children, to child maintenance, or because the custodial parent has moved to another part of the country.
Monetary compensation is suggested for families laid waste by the divorce courts, not unlike others in the past who have been subjected to injustices caused by legislation, to receive compensation.
Thank you.
• 1335
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
Finally, to the witnesses from the Victoria Men's Centre, I don't know if you're going to split your time. Mr. Maser, do you want to proceed.
Mr. Harvey Maser (President, Victoria Men's Centre): I'm Harvey Maser and I'm from the Victoria Men's Centre.
The Victoria Men's Centre is a provincially incorporated non-profit society that's been in operation for approximately five years. We operate a voice mail phone line at the moment, even though we had the operation open in a building for approximately a year.
We receive calls from men and women, and mothers and fathers, from around Victoria and all around the province and we'll route them to various locations. We refer men also to therapeutic counsellors if we deem the request or the concern to be beyond what we as peer counsellors effectively can handle.
We are supportive of various other submissions also, and those are: Fathers for Equality, Men Supporting Men, the Fathers' Advocacy Program, the Well Society, the National Shared Parenting Association, Fathers are Capable Too, and Dr. Ferrel Christensen, who works at the University in Alberta in Edmonton.
During the Senate-Commons deliberations last year on Bill C-41, the Victoria Men's Centre was active in formulating policy regarding our vision of changes to the Divorce Act, which we believe will reduce the potential of animosity between parents at the time of divorce and reduce litigation to the point that it is respectful to both parents.
The joint submission we presented at the time is in the appendix and can be summarized by the two following points: firstly, to enshrine the presumption of pro-equal alternating shared parenting, which includes joint custody, care and control and guardianship of the children of the marriage; secondly, implement a mandatory mediation program to enhance a non-adversarial divorce solution and largely reduce the loading on the court system. We still believe in these concepts and would promote them. And we believe they are very just to both mothers and fathers.
We do get a lot of calls from men, and surprisingly, in the analysis of the last year's calls, we have received 24 from women who were very concerned about their partners and their partners' interactions with past marriages. And they themselves are concerned over what the father is facing.
We've received 33 reports from men on custody issues, another 26 on access problems where men didn't see their children from six months up to five years, and we find that to be a very poor situation when they specifically want to see their child and in very many situations have no reason why they shouldn't be able to see their child.
The facts of domestic violence cannot be separated from custody and access as the same violence is very often translated into animosity toward the other partner in divorce.
The facts are well documented in many studies, and we attached to our brief the listing of a bibliography of 85 studies in which over 58,000 people were canvassed. The results tended to indicate, similar to what we've heard previously, that violence and domestic violence is, if not equal, slightly predominant by the mother or the woman in the family. This we recognize. We recognize that violence exists and I think we have to open up our eyes and look at both sides of the equation in order to come to a satisfactory solution.
New legislation such as Washington State's House Bill 2756, which is the domestic violence act, is a very complex web of statutes providing many punitive actions for an accused's actions or reactions. One of those would be interacting with children at school; and it sets very stringent criteria for penalties around unwanted or unauthorized contact with children at school.
We see men's interest in parenting involving school also, and we have concerns over such legislation serving to further limit non-custodial parents' interaction with their children. Even though the Washington legislation does open up shared parenting, I think both aspects of the legislation have to be recognized and dealt with in a positive way.
• 1340
Anger displayed by men we've seen has been directed
not so much at the grievances against their partner
during the marriage, but at the actions of their former
partner during and after marriage. So we feel that a
more equitable solution in the divorce process would be
helpful.
Within the Victora Men's Centre also we are very conscious of the level of pressure on men during divorce and the despondency and feeling of hopelessness that can arise. Despite our intense efforts, suicides have occurred among the men we've interacted with. As we've seen in cases prominently described by the media, men have acted, or shall we say, overreacted to shunning, alienation and accusation. Even if a man's expectations are unrealistic, his having been heard or understood through the mediation process we feel will make it more palatable.
According to Statistics Canada's 1994 figures, 20.5 males and 5.3 females per 100,000 committed suicide. This points to a higher level of hopelessness by men. By 1996 the rate had risen to 22.8 per 100,000 for men. When we extrapolate this out to the total population, it means approximately 6,000 men per year are committing suicide. Our belief is that a lot of the suicides are connected around family and divorce-related situations.
In a study done by an officer of the Calgary Police Department an estimate was that half of the men killed due to armed confrontation were in effect officer-assisted suicides. These deaths are not classified as suicides, further minimizing the recognition of the problem we have here. We feel that placing a greater legal emphasis on mandatory mediation will provide the catalyst to bring all participants in divorce to a greater level of input to the process and, indirectly, to better well-being for our children.
Various jurisdictions have, or are approaching, the legislation concerning custody and access, actions that we support in a guarded way. We have investigated new bills from England and Colorado, and from Washington State, HB 2407, and see a general trend toward changing wordage to some form of shared parental responsibility with recognition of mediation in some form to change the confrontative dynamic. We believe mediation should be mandatory, with minimal allowance for opting out of the process without some level of punitive outcome to the non-cooperative party or parties.
With societal recognition of food, shelter and protection as the necessities of life, bills such as Washington's place providing for the financial support of the child as the last of six parenting functions. We have concern that this function will take on a lower significance and recognization than functions such as “attending to the daily needs of the child”. Contrastingly, we see with Bill C-41 and recent British Columbia legislation that financial support is seemingly attracting the most attention from a punitive point of view. We recommend it be recognized—
The Joint Chair (Mr. Roger Gallaway): Mr. Maser, are you almost finished? I'm sorry to interrupt, but you're running a little over time.
Mr. Harvey Maser: Okay. We recommend that this be recognized as an integral part and a very necessary part of nurturing the child.
In conclusion, we believe that parents are completely capable of being parents after divorce as well as they were before divorce. We believe men have been alienated from their children for too long a time period, and we specifically see men who are definitely wanting to be with their child. Both men and women have a high degree of anxiety during the divorce and will react inappropriately if they're in fear. Let's try to reduce this fear and hopefully come to a more amicable solution.
We see and encourage the momentum for laws to be changed to entrench the concept that the best interest of the children is co-parenting after divorce. We want specific entrenching of this principle, to provide clear guidance to the provincial governments and their respective legislations.
Thank you.
• 1345
The Joint Chair (Mr. Roger Gallaway): Thank you very much.
We'll start with questions. Mr. Forseth.
Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): There's one more presenter.
The Joint Chair (Mr. Roger Gallaway): I thought you were together. You're with the same group, are you not?
Mr. Moray Benoît (Director, Victoria Men's Centre): Yes. I'll just be brief.
The Joint Chair (Mr. Roger Gallaway): All right.
Mr. Moray Benoît: My name's Moray and I'm a director for the Victoria Men's Centre. I've been a counsellor for 14 years, working with children, families and adults. I'm the father of three young children. I'm legally divorced and I would like to address the heart of the issue as a father.
I've been legally representing myself for the last two and a half years. This past week our youngest daughter was in the Vancouver children's hospital in critical condition and fighting for her life. I have been fighting for my life as her father.
I'm here today to speak to the heart of the issue for many men and fathers who are tired of being denied their children and having to prove their innocence in a system that continues to condemn them every time they are denied their children by unfair laws, policies and biases.
Presumed guilty until proven innocent is how many of us men and fathers feel. We are blamed for the breakdown of our relationships and marriages. In order to see our children, we are reduced to access orders. Most of the access orders have no legal authority by themselves. We then have to go to court time and time again to have them enforced and complied with. There are just as many good fathers as mothers.
Abuse and violence is a societal issue, not a gender issue. There are just as many fathers concerned about violence toward their children as there are mothers. Do not condemn the many of us who are good fathers for those few who are not. Many of us want to be fully involved in every aspect of our children's lives. We are being denied that right by a system that currently puts children's mothers' needs first and reduces fathers to secondary roles when it comes to being fathers to their children.
Fathers are left on the outside looking through a window, as their children grow up with their mothers. We live in a society where many children are growing up fatherless. This has become an epidemic. Why are so many children growing up fatherless? This issue needs to be addressed. The ramifications of fatherless children are all around us and can no longer be ignored.
We do not want our children to be part of that trend. We want to be equally involved in raising our children with shared roles and responsibilities. We want the mothers of our children to let go of our children and relinquish some of the control they now have over our children's lives and share the task of raising our children.
Equality means equality. We want equality in raising our children, regardless of whether we live in the same household or different households. Our children have the right to full and meaningful relationships with both parents, regardless of whether they are mothers or fathers. Primary care of our children is no longer best left solely in the hands of mothers, but rather in the hands of both capable parents. It is healthy for our children and it is healthy for us to be equal parents in raising our children.
Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Okay, Mr. Forseth.
Mr. Paul Forseth: Thank you very much. Based on the particular flavour of the testimony we've just heard, we certainly must say there are abusive and controlling fathers in society. I think all of society accepts that, but there are also abusive and controlling mothers. But we don't need the gender wars.
We are talking this morning about power struggles, and it seems particularly that money comes with the power that is gained over children. So how do we shift things from parental rights and desire for parental power to parental responsibilities for children? Perhaps you could direct your comments specifically to the Divorce Act itself and how the House of Commons and the Senate could amend the Divorce Act to try to get to that preferable ground of parental responsibilities, so when they're no longer going to parent their children together, they still have obligations and responsibilities to do the best they can for the children they brought into this world, even if they can't get along with each other.
• 1350
Any of you groups could go ahead and talk about that,
trying to shift and then trying to focus it in on
specific legislative change.
Mr. Carey Linde: This is an art and not a science. I don't know that you can really affect human behaviour that way. It seems to me that governments mandate and prescribe punishment, unfortunately, and I would never have thought I'd sit here and suggest anything like this, but look at what some of the American jurisdictions are doing. When some parent denies access, he or she risks custody. That doesn't happen here. People can get away with all kinds of stuff in this country in this regard and they know they're just going to get a slap on the wrist.
To change human behaviour, people going into a divorce have to realize that there are risks they're going to run if they don't behave a certain way. And the only one I can think of is on that issue. Time and time again I'm involved with cases where one parent is just breaching orders left and right and is being told not to do so over and over again, and the kids are getting banged around. If people really thought that custody was going to switch if they violated the order and didn't do certain things, maybe that would have some effect.
Look at drunk driving. How many of us now think that we're not going to drink over .08 but we can get around it? If it were simply bang on, it might happen. I don't know if I'm making myself clear. But until people realize that the law says you must do certain things....
Look at subsection 10(6) in the Divorce Act, the section saying that in looking at the question of custody.... It's the only section in the entire Divorce Act that directs the courts to look at a particular issue, i.e., the ability of the willingness of both parents to facilitate. And yet I can't find a single case in this country that's been decided on that point. It sometimes is decided on a basket of things, but it's never the one single thing. So if you can, make it very clear that if you violate certain things, you're in trouble.
Mr. Paul Forseth: Mr. Wiebe or Mr. Maiello.
Mr. Ken Wiebe: With all due respect, you're referring to the responsibilities of parents towards their children. I, as a parent, have certain responsibilities towards my children, which I'm quite capable of discharging. If I had custody of them half the time I would, by necessity, pretty much be discharging those responsibilities.
I'm not particularly interested in—and I don't think any parent is—having the legislature or the courts define my parental responsibilities for me. I feel that as a parent, as a father, I have a pretty good idea of what those responsibilities are with respect to my children. I don't feel particularly enlightened about what your responsibilities towards your children might be, nor do I think the legislature has any special insight into the issue.
In general, I think the responsibilities we discharge with respect to our children are best left to the parents. For the most part, the law should be silent. It is not the business of the legislature or the courts to give orders to any parent telling him what his responsibilities are, whether they be monetary, whether it is time spent with the children—or any other factor.
The responsibility of the legislature and the courts in this issue is to ensure that there is a post-divorce situation that respects the equality, the parental authority, the integrity and the sanctity of the family—my family in this particular case, because that's the one I'm most interested in, but I doubt very much that any other father or mother feels any differently on this issue.
Mr. Paul Forseth: Mr. Maiello?
Mr. Joseph Maiello: I'll pass.
Mr. Paul Forseth: Mr. Maser or Mr. Benoît?
Mr. Harvey Maser: I'll pass at this moment too.
The Joint Chair (Mr. Roger Gallaway): Senator DeWare.
Senator Mabel DeWare: Thank you very much.
I was just going to mention two things. If all of you wish to answer, you may. First, over the last several weeks with our hearings we've been hearing a lot about a parenting plan and the fact that it would force parents to think about the child and how they're going to handle everything in regard to the child. Do you think a parenting plan should be mandatory before divorce is allowed? That means you have to present a plan, and maybe it isn't the right one, so they'll make you go back and do it over again.
• 1355
You're talking about mandatory mediation. The
information we're hearing from some lawyers, some
advocates, and some psychologists is that mediation
should not be mandatory. They are definitely advising
us not to go that route, especially in cases of
violence and abuse. You couldn't get the two people in
the same room to legally sit down and discuss properly
in mandatory mediation, so they're suggesting that it
shouldn't be mandatory. There should also be education
classes.
I'll just open that up, and whoever would like to speak can go ahead.
Mr. Harvey Maser: I would like to speak towards that.
We have considered the situation and the particular circumstances extensively and we believe mandatory mediation is necessary. In the mediation process, the facilitating and the structure of the mediation process is and should be set by the mediator. I think the mediator can make sure that both people are listened to and are respectfully heard and also that the particular situations of imbalance, if there are any....
I don't believe imbalance necessarily always exists. I think it's possibly a concern of losing power when imbalance is considered. Studies have shown that often claiming victim status is a very couched way of maintaining one's power. I think this situation could also be looked at.
Mr. Joseph Maiello: If the mediation does not work, then it goes to the courts and the courts have the obligation to set the principles of justice where it's 50-50. I think Mr. Wiebe has done more research in that regard.
Senator Mabel DeWare: I was interested to see that two of you talked about the principle of justice.
Mr. Joseph Maiello: Yes.
Mr. Ken Wiebe: With regard to your question about the parenting plan, there's certainly no harm in having a parenting plan, although drawing from my own experience and that of other people I know, having a plan on how to cope as a parent in a post-divorce situation prior to being divorced and single probably wouldn't have been very effective. At that time I don't think I or anybody really would have any good idea of how to cope as a divorced parent with children.
As for mandatory mediation, we do specify what mandatory mediation actually means. Basically it's that the divorcing couple must at least try one mediation session before a judge can render a decision. That's really all it means.
Then there's this business about the level of violence being so high in the marriage that one or the other partner is uncomfortable or cannot pursue the mediation process. As a victim of marital violence, I did go through mediation and I found that the mediation process with the mediator in the room wasn't a whole lot different in that respect from going to a courtroom with a judge in the room. At some point, the divorcing couple must negotiate something. Whether it be a courtroom or a mediation environment I don't think is all that significant. One is no worse than the other.
Mr. Carey Linde: I think parenting plans would work an awful lot better if the Divorce Act moved the assumption of joint custody and co-parenting to the neutral middle. I'm opening up a can of worms; I'm sure you've heard it before. I hope I'm not being sexist, but right now the mothers know that if worse comes to worst and it breaks down, they have their shot over here to get what they want ultimately. That bias is there. Like it or not, it's there.
There's a great argument as to what this does. If you move it to the centre so both parties know that they have to think and really work for their self-interest, it might work. I urge that.
• 1400
What I hate most is when a guy comes in, he and his
wife have this pretty well resolved; then he goes
away, and pretty soon she gets a lawyer, and the next
thing you know, she's not communicating. Why? Because
a smart lawyer has said, if you break down
communication, you'll get custody. The whole thing
falls apart, and they actually win it on that basis.
I've heard judges say, “You know, there's no communication here. I know this one spouse is doing it on purpose; there's nothing I can do about it.” You have to move that to the centre.
Senator Mabel DeWare: You're almost talking about final offer selection here.
The Joint Chair (Mr. Roger Gallaway): Senator Jessiman.
Senator Duncan Jessiman: I have a couple of questions. The first one is to Carey Linde.
I may have misheard you, but I thought you said subsection 10(6).
Mr. Carey Linde: Is that the section?
Senator Duncan Jessiman: There's no such section. I think it's section 16.
Mr. Carey Linde: It's subsection 16(10).
Senator Duncan Jessiman: Okay, I just want the record to be correct on that.
Mr. Carey Linde: Thank you.
Senator Duncan Jessiman: I don't know whether any of you have this information, but do any of you know what percentage of custodial parents would work full-time outside the home? Do we have any statistics on that?
We're told...and I know, as a matter of fact, in the old days women didn't work, but now—
A voice:
[Editor's Note: Inaudible]
Senator Duncan Jessiman: Outside the home.
But now most young women, like my daughters-in-law, all work, and a number of my friends' children who are married have spouses who are working. So if we had some statistics to say, all right, a certain percentage work, why is it that the courts continue, as we're told by you people and everyone else has said, in approximately 85% of all divorce cases where children are involved, to give custody to the mother? If she is working full-time and the man is working full-time, what is wrong? What's wrong with the men? Why aren't you able to convince the courts that you're entitled to access?
Mr. Carey Linde: The masters and the judges at the lower level still buy into the primary caregiver, the maternal preference, stability. They associate.... I think emotional stability is the issue. They think it's geographical stability, and if you good folks can't find the statistics through your government....
But I find that the couples who have the most reasonable co-parenting are those who both work and they've arranged it so that one will work maybe over the weekend, Friday to Tuesday, and one will work during the week, and the child will be with one parent for three or four days and the other parent for three or four days. They do it fine.
Senator Duncan Jessiman: Thank you.
Does anybody else want to comment?
Mr. Ken Wiebe: I wouldn't mind answering that.
I have a theory about why the bias is there. I think a lot of it has to do with the politics of the situation. If a judge makes an error in the custody decision, if he makes an error in favour of a mother, he is very unlikely to suffer any adverse publicity over that. If he makes an error in a decision in awarding custody to a father, there will be hell to pay, and there are a number of activist groups that will make sure that decision is well known, well publicized, and not only in the public but also within the government apparatus and the political system, where the judges depend on various appointments for their careers.
Senator Duncan Jessiman: I would just ask, does Young v. Young have anything to do with this particular aspect?
Mr. Carey Linde: About work?
Senator Duncan Jessiman: No, about custody and gender bias.
Mr. Carey Linde: Yes. There's only a couple of Supreme Court of Canada cases where the judges talk about the best-interest test.
McLachlin lays it out, and the single key phrase is that they should maximize contact with both parents. By any definition of “maximize”, in the lower courts it's a joke. They make Disneyland dads out of fathers every single day in this province.
Senator Duncan Jessiman: This case is now five years old. So for the last five years you could use it, but notwithstanding—
Mr. Carey Linde: You stand up and use it as well, and it's “Thank you very much for bring it up, but the facts in this case are somewhat...” and they always find a way here, consciously or unconsciously, to go back to the way things have always been.
But they are changing slowly. You're getting a bit more stuff happening here. It's difficult and it's causing problems, but I think the parents have to be put under the gun to suffer some problems in the process, because it's for the kids.
• 1405
The Joint Chair (Mr. Roger Gallaway): Mr. Benoît, go ahead.
Mr. Moray Benoît: I would like to address that issue. I believe it has to do with two aspects. One has to do with the idea of primary care. In previous sessions with this committee we've had a few different individuals argue that despite women working, the majority of the primary care is still left with women. I don't necessarily believe that, but there is, in some of my readings and things, the idea that women have a tendency to not relinquish control of the children, despite being in the workforce.
There is this super-motherhood idea that to be a super mom you not only have to work full-time, you still maintain responsibility for the children. I believe our courts and our legal system are still maintaining a somewhat traditional view on that, that the issue needs to be addressed, and that primary care is no longer just a mother's domain. It needs to be looked at very closely.
The other aspect I believe has to do with money. For a lot of couples, the men in many cases are still making more money and are penalized financially in the courts. It makes it more difficult to share the primary responsibility of the children because of the financial penalties that are often given to fathers in the form of spousal maintenance, and other ways with our legal system.
The Joint Chair (Mr. Roger Gallaway): Mrs. Longfield.
Mrs. Judi Longfield: Mr. Linde, you suggested that lawyers are in great part a cause or a problem—that they so ferociously defend the interests of their client they sometimes fail to see that the child is involved. How do we get around this? Everyone is entitled to the best possible defence, the best possible lawyer to fight for their particular needs or concerns. What's the answer?
Mr. Carey Linde: Well, I told some of my colleagues I was going to be doing this, and they told me I couldn't say that. They sort of said, “Are there parents for whom you will not act?” There are parents for whom I will not act.
Recently I had a father who for some reason had two children in his custody and the mother was asking for more than just every other weekend; she wanted them on Wednesday afternoons. I said, “What's wrong with that?” He said, “Well, I don't trust her.” So there was something between the parents. I wouldn't act for that man.
Most lawyers will say that you cannot take that position and you must act for anybody who comes in your door. Nonsense, I say. There's an ethical problem here. Criminal lawyers, when you ask them how they could defend a guilty person, will say to you, appealing to intellect, “Every man or woman deserves the best defence. The crown has to be put to the test.” There's some kind of an abstraction there that works.
Lawyers who play both ends against the middle on kids have no such relief to cling to. You don't have to act for the alienating parent. If you know that the parent is alienating the child, and you think, gee, I think these kids should see more of that other parent, you should just say, hey, I'm not going to do this.
There are a lot of cases where the parents are better off not seeing a particular parent, unfortunately. For the general run of the mill...I mean, I think lawyers have bought too much into this. Why do I say that? Because they can make money. They can get more clients.
Mrs. Judi Longfield: I'm going to pursue that a little more. We hear repeatedly that it's not in the best interests of any lawyer to settle or to resolve this quickly because their fees are based on the hours they put in. There's been some suggestion—and again it gets back to the cost of these battles, not only the legal, but the costs of the psychologists and mediators and the variety of people you might bring in to help the defence. What if there were the situation where the fee was $5,000, and no matter how long it took, it would remain $5,000, and everyone would then be forced to try to resolve as quickly and as amicably as possible? Is that something we should be pursuing?
Mr. Carey Linde: I don't know. I keep coming back to the answer that it's such an open-ended game. You never know what you're going to get. Look at Justice MacLachlin saying what it means, and yet it doesn't mean that. So until the courts in this country sort of tell you where you can go and what you can do.... Any lawyer can say, well, you know, this case says that, but that case says this.
Mrs. Judi Longfield: However, there are situations where it's assumed all men have the financial resources and all women do not. Are we going to perpetuate this—that if you have the money to continue to pursue, your chances of succeeding are greater? Is that how we're going to decide? If that's the case, just look at the bank book and say, okay, you're going to go furthest, so you get the kids.
• 1410
Mr. Carey Linde: In family law, a lot of lawsuits are around money. If they have the money, if it's a splitting up of a million bucks, let them waste their money with lawyers. But if it's around kids—
Mrs. Judi Longfield: I'm not worried about the person with $1 million. I'm worried about what happens to the child.
Mr. Carey Linde: I think that if you move access and custody and co-parenting to the centre, make it the default position, and put the onus upon the party who thinks they should get sole custody to prove the point, you might save some money. People won't waste money going into a situation where they know where the goalposts are. Maybe I'm being naive.
Mrs. Judi Longfield: Again, I still think it comes down to the fact that only if you have the financial wherewithal to back up your position can you even hope to say “I have the right to have”, and I don't think we want to see that happen.
Mr. Carey Linde: I think that's the poor truth. That's the truth, yes.
The Joint Chair (Mr. Roger Gallaway): Senator Cools.
Senator Anne Cools: Thank you, Chairman.
I'd like to thank the witnesses for coming before us, and I'd like to laud Mr. Linde's statement of a few minutes ago that he will not represent any parent of any gender who seeks to alienate children from the other parent. It's nice to hear that articulation so very clearly, because I too share that sort of view. Parental delinquency, by any gender, is undesirable and unacceptable. It doesn't matter to me if it's male or female. I think most of us here agree with that, and I wanted to thank you for that.
I want to underscore, to the chairman and to the committee in general, that Mr. Linde has spoken here quite extensively about the issue of lawyers' ethics and lawyers' activities and the conduct of these sorts of proceedings.
I'd like to underscore the fact that we hear this a lot. We have many witnesses who are saying to us again and again that with the issues of lawyers' ethics and lawyers' activities and the adversarial system and so on, lawyers' behaviour is an issue.
I would like to propose, before all of us, Chairman, that we have a session precisely on that exact issue—the ethics and activities of lawyers.
I say that, Mr. Linde, because you've reminded me that someone just handed me a document not too long ago. Unfortunately, it's a piece of American literature and I prefer to use Canadian references, but it's written by an American lawyer called Bradley A. Pistotnik and it is called Divorce War! 50 Strategies Every Woman Needs to Know to Win.
It is filled with some 50 strategies of divorce, and is filled with statements such as: “Strategy 22: When you want a divorce, learn to aggravate your husband whenever possible”; “Strategy 24: Control your husband by being alternately loving and indifferent to keep him in a state of continual concern”; “Strategy 38: Always ask for more than what is fair, and substantially more than you think you deserve”.
The interesting thing about this book, or doctrine, or extract, is that most of us would say, well, this is a lot of nonsense and would dismiss it, but it was written by a lawyer. So somewhere in the realm of United States of America, certain persons are treating that as legal advice. I just draw this to your attention because, Mr. Linde, as you were raising those issues, I reflected on it.
But, Chairman, I recommend that quite strongly, because we're hearing a lot of witnesses repeat this particular concern, and I understand that the interests that have crystallized around the issue of lawyering are so enormous and so profound that many shake at the knees and suddenly grow very timid when they think of holding the legal profession to account. But I think it's time, Chairman, for us to look at the issue.
Thank you.
Mr. Joseph Maiello: Mr. Chairman—
The Joint Chair (Mr. Roger Gallaway): Go ahead.
Mr. Joseph Maiello: —if I could just comment on Senator Cools' strategy, which is true...I think actually it ties into Mrs. Longfield's comment about lawyers. Lawyers only do that because they know the courts are biased. If the courts were not biased, if they treated parents with the same parental authority after divorce, then there would be no advantage for a lawyer to seek something that is a bias because the courts do not tolerate bias.
• 1415
It goes back to the law and the administration of
principles of justice. If the courts are just, the
parents do not lose their parental authority just
because they happen to want a divorce. A husband and
wife may always divorce, but parents and children are
always parents and children.
I know of one case in the States where the parents filed for divorce and the judge said, “Okay, then you divorce, but the kids do not leave that house; the parents will.” They filed for divorce, not the children, therefore the parents have to vacate the house and every week one parent lives with the children. This means that the kids don't pack; the parents pack.
Another aspect is that the parents can't bring their boyfriend or their girlfriend. They can introduce their new partner to their kids, of course, but the new boyfriend or the new girlfriend can't move in. By removing sole custody to either parent, you also remove the option of the custodial parent bringing in a new daddy or a new mommy. Usually the mother gets custody, so the kids now look at this new man as daddy, and sometimes, of course, “This is your new daddy”.
Someone commented that, well, that's maintaining three households. No, it's not, because I have to maintain my space where I live and where my kids live. I could rent a room from my parents' house. I don't have to maintain three houses; I am responsible for me and my children as well as my ex-wife.
That's one option the courts might use, where the parents go packing, not the kids. So the kids don't change bedrooms and so on.
The Joint Chair (Mr. Roger Gallaway): Thank you very much. I want to thank all of you for coming this morning.
To the committee members, I will say we're going to take a five-minute seventh-inning stretch here. Thank you, one and all, for taking the time to come and to contribute to our work.
• 1417
• 1426
The Joint Chair (Mr. Roger Gallaway): We have before us a trio from the state of Washington and we want to welcome them here today. We have Mr. Eugene Oliver, who is a lawyer with the firm of Oliver and Associates. Mr. Oliver is a family lawyer who practises in Seattle and, I'm told, specializes in child abduction matters.
Also with us is Dr. John Dunne, a psychiatrist, who is a member of the state committee that drafted the Parenting Act in the state of Washington.
Finally, we have Dr. Diane Lye, who is a social statistician and has in the past been commissioned by the Washington Supreme Court to undertake a research project to evaluate the impact of the Parenting Act. I must say, from our perspective, that we've heard a lot about your Parenting Act and we're very pleased you're here so we can talk and learn about it.
You perhaps are aware of our process. I will ask Mr. Oliver to proceed first to explain his perspective. We'll move on down the list and then proceed to questions.
Mr. Oliver, welcome and please start.
Mr. Eugene Oliver (Lawyer, Seattle, Washington): Thank you very much. It's a privilege to be here. I hope in some way I can be of assistance to you folks.
I'm a sole practitioner attorney. A large portion of my practice is marriage dissolution and other custody-related and parenting-related cases. I do quite a bit of interjurisdictional work, which is probably one of the main reasons I'm here, because I've worked on some cases that involved the U.S. and Canada, as well as a lot of interstate cases within the United States. I've been doing this work for over 20 years, which takes me back to a time before the parenting plan statute in Washington.
I'm going to presume you've heard enough about the parenting plan act to have some concept of what it is, and if that's not the case you'll ask me or other people questions about it. So I won't try to tell you what the Parenting Act is.
I want to tell you a couple of things. In our state, before we had the Parenting Act we had custody and visitation. Somebody was awarded custody and somebody else got visitation. In a large portion of cases, the parents were really well motivated and wanted to work these things out, and I think that happens in most of the cases anyway. What you're mostly hearing about are the problems. In most cases, they are pretty good people who really want to try to do a good job for their children.
In those cases pre-Parenting Act, we would have put language in a divorce decree that would have said, “This parent has custody, the other parent has visitation; the visitation will be reasonable.” And we might have put in something that would say “and it will include at least alternate weekends or two weekends a month, and some time in the summer” or something like that. Most folks would go off and work that out and they would live happily ever after, or at least as happily as they would have if we had been more specific about it.
• 1430
In a certain number of cases, we—meaning lawyers and,
if it got to the court, the court—would look at these
people and say, these people are not going to make it
with custody in one party and reasonable visitation.
They're not going to agree on what's reasonable.
They're not going to agree on much of anything.
Sometimes they can't agree on whether it's daylight at
noon.
So in those cases, we would be more specific. We would draft a decree that specifically pinned down the times and the dates, who was going to do what and where they were going to do it, and we would send them off. Hopefully they would do better because we tied it down.
Well, in the parenting plan, we're very specific for everybody, and that in my view is both the strength and the weakness of the parenting plan. The biggest weakness I find in dealing with the parenting plan is that a fair percentage of people—and I'm not going to try to tell you what that is, but a fair percentage of people—don't really need all that detail and will be just fine pretty much left to their own devices. They want to do the right thing and they have enough sense and respect for each other that they can go forward and do that.
The parenting plan is pretty complicated to prepare and there's a lot of detail in it. For those people who don't need it, it's a lot of extra time and money, and sometimes it raises issues that they would be pretty well able to deal with if they had to deal with them as they came up, but when you put them in an abstract sense and sit them down at a table and say they have to agree on this before they get their divorce done, it causes problems. So to some extent we needlessly cause some of those people difficulties in coming to resolution on those situations or those issues, because they'd work it out when it came up anyway.
What I like about the parenting plan is it gives me, as a lawyer, the ability to take my client's focus away from “Who owns this child, and how do I control the situation?” and put the focus on what it means to be a parent. So instead of talking about who has custody, we talk about what the schedule is, who makes what decisions, and how we're going to do that. How are we going to make decisions regarding this child? And when problems arise, how are we going to deal with them? What's the dispute resolution procedure here?
This is my perspective as a lawyer, not as a psychiatrist or mental health professional, but I think it puts people in a different frame of mind. In the middle of a divorce, people are often arguing about or dealing with splitting the assets and the debts and deciding who's going to live in the house. It becomes that kind of property dispute. And it is; it has to be; that's the nature of it. So by having the parenting plan legislation in Washington, at least in a lot of cases we're able to put the parenting issues in a different context, so it's not a “What do I win and what do I lose?” situation as much. To me that's the main benefit of it.
The Joint Chair (Mr. Roger Gallaway): Okay, thank you very much.
Dr. Dunne, please.
Dr. John Dunne (Psychiatrist, State of Washington, U.S.A.): Thank you. It's my great privilege to be here before such a distinguished group.
I understood, just as I came in, that you did not get a copy of the research study we did, so I've revised my plan of what I wanted to pass on to you, since you don't have that benefit.
Just as a preamble, though, I should tell you a little about what we were trying to do. This dates back to 1983. I was giving a talk to the King County Family Law Section on what was known about the effects of joint custody, which at that time was sort of the rage, and a number of states were converting to joint custody mandatory statutes. What I presented was basically a degree of skepticism; I said this was maybe not the panacea some people thought it was.
• 1435
In the audience were a couple of attorneys who
were quite concerned about the adversarial battles that
went on around custody and the effect that had,
obviously, on the children. It was out of that sort of
nidus that we got together and started trying to
construct something that was different.
And I think some of the assumptions that we had need
to be understood.
One of the things was that we thought that fundamentally good laws had to reflect societal beliefs at the time, but we were also quite aware that our culture is one of many different facets. Not everybody is white, upper middle class and well educated, as were all the people sitting in that room. We wanted to construct a law sufficiently flexible that it could account for a wide range of circumstances people brought with them to the courts when they were filing. That was one of the underlying assumptions we had.
Of course, another one was that if parents took care of the needs of the children better in the knowledge that children indeed need both parents for optimal development, the children would be better off. So we tried to structure a number of things that would keep both parents involved and committed to the welfare of the children.
So we had several assumptions. There were a few more than that, but those were the basic ones we had when we set about trying to write this law.
It eventually passed in the spring of 1987, and being enough of a skeptic, I wondered how this really was going to work and whether what we hoped it would accomplish would actually occur. My practice associate, Dr. Wren Hudgins, a psychologist, and I decided to try to get funding for a study. We spent six months trying to get the study funded and were running out of time, so we decided we'd just go ahead and fund it ourselves. Because of those funding limitations, there are certain flaws in the study that I think you need to be aware of in terms of interpreting how much reliance to put on this study.
But this is a unique study in that it's the only study I know of in the world in which there is a control group studied prior to the implementation of the law and then an analogous group following the implementation. In terms of demographics, there was almost congruence between the group that filed prior to the implementation of the Parenting Act and the group we studied following it.
There were a couple of glitches, however. Because we were taking our sample shortly before the law changed, there were a number of very enthusiastic attorneys who were actually asking their clients to create parenting plans even though it was not mandatory. So in our control group we had about a 20% group that actually completed the parenting plans, and in our experimental group, if you will, those who were divorcing under the new law, about 15% or 20% didn't, even though they were required to.
The advantage of that was that it allowed us to look at the impact of the law separate from the impact of the parenting plan itself. What we found was that the parenting plan had no impact at all on any aspect of the outcome, but the law did.
I have a few slides to demonstrate some of the things we did.
Actually, the biggest effect.... This is kind of complicated, but I'll run through it. We were studying two populations, King County, which is where Seattle is. It has an urban population with a broad range of people but a higher than expected range of upper-middle-class, well-educated folks who married later and divorced later and had fewer children than did our other group in Yakima County.
The two things to look at initially on this slide are the blue and the green lines, which show the relative problems at the time people filed for divorce. And then, if you look at the magenta and brown lines, they show the follow-up two years later, relatively speaking. And the trend, if you compare the magenta and the brown lines, is that almost always the brown line—the folks who divorced under the new law—is higher than the magenta line, so that a lot of times things really hadn't really gotten much better and to a certain degree, things had gotten worse.
• 1440
This is the same slide looking at Yakima County.
Here there were a couple of times where there were
significant differences. Actually, there was some
improvement. As you can see under depression and
anxiety, that occurred. However, the overall pattern
when we clustered everything together was that the
parents who divorced under the Parenting Act
actually had more difficulties in summary than the
parents who divorced under the former law.
There was a gender difference among men. Fathers were tending to have significantly more problems compared to what they had under the old law. Women were also having more difficulty, but the increase was relatively smaller among women, among the mothers. Another way of putting it is that it made things equally miserable for both. How's that?
Senator Anne Cools: It sounds very Canadian.
Dr. John Dunne: Well, you know, this is the egalitarian U.S. system.
This is kind of the summary. As you can see, under social withdrawal, there was a significant difference. Parents, a combination of both mothers and fathers, have significantly more difficulties under the new law, the Parenting Act, than under the old law we had.
I'm a child psychiatrist and of course I was particularly interested in the children. I would have been able to justify what we did if the kids were better off. Again, the kinds of children we were looking at demographically fit very well. The one flaw in the study is that we did not have anything that looked at the pre-divorce functioning of the children, which would have been desirable, even if it had been a retrospective assessment by the parents. We did not include that.
What it does show is that children, both in King County and in Yakima, under both the old law and the new law, generally got better over time. It didn't seem to really make much difference what we did. When we combined the two counties and looked at how they did in total under the old law, you can see that it was virtually identical. When you clustered things, any differences kind of washed out and the children really were pretty much the same.
One of the difficulties we had in analysing all of this was trying to figure out what this really meant, and we tried to break it out. You can see that if you get enough different categories, sooner or later you'll find one that's statistically different, and that's one of the fallacies of having multiple categories with relatively small populations. We were able to find at least one category of social withdrawal where the kids who functioned under the new law were doing somewhat worse.
We were trying to figure out that if the pattern of child support wasn't much different, all the other sorts of things were relatively the same, and the only real difference was that the parents were functioning worse, why didn't the children function worse, since there has been a fairly strong correlation between how the child functions and how the parent functions. Indeed, when we broke it out on an individual parent-child basis, there was an almost perfect correlation between how the parents function and how the child functions. Because everyone was doing relatively worse, there wasn't enough difference to show a difference among the children.
What did we learn about this in terms of what we would recommend? One of things is that I feel fairly strongly that the Parenting Act basically requires people to get divorced twice. They have to do a temporary parenting plan, which often becomes quite litigious and takes several months to work out, and then they have to turn right around and start developing a permanent parenting plan. I think that accounts for a good deal of the anxiety that the parents were experiencing under the new law that they didn't have under the old.
The other thing we were trying to promote was, of course, increased compliance with child support. Our data is a little weak on this, but in general, it shows that there wasn't any real difference between the old law and the new law, and we felt that rather than trying to monkey around with the law, perhaps better enforcement or things having to do with automatic deposits into the recipients' accounts might be a better way of doing that, having these extra legal factors having to do with that.
• 1445
Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Dr. Lye.
Dr. Diane Lye (Researcher, Supreme Court of the State of Washington, U.S.A.): Thank you. I should just let you know a little bit about my background. My name is Diane Lye and I've been a researcher looking at various issues related to family and divorce for the last 15 years, first in university settings and in private practice.
I was hired by the Supreme Court of the State of Washington through the auspices of the gender and justice commission of the state and the commission on family relations in the state to look at how divorce law as a whole was functioning.
Initially, there were a variety of concerns in the state of Washington about the functioning of the divorce law, which sparked the state legislature to set aside money specifically for a research project. By the mid-1990s, there was a growing concern that the Parenting Act was not functioning as people had hoped and that the divorce system as a whole was not functioning well.
I think it's worth stopping to think about what the perceived problems were with the existing legal situation. The first catalyst to doing the research was Dr. Dunne's research, where it was felt that the goals of the Parenting Act had not been realized.
It had been hoped that the Parenting Act would reduce conflict. The goals of the framing of the legislation were to reduce the adversarial nature and emphasize that parents divorce each other, not their children; to encourage both parents to continue to be involved; and to adopt a future-oriented functional approach to parenting, maintaining existing relationships where ever possible.
As Dr. Dunne has just indicated, his research suggests that the changes that people hoped would follow from the implementation of the Parenting Act have perhaps not materialized. So that was one concern, initially, that led the state to decide to conduct more research.
A second concern was a groundswell of opinion that eventually resulted in the introduction of legislation in the most recent legislative session in Washington that would substantially modify the Parenting Act. Initially, the proposal was to introduce shared parenting and to make a 50-50 division of time the presumptive arrangement in Washington state.
Subsequently, the representative who was introducing the legislation modified that, and I'm not completely sure where it was finally left in committee, either to 65-35 or to 30-70, but the proposals were being bandied around.
That legislation did not make it out of committee to come before the State House in Washington state, but the expectation is that the legislation will be reintroduced next year, where it will stand a very good chance of being voted on in the full House. So there's a strong groundswell of opinion that's coming from fathers' rights groups seeking shared parenting, and mandating that as the arrangement that there will be instead of the flexibility that's currently available under the parenting plan.
A third reason that led to the research was that at the same time as men's activists were pushing for shared parenting, women's rights activists were arguing that concerns about child support and domestic violence were not adequately addressed under the parenting plan; that is, women were being forced into negotiating deals that were not necessarily in their best interest, because fathers were using custody issues or visitation and access issues to negotiate deals.
That is very interesting, because I've spoken to members of the legal profession, and nearly all of them have said that they find that kind of trade-off, of time with children versus money for children, to be morally and ethically unacceptable. On the other hand, they all know of instances where those kinds of deals have been proposed.
• 1450
A fourth factor that has motivated the state to
undertake a review of the Parenting Act in Washington is the
perception that the Parenting Act is inequitable with
respect to socio-economic status.
Specifically, a number of activists, mediators, and lawyers have said that people with plenty of money are able to work the system very well. They're able to take the time to negotiate parenting plans that really meet and serve their needs. Also, they have several meetings with mediators, for example. They work extensively with attorneys sometimes in a way in which there's an advocacy situation where the parties are hostile to each other, and sometimes in a way where the parties really can agree that they have the time and the resources to work out a deal they like.
However, low-income people, immigrant people, or people for whom English is not their first language are often said to be disadvantaged by the system because they cannot afford either the time or the money to get the services they need to make the system work for them. One activist at a law centre said basically that they take twenty minutes to fill out the forms. They hope the translator turns up, otherwise, who knows what will happen?
A fifth concern that led to the demand for research has been that the process takes too long and costs too much. This is expressed by legal professionals, lawyers, both men's and women's activist groups, and children's rights groups. This echoes, in some sense, Dr. Dunne's observation that people have to divorce twice.
On the other hand, other professionals involved in the divorce situation in Washington state have argued that any speeding up is not practically possible, because it takes time for couples to come to terms with their situation well enough to be able to reach a meaningful agreement that they can subsequently live with. There's a strong sense that maybe it costs too much, maybe it takes too long, or maybe it doesn't, but either way, some people are penalized by that.
An additional twist that has been thrown on top of this is that subsequent to the passage of the act in 1987, in a piece of unrelated legislation in 1989, Washington state also introduced and required the mandatory use of a set of forms for the completion of the Parenting Act. Essentially, this is a packet of forms that everybody has to fill out when they file for divorce. It says what's in their parenting plan.
It includes a great deal of detail. For example, parents are asked to specify where the children will be on Memorial Day in even-numbered years, where they will be on Memorial Day in odd-numbered years, and so on.
The forms have taken on a life of their own. Most legal professionals I have spoken to absolutely hate the forms. Everybody I speak to with any political involvement in this said that it's politically impossible to get rid of the forms. But very often, in discussions about the Parenting Act, what happens is that people start talking about the forms instead of about the act.
The forms on some level are irrelevant since people manage perfectly well without the forms, but it has become a big issue as to whether the forms should be modified in some way, whether what the state requires people to put into their parenting plan should be modified, whether there should be more room for flexibility, and whether there should be more room for general statements in the parenting plan as distinct from very specific statements, and so on.
A final issue that's led to the need for research has been the growing proportion of parenting plans that involve paternity actions rather than divorce actions. Roughly one-third of first births in Washington state at the moment are to non-married couples. Non-married couples are an extremely diverse group, ranging from 14-year-old teenage mothers to 35-year-old professionals who have been living with a partner for 10 years. So you can see that there's a huge variation there. There's a sense that those children are not well served by the current Parenting Act.
Here is what the research will do. I should warn you that right now we're at a stage where we've developed a set of researchable questions and we're about to begin to go into the field with this.
There are really four things that Washington state will be doing. The first will be going back to the records to establish where there's a modal arrangement that's widely adopted under the Parenting Act. Fathers' rights activists have argued that although the Parenting Act allows for infinite flexibility, in fact, what happens most often is what happened under the old law: the mothers get custody, and the fathers get visitation and the child support bill.
• 1455
Whether or not that's true is
an empirical question that we'll be researching over
the next few months by going back through a sample of
records. At the very least, I think it would be
interesting to know exactly what plans look like, the
extent to which they do support shared parenting or
not, and the extent to which this diversity in the
parenting plan is adopted by families.
The second step in the research will be a series of key informant interviews. These are already under way, asking a set of loosely defined but virtually the same questions to a range of informants who are professionals in the field. This will include mediators, lawyers, judges, court commissioners, law enforcement officers, activists for different groups, and so on.
The third step, which will be under way this summer, will be a series of focus groups with families who are newly divorced or in the middle of the divorce process. The reason for focus groups rather than doing a large-scale sample survey is a shortage of money. Essentially what we are able to do with the budget is quite restricted. We felt it was very important to gather information from users of the divorce system as well as gathering information from suppliers of the divorce system. To date the research that the court has been able to undertake has focused on the perceptions of the suppliers, the judges and the lawyers, rather than of the users of the system.
A final part of the research, which is only loosely related to the rest of the research and is nearing completion at the moment, involves conducting a review of the research that has been published on shared parenting. Judges in particular who are looking at parenting plans have strongly urged the court to collect information that really speaks to the question of what parenting plans are in the best interests of children. The statute obviously is guided by the best interests of the children as its goal, but members of the legal profession feel they're not getting good guidance from sociologists, psychologists, social workers, psychiatrists, and so on about what is in the best interests of the children.
I have to tell you that the research we've gathered and assembled so far is extremely conflicted. There is a line that one could draw down the middle between research conducted by psychologists and research conducted by sociologists. The psychologists have generally concluded that shared parenting is good for children. The sociologists have generally concluded that shared parenting is irrelevant as long as the child support payments are made. There's a big disjuncture here.
Senator Anne Cools: It's a predictable problem.
Dr. Diane Lye: Yes, it's entirely predictable. I think the difference arises from differences in the methodologies being used, from differences in the samples, and from the outcomes that are being measured. There's a whole range of differences there. It seems very unlikely that we will in fact be able to provide a kind of Solomon's rule for the judges to work by, much as they might want that.
The research will be going on throughout the summer. We will be reporting around the end of November so that the members of the legislature can have early versions of the research available to them for the next session. Then the final research report will be written up by around June 1999.
Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you, Dr. Lye.
Senator Jessiman is anxious to pose the first question.
Senator Duncan Jessiman: I find this quite interesting. Do your courts have special divisions that deal exclusively with family law or do the judges hear other kinds of cases and are not specialists in that field?
Dr. Diane Lye: I think Eugene can probably provide more insight than I can.
I think it's fair to say that some of the justices in the state of Washington would very much like there to be a family law system that is separate. That is certainly a goal that's been floating around for a long period of time. There has been a whole variety of policy papers and position papers.
What some of the justices and some of the judges would like would be a unified family court system that would just deal with family issues. That's not the case at the moment. One of the issues that comes up in terms of how long it takes to get a divorce in Washington State is that the scheduling of trials and motions and so on is very much bound by the fact that other things have priority in the courts and come up first. Sometimes there's a waiting period that plays out.
• 1500
Senator Duncan Jessiman: Is the divorce act in the state of Washington a state act as well as the custody...? Is there split jurisdiction between the federal and the states?
Mr. Eugene Oliver: No.
Senator Duncan Jessiman: So you don't have the same problem as we have in that regard?
Mr. Eugene Oliver: We have some different ones.
Voices: Oh, oh!
Senator Duncan Jessiman: Attached to your acts, do you have guidelines that the judges have to follow?
For example, in respect to payments, let's assume one party gets sole custody. Under our guidelines, you look at the non-custodial parent and say, all right, he earns x number of dollars, he's located in a certain province—in your case it's Washington state—and there are three children. The judge looks at a table and says, “That's what I have to order”.
My question is do you have similar guidelines? Or does the judge in each separate case have the flexibility to say, “Well, this case notwithstanding, he makes x number of dollars, so he only pays so much a child”, whereas in another case with the same kind of dollars, the same number of children, and the same location, but different circumstances...? They might be older or younger, costs are different, or whatever. Do they have flexibility or are they bound by guidelines?
Mr. Eugene Oliver: We have a state-wide schedule. In fact it is mandatory in the United States now that each state have that. There's federal legislation that has required the states to do this.
The factors in Washington state and pretty much in all the states I've seen are that what's defined as the net income of each parent—
Senator Duncan Jessiman: We know that a number of them take into account both.
Mr. Eugene Oliver: Yes.
Senator Anne Cools: He just said that.
Senator Duncan Jessiman: I know that. But in most of the states or all of the states that you know of, do they take into account both parents? In our federal guidelines.... Quebec is different. They have allowed each province to have their own guidelines if they wish. So far I think it's only Quebec, although others are looking at it.
If you have the federal guidelines, the model is being built in such a way that they do not take into account the income of the custodial parent. It's assumed, it's built into the model, that the children are going to benefit from the increase in income that a custodial parent has. So the custodial parent, under our laws, regardless of how well off or how poorly off she is.... It doesn't make any difference if she's a multi-billionaire and this other person makes $100,000 a year. If she becomes the custodial parent, the one who's making $100,000 a year pays according to the table. You don't take into account....
I'm now asking you what is the case in most of the states that you know about.
Mr. Eugene Oliver: In Washington and in the states where I've had cases where it came up, we look at the income of both parents. But one of the things we find is that in a typical case, it doesn't make too much difference what the custodial parent is making, because the non-custodial parent is the one who's actually making the payment. The custodial parent, in theory at least, is paying his or her share by everyday expenses. So what happens to the non-residential parent, as we call them, is that he or she is paying a lower percentage of a higher amount as the custodial, or residential, parent's income goes up. It doesn't change it that much, but it does have an effect.
When I started practising, there was no state guideline in Washington, but there was a guideline developed for King County, and that guideline looked only at the non-residential parent's income and just applied a percentage. I think it was 24% for one child, 30% for two, and then it went up to about 37% for three, and anything over that was a maximum of about 44% of the non-custodial parent's income. That's all it looked at at that time.
We've since gone through several different phases, and now have the schedule we have, which looks at each parent's income, divides the children into two different age groups—0 to 11, and 11 and over. And they are all presumptive; they're not mandatory. The court can change it—
• 1505
Senator Duncan Jessiman: The court has that flexibility.
Mr. Eugene Oliver: —if, under clear and convincing evidence, and if they state their findings of fact....
I'll tell you what what routinely happens in my practiceé I've checked this with some other attorneys and some judges, and we kind of get a chuckle out of it. After about 15 years of struggling with this and changing the schedule all over the place, it's amazing how often the non-residential parent's child support turns out to be pretty close to 24% if there's one child and 30% if there are two. It's real close to the numbers that we used 15 years ago.
Senator Anne Cools: Mr. Chairman, may I have a supplementary?
The Joint Chair (Mr. Roger Gallaway): Sure.
Senator Anne Cools: Thank you, Chairman, and thank you, Senator Jessiman.
I wanted a clarification. You said basically that the U.S. Congress legislated that each state must have child support guidelines. Could you tell us what the instruments are that each state is using to deliver guidelines? The reason I ask is that the federal child support guidelines are regulations of our Divorce Act, and the process of using delegative legislation caused a lot of us much anxiety. What are the constitutional instruments that each state uses to bring about child support guidelines? What are they in your state, for example?
Mr. Eugene Oliver: Under the U.S. system, family law is state law. There are three ways now that the federal government gets into that.
One way is some statutory jurisdictional regulations about what state is going to hear what cases, so that we quit fighting about child custody in four or five different states at the same time. Another is some very limited criminal custodial interference law that has to do with taking children out of the country in violation of court orders. And the other is with regard to child support, but what they did there, basically, was say that they wouldn't send them the welfare money, the public assistance money, if they were not doing what was considered to be adequately pursuing child support within the state. That's where those guidelines came from.
Senator Anne Cools: But how are they doing it in each state? Is it a statute of the state legislature?
Mr. Eugene Oliver: Yes.
Senator Anne Cools: Okay, so you do it by an individual statute in each state.
Mr. Eugene Oliver: Right.
Senator Anne Cools: Thank you.
The Joint Chair (Mr. Roger Gallaway): Go ahead, Senator Jessiman.
Senator Duncan Jessiman: I do have one other question.
You said this, but I want you to clarify it for me, if you will. Dr. Lye, you were saying there were amendments before the legislature of the State of Washington that were dealing with percentages of presumed custody, 50-50 or 65-35 or 70-30.
Dr. Diane Lye: Right.
Senator Duncan Jessiman: Do you expect that in some form it will pass?
Dr. Diane Lye: I don't know if it will pass. Broadly speaking, whether or not a piece of legislation makes it out of committee to the full House depends on the seniority and the chips of the legislator concerned. The legislator concerned this year was not able to move his legislation out of committee. The legislators I have spoken to about this think it very likely he will be able to do so next year.
Senator Duncan Jessiman: But you're not sure with what percentages at the moment.
Dr. Diane Lye: I'm not sure. He was prepared to shift from 50-50 to another arrangement in the hope that would help him get it out of committee.
Senator Duncan Jessiman: What is the present legislation now? Is there no presumption? Is it all left up to the judge to determine?
Dr. John Dunne: I would like to respond to that. The way in which we wrote the law made it deliberately possible for the range to be everything from 100-0 to 50-50, although there are stipulations or guidelines when you get close to that 50-50 mark in terms of criteria that the couple has to meet in order to get that.
• 1510
Senator Duncan Jessiman: If there's anything less than 100% sole custody, and some of the custody is given to what I'll call the non-custodial parent, does that make any difference as to the amount the non-custodial parent might pay?
Dr. John Dunne: No, it doesn't. But just to clarify, if one has 100% residential time, that means the children never see the non-residential parent.
Senator Duncan Jessiman: Right. They never see them.
So there's an amount that must be paid by the non-custodial parent.
Dr. John Dunne: Right. The non-residential parent pays, regardless of time.
Senator Duncan Jessiman: Let's assume that the non-custodial parent spends 49% of the time with the children. Does the custodial parent who spends 51% of the time with the children still get the same amount of money as if they had 100% of the time?
Dr. John Dunne: Eugene, I think you probably could answer that one.
Mr. Eugene Oliver: One of the permutations that we went through as we were evolving to where we are now was that at one point we had a child support schedule that looked at the income of both parents, and it also had percentage differences built into that, based on percentages of residential time. I think we had that for about two years. It was done away with primarily, I think, because it created a connection between child support and parenting, and so the parties would come up with a parenting plan that they liked and then they would start counting nights. Then a whole bunch of other conflict developed when somebody realized that if they could get five more nights, they'd get up to 45%, and that would reduce their child support. Then the other party realized, oh, oh, I can't do that, because I'm not going to be able to buy my groceries or whatever it is I want to buy. So that didn't last very long.
What we have now is that there are a number of factors built into the plan, which the court can use to modify or to deviate from the plan—and I'd be happy to send you a copy of the plan. One of those factors is a residential sharing of time.
That means, then, that the court has to also decide that economically it's appropriate for this family to do that. So it's not just a matter of saying, okay, you have 50-50, so we're going to reduce your support by 50%. It might be 50-50 and we're going to reduce your support but it may not be by 50%; it may be by some other amount because of some particular circumstance in this case.
Senator Duncan Jessiman: What North Carolina has done is they've assumed when they've separated that the total cost isn't 100%; I think it might be 125%, and then they divide it up.
Anyway, thanks very much.
The Joint Chair (Mr. Roger Gallaway): Thank you, Senator.
Dr. Bennett.
Ms. Carolyn Bennett: We'll continue to deal with Senator Jessiman's mathematical priorities.
We in Canada quite often feel that we have this small problem of sometimes running and doing things just as everybody else is starting to abandon them. I think my grade 10 science text was one of them. But I would like to know, if you were in our shoes, from what you've learned—particularly Dr. Dunne, who was involved in drafting this legislation—what you would do next. You've obviously learned a great deal from this. What would you be doing if you were us?
Dr. John Dunne: It's a very tough question.
There's a lot about the Parenting Act that I like. I certainly don't like the sort of double litigation that comes from a temporary plan versus a permanent plan. However, the one advantage that had was, because things dragged on, it at least allowed money to change hands so that...usually it was the woman, was not left destitute until things finally wended their way through the courthouse.
• 1515
There was that advantage, but it has lengthened the
time. I'm not sure about the average length of time,
but my guess is that somehow it has lengthened it from
roughly six or seven months average to over a year
average that it takes now to get divorced in Washington
state.
I like the degree of flexibility and the amount of latitude it gives. It also gives the ability to modify more easily the plan you have as the children grow older and circumstances change. People move out of state, their job circumstances change, they remarry. All sorts of things fundamentally alter the assumptions that the parents brought to their decisions at the point of divorce. So I like that.
I like the idea of separating out the different functions, separating residential time from the decision-making process. I view joint custody fundamentally as joint decision-making, regardless of how much time they're spending with one parent or the other. If the two parents are working together and they're making important decisions together, to me that's joint decision-making. A lot of people confuse it with time. They think joint custody means 50% here and 50% there, but if the parents aren't working together, what you have is a split custody, not a joint custody.
There are certain aspects of this that I would like to retain, but other things, particularly the temporary parenting plan that gets litigated, I would like to see out of it. I may be particularly naïve about this since I come from a mental health perspective, but what might make some sense is to require that the parents not file anything until they have agreed on what they're going to do. It requires that they come to some agreement.
I think under the old law we had, people just sort of did whatever they did. Basically one person moved out and the other got stuck with the kids until the money started changing hands. That had its shortcomings also. There was no plan as to how this would take place, and it meant that not only was no money changing hands but also that often the children went long periods of time without seeing the other parent. It was just an unregulated mess.
Ms. Carolyn Bennett: In looking to the future, do you really believe the act has exacerbated the conditions or are high-conflict separations simply high conflict and there's very little we can do in legislation to change the high conflict?
Dr. John Dunne: My perspective of it is that the rule of thirds applies. Of course, that's sort of a broad thing, but I think roughly a third of people who divorce, give or take, are going to get along fine post-divorce, no matter what we do to the law. There is roughly one-third who are going to litigate until hell freezes over, no matter what we do.
I think the group to focus on is this group in the middle, who have very strained relationships, but for whom the divorce law and the statutes that have to do with it can push them in the direction of getting along better or in the direction of being more conflict-ridden.
Of course, what we would like to see is pushing them in the direction of working more together and getting along better and reducing the general conflict. How best to do that is not entirely clear. Clearly our Parenting Act was aimed at doing that and I think we erred. We pushed that middle group in the other direction. There was that shift to the left rather than a shift to the right.
There have been some proposals I've seen where we did not have such latitude, which of course is one of the things that appeals to me. It was more cut and dried. There would be less for them to fight about and that would reduce the conflict and litigation. I think you'd end up with some people who were very unhappy, but they might not be in conflict about it.
Ms. Carolyn Bennett: Do you know how you'd do that?
Dr. John Dunne: Well, one proposal is that everybody gets 50-50. It doesn't make any difference whether one person is a falling-down drunk or whatever. They're a parent so they get the kids 50% of the time.
Ms. Carolyn Bennett: But you've said that decision-making is separate from time spent.
Dr. John Dunne: I'm saying if things were more cut and dried, if you did not allow for individual differences, there would be less to litigate. Our current Parenting Act allows for an infinite number of possibilities, so that gives an infinite number of chances to litigate.
• 1520
Ms. Carolyn Bennett: I would say that if I were a kid with skating lessons and all kinds of things, I would find that this wasn't a child-centred approach.
Dr. John Dunne: It's not. I'm not suggesting that's the best way to go, but you might have less litigation and conflict that way.
Ms. Carolyn Bennett: Okay.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Cools.
Senator Anne Cools: I thank the witnesses for coming a fair amount of distance, although Washington is really quite close to British Columbia.
I have a very quick question. In quantum, in Washington today, how much does a divorce cost? In Washington of ten years ago, how much did a divorce cost? And in Washington of twenty years ago, how much did a divorce cost? I won't ask you how much it will cost in ten years, just today, ten years ago, and twenty years ago. All the information showing on this is that despite all the interventions and so on and so forth, it's getting more and more expensive and there are more and more lawyers, and so on and so forth.
So just out of curiosity—
Dr. John Dunne: We don't have the data.
Senator Anne Cools: Thank you.
Mr. Eugene Oliver: I can get it.
Senator Anne Cools: Okay. Let's hear your data.
Mr. Eugene Oliver: This is how I make my living—
Senator Anne Cools: Oh, good.
Mr. Eugene Oliver: —so I have some data.
How much it costs to get a divorce is like asking how tall a tree is, to some extent. But what I can tell you is that two people may come into my office and say they want me to help them. They want to work together on what's called a non-contested dissolution. They think they pretty much have it together, but they need the assistance of an attorney to make sure it's drafted properly and to make sure that at least one person—an attorney can't represent both sides of a piece of litigation, and a dissolution is a litigation—has his or her rights respected and to make sure that there aren't some ambiguities in what they're drafting.
With a non-contested dissolution, say they come in with a couple of children. They have a house. They have some retirement funds. They need to get the assets divided and get a plan for the children.
Twenty years ago, I would probably have quoted those people somewhere in the area of $750 to finalize their dissolution. Ten years ago, I probably would have quoted them somewhere in the area of $1,000. Today I would probably quote them in the area of $2,000.
Now, do you want to know how much my rent was twenty years ago and how much it is today? It's not all about what we've done with parenting plans and child support statutes, etc. Those are numbers that I can give you.
The Joint Chair (Mr. Roger Gallaway): Senator DeWare.
Senator Mabel DeWare: You didn't say anything about mediation. I believe you mentioned mediation, but you didn't elaborate on it. Do you feel mandatory mediation can be legislated or should be?
Mr. Eugene Oliver: We all do it in one form or another, except there are cases where you look at it and wonder why you should waste your time.
What we have in King County now, basically, is that all parenting cases are required to be mediated unless a court commissioner waives the mediation requirement. That's done in cases where there are serious issues about domestic violence or you just obviously have people who are so contentious that you don't want to waste everybody's time and money.
Senator Mabel DeWare: So it's mandatory, but it can be waived.
Mr. Eugene Oliver: Correct.
Senator Mabel DeWare: Thank you.
The Joint Chair (Senator Landon Pearson): I have one quick question: what place does your Parenting Act give to the voice of children?
Dr. John Dunne: I can answer that.
We had specifically included the child's preferences as one of the criteria among those things that could be waived so that the child preference could be considered. There's sort of an underground belief that when the child reaches the age of 11, 12, or 14, depending on who you talk to, somehow the child's preferences take priority, but that's not true.
I'm sure that if it came to the court, the judge would certainly give increasing weight to the child's preference, but it certainly never takes priority over other factors.
• 1525
The Joint Chair (Senator Landon Pearson): Thank you.
The Joint Chair (Mr. Roger Gallaway): On behalf of my colleagues from both the Senate and the House of Commons, I want to thank you for coming here today. I appreciate it. It's not often we have witnesses from another country before us. I think this has been most helpful to the work of this committee, and I am certainly mindful of what Dr. Bennett had to say after having heard this. It has been a great help to us.
To the committee members, I want to say that arrangements have been made for what I will call an expedited lunch, so we stand adjourned until 1.30 this afternoon.
• 1526
• 1641
The Joint Chair (Mr. Roger Gallaway): I wonder if we could take our seats, please, and get started.
I want to make a special note in welcome to Daphne Jennings, a former colleague from the House of Commons, who is here fighting the good fight still.
For those of you who were not in the last Parliament, I should tell you that we have heard a lot about the grandparents' rights bill—the grandparents' bill, as it's been referred to—and the author of it, Daphne Jennings, is here today. We're very pleased to see you here.
We also have with us—and I hope you're not feeling any less welcome—Marilyn Stevens, who is the president and founder of Grandparents Raising Grandchildren, from British Columbia; and from the Canadian Grandparents Rights Association, Nancy Wooldridge.
We have a very precise order: we start at the left-hand side and work our way across. So Ms. Wooldridge, we'll ask you to speak first and if you can limit...and we don't like to—
Ms. Nancy Wooldridge (Canadian Grandparents Rights Association): Five minutes.
The Joint Chair (Mr. Roger Gallaway): Yes. Thank you.
Ms. Nancy Wooldridge: I submitted my brief at the front desk.
Good afternoon, everyone. My name is Nancy Wooldridge, president and founder of the Canadian Grandparents Rights Association.
I would like to address this to the honourable senators and members of the special joint committee. I respectfully request the submission to be accepted as testimony as read—the ones I left at the front desk. There are six of them that were done by our organization.
I'm a grandmother and a great-grandmother. I have two great-grandchildren, so the interest in the Canadian Grandparents Rights Association is of utmost importance to me for the future of my grandchildren.
The solution in the opinion of myself and the other grandparents in our organization across Canada is that when there is a child custody dispute in the court, we would like to see and have asked at that same time if there is any grandparent and/or extended family that has bonding with these children—that that be expressed at the same time as the custody hearing.
In 1986 we were able to amend the Divorce Act so that any third party can apply for access or custody. We still have to have leave of the court, and some of our grandparents have spent up to $50,000, $60,000, and $70,000. I know of one case right now where they just mortgaged their home—double mortgaged it—and the case is still going on.
It's ludicrous. It should not have to happen. These grandparents are ready for retirement. The one parent had passed away, and the other one remarried and of course was denied access. The grandparents were denied access. Now it's in front of the Supreme Court.
We would like to see the Divorce Act amended such that we are part, or the extended family is part, of that action, if there is bonding. Not unless there is some problem or a reasonable doubt that we cannot be part of their lives will that have to be proven.
Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Ms. Jennings.
Ms. Daphne Jennings (Individual Presentation): Good afternoon, everyone. First, I'd like to recognize our members of Parliament who are here today, and the senators. I'd like to thank you very much for taking the time to come here. This is indeed a very special issue.
As a past parliamentarian, I worked for changes to the Divorce Act through new child and grandparents rights legislation that would result in grandparents having standing in the courts at the time of their children's divorce to ask for access to or in some cases custody of their grandchildren.
In most cases we would be talking of continued access, as most of these grandparents already had had access to their grandchildren.
It is important here for me to emphasize that when we spoke of grandparents' rights, we were in fact really talking about the rights of the child to a relationship with a grandparent.
• 1645
However, in today's hearing, I recognize that child
custody and access can be in question in situations
other than divorce, such as the death of one or both
spouses; a separation; a break-up of a common-law
relationship, which doesn't require divorce; serious
substance abuse within the family; or just parenting
difficulties in today's troubled world.
With so many authorities or persons claiming rights to the children caught in these situations, those of us in positions of legislative authority must be very sure before we put more stress and worry on the shoulders of struggling parents and other family members already trying to cope.
I am here today because my personal experience and research, both in Ottawa and across Canada, where I spent many hours in Canadian homes and meeting places listening to grandparents and parents talk about their frustrations with our system, has convinced me our first line of defence must be within the family structure.
Sheila Keet, a well-known family law lawyer now practising in Richmond and active in grandparents' rights, stated before the justice committee, November 2, 1995:
A brief submitted by the Canadian Grandparents Rights Association of Richmond to the Department of Justice states:
It is important to understand that this safety net is provided by grandparents and not based upon the inefficiency of state bureaucracy. It does not function on the basis of filling out forms, making appointments or qualifying by any test, nor is it governed or supervised by a psychologist, a counsellor, a therapist or a mediator. It is usually available in a phone call, the call often being the product of an emergency, and attracts no publicity at all. It does not become an occasion for grandstanding in the press or in the courts.
Why have we turned away from families, our basic unit of society, which should be the first rung on the ladder for hope and support for children in crisis? Remember, we are talking here about the child's basic right to his or her family. While we have some fine foster homes, a young child in distress needs the love and comfort of family, if possible.
In other jurisdictions.... In 1989, the United Nations recognized the child's right of access to the family, and Canada accepted the rights of the child convention.
There is legislation in place today in the United States in their statutes with respect to the right of grandparents and grandchildren to a continuity of their relationship. In the United States in 1992 there were over three million grandparents raising their grandchildren.
In Great Britain, family law legislation recognizes the rights of grandparents and grandchildren to an ongoing relationship after the separation or divorce of the parents.
In Quebec, article 611 of the Civil Code states:
The New Brunswick Court of Appeal has said that the right of access is not the right of the parents but the right of the child.
I apologize for using many facts from divorce situations, but many other situations go unrecorded. I believe that we do not have such a wonderful record with social services in their dealings with our children that we can afford to ignore the help that has usually been at hand.
I was amazed at how many families in the maritimes already have grandparents assisting younger families on a continual basis.
The fundamental issue here is whether or not the child's right to have a relationship with the members of his or her extended family exists. Should it be our first consideration when looking for care when children are in need? There is much documentation to prove that the nurturing, love, patience, and caring given to children by grandparents is irreplaceable. With the rising divorce rate, split families, substance abuse, and financial difficulties ever present today, more and more of our young children need an extra someone in their lives. It is only natural that wherever possible that person or persons should be grandparents.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Stevens.
Ms. Marilyn Stevens (President and Founder, Grandparents Raising Grandchildren of B.C.): Ladies and gentlemen, about eight years ago, my husband and I found ourselves in what we thought was a very unique position. We became the primary caregivers to our granddaughter. We realized that there had to be more people in this same situation. This is how Grandparents Raising Grandchildren came to be.
The purpose of our group is to reduce stress, develop a support network, share feelings, and educate and inform. We now realize that some of the dilemmas faced by grandparents include: the lack of recognition by the government and society in realizing what a significant asset we are; the fact that most of the grandchildren come from dysfunctional backgrounds and may have special needs; the hidden fear that family, friends, governments, and society at large have placed blame on us, the grandparents, for the problems the children have. The fact is that well over 95% of the parents who have lost custody of their children have done so due to substance abuse. It is now well documented medically that substance abuse has a biological basis. Counsellors, psychologists, and other medical professionals have little impact on changing the lifestyles of these abusers, let alone ordinary people like ourselves.
• 1650
There is the fear of who will look after the
grandchild should something happen to us. There is the
fear that someone will come and take the child from us
because of our age. There is the fear that we will
have to go to court again to protect our grandchild or
that our child's death is imminent. There is no
closure in our lives.
It is not written law that is in need of drastic change. Statues that govern family relations have adequate emphasis on the best interests of the child. However, it is our judges' and lawyers' interpretations of those laws or their total disregard for them that has given us a family court system that is outrageously out of step with everyday realities of the 1990s and with the best interests of the child.
We are nearly in the next century, but the attitude of our family courts reflects the misinformed beliefs of the 1950s. We live in a world where parents don't always know best, where substance abuse is rampant, where the victimizer becomes the victim and lays responsibility for their actions on everyone else. Somewhere along the line the judicial system has lost itself in another era and continues to echo the bygone phase. Let's give the mother another chance, even though experience has shown how neglectful and even violent mothers can be and have behaved.
We at Grandparents Raising Grandchildren say let's give the child all the rights. The statute that governs family relations clearly states that it is the best interests of the child that are paramount: quality of relationships; psychological and physical well-being; educational, emotional, and financial needs; and stability. The law no longer is supposed to treat children as the property of those who gave birth to them but should focus on what is in their best interests.
There are other issues concerning our court systems, provincial and federal. Unnecessary bickering and lack of communication between provinces as well as the federal and provincial courts is cause for dismay. Moreover, people who are appropriate caregivers find themselves increasingly bankrupt, emotionally and financially, trying to get the system to respond appropriately.
Let's start applying the laws that already exist, which truly have the child's best interests at heart, and also begin to develop new laws pertaining to child access and custody. If we can work and plan for our child and grandchildren in unison with the government, together we will create a more positive and nurturing lifestyle for these children.
I'd like to read you a poem.
I am a grandparent
caring for a child who is the direct result of my existence.
I am executing my loyalty.
I shouldn't have to fight for that.
I am giving my grandchild things that you cannot.
Please support me.
Help me to offer him intimacy of family,
the security of belonging, because at this time my child cannot.
I've paid my dues to society.
Maybe I am too old or broken to work.
I'll never be too old to love.
I may need financial assistance.
Maybe I have lost my spouse and am all alone.
I may need your emotional encouragement.
Please don't patronize me.
Respect my experience.
I want to see
that my grandchild's life is disrupted as little as possible.
I am not making a sacrifice; I am doing what is right.
Help him stay in my care, not in a stranger's.
What is best for me is irrelevant.
If it doesn't comply with policy then change it.
Don't make me fight for what
rightfully belongs to this child, because I will,
but I am tired of fighting.
We should be working together toward the same objective
to see that he is loved
and grows up to love.
I am his grandparent and I love him.
I am the best resource you have.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Senator DeWare.
• 1655
Senator Mabel DeWare: I want to thank you very much for coming before the committee today. I'm also a grandparent and a great-grandparent, and I understand where we're all coming from. We all love these children dearly.
In terms of the interim order for custody in the act, I'm looking for a recommendation from you on what we could put into the act that would help give grandparents their due right. It says in the act about the interim order for custody that:
I'm wondering if there is someplace in there...or whether when they say “by any other person” it would indicate “by grandparents”.
Ms. Marilyn Stevens: It should.
Senator Mabel DeWare: It should, yes, absolutely.
Ms. Marilyn Stevens: The extended family and grandparents should be contacted first if a child is going to be taken into care. I think what happens is that the laws are made to protect the child and they forget that we are around.
As well, when a child is apprehended, the natural parent has the right to say, no, my parents are not allowed to see those children or to know what's happening with that child. So it's the Privacy Act, too.
It does make for a lot of problems. There are very few grandparents I've seen who've been called by the ministry to actually take custody. It's more a fight.
Senator Mabel DeWare: It's interesting, because we've had another grandparents group before our committee in Ottawa. I imagine you belong to the same organization. Two of the witnesses had lost a child. One had lost a son and one had lost a daughter. Access was then totally cut off at a time when, personally, I would think, a child would really need their extended family. They'd lost their mother or their dad. It would be so much more important for them at that time to have that extended family available to them, not cut off, which would now create more problems for them.
Do you have any recommendations for us, then, on how we can word the legislation to say that grandparents have access?
Ms. Daphne Jennings: To my understanding, Senator DeWare, you now have before the House Bill C-340. It has gone through first reading. Mr. Harb put that forward. It's very similar to mine. Instead of saying “grandparents”, it says the right of “spouses' parents” to access or custody. As well, my review is suggested at four years, and Mr. Harb has his review suggested at three.
Basically, what he's asking is that this enactment provides that a person wishing to make an application under the Divorce Act to be granted access to or custody of a grandchild does not have to obtain leave of the court to make the application. In other words, all the grandparent needs is standing or leave in the court; they don't have to make it.
The problem in the past has been that many times people are quite happy with both spouses and the grandparents, and they're quite a happy family. It's not until after the divorce and a few months down the road that one of them realizes that some grandparents don't have custody, or the right of custody, or access, even. This would give them automatic leave at the time of the divorce so they don't have to go back to court and start a whole new proceeding—more litigation, more lawyers, more of everything.
Senator Mabel DeWare: So you would support that bill.
Ms. Daphne Jennings: I would support Mr. Harb's bill, yes. We have to have it in federal law. The Divorce Act is federal, and we have to have it in federal law. In the provincial laws already we have changes, such as the one in New Brunswick that gives special leave, but that's not in every other province. I think we need some uniformity.
Senator Mabel DeWare: Thank you very much.
The Joint Chair (Senator Landon Pearson): Senator Jessiman wants to comment on that.
Senator Duncan Jessiman: If I'm reading you correctly, I think what you really want is to delete subsection 16(3), which says:
I think that's what your first request is.
It says in subsection 16(1) that not only spouses can make application but also “any other person”, and grandparents are included in that. But then in subsection (3), if you're some person other than a spouse, you have to have special leave from the court. That's what you said earlier on.
First of all, I think, if I'm reading you correctly—and I don't disagree with what you're asking—you want that to be deleted. Not only does a person other than the spouse have a right, but under the present act they have to get leave of the court first. So there are two parts to it. Under subsection 16(1) you have a right to go there, but under subsection 16(3) it says before an order is made in your favour you have to get leave of the court.
• 1700
I'm suggesting you're asking for—certainly the first
witness said they didn't want to have to make leave to
the court or make application—something we had
suggested earlier, which is similar to the legislation
you read about. See whether you agree with this
subsection:
Ms. Daphne Jennings: You're talking there about the spouses.
Senator Duncan Jessiman: I'm talking about the parents of the spouses, which are the grandparents.
Ms. Nancy Wooldridge: Excuse me. I really think in some cases where there are no surviving grandparents but there are aunts and uncles, the extended family must be in there.
Senator Duncan Jessiman: So you're extending it even further.
Ms. Nancy Wooldridge: Yes.
Senator Duncan Jessiman: But you wouldn't disagree.... We would have to—
Ms. Nancy Wooldridge: No, we wouldn't, as long as we don't have leave of the court and we can have the same standing at the same time.
Senator Duncan Jessiman: Yes. I'm not sure how far we will go with this, but certainly if this were a suggestion to satisfy grandparents, it doesn't go as far as you'd ask.
Ms. Daphne Jennings: We are concerned, as Nancy says, with the whole extended family, and grandparents as well, of course, because grandparents have initiated most of these cases in the past. That's why they stand at the top of the list now.
Senator Anne Cools: What Senator Jessiman has just articulated was proposed as an amendment to subsection 16(10) of the Divorce Act. This is the section to do with custody awards and access awards.
We gave this particular issue considerable thought about a year ago, and the drafting advice we received at the time basically suggested we make an amendment within section 16. So subsection 16(10) is the final subsection, and I think it's called the friendly parent rule. The drafting advice—and it's a very important consideration we received at the time—proposed subsection 16(11), which is what Senator Jessiman just read. So it expands section 16 by adding subsection (11).
The language that was suggested from a drafting point of view was exactly the same language as in subsection 16(10). It just spoke to the issues of the parents of the spouses, who would be the grandparents.
I understand you are saying you would want that expanded to include other family members. I suppose the language would have to be “step-sisters”—
Senator Mabel DeWare: The extended family.
Senator Anne Cools: Are you supportive of this principle of an amendment to section 16 of the Divorce Act, which speaks to the interests of the grandparents and the extended family?
Ms. Daphne Jennings: If they do not have to apply for leave, that's great.
Senator Anne Cools: Just to clarify, committee members should know that this was Senator Jessiman's brainchild in a previous committee life. His staff were just running eagerly to get him a copy to read. But it was his own brainchild. I just put that out to you. It's his progeny.
• 1705
Ms. Nancy Wooldridge: Senator Cools and senators, I'd like to say the reason for all this change is because of family unity. It's so very important. Somewhere along the way we've lost this. It's most important that we keep the child within the family group somehow.
We have two sets of grandparents who live out in Sechelt—they are maternal and paternal—and because of drug and alcohol use, both sets of grandparents applied for joint custody of these children. They're raising them between themselves. They live in the same area, and I am in contact with them quite often. Now the extended family is chipping in to help out too. So these children have had a good start. They're away from the abusive parents, which is unfortunate, but we're hoping some day they will pull their socks up and come back to reality to help their own children. This is what we're all about and this is what we'd like to see.
The Joint Chair (Senator Landon Pearson): Dr. Bennett.
Ms. Carolyn Bennett: It's obviously not simple or it all would have happened. My concern is that maybe the organization would be better called the “Canadian Grandchildren's Rights Association”.
Ms. Nancy Wooldridge: We tried, but it wouldn't go through. I'd love to change it, but the act wouldn't allow it.
Ms. Carolyn Bennett: I think what we keep finding in committee is the more people have rights and the more adults have a standing in something, the less the children's needs seem to end up paramount. I guess I just want to know, unless there needs to be a broad canvas of all possible alternatives, whether there is a language we could use in the act that would make sure that for the sake of the children this was considered, without framing it in grandparents' rights.
Ms. Daphne Jennings: As I understand it, because of their age I had to call it the Grandparents' Rights Bill and not the grandchild's rights. I don't think we can do anything because of their age. It gives us certain legal ramifications.
I know every witness, and those who are here today who were here in 1995 when we had the committee and all the lawyers who spoke said we're talking here about the rights of the child, not the rights of the grandparents. They made that very clear. I really don't know any way around it other than to try to emphasize this when we're speaking about it. Each time they mention it they say it's the rights of the child. Even in the United Nations the articles say the rights of the child. I'm not much help in that because I honestly don't know how you would change it.
Ms. Carolyn Bennett: I guess there may be situations where a parent has made a specific wish. Certainly in my practice there have been situations where there have even been allegations of potential abuse from grandparents. I want to know how thoroughly we need to look at all of that as well, because sometimes people have made a very distinct decision that this isn't a good thing for this kid.
Ms. Daphne Jennings: Before Nancy speaks, I'd just like to say something, and this has bothered me for some time. I think we've made a mistake in a lot of our decisions in life in Canada lately, and it's because we tend to go to the exception rather than the rule. Yes, there are always grandparents who shouldn't have access and there are always parents who shouldn't have access. There are many of us who shouldn't be doing some of the things we're doing, but those are the exceptions. We must make our laws for the rule, for the majority. Remember, the court is there to deal with the best interests of the child; that's what the judge is for. I believe we can trust the judge, so I really think we have to make our rules for the majority, for those who are willing to help.
Ms. Carolyn Bennett: I guess the language still disturbs me as we move toward trying to craft something that shows that really the only person with rights is the child, and everybody else has ongoing responsibility. What the grandparents are really asking for is the ability to continue to exercise the responsibilities they would like to be able to exercise.
• 1710
I think it's just the word “rights” that sometimes
gets people's backs up, because that makes it look like
you're going to have a room full of people who all
think they have rights to this poor child and who will
divide the week and all of these hours and time
segments—quite separate, obviously, from the very
poignant stories of substance abuse and those other
situations.
It's quite clear that there's been some opposition to this, based on this problem of time.
Ms. Daphne Jennings: When they raise that.... I believe it was Paddy Torsney who actually brought it up in our committee and said, “What if you're suddenly going to be inundated with all these grandparents?” Barbara Baird, who has been a family law lawyer for many years in Fredericton, said that in the 10 years they'd had the legislation in New Brunswick that had never happened, that it just wasn't reality. She said those grandparents aren't dying to get in court—that's the last place they want to be—so things get settled ahead of time.
Again, I think that would be the exception.
Ms. Carolyn Bennett: Thank you.
Ms. Nancy Wooldridge: Ms. Bennett, in the new Alberta act that was just passed—I don't know if you have it in front of you, but I did enclose it with the briefs I left with you in the brown envelopes—section 7, which was just passed in October 1997, states:
This means that if the custodial parent is denying access to a grandparent or to the extended family and is completely denying it even after an order, the custodial parent will be accountable. This is something we do not have in our Divorce Act. We don't have it anywhere.
As I stated before, some of our grandparents do have access orders that they've paid a tremendous amount of money for. The police won't even intervene when they want to pick up the child on their day and the custodial parent says, “Forget it and get off my property.” The police won't even adhere to helping the grandparent with a custody order from the Supreme Court.
My solution for this is that we also must have accountability for people's actions.
The Joint Chair (Senator Landon Pearson): Mr. Forseth.
Mr. Paul Forseth: Thank you very much, Madam Chair.
Thank you for coming here today. I just want you to comment on this, perhaps in recognizing and taking note of Switzerland's law, which recognizes the larger family system's obligation to support its members financially. Today you've certainly recommended a broadening of those who have a stake and should have a say at the table when a family is dissolving. Would you contemplate increased legal involvement as a starter? You've done that. Would you also extend it to child maintenance responsibilities as a back-up? Should grandparents be included up front in child care, as you recommend, and be included up front as part of a larger family system for child maintenance?
Ms. Nancy Wooldridge: Mr. Forseth, are you suggesting that the grandparents pay the maintenance or are you suggesting that the maintenance come to the grandparents? I didn't quite understand your question.
Mr. Paul Forseth: In concert with what you're saying, as part of looking at the larger family system, you want grandparents to be right there, involved in nurturing and access and whatever. You did mention a case where the grandparents actually took full responsibility. I'm just wondering if you addressed the other side of that: with that increased involvement, perhaps, comes additional financial responsibility and accountability.
• 1715
I took note of the Switzerland law, which talks
about looking at the larger family system
before a family goes to the general social
welfare system. You have mentioned this somewhat
today, that in a way it's there in an informal way,
and maybe we've lost that as a society.
Since we're now into formalizing things, trying to provide continuity, saneness, and predictability in law for children, and you want grandparents to be in that mix right at the front, have you addressed your mind to the financial obligations that go along with that?
Ms. Nancy Wooldridge: If the grandparents have custody of the child, say, usually they put out more than they receive financially. From the time my grandchildren and great-grandchildren were born, I started a trust fund for them for their education. I support them in terms of clothing. I'm giving all the time. I'm sure if you spoke to many grandparents in this area or in this room—and I know there are quite a few here—they'd say they're ongoing financially, no matter which way you look at it.
For instance, when my son was divorcing his wife, he needed help. I gave help, and financial help, on both sides, for the children and for my son and for my ex-daughter-in-law.
So I think for a lot of us in this room, money is not the issue. The issue is the best interests of the child. We want to see continuity back into our families again, where we can keep these children off the streets and away from being used as drug pushers or prostitutes, where we can keep them from running away from home because they can't get along with the foster care or their new step-parent or maybe their own mother and father.
Both Marilyn Stevens and I have in our organizations a great resource to help all these grandparents. We're right across Canada, and now we're going over to Europe. We just opened up in Romania last year.
Mr. Paul Forseth: I put that forward because one of the convoluted arguments that comes back against having grandparents up front in the original mix of the constellation is, “As part of your application for child maintenance, are then the various people in this constellation also going to be liable for child maintenance?” They then say, oh, no, that's not what we're talking about.
Well, wait a minute. How do we sort this out? I put it up for you to knock down. I would like you to perhaps think about that and in future maybe come back with some recommendations.
One of the other arguments, of course, is that the more you put on the table, the more there is to fight about. It's to minimize the conflict for children that leave was requested. It's to have that barrier or filter of a judge who's impartial to assess the utility or the usefulness, in an individual, particular case, of whether or not grandparents should be part of the proceedings.
Certainly you must have contemplated the many historical arguments, because you've heard them before. I would like you to comment on those.
Ms. Marilyn Stevens: I think in our case, because we've accepted the responsibility of raising the grandchildren, we already are financially involved, but our cases are far different from access. We have grandparents of 75 and 80 years old raising pre-schoolers, and there aren't resources out there for them to get the help they need.
As I said, a lot of these children are coming to them from a dysfunctional background, and they need special things. A lot of the older generation don't realize what our society is like. They don't realize how rampant drug abuse, or any of the abuses, are. We—myself included, obviously—have raised a group of people who have learned how to play the system. The system has allowed them to play it, so the system therefore continues on, and they continue on.
At this point in time, we have our granddaughter, but my adopted daughter has given birth to four other children who are in the hands of the ministry. So which way financially is it going to be better? Every one of those children is in need. They're special-needs children because of the substance abuse.
So I think every case is different, but there are not the resources. It's very difficult to find help for them, very difficult.
• 1720
When you start talking financially, I think the
grandparents, in our case, have accepted more than
enough financial responsibility. We also have people
who have lost their homes because they had to go into
court so often. They're fighting the legal aid system.
In our case, why we have our grandchildren is 99%
because of alcohol and drugs.
But you know, those people can go into court day after day, change their minds about lawyers, and go on and on and on for months and years. What happens is that your grandparents end up financially and emotionally bankrupt. These people are in their golden years; they shouldn't have to face trial and tribulation with our government helping the other side. The others shouldn't be helped and aided.
Senator Anne Cools: Could I have a supplementary just to amplify the point the witness is making? You said that grandparents are up against legal aid, and then two sentences later, you said that these people are in their golden years and shouldn't have to be up against the government.
Ms. Marilyn Stevens: Yes.
Senator Anne Cools: Could you expand on that?
Ms. Marilyn Stevens: Most of our grandparents who are raising their grandchildren are already in retirement. They have very fixed incomes; therefore, they may not qualify for legal aid, which in most cases they do not. That's the one point.
The other point is, why should they have to keep putting out so much money when that money could go towards the child that they've taken on the responsibility of raising and helping? They're giving that child a life where they're not going to have.... Having a child apprehended and placed into the hands of the ministry is a new and very frightening situation for them. That's the number one trauma. Now we can eliminate that trauma completely by just having ministry contact with extended family, whether or not the natural child or the adopted child, whatever, says no, they don't want them involved.
So I think that because of the fixed income of our people and their years, anything they have had and worked toward, they are willing to give up—they have given that up—to protect this child. This is really ironic, because you want to protect the child and we want to protect the child, but we're fighting about it. That's where it ends up, and that's wrong. We all lose sight of what's most important, which is the child and their best interests.
Ms. Daphne Jennings: I'd like to add something to what Marilyn is saying. I must assure all of you here today that in my travels across Canada, I spent four years visiting homes across this country. This is far more than what most people do for a bill they take on. I literally took on the responsibility of the grandparents' rights problem. I never once, not even once, heard a grandparent say that they didn't have the money. That was never an issue, even though some of them probably had very little money. The responsibility, the love of that child, came first.
We must today forget about the money issue. First, these children must have love and care and they must know they belong to a family. They are entitled to be a member of that family. There will be all sorts of emotional hang-ups down the road if we don't first of all let them know they're loved and cared for. Yes, there are difficulties, but the family is there.
If down the road, when you're making legislation, it's recognized that these grandparents or the extended family raising the children need some help, it won't be a problem, I'm sure, to work in something in legislation. Barbara Baird is the most experienced of all family law lawyers I know of in this country. In working with her, she suggested that a significant portion of social services dollars across this country could be eliminated by a greater involvement of grandparents.
So I think we're looking at two pluses here. One, the child, if possible, is in a home environment or family environment. Two, the dollars would be infinitely less than they would be under the normal social services policies.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you.
Mr. Forseth, have you more on that?
Mr. Paul Forseth: I'm finished, thank you.
Senator Anne Cools: Thank you very much, Chairman.
I'd like to thank Ms. Jennings for coming here today. I hope, Ms. Jennings, that you miss us.
Ms. Daphne Jennings: I do, I do.
• 1725
Senator Anne Cools: I'd also like to thank the other two witnesses for saying some of the loving things that so many of us feel. As I've listened to grandparents, especially grandmothers, one after the other, I've become very impressed that you people—these people—who parented your own children are now re-parenting some of those same children—you were talking about your son a few minutes ago—and are now in the situation of parenting your grandchildren.
Ms. Marilyn Stevens: Recycling.
Voices: Oh, oh!
Senator Anne Cools: To be quite frank, this enormous social movement receives scant attention, and it truly is remarkable. I just wanted to say that to you. Perhaps these psychologists who talk about parental alienation can create a new term—“grandparental alienation”. Anyway, the day is coming when we can no longer escape some of these issues.
Ms. Marilyn Stevens: That's right.
Senator Anne Cools: I have two very short questions. We've had many grandparents tell us two things. The first thing is that in the crossfire and the use of false accusations of child sexual abuse or child abuse or whatever, grandparents frequently get accused as well. That's the first question.
Second, many grandparents tell us that they are frequently called upon to spend huge amounts of money, as you said, “in the golden years”. One particular family told me they had basically spent their pensions assisting the others.
Could you speak to those two particular points? There are the false accusations with respect to grandparents, where they're included or involved. Then there is the enormous financial burden placed on people in their golden years with respect to financially assisting one of the other parties in the divorce.
Ms. Marilyn Stevens: Most of our cases are not divorce actions.
Senator Anne Cools: In general?
Ms. Marilyn Stevens: Usually our children have made bad choices and have chosen to perhaps ruin their lives. We are people who have stepped in so that they don't ruin the grandchildren. Mark my words, though, it's a very hard decision to make, because when you make that decision to go for custody—not access, but custody—and guardianship of that child, you lose your child. Your child is lost to you at that point. And those children will do or say whatever they can.
At this time, our daughter has told everybody in the world that we have stolen her child, which we didn't. It was all done through the courts.
But yes, accusations are rampant. I've heard just so many. As for specifics, I guess I could give you some.
We have a case in Mission. The people have lost their home because they had to pay lawyers' fees. There are two children involved in the situation, and it is a grandmother and step-grandfather who are involved. The children are a product of her first husband's incestuous relationship with his daughter. There are two little girls.
Now what's happened is that their daughter is living with a convicted pedophile. In our legal system, she has been allowed to go to court four times, and that's why the grandparents have lost their home trying to protect these children. Their daughter has been allowed, through the legal aid system, to go to court four times.
We have another grandparent who's here who had to mortgage the family home for $60,000 to protect the two grandsons. The judge kept looking at them and making accusations, saying this didn't really happen, that the mom was a good girl, a really nice girl, that she was really going to change, that she didn't have a problem. It ended up with the mom abducting the children for three months and keeping them in a cabin outside of Hope. And while the RCMP couldn't find them, a private detective that we work with did. For three months they were kept in that cabin. They were not kept from any sexual, physical or whatever abuse. Nobody knows what happened to those boys.
• 1730
These people now have another $60,000 mortgage
because some judge said, “Well, I think mom's okay
now”, yet she didn't even have a clean urine test—not
even a clean drug test.
This is what I'm saying. We hear these stories all the time, and after a while you get really hardened. I know it's shocking you, but these are the things that are happening.
Senator Anne Cools: Oh, I know.
Ms. Marilyn Stevens: In our society today, this is what is happening. People take on the responsibility with no thought of the financial part of it. People are quite happy when I can tell them they made a little gain. The problem is these children need help, and there are no resources for it. You can go to people at the ministry and they'll say it will cost this or this. The ministry doesn't look at it like this.
We have people who are afraid. We have people who are afraid who will not even give me names. Great-grandparents are raising their grandchildren because they're afraid somebody will come and take them. These people shouldn't have to live with all these pressures, as well as raising babies again.
Senator Anne Cools: These sorts of issues you raise jolt the sensibilities. In addition to that, they're very evocative. I wouldn't say you shocked me. I was a front-line worker. I've seen every problem, I think, that can be articulated.
But I wonder if you could revisit one statement you made, where you said they keep saying “Mom won't do it; mom can't do this.” One of the major bewildering issues before all of us is the stubborn resistance of large numbers of people in the social service system to believe that women can tell lies, and do so on occasion when it suits their purpose—
Ms. Marilyn Stevens: Exactly. That's what I said. Moms know this.
Senator Anne Cools: —and that evil and wrongdoing is roughly shared by gender. Both men and women can do wrong. There's such an enormous resistance to dealing with this.
On a slightly unrelated issue, I remember very clearly the situation with Karla Homolka. Three young teenage girls lay dead, and an entire system refused to believe she could have been involved in it. I just throw that out to you. I know some of the things you say hurt people on the committee because the committee, quite frankly, has a lot of sensitive individuals on it, but I can tell you the problems you raise are well known to me.
The Joint Chair (Senator Landon Pearson): Thank you very much, Senator Cools.
We have one last person on this round, Ms. Longfield.
Ms. Judi Longfield: I was pleased to hear what you had to say. There was one thing, though, that bothered me. I'm not certain which one of you said that if the custodial parent does not abide by the custody and the access rules, they should be fined or sent to jail. I believe we should have enforcement, but if we're applying the best interests of the child, how does a fine or imprisonment help the best interests of the child?
Ms. Nancy Wooldridge: I'll answer that because I made that statement.
This law was passed in October in Alberta. I talked with judges, child psychologists, and so on, and we felt this would not be used very much in the courts. It's printed on paper, not as a fear tactic but to say this can happen if you do not abide by the access affidavit. So I think people will have second thoughts when they see this in print and will say “Gee, I can go to jail if I deny access.”
We're not just talking about grandparents; we're talking about custodial and non-custodial fathers and mothers. There has to be somebody accountable for something, somehow.
We have young men in our fathers' groups. Some travel up to 100 miles on their days off work. They're shift workers. The dad gets up there; it's his day and he has his affidavit in front of him. He wants to see his child for a couple of hours on Saturday. He may have to go to the island, and it is costly to get there. The mother says no and slams the door.
• 1735
It's on a piece of paper from the Supreme Court, so
someone has to be accountable for this wrong action.
We have to put some kind of definition in the law
that states if there's an affidavit, you can't keep on
breaking this law all the time. You're breaking
another law.
I hate to say this, but the majority doing this—and I'm one too, although I've never done this—are women. As the custodial parent, they're the ones who cause the problem. They're the ones who re-break the law, even when that law has been enforced in a court of law.
Mrs. Judi Longfield: I don't disagree that there needs to be enforcement. My problem is with just putting something on paper and saying, well, we'll only use it if we have to. If you're going to apply the best interests of the child, then I don't believe it's in the best interests of the child.
However, I'm hoping we can come up with something that enables us to enforce and put some real teeth into a law that is there, a law that says if you have access, you shall have access. I mean, it's the enforcement that's the problem.
Again, I'm not convinced that the fine or the threat of jail is in the best interests of the child. But we can talk about that further.
Ms. Nancy Wooldridge: There was one case in Ontario not too long ago, one we're all aware of, of contempt of court. There should be more.
As far as I'm concerned—and this is my opinion, but I'm sure it's shared by thousands of other parents and grandparents and extended family members—if there is a court order and a custodial parent denies access, it's contempt of court. Let's try to enforce it somehow.
Mrs. Judi Longfield: I agree there should be enforcement.
Senator Anne Cools: Can I ask a question, Mr. Chairman, of Mrs. Longfield?
How does the issue of the best interests of the child come into play when the offence is contempt of court?
The Joint Chair (Mr. Roger Gallaway): Senator—
Senator Anne Cools: It's just a legal concept, a concept I'm curious about.
Mrs. Judi Longfield: I didn't say I had the answer, Senator. I'm just saying I don't like that particular—
Senator Anne Cools: All right. Okay.
Mrs. Judi Longfield: One other thing. I don't disagree that there are many grandparents.... I'm not one yet—at least, not that I know of—but I would certainly like to think that in future I could have access to.... Well, one never knows these days.
I guess I'm a little concerned that if we change the legislation to give grandparents this ability to step in, where do siblings come into play, or aunts and uncles? One might suggest—and again, I'll play devil's advocate here—that a child's best interests may be served by being raised by someone who was of an age, such as a sibling or an aunt or an uncle. If it's very difficult from both the child's perspective and the grandparent's—a 75-year-old, say, raising a 4-year-old—when there might be an aunt or an uncle or a sibling who may be able to preserve that function in the immediate family, then if we're going to change it, I think we have to be very careful that we don't set one family member against another.
Ms. Nancy Wooldridge: That's why we call it the “extended family”.
Mrs. Judi Longfield: But how do you sort out which one?
Ms. Nancy Wooldridge: We're all extended, actually, so....
Ms. Daphne Jennings: Ms. Longfield, I believe this again is up to the judge. All they're asking—and we mentioned this earlier with the senator—is that the whole extended family have right of leave or right of standing in the court. Then of course it's up to the judge.
But you're not going to see—or at least I doubt it very much—an overabundance of people fighting the courts. In the words of Barbara Baird, Sheila Keet, and Joe Magnet, this has not been the case in the last 10 years.
I'd like to go back a bit to what you said earlier. I certainly don't believe anyone should be thrown in jail, but sometimes it's a deterrent. Article 611 of the civil code—this is from family lawyer Sheila Keet's testimony—says:
She goes on to say that in Quebec, in fact, there can be sanctions against parents who fail to observe this law.
I remember testimony from a Mr. Langlois in 1965, who said there are in fact very few people who do not allow the grandparents to see the grandchildren. So it may be because of this very fact.
I think it's a deterrent. Sanctions don't necessarily mean jail.
Mrs. Judi Longfield: Yes, okay. Thank you.
• 1740
The Joint Chair (Senator Landon Pearson): Thank you very much, all three of you, for appearing in front of us today. I certainly relate to what you say. I hope we find some way of addressing this.
Colleagues, a matter of importance has arisen, and I would ask your agreement to go in camera.
Some hon. members: Agreed.
The Joint Chair (Senator Landon Pearson): I'd ask the audience to please clear the room so that we can convene our in camera meeting. We'll resume the public meeting immediately after.
[Editor's Note: Proceedings continue in camera]
• 1829
[Editor's Note: Public proceedings resume]
The Joint Chair (Mr. Roger Gallaway): Come to order, please. For those in the audience, please, no conversations.
On behalf of the committee, I want to apologize personally to the witnesses before us for the delay, as we are running an hour late. We've had what I would characterize as procedural, but it's more than a procedural problem. It's partly procedural.
For those in the audience who were to appear tomorrow, first, I want to tell you that the hearings for tomorrow have been cancelled. However, I also want to advise you that we will return and hear you. I can't advise you of the date as of this moment, but we will come back and we will hear you.
• 1830
Once again, I have to apologize to those who were
scheduled to appear tomorrow. I would ask that those
who are in the audience who were lined up as
witnesses tomorrow to please check with the
registration desk at the front door of this room,
because it will eliminate a lot of work on the part of
clerks in calling people who are sitting here anyway.
In the next few minutes, please check with our staff at
the front door to tell them who you are and at what time
you were to appear. That will save a lot of
aggravation both on your part and on the part of our
staff.
You're probably wondering why this is being cancelled tomorrow. I can only say that many of you may be aware there's a vote tomorrow afternoon in the House of Commons that has been declared to be a confidence motion. That being the case, members of Parliament are required to be there. Although we are a joint committee of senators and members of the House of Commons, the rules of the House and the Senate preclude one house from hearing evidence without the presence of one member of the other house at the table.
There's nothing I or any other member of this committee can do about that other than to say to you that we will return and we will hear you. We will not disappoint or let you down in this regard. There will be a press release going out, and there will be subsequent press releases going out when we in fact have established the date on which we're going to return. I hope you will understand that in this one-hour break, it has been impossible to establish that date. I would suggest to you that it probably will be before the end of May.
Having said that, I would once again ask any witnesses in the room who were scheduled to appear tomorrow to please contact our administrative staff at the table outside the room.
On to the business at hand. We have with us—
Mr. Paul Forseth: Mr. Chairman, just before you proceed, as a consolation, I just wanted to remind people in the room that there is an informal hearing tonight at the Inn at Westminster Quay hotel in New Westminster. Unscheduled individuals can come to an open microphone and tell their story briefly. That will be recorded on tape. If there is material that is of interest to the committee, the committee may look at that material.
I am hosting that particular meeting. My guest is Anne Cools. It is at the Inn at Westminster Quay hotel in New Westminster on the Fraser River at 7.30 tonight.
The Joint Chair (Mr. Roger Gallaway): Okay. I want to belatedly welcome our witnesses. From Men Supporting Men, we have Mr. Tony McIntyre. From the British Columbia Men's Resource Centre, we have Mr. Hnidan.
I would ask Mr. Hnidan to begin. You're aware that we have only one half-hour, so I have to ask you to limit your remarks to five minutes.
Mr. William Taylor Hnidan (Director, British Columbia Men's Resource Centre): Ladies and gentlemen, parents are parents for life; it's quite simple. Somewhere along the way, we departed from this path. As a result, we have allowed the creation of a monster that's consuming us and our children's lives. The use of an adversarial system in dealing with family crises has reached the point where the survival of society is at stake. We have a war within our boundaries pitting men against women, and our children, whom we both love, end up being the cannon fodder in which the winner takes all.
I will present a few examples of issues that I've gathered in my seven years of doing this work. This is compiled from over 4,600 intakes, including those of 400 women.
Truly, the gender issue is a result of one parent trying to prove themselves better than the other. Our centre has, after the fact, dealt with two suicides and three murders, all of which were caused, created, or assisted as a result of fueling the fires in time of conflict instead of putting them out. More then 80% of the fathers who have come to our centre have had problems with access to their children, yet nothing is being done to address this issue.
• 1835
For those who have failed to pay maintenance, many
as a result of lost work, it has resulted in jail time.
The new federal act, which was Bill C-41, has
done exactly the same thing. Where is the balance and
fairness in this, I ask? Everyone knows that those
fathers who are non-custodial parents and who see their
children most are those most likely to pay the best.
We have a new supervised access service that has been the result of this adversarial process, and it's not working in this province, except as a further instrument for father-bashing. In one instance in one program, the program manager stood up at a conference and declared that men do not work out for supervising children as the explanation for why, out of her staff of 23, only one was a man. This same mentality now exists with the replacement agency, Fraserside Community Services, which has six women and one part-time man.
In the area of child abuse allegations, the Salem witch-hunts have taken their toll, as extremists have attempted to hang anyone in their path. The Children's Hospital has recently been advised of several self-admitted, gender-feminist medical staff practising their witchcraft in this hospital, using children as both the bait and the weapon with which they have extracted the penalty for being the wrong gender.
Dr. Susan Penfold of this hospital was found to have practised her politics in her medicine, and I quote from a recent judgment:
This Dr. Penfold also stood up at an all women's conference and cheered when the speaker said to kill all men.
To date, this hospital, in keeping with the mentality of the events that happened at UBC, Simon Fraser University, and other places, has attempted to muzzle this information and stop it from reaching the public.
These situations are examples of huge dollars being spent as a direct result of the adversarial nature of one parent having to prove himself better than the other and the fact that we don't have a joint custody or equal situation in family law.
I looked to our leaders in this time of crisis during these many years and found to my horror that those to whom we had given the powers to be both self-governing and self-policing were those found most often in these terrible situations. I believe our judges are given impossible tasks in the present adversarial system. Sadly, in this process I do not know if it is because all judges are ex-lawyers, but in reality, far too many judges are playing the game that goes on in family law. They ignore the perjury that prevails, making trials a mockery of truth equating to justice on both sides. They do not enforce court orders for access, but those for maintenance are automatic. There is also no penalty for those who make false child abuse or spousal abuse allegations, which are now rampant in our system.
Clearly, our judges need to follow the laws we set forth and not base their decisions upon gender or upon the lawyers involved. There are a couple of books out, one called Systems of survival and the other called The Betrayed Profession, which are good books for both lawyers and judges to read.
I have worked many years, or co-existed, I should say, with lawyers, taking courses at CLE—Continuing Legal Education—and attending lectures and educational seminars. The result of that is a not very high opinion of the legal community. During the mediation training I took at CLE, I was shocked to hear that senior lawyers would make comments like, “Why keep a mediated case when I could have a two-week trial?”
With respect to the legal aid system, I asked why they were not recommending mediation, counselling, and other dispute mechanisms to attempt to help the families coming to them and was told, “We let the lawyers decide what action should be taken.”
Is it possible to expect members of this privileged group to turn away work to give to someone else if they have a choice?
I had expected child advocate appointments, in my early experience with them, to be there to provide an alternative to the adversarial system. Instead, I have found that all child advocates in this province, and, I expect, across Canada, are lawyers, and again, who would put another person trained in the adversarial system into a family in crisis that already has two warring lawyers?
I assume that you have also heard lawyers bashing other lawyers here. The reality is that nothing will change under the present adversarial system, because, you see, the bad lawyers are making work for the good lawyers. And again, who is going to upset that pot of gold?
To me, ladies and gentlemen, the biggest task you face in any of the decisions you make after these submissions is to take back the powers from this mafia of Canada—and I don't say that lightly—and put in place a series of processes that will indeed reflect our desire to assist families in crisis in a positive way, not make them worse.
The Joint Chair (Mr. Roger Gallaway): Mr. Hnidan, your time is up. Do you have recommendations?
Mr. William Taylor Hnidan: With respect to recommendations, we would like to see a standardized divorce parenting plan. The State of Washington has one, which we received recently, and it's a good start. I believe in the majority of cases we've seen, if we had a plan of that nature, it would work well. We also think a simple series of guidance steps aimed at making things better for families would have a positive outcome, by including counselling and mediation and having materials and other processes in place for families going through crises.
• 1840
We think the obvious fact of having healthy parents
for children going through divorce is the best
alternative for all involved. As a result of that,
making use of the adversarial as a distant last to
every other process is our biggest recommendation.
You've heard from a great number of very intelligent people here who have assisted families in crisis in a positive way. I hope you listen to them. I hope you have the courage to do what is right for our children and all our family members in times of crisis, because this is not a win or lose scenario. Our children deserve better than what is in place now. They need love, support, and a relationship with both parents. Please see to it that this happens. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. McIntyre.
Mr. Tony McIntyre (Men Supporting Men Inc.): Honourable committee members, thank you for this opportunity to address you. I'm Tony McIntyre and I represent an organization called Men Supporting Men Inc., which is based in the Vancouver Island city of Courtenay. The main purpose of Men Supporting Men is to diffuse family violence and to promote gender equality. Our core service is self-help group meetings for men. We intend to provide other programs on anger management as well. The organization was started by one man who could no longer face his custody battle alone. He put up some posters and the first night 20 men turned up, talking mostly of their personal challenges and relationships with families. Each week more men poured out their painful stories, which I know you've heard for days and weeks here. Soon we opened up a second chapter in Nanaimo just south of Courtenay, which has a population of about 100,000 people. Now, six months later, we have heard more than 200 anguished personal accounts and we have about 140 members of Men Supporting Men.
Men Supporting Men has come to be seen as a safe place for men to tell their stories. Men feel comfortable telling other men who may be in similar situations very personal, intimate details of their lives. One of the main themes running through these stories is the enormous frustration of dealing with police and social service agencies and professionals who are overtly biased against them. Their stories or their accounts of the challenges they face in issues of divorce, separation, custody, and access to children are often not believed or received with little or no empathy. As a result these men are denied even the due process that government agencies have in place to mediate between spouses in conflict and to bring resolution to the spouse disputes over custody. They are blocked at square one, and if they manage to get the process started they are either given little or no help or actively frustrated by social service staff who are biased against them.
We have detailed accounts of men who were harassed in various ways by their partners and former partners. We have heard accounts of men who feel helpless in the face of unproven allegations made against them. It appears that the simple fact these allegations are made by a woman against a man is enough for social service workers and legal professionals to give the benefit of the doubt to the woman and act against the man as if the allegations were already proven. This kind of frustration coming on the heels of grief and loss of close relationships and the pain of being separated from children often leads to the rapid unravelling of many areas of a man's life. They cannot function properly at work and so may lose their jobs. Without money they lose much of their ability to access the legal system. They then approach the agencies as a last resort, agencies designed to help people in this predicament, only to be met with closed doors and cold shoulders.
It is a fact of life that the majority of staff in the majority of social service agencies are women and that these women do hear horrific cases of abuse done by men. This obviously does happen. The result is an entrenched systemic gender bias against men. This kind of marginalization pushes despairing men to act impulsively because they feel they have nothing to learn. If the agencies were to deal with each case on a fair and open-minded basis, with policies that ensured an equal due process no matter what the gender of the client, we feel sure this frustration and the possibility of violence growing out of it could be avoided. The emotional burden of false accusations and the sudden awareness that you as a man are guilty until proven innocent on nothing more than the word of an irate spouse can no longer continue to go on unchallenged.
Men Supporting Men would like to make a list of recommendations for changes to the law, regulations, and policies in an attempt to create a fairer system for resolution of divorce and separation conflicts, especially in cases of custody and access to children.
All Criminal Code language should be gender neutral and policies shaped to ensure that all enforcement and social service professionals treat men and women equally.
• 1845
The Ministry of Women's Equality and the British
Columbia Ministry of Women's Equality should be expanded and
have their names changed to the Secretary of State for
Equality and the B.C. Ministry of Equality. Their
mandate should put the focus on equality without preference to
gender.
The law enforcement around domestic disputes should change drastically.
As a nation we spend too much money on the fallout of relationships and marriage breakdowns and the ensuing legal battles. There are hundreds of agencies charged with implementing the thousands of policies and programs. We suggest that in future a set of criteria should be developed. Where a married or common-law couple meets those criteria, such as police or social service intervention, or where there is sufficient evidence of substance abuse or abuse, the couple, either as a couple or as individuals, should be obliged to attend appropriate counselling. If they fail to do so, there should be consequences established in law.
Enforced counselling is likely to be the most effective and least expensive alternative and a more proactive approach that would tend to address problems leading to abuse and avoid much of the trauma now suffered by later interventions. In the cases where it is proven that allegations of abuse, including sexual abuse, made against both men and women have been falsely made, there must be consequences for the person who knowingly made the false allegations, or who makes them on frivolous or spurious grounds. This is perjury and should be subject to the full force of the law.
There is no greater violence to a decent person's character than false allegations of sex abuse against children. Consequences for the individual can be devastating while they set out to prove their innocence. The B.C. ministry of the Attorney General's policy on the criminal justice system's response to violence against women and children, in our opinion, is a deeply flawed policy, leading as it does to a predetermined mind-set in law enforcement officers and a predetermined attitude that men alleged to have breached the law are guilty until proven innocent.
Every provincial government in Canada makes funds available for a range of social services specific to women. The Comox Valley, for example, has a well-established women's resource centre that is funded partially by the British Columbia government.
Seniors, children, and teens have agency centres or even entire ministries concentrated on their needs. There is no public funding available for centres such as ours, which provide services for men in need. We have demonstrated a need for the services we provide, and with sufficient resources we could, and intend to, provide other services that benefit men and, by extension, the entire community.
The Joint Chair (Mr. Roger Gallaway): Mr. McIntyre, you've gone well over your time.
Mr. Tony McIntyre: I'll read just one more paragraph and go on to my closing.
In conclusion, I would like to say that men and women should stop blaming one another as the sole, primary cause of each other's problems. Adult men and women should work together on sensible resolutions to differences and treat those differences with honour and respect.
The welfare of the children is paramount. Men Supporting Men in its constitution honours the women's movement for its dedication and commitment to helping women overcome the long-running difficulties they have faced in being treated equal. In many areas of life, there is work for men and women to do in continuing that process. In the area of relationship and marriage breakdown and children, specifically access and custody to children after separation, the pendulum has swung too far. We are appealing to this Senate-Commons committee to do what it can to bring fairness and equality to these critically important parts of Canadian life. I thank you.
There was no way I could get the whole subject completed in five minutes. I have a written statement.
The Joint Chair (Mr. Roger Gallaway): We realize that.
[Editor's Note: Applause from the audience]
The Joint Chair (Mr. Roger Gallaway): Please, we are not allowed to applaud in here. This is not a town hall meeting.
We appreciate that five minutes is the Reader's Digest version.
Mr. Tony McIntyre: Yes, and it was hard to edit it as I was going along as well.
The Joint Chair (Mr. Roger Gallaway): I thank you for keeping reasonably close to the time limitations.
We'll go to questions now. I don't know who wants to begin.
Senator DeWare, do you have a question?
Senator Mabel DeWare: I would like to say how much we appreciate you coming before the committee today. Throughout the last month many groups, probably some you're quite familiar with, have been before the committee. Some of the testimony has been heart-wrenching and you wonder how much of it could have been avoided. I guess none of it.
• 1850
I know we're talking about the children and the best
interests of the children, but one of the things we
didn't ask any of these people coming before the
committee, and I guess maybe we're not supposed to ask,
is, why did they get a divorce? Even if we had to get
them to write in or call us or tell us or e-mail us, I
think it would be interesting to know what was the
breakup of the marriage. We know it's a lot of
things. Sometimes it's a matter of two people
just not being able to communicate, who didn't find that
out in the early part of their lives, or it's more
serious than that; sometimes it's that they found another
partner—all those kinds of things.
But I would really be interested. How do we get at the root of it if we don't know the cause of it? It would be interesting to know what some of those causes were and what the percentages are and if there's any way we can prevent it. Now that we haven't prevented it, we have to find a solution for what's happening today. I'm sure you would like to make a comment.
Mr. Tony McIntyre: There's no way that I presume to have all the answers, but in speaking with all the different people—and particularly I'm speaking to men most of the time, but I do have women phone our organization as well—quite often a lot of the problem that I see is that nobody takes two young people any more and sets them down and tells them the responsibilities of marriage.
There may very well be one of the members of that duo who realizes they have to grow up and they can no longer continue doing the things they were doing, some of the excesses, or abuses, or whatever. That one may go to the other and say, hey, we have to stop doing so much drinking, or the children have to come first. The other one may not be ready to face those responsibilities, and the messenger gets killed, the one who sees the picture a little bit sooner. I think that happens a lot, and it ends up being a power struggle where one doesn't quite see that all the other is saying is, hey, we have responsibilities that are bigger than us now; we must put aside our own personal desires for instant happiness at this moment and do what's best for the family.
I think in a lot of cases that has not been instilled into the young family. They may have come from a dysfunctional family, or married too soon, or whatever. But at some point, when you take on a responsibility such as children, you have to say, my happiness no longer comes first; my responsibility to the family is first. I think a lot of young people don't know that, and when they face those challenges, they fight each other rather than facing the actual problem.
Senator Mabel DeWare: There is premarriage counselling, as we know, that deals with getting married and the responsibilities of that. It seems that we're going to have to start pre-parenting counselling, and it's very difficult for young people to take that seriously when they're looking down the road later at maybe.... Today, young people are not having their families until later in life. It's not like it was in my day, when we started to have families when we were 18 and 19 years of age. I think you probably have a good point there.
Mr. Tony McIntyre: I want to ask you a question, if I could, because we're both a little bit different in age, I would say—I'm sorry if I'm being offensive; I don't mean to be.
What do you see today that's different from when you were young and got married?
The Joint Chair (Mr. Roger Gallaway): It is a little unusual for the witnesses to be asking the members questions.
Senator Mabel DeWare: I don't mind switching around.
I think we did take our responsibilities a little more seriously. There are advantages that weren't available to us then. We couldn't drop out of our marriage at a whim, because a lot of women didn't work in those days so they had no means of support for themselves. We would have been embarrassed to go home and tell our parents that we couldn't make it in our marriage, so we worked harder at it.
I think there's a point there: we did work harder at it. We made our marriage work, because we knew we had to make it work. We all go through these hills and valleys with children and responsibilities, but in the long run, I think if we look at the statistics.... I have a report on family values starting just after the war and what happened after the war until 1995, and if you look at that report, it's incredible to see what has happened with education, and with responsibilities in religion, as well. Most families were brought up very close to their church, because that was very important to them after the war. All those values have changed through the years, and I believe the change in those values has caused some of our problems.
Mr. Tony McIntyre: I'm sorry if it seems like I was leading you along there, but where I was going to was the point that in your day you had nowhere you could go other than to your immediate family. If you were being childish, your mom or your dad would have told you that you were.
• 1855
Today, when one of the other
members of the family flees the family over a family
problem, they've got big brother in the form of social
services saying, here is all the money you need to
get away from so-and-so or from that situation. The
situation may not be any different from the situations
you might have faced in your young marriage, but you
didn't have a big brother to run to.
I have had men come through my organization and say, look at this letter from my wife, who is going to be my ex-wife. She says she doesn't need him any more because she can get welfare. In a lot of cases it is a power struggle between the two, and one gets support and the other—
Senator Mabel DeWare: Remember, she might not need him any more, but the children need them both, and that is where the mistake is.
Mr. Tony McIntyre: Of course they do.
The Joint Chair (Mr. Roger Gallaway): Mr. Forseth.
Mr. Paul Forseth: You have a particular perspective in that you have been listening to the stories of men and trying to provide self-help groups and so on. As a group of men, maybe you can just give me a bit of an idea from your perspective of what you feel can be done to deal with the women's perspective of reducing men's violence against women.
We hear all the support groups and everything you've talked about—public policy and government resources and everything—responding to women and children as victims. But from a men's perspective, and the kind of men that you have been talking to who have been seeing themselves as victims, how do they wrap their mind around that issue?
Granted, what you have said is that there is another side that needs to be heard. But let's go back to the first. From your perspective, what would be some productive ideas to respond to this societal issue of men's facts of violence, power, control through money and through social relationships, and all those things that we have heard so much about?
Mr. William Taylor Hnidan: Our agency is probably one of the only ones in the country. We have courses for both assaulted men and abused men. So we hear both sides of the story. Again, our requests and pleas for government funding have gone on deaf ears for both programs. I think that is one of the major issues. I do accept that there is a great deal of violence in our society, men to women, women to men, women to children, elders, teen violence. So it is a societal problem. We have to address it as such and not make it gender specific, because it is not a gender-specific issue.
I think the resolution of a problem that immense requires money at the front in a productive fashion. It is fine for extremists to say all men are violent, but if we are going to have effective programs and change that attitude, we have to have funding to do it. We are not getting that funding in an effective way to deal with the issues.
Mr. Tony McIntyre: A lot of people I'm dealing with find themselves being swept with the same broad brush that is calling men violent and controlling. The fact of the matter is that there are those men who are violent and controlling in every way that you have said, but they are a small minority of the actual male population. A lot of the men I deal with are feeling that if the agencies they were dealing with would hear their side.... I find for myself dealing with men who come into our agency, to a self-help meeting, and are completely off the wall with anger and are upset and everything else, after five minutes of talking to them I can say to them that this is exactly what they're facing. I can detail to them what their course of action will be, how much time it is going to take, and the frustrations they are going to have to deal with. I can get that man not to fly off the handle.
A lot of it is not just information. I had one fellow come into the group meeting. We have a talking stick and when I handed him the talking stick he immediately broke down and cried and cried and cried. Then he related a story of being a single dad. He had gone to different government agencies for information and support. He got deaf ears all over the place. He finally came into our meeting. I was able to give him a 1-800 number for the family maintenance and enforcement program, through which now he is seeing some support from his ex-wife and so on. A lot of it is just not having information.
• 1900
For example, suddenly a man's wife is somewhat
dysfunctional or has a drug or an alcohol addiction
causing a problem in the family. He says to her that
they have to do something about this problem with the
alcohol and that she has to grow up and smarten up a
little bit. He is immediately nailed with an
allegation of sexual assault in regard to his own
daughter. This is a true story. He goes through the
next three or four years disproving that allegation of
sexual abuse and the child is still in the custody of
the mother who has the drug- and alcohol-related
problem. It is just the worst case scenario—but they
do exist.
So this fellow is so angry he is making a lot of loud noise and kicks a door in and gets a restraining order against him. Later on in the case, his ex-wife comes to his house, onto his property and into his home, and attacks him physically. He phones the police and he's arrested for having breached the order when in fact she has come onto his property and into his home.
The biggest thing that Men Supporting Men does for men is that when they come in they are given an opportunity to take their masks off for the first time in their lives. This is a room where they can just sit down and they don't have to say that everything is wonderful. They get that stick in their hands and they can talk about anything they want to.
What we're talking about here today is a main issue, but they also talk about their own personal lives, maybe about being physically or sexually assaulted as children or maybe about loss of a loved one or about grief. All these different issues come to the table, all the pains that men face.
Listening to them and giving them an opportunity to believe that they are being heard changes them almost immediately. You see them pick themselves up and go out and start doing things to help themselves and their families.
They will also sit in that same room and they will say, “Yes, I did hit her, so now what do I do?” We teach them that next time they remove themselves, before they get angry enough to hit.
We teach them all these different strategies, so they come to understand that they must pay their child support, that they must support their families, and that they cannot hit people because they are angry.
But the majority of the men we speak to—and as I say, there are over 200 of them now—are men who are painted with a broad brush and are seen to be violent or angry. They are accused of all of this and they are not being looked at. It is that negative gender stereotyping. Right away, as soon as you walk into an office, it's “Are you a deadbeat dad? Are you assaultive? Are you controlling?” There are all these things you have to try to overcome before you can even.... So it's the frustration.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. McIntyre.
Senator Cools.
Senator Anne Cools: Thank you very much, Chairman.
I would just like to underscore some of the statements the witness is making about the need of human beings for understanding and humanity.
I am sure many of you here know that domestic violence is something I have spent a lot of my life working on.
I would just like to echo his statements a little by referring to a 20-year-old article from the Globe and Mail of November 3, 1979, written by Rabbi Gunter Plaut. The headline is “How one woman works to mend broken lives”. I will quote someone who is speaking in the article:
Then the article continues:
The article continues:
• 1905
That article, colleagues, was written about me in
1979. I was counselling men and women out of my
women's shelter, which, as you know, was one of the
first women's shelters on the issue of domestic
violence.
I just put out the point to all colleagues here that there was a point in time when any human being who needed help could turn to some of these helping agencies. Then somewhere along the road, gender hatred, or whatever it was, came into the picture to the extent that I sincerely believe that violence is a scourge on the human condition. It really is. It's a heart of darkness. Some of the pathologies are so deep and so dark.
The point I keep making is that violence is shared by both genders. Both genders do it. Both start it and both do it. It's important to reach out to human beings with some humanity and compassion to help bring them back from those precipices. I applaud you for your efforts, and I thank you.
Mr. Tony McIntyre: Thank you very much, Senator Cools.
I just wanted to point out that I know it appears I have a single focus because I'm with Men Supporting Men. The point is that when men's issues are addressed, family violence goes down, but you can't point an accusing finger at one gender and say that violence is coming from that gender. The whole question of family violence, the whole dynamic, has to be looked at as a whole.
Here's just a quick example. I grew up in somewhat of a violent home. My father was a sergeant major in the army. He expected you to do what you were told, and he would give you a smack if you didn't. He was also violent to my mother.
On the other hand, I listened to my mom talk about my father's violence for the past ten years since he's been dead. I finally had to tell my mom that I couldn't listen to it any more, because in fact she was forgetting how she was part of it. I was the child sitting there watching her antagonize him, drink until she was sloppy drunk, and then push him. If he tried to read a book to hide away from it, she grabbed the book out of his hand and pushed him.
There's no way that as a man I condone him for being violent, but on the other hand, I felt very sorry for him because he didn't have some place he could run to any more than she did. He was trapped in that place. If he walked out, they would have said that he couldn't control his family. There are a lot of issues involved.
The Joint Chair (Mr. Roger Gallaway): Thank you, Mr. McIntyre.
We much appreciate you being here. Unfortunately, our time is up. Once again, I want to apologize for the delay, because I know that inconvenienced a number of people.
I'll now ask for Dr. Dineen and Ms. Beach to come forward.
I'll ask Dr. Dineen to start. You realize you have five minutes. Thank you and go ahead.
Dr. Tana Dineen (Individual Presentation): Thank you for this opportunity to speak.
Over 30 years ago, I was drawn to the discipline of psychology by a fascination with the complex questions being asked and by a respect for science. There was an insistence then that conclusions, answers, ideas, and theories be cautiously examined and carefully scrutinized.
Today, the social and psychological sciences are no longer cautious. They are in fact quite reckless, tending to give the impression that they have all the answers. Some of these unfounded answers are seriously harming people of both sexes and of all ages.
• 1910
For over 15 years I've been particularly concerned
about the influence of the highly suspect conclusions
drawn from gender research. One of the first papers I
wrote on this topic was entitled Blaming The Boys: A
Feminist Fallacy. What I was seeing then was the
abuse of science and of professional status to promote
the stereotyping of women as nurturers and peacemakers
and of men as batterers and warriors. What I found
then and what I find now in much of this gender
research is a mixture of political ideologies,
militant paternalistic feminism, and a naive
therapeutic do-good mentality.
I'm frankly outraged to see these opinions and agendas presented in the brown paper bag of science under the pretence that the notions contained are factual, accurate portrayals of reality. These factions of our society are influencing the thinking of everyone, including parents, lawyers, judges, and even lawmakers.
What they tend to present as scientific studies and research evidence are actually biased surveys designed to lead to the conclusions that fit with preconceived notions. Using poor methodology, shoddy sampling, leading questions, and generating questionnaire data that can be manipulated to fit the desired conclusions, this new breed of researcher is distorting reality so as to promote its political agendas.
The much-publicized violence against women studies, the Women's Safety Project is a case in point. Since when does science have a bias such as a feminist lens that distorts its reality? Since when do 120 relatively well-educated Toronto women represent all women across this country? Since when did women over the age of 64 cease to count, cease to have a voice? Since when can a question that asks “Was there ever a time in your life when you had trouble sleeping or staying asleep at night because you were nervous about or afraid for your personal safety” be so destructively transformed into a measure of women experiencing difficulty due to fear? Who as a child hasn't at some time been afraid to fall asleep?
The conclusions drawn from this survey and from many other equally flawed studies are basically that men are violent and women are vulnerable and in need of protection.
I'm here today basically because I am terrified. I'm terrified of what will happen in Canada if this committee is swayed by political and ideological arguments presented as if they are facts, as if they are true, and as if they are accurate. If this committee accepts such fraudulent notions, then it will construct legislation that supports and concretizes this bias. The effect will be to divide our nation along gender lines and to create an unequal, unbalanced justice system.
For women who want to influence the courts it will provide a script. It will tell women how to influence judges by acting vulnerable and abused and by pointing the finger of blame at men. There are violent men, there are abusive husbands and fathers, but there are also violent women and there are abusive wives and mothers. Justice as a system is meant to enter into matters with an open mind.
Yes, it's reasonable to ask who, if either, in a custody dispute is violent, or abusive or negligent, and it is in the best interest of the child involved to be with the better parent, though often who is better is virtually impossible to determine. But it is not in the interest of the child, the parents, or of our society generally, to make this decision and to place a child on the basis of faulty, gender-biased policies. To portray men as violent and women as victims is to stereotype both sexes and to harm both. There is already an ideological bias in this direction. False accusations of spousal abuse and child abuse are already a problem in custody cases. Too many therapists are already caught up in theories that cast women in these roles and that cast suspicion on men.
• 1915
What I ask of this committee is that you assume, despite
emotional coercion and the pressures of political
correctness, a responsibility to ensure that this
bias does not further contaminate our courts
by becoming the basis for any new laws regarding
custody and access.
Five minutes.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Mr. Forseth.
Mr. Paul Forseth: Thank you.
You've talked about bias, the political agenda, political correctness. Can we for a moment get to the heart of the matter? What in your opinion is that political agenda? We need to be clear about what we're talking about here.
Dr. Tana Dineen: I'm not a politician; I'm a psychologist. I have reviewed extremely biased research studies that have been influencing the courts and that have been influencing legislators. The Canadian Panel on Violence Against Women is one of them. I've spent considerable time reviewing the data.
When you start off—and I think it's page 2 of that report—stating that the objective was to demonstrate violence against women and that the entire study was done from the perspective of a feminist bias, you have a bias. You have an attempt to basically abuse research in order to present a position that can have all kinds of benefits.
One benefit I can think of, off the top of my head, is that the funding goes to the women who in fact are conducting the research that demonstrates that funding should go to them.
So that's one example. I could go on and on.
Mr. Paul Forseth: I'm well aware, I suppose, that part of that political agenda is money influence and getting your way or whatever is seen as the end pay-off to try to rearrange the world in your favour, or to stack the deck.
That has been an issue that's recurred in evidence given at our committee hearings—whose statistics are used; the lack of good-quality research; the need for Canada to do more of its own studies on what happens to children rather than always borrowing from research from the States or other jurisdictions.
Dr. Tana Dineen: If I can interrupt for a second, in terms of Canada supporting such research, yes, but not the kind of research such as what was done in this particular project. On one occasion, I phoned to find out in fact how the research was evaluated and what controls there were over the way it was conducted. The response I got from Stats Canada was literally, “It's all subjective, isn't it?”
If in fact it's all subjective, why are we pouring taxpayers' money into research to begin with? It's an abomination. In fact, this study and so many other studies that influence and that emanate in Canada, from Canada, paid for by taxpayers' money, constitute nothing...nothing less that data rape.
Mr. Paul Forseth: You've made some very strong statements. I would like you to tell us, for the record, what are your qualifications to make those statements? As a researcher, do you have a PhD in statistics or something?
Dr. Tana Dineen: I have a PhD in psychology. I started off at McGill 31 years ago. I'm a licensed psychologist in both Ontario and British Columbia. I've spent many years of my life critiquing my own profession.
Yes, I have an extensive research background. I have authored a book recently, entitled Manufacturing Victims, a second edition of which has come out this month.
If you'd like me to go on, I can submit my résumé with a detailed brief to this committee. I'd be pleased to have you critique or question me on anything I present. I'm a serious researcher, and I can back what I say.
Mr. Paul Forseth: Okay.
We hear lots of opinions, of course, but as a committee we're then going to have to assign weight to the various opinions we hear. A lot of it is not so much what is said but who is doing the saying, and their relative credibility.
• 1920
I'm quite satisfied that so far the committee
has been very eclectic in the kinds of presentations
we have heard from all spectra. We've heard
everything and we all bring a wealth of experience to
the table as well. Hopefully, we'll be able to come
to some recommendations.
You mentioned the political climate, and it's been said to me “Okay, you will make a report or whatever in the fall, but where will that report go? Will it just go back into a political system that has already pre-decided what will happen?”
That's all I have.
The Joint Chair (Roger Gallaway): Ms. St-Jacques.
[Translation]
Ms. Diane St-Jacques: You are referring to different statistics: it is not only men who are violent; there are also women who are. Have you carried out surveys that indicate otherwise? The front pages of newspapers often talk about men who killed their wives and rarely of women who killed men. Do you have anything more specific to support what you say?
[English]
Dr. Tana Dineen: There's certainly a tremendous research base for this statement. The whole idea of women being stereotyped as incomplete human beings who are not capable of violence is utterly absurd.
Certainly the media reporting emphasizes and focuses on male violence. There are, however, women who commit violent acts. Very often women are excused for committing violent acts on the basis of psychologized theories about why women do so, but there's a tremendous literature and I would beg this committee to take a look at it.
Senator Anne Cools: So moved.
The Joint Chair (Senator Landon Pearson): Thank you. Because of the shortness of the time, I was going to get her statement first and then finish with questions.
Senator Anne Cools: You didn't speak yet.
The Joint Chair (Senator Landon Pearson): No, she hasn't spoken yet.
Senator Anne Cools: Sorry, I just assumed. My questions can wait until she's finished. Absolutely, go ahead. Thank you.
Ms. Debbie Beach (Individual Presentation): I'm Debbie Beach and I'm speaking as an individual. I wish to address some specific issues about family violence and stalking as they relate to child custody and access. Stalkers and batterers do exist.
I agree with a lot of what the men's groups have said, that the majority of men, like the majority of women, do not abuse or batter, but I'm focusing on the small percentage who are batterers and stalkers. I will include some statistics and comments from professionals, but I will also include my own story and those of others, as I believe they can clearly illustrate many of my concerns.
I had a chance on Friday to speak with Ellsby Jaswinsky, who is head of the Children Who Witness Violence counselling program through the Victoria Transition House. She was asked to come here but is too busy counselling children, so she was very glad to have me interview her.
The law assumes that two parties in a legal dispute are reasonable, or that the courts can enforce a reasonable outcome in cases of custody and access after a divorce. However, in cases where family violence, stalking, and child sexual abuse are present, there is a basic misuse of power.
The court system and the law itself can be used to assert control over an ex-spouse and children, so the law itself can become a tool of abuse. I think we have to be careful, as we may liberalize the law, about stalkers and batterers using that as a weapon.
My first recommendation is that a special case section be included in the law to deal specifically with situations of family violence and stalking. I agree that the law needs to have more fathers' rights to custody and access, but these cases are exceptional. Hopefully, this exception could be worded similar to current stalking legislation.
Violence and stalking cases should be an exception to the rule of granting joint custody, and sole custody should be granted to the non-violent partner. This partner should be allowed to leave their province or Canada without penalty.
When a person murders a spouse, custody should be granted to other family members such as aunts, uncles, grandparents, or whoever is named guardian in the murdered spouse's will. Only supervised visitation should be allowed to the killer, if the children wish it, and the killer should not regain custody after the prison term and only supervised access should be allowed if the children wish it.
• 1925
There are two cases in Victoria now. At times, these
men get four or five years for the murder and then
they come out and get custody of their children.
I know in the law now you're not allowed to inherit money from someone you kill; I believe you should not inherit the children.
Recently, I spoke with Ellsby Jaswinsky, head of the Children Who Witness Violence program for the Victoria Transition House. She gave me an out-of-Canada report, unfortunately, a California report called Proposed Guidelines for Custody and Visitation for Cases With Domestic Violence. It's a very good study that deals very specifically with these predators. I have included copies for the committee.
Ms. Jaswinsky of the transition house felt very strongly that joint custody is absolutely unrealistic in cases of domestic violence, and we're not talking here about someone who may explode extremely and frequently under extreme pressure; we're talking about social predators. She feels that abusive spouses use custody issues in the courts to manipulate the situation and that sole custody be granted to the non-abusive partner.
One of the things she told me, which really struck me, was that the classic batterer is a social predator. They tend to batter in secret. They tend to work on their image in public, their power in public.
Senator Anne Cools: Are we hearing her testimony or something that someone has told her? I think if she has testimony from another witness, we should call that witness to be sure to hear that witness herself, but we cannot receive second-hand testimony.
Ms. Debbie Beach: Okay. To me it rang very true, because—
Senator Anne Cools: Absolutely. Bring her and let her give it to us.
Ms. Debbie Beach: —of my marriage. To me, I felt that was very true, thinking over—
Senator Anne Cools: I am not disputing the truthfulness of it. Let us bring her and let her tell it to us.
Ms. Debbie Beach: Can I speak about what she said about children who witness violence and what if...?
Senator Anne Cools: The witness can present her own testimony. If she is presenting from another witness, then we have every duty to call that witness.
Ms. Debbie Beach: She was called, but she can't come.
Senator Anne Cools: Then if she has a paper, she can give it to us, but we should hear the original witness for herself. I think we owe it to the witness to hear that witness herself.
Ms. Debbie Beach: She doesn't have the time.
Senator Anne Cools: Chairman, I will raise a point—
The Joint Chair (Senator Landon Pearson): I believe we have received people speaking on behalf of other people and bringing their information.
We only have a minute or two left, so if you could get to your recommendations....
Ms. Debbie Beach: Okay. I'll just read my recommendations.
I recommend that the Supreme Court and family court judges undergo mandatory sensitivity training about family violence and stalkers; that the age at which children can decide if they want to visit a parent be lowered to school age, six or seven years of age.
I myself was taken back to court by my former husband for his right to see our son after he had beaten him. Our son was eight. The judge ruled against me. I didn't think to mention a lot of things that happened, such as drug dealing and other violence. I felt very powerless. I felt that my son would have agreed with me not to see his father, but the judge decided. When my son was 12, he did decide not to see his father, and I knew I was safe because I would not be held in contempt.
The Joint Chair (Senator Landon Pearson): If I may, stick to your recommendations so we can get to the questions.
Ms. Debbie Beach: Sure.
I think there should be reinstatement of legal aid benefits for custody and access cases. Right now, the only partners eligible for legal aid are spouses in arrears of child support facing jail terms.
• 1930
Also, the family maintenance enforcement program was a
very helpful agency in my case, and a similar agency
could be set up dealing with joint custody issues as
they arrive and dealing with episodes of violence if
they come up during a joint custody problem.
I left my marriage when my son was three. Last month, 15 years later, I received a threat by phone from my former husband. This is something you deal with for years. There should be an agency—not lawyers who are making money off this, but an agency such as family maintenance enforcement. They have a good set of rules in place.
I believe I was dragged into court as a power trip on my spouse's part. Family maintenance enforcement says if a man cannot afford support, he has every right to have the order changed—they are not trying to be punishing—but if it comes down to a court case and it goes against the person in arrears, they have to pay the court costs. So I would get a cheque the day before it hit court, when my former spouse knew he would have to pay an extra $500.
Non-professional organizations such as family maintenance enforcement are good agencies with good things set in place to deal with this misuse of power.
The Joint Chair (Mr. Roger Gallaway): Senator Cools, do you have a question?
Senator Anne Cools: Yes.
I'd like to thank the witnesses for coming before us. I have a couple of questions for Dr. Dineen. Obviously Dr. Dineen has spent some time studying these issues, and she is a psychologist by training.
Can I put questions to her through you, Chairman?
The Joint Chair (Mr. Roger Gallaway): Surely.
Senator Anne Cools: Excellent. Thank you.
As recently as last night, I was reviewing some of the reams of literature I have on domestic violence. I'm always struck by the sharp difference in the results of the data that come from the general population surveys and the data that come out of the shelters. This is a question that has been perplexing many for quite some time. I just wonder if you have done any work on it or if you've wrapped your mind around it at all.
Chairman, you were out of the chair for a split second, but Dr. Dineen invited or urged the committee to study the extensive literature on domestic violence, which shows symmetry and reciprocity in domestic violence.
You have to know, Dr. Dineen, I have put this question to many people, such as Dr. Strauss. Have you wrapped your mind around the difference in the results in the general population study?
Dr. Tana Dineen: I have a few hypotheses. There are questions we need to ask, and this is a really important one.
One of the things I have been noticing is just how we define violence. When you walk into shelters, you look at real violence, authentic violence, horrible violence, violence we can recognize without a psychological scale to measure it. This is a very different thing from what tends to be getting measured in the general population surveys. So one of the really important things that needs to be scrutinized and looked at is just how we're defining violence.
I can see a very dangerous tendency towards psychologizing everything: if you feel something hurts, it's violence now. That's a really dangerous thing to do. It's also an extremely dangerous thing to water down and call violent very minor things. It's a tremendous insult to women who are in shelters.
• 1935
That's off the top of my head, and yes, I think
that needs to be examined very carefully. I haven't
wrapped my head around it entirely, but I'm—
Senator Anne Cools: So it's pretty glaring.
Dr. Tana Dineen: Yes.
Senator Anne Cools: The violence that terrifies us, the deep, dark, pathological violence that haunts and burdens certain couples.... Do you remember that Erin Pizzey, the founder of the very first battered women's shelter in the entire world, wrote a book called Scream Quietly or the Neighbours Will Hear? I think that's what it's called? She also wrote another book some time later called Prone to Violence. I'm sure you've encountered it.
In any event, I was chatting with Erin quite recently and we were talking about what I would call the dogged, pathological violence that lives in certain couples. She remarked, and so did I, that the deeper, the darker, and the more intractable the violence, the less likely those individuals are to seek divorce. Erin has the language. She calls it the dance of death. This is a woman who knows a lot about this subject matter. There is a lot of other language in the literature about this lethal violence. There is an enormous language, and we know the characteristics of those people. I could paint you a profile of the isolation, the total commitment to each other, the returning and on and on.
I'm just wondering if in your work you've ever wrapped your mind around that deep, dark pathology. But they rarely go for divorces.
Dr. Tana Dineen: I'm not entirely recently familiar with that literature, so I can't comment.
Senator Anne Cools: A characteristic of it, colleagues, is that they rarely seek separation. They will go back again and again. For anybody who has counselled those people...it is a major cause of burnout among people on the front lines. I just wondered if you'd read it.
Also, in terms of some of the other studies you mentioned, could you take the opportunity and place the names of some of those studies on the record, like Strauss' work?
Dr. Tana Dineen: I can certainly present a brief, and I will document it in the brief. That's probably the best way to do it.
There are many studies in which I have tried to get a look at data, and that really concerns me these days especially. The Panel on Violence Against Women study is just one, but studies of child abuse in Canada recently.... I have been trying to get data that would tell us what this stuff actually means. MacMillan's study is one, the one that came out of Ontario, out of McMaster. There are still no data released that would let anybody make any conclusions from that research, yet it will be flashed across papers about the prevalence of child abuse in the country—that kind of thing.
One thing I have files on at home are the invisible data I've been trying to get hold of.
Senator Anne Cools: There's a quotation that pops up time and time again to the effect that only 1% of affidavits contain falsehoods because women rarely tell lies.
Dr. Tana Dineen: Right.
Senator Anne Cools: This has been a very contentious issue. I wanted Dr. Dineen to tell us about that.
Dr. Tana Dineen: All you have to do is go to the website of the American Psychological Association on sexual harassment and you'll find this statement: less than 1% lie. I recently challenged the American Psychological Association on their website. They have pulled their website and are revising it at the moment. I don't know what conclusions they will draw, but these are statements that get made.
If you look for the substance under the statement, which I am prone to do, you don't find it. I just keep asking and asking and asking, and the things I get back from researchers are things like, “If it's really important, I'll try to find it for you.” It's really important. When you say that fewer than 1% of women lie, show me how you know that.
• 1940
The Joint Chair (Mr. Roger Gallaway): We're running quite behind, and I think Senator DeWare has a question.
Senator Mabel DeWare: I have a question for Debbie Beach. Debbie, you are recommending or suggesting to us that your case would have been different in court if your son could have appeared at an early age. So if he could have appeared at eight, instead of four years later, at twelve, and testified on your behalf, it might have been different.
Ms. Debbie Beach: No, it would not have been from specifically testifying. From the stuff I read in the study and also from my experience, I think it would help families where there is a problem with stalking and extreme violence if someone in a more informal agency, such as someone from the Attorney General's department, who knows about issues of violence is able to do a study of the whole family over quite a long period of time. I think it's unrealistic for us to think that we can have a custody order and that's the end of it. In reality, no, this is something you deal with for long periods of time.
In the California study I included, they talk about when there are episodes of violence and when the person assaults a child, there should be pressure for them to take responsibility for their actions, and they should be talking to the child. Also, they're talking about how it's very important for the other partner to get away from a former spouse to provide a safe haven for the child. Speak to the child, but don't have the child testify. Don't tell the child that what happens is up to them.
Senator Mabel DeWare: I sort of got the impression that if your child could have given his views to the judge at an earlier age, he probably would have—
Ms. Debbie Beach: My son also had attention deficit disorder and seizures. These children do not do very well with going back and forth. So that was another issue. Both his teacher and I kind of felt that if he were asked informally, then he might agree that maybe he and dad should take a break for a while.
Senator Mabel DeWare: That's important. I know quite a bit about ADD. We're very concerned about young people testifying. We had some people represent us. We also had children come before us to say that they wished they could have made their own decisions at the age of 12.
We are hearing that a child should have a say in court in the divorce decision but that there should be a child advocate with them, somebody representing the child. If two people are going for a divorce and they're both being represented by a lawyer, then who is representing the child? We think there is a possibility that if there were a child advocate representing a child, then the child's views would come forward.
Ms. Debbie Beach: We get into the area of stalkers as well and people who sexually assault children. Usually they're not caught or prosecuted until the children are adults.
In this one case where I was taking care of children, they had a children's advocate. This man, who was a lawyer, was paid big dollars. He spoke once to these children the day before they were to go into court. I was appalled. That's why I think that informal groups who examine the family over six months and talk to everyone separately and informally would be more—
Senator Mabel DeWare: We're hearing that the system breaks down. No matter what we're dealing with, the system seems to break down.
Ms. Debbie Beach: Especially with predators. Predators play the system. An abuser will not assault their boss or assault in public. In my situation, my former spouse was a business owner and a homeowner with a very good public reputation and was never seen to hit anyone in public. It is an insidious problem, but this is only a small number of people. The majority of men are not violent and the majority of women are not violent.
• 1945
The Joint Chair (Mr. Roger Gallaway): Thank you.
I want to thank you both for coming here. Once again, I apologize for the delay. I want to thank you for contributing to our study and to our work.
We'll now hear from the group that was originally scheduled to appear at 3.30. If they could come forward and take their places, we'll keep moving.
We have Dr. Ian Gillespie. Dr. Gillespie is a medical doctor. We have Jasmine Lothien, who is here on behalf of the Family Services of Greater Vancouver. And we have Guy Thisdelle, who is a family counsellor.
We'll begin with Dr. Gillespie.
Dr. Ian Gillespie (Individual Presentation): Thank you, Mr. Chairman.
I have a few overheads here. I wonder if I might ask for a volunteer to put those on the projector to save me from going back and forth.
Hon. members, ladies and gentlemen, thank you for this opportunity to present as a witness before this special joint committee. I'm a psychiatrist and have been in practice in Victoria for 22 years in general adult psychiatry. I'm a member of the board of the Separation and Divorce Resource Centre in Victoria, but this is an individual presentation.
Divorce is unfortunately an increasingly common outcome of marriage. This observation is valid internationally, and the increase shows an exponential trend. The graph that's on the overhead projector demonstrates a predicted rate of divorce of 67% for marriages which started in 1989. The reason for this is that it's looking at marriages that are currently in existence and are predicted to end in divorce. These are American statistics, but it does seem to be a valid international profile too.
Prejudice about divorce is also common. Divorcing couples benefit from compassionate understanding, not judgment and blame. Dr. Aphrodite Matsakis, an expert on post-traumatic stress disorder, described the prevalence and persistence of the “just world” philosophy as a contributing factor in such judgmental attitudes. I've outlined that in several paragraphs in the handout provided for the committee.
Alarmed by the higher incidence of divorce, some have proposed so-called covenant marriages, and these have recently been put into law in Georgia, I understand. History suggests—again, a reference in the handout—that trying to restrict divorce causes many other social problems.
In my opinion, when a marriage sours, interventions that fail to re-establish respectful communication and healthier management of conflict will not prevent the outcome of divorce.
Unfortunately, many current marriage preparation courses and marital counselling approaches do not incorporate the findings of research.
The best revisions of public policy and law will be based on scientific research, not on opinion and lobbying. We know from research that there are many myths about the causes of divorce. The second overhead shows these nine myths, as mentioned by Professor Gottman, from the University of Washington in Seattle. He was in Vancouver last week giving a presentation about couples and family therapy.
• 1950
Again, time restrictions don't permit me to go through
this. I also apologize if this print is too small to
read.
Research has also demonstrated that there are, however, predictable causes of divorce. An approach developed by Professor Gottman, a professor of psychology, has a 96% accuracy in its ability to predict a divorce outcome within four years, based on sometimes as little as a three-minute observation of couple interactions—but this research was on prolonged videotape and structured interview.
The most predictive factor is what he called “contemptuous criticism”, which he refers to as “sulphuric acid to love”.
This research is referred to in Daniel Goleman's best-seller of several years ago, Emotional Intelligence, and detailed in Gottman's scholarly text, What Predicts Divorce, and in his popularized book Why Marriages Succeed or Fail. It makes a good wedding gift, I think.
I also wanted to talk about something that's been referred to as the “parental alienation syndrome”. Dr. Richard Gardner, a child psychiatrist in New Jersey, has written about the parental alienation syndrome and the increasing frequency with which he's observed this phenomenon over the last 15 years. The behaviour he describes as occurring, usually in the custodial parent, involves repeated denigrations of the other parent, which may be severe and prolonged, and is highly psychologically damaging to the children.
There is a serious lack of education of those in the helping professions, the legal profession, and the judiciary about this complication, which Gardner attributes to the conflict that results from “the best interests of the child” dictum. I think there are broader explanations for this, but that was his original one. I want to draw your attention to this work with a hope that it will be considered in crafting legislative revisions.
I would like to move on to the issue of prevention and talk about something called the PEACE program.
May I ask if the committee has heard previous presentations about something in the States called PEACE programs?
Some hon. members: No.
Dr. Ian Gillespie: I first heard about this at the American Psychiatric Association in May of last year. It was developed by a professor of psychology and a law professor at Hofstra University in Hempstead, New York, and was first used in Kansas. At that time, two years ago, there were 600 centres in the U.S. where this was implemented.
This is a program for divorcing couples with children who've not come to agreement on custody and visitation and are contemplating litigation. It lasts for three sessions. It's done by volunteers from the mental health and legal professions. In the first session, they look at the legal consequences of divorce and what the procedure is, the second session has to do with looking at the emotional stress of the divorcing couple, and the third has to do with what the impact is on children and the potential exploitation of children.
They've produced a videotape and some manuals. I've brought those here today and would like to leave these with the committee. I think it's an excellent program and it's been very well received by the parents who take part. I think the videotape, although it's in an American context, talks very well about how well it was received by children.
PEACE stands for parent education and custody effectiveness.
I'll briefly talk about other prevention measures. From a review of the literature, we know about the effects of domestic violence. We know that children frequently witness abusive behaviour and may later exhibit the same behaviour if untreated. We also know that there are effective interventions for children who've witnessed abuse.
Recently, the results of an intervention program at the elementary school level in Seattle were published. The study shows positive results on decreasing aggressive behaviour in children. There are also useful resources that help parents with anger management and in raising what are now termed “emotionally intelligent children”. We need to incorporate these same approaches into our schools with specific curriculum revision.
In summary, divorce is unfortunately increasingly frequent. Research has established contributing and preventive factors. Pilot projects in school show promise in their potential to educate a generation of more emotionally intelligent children who might have better success in their future relationships.
Current approaches to conflicts over custody and access may turn into protracted battles, where children become caught in the middle and, at the very least, suffer loss of nurturing contact with the non-custodial parent. When the settlement is achieved, the couple's assets have been seriously eroded. The ability to function cooperatively in addressing the needs of their children is often greatly reduced.
• 1955
Sometimes these situations are difficult for courts
to decide due to the extent of the claims
and counter-claims made by each party, which
may be supported by multiple affidavits
and conflicting expert testimony.
Studies on domestic violence highlight the damage to children who witness abusive behaviour and the value of intervention and treatment programs for both victims and perpetrators of abuse.
In the absence of available research on parental alienation syndrome—we haven't had it long enough—it seems reasonable to expect that children exposed to that are also damaged. Unless it's identified early and intervened with appropriately, it's going to destroy their chances for happy and satisfying relationships in the future.
The next overhead shows ten specific recommendations. I realize there's not time to go through them, Mr. Chairman.
The Joint Chair (Mr. Roger Gallaway): You're out of time, Dr. Gillespie.
Dr. Ian Gillespie: Okay. Thank you.
The Joint Chair (Mr. Roger Gallaway): We'll move now to Ms. Lothien.
Ms. Jasmine Lothien (Representative, Family Services of Greater Vancouver): Thank you.
I'm going to tell you a little bit about our organization. We're a non-profit organization that employs 400 employees in Burnaby, Richmond, New Westminster, and Vancouver. We're dedicated to helping families, individuals, and young people who are experiencing new or difficult challenges in their lives.
In addition to providing general family counselling, we have 20 years' experience working with victims of and offenders in domestic violence, in partnership with the Vancouver and New Westminster police forces. We've also invested over ten years of formal research into domestic violence issues and program evaluation in association with UBC's School of Social Work.
The commonly held view, supported by numerous statistics, that women are overwhelmingly the victims of violence in relationships is true.
To give you an example from the Vancouver police, they tell us that with one organization in the city that gets 4,000 calls from first-time or newly abused women—they keep their statistics that way—that's approximately 4%, and they get about 10% of the calls. These are actual assaults under the Criminal Code. That gives you an idea of the extent of the problem in the lower mainland.
It is our observation that the consistent failure of civil courts to acknowledge the fact of violence against women in custody and access decisions continues to jeopardize the health, well-being, and sometimes even the lives of women and children.
We acknowledge the benefits to children when both parents are able to safely and cooperatively establish joint custodial guardianship and access agreements. However, custody and access arrangements are frequently abused by men with histories of partner abuse to continue abusing and controlling both their former partner and their children.
We are gravely concerned about the criteria used to make custody and access decisions when partner abuse was or is present in the relationship. One of the criteria includes the use of attendance at anger management programs as evidence of a father being a fit parent.
We would support a divorce act that requires clear evidence that a man is not abusive. This would include: demonstrated changes in behaviour, attitude, and approach to custody and access that considers the well-being of children and partner—specifically, taking responsibility for their abuse; understanding the fear and reluctance of their partner and children to have contact with them; and a willingness to engage in access based on needs of children and women.
The other thing we would suggest is that litigation continues to be a part of this process. It makes a lot of sense to make that process easier and less costly. However, when there is violence, the woman does require the presence and extra protection of the legal system and the lawyer.
Arguments for entitlement of fathers that fail to take these considerations into account lead to the use of courts to perpetuate the abuse of women and children. The legally enforced contact of an abusive father or partner with their spouse and/or children is detrimental to the well-being of both the spouse and the children.
• 2000
Violent, abusive behaviour is conduct that emotionally
harms children, and as such has been recognized by six
provinces in Canada in their child protection acts—the
provinces of Newfoundland, Prince Edward Island, Nova
Scotia, New Brunswick, Saskatchewan, and Alberta—and
is now also being recognized by our own Ministry for
Children and Families, which does see the harm of
children witnessing violence, whether they are being
physically abused or not.
The statistics show that children who are exposed to this type of violence have far higher delinquency rates and pregnancy rates and drop out of school much faster. All of those things need to be taken into consideration.
So we would like to see included in the Divorce Act that if there is violence, an ongoing assessment be made of the father to see whether or not he is taking responsibility. Are his kids really his first priority, or is this simply a tool to control both his partner and his children?
The Joint Chair (Mr. Roger Gallaway): Thank you. Are you submitting a brief? You've referred to some statistics. Will you have the authorities in the brief to back up those statistics?
Ms. Jasmine Lothien: We have a letter, but I can get that.
The Joint Chair (Mr. Roger Gallaway): All right. Thank you.
Finally, Mr. Thisdelle.
Mr. Guy Thisdelle (Family Counsellor): Hi. I'm in private practice currently. I'm coming from a counselling perspective. My background is in child and youth care counselling. I did that for about eight years. For about the past four-plus years I've been devoting my studies and time to men's counselling issues.
Early on in my career as a child and youth care counsellor, I began to realize that a lot of the children I was being asked to work with came from fatherless families. I started to investigate that a little bit more and tried to find out what was going on there.
I just wanted to provide Duncan with a statistic he asked about earlier. I'm not sure if this clearly is what he was looking for, but the Ministry for Children and Families, formerly known as the Ministry of Social Services, provided me with data that in 1995 there were approximately 75,000 single-parent households in British Columbia. Just over 50,000 of those were mother-headed, and almost all of those were using some form of social service program. They did not provide me with a breakdown in gender for the other 25,000. I don't know if that's any help to you.
Further statistical information and comments started to look really bleak, among it the work done by David Popenoe, a sociologist out of Rutgers University, who was claiming that in Canada as well as around the industrial world throughout the west, approximately 40% of children were growing up without their fathers. So I began to look at some of Stats Canada's information and raw data, demographics, to see if that was in fact the case.
I haven't found any information to dispute that. We categorize the statistical information that's provided to us by Stats Canada in such a way that it's a very complex formula to try to figure out, but the figures do seem to indicate that that information is correct.
We attribute fatherlessness largely to two areas: divorce and/or separation and non-marital birth rates. Currently in Canada those are 40% and 22% respectively. Within the aboriginal population of this country it's expected that it could be as high as 75% in some communities.
What they're saying about fatherlessness is this. David Popenoe writes:
He follows that warning with another comment by Lawrence Stone, who is a historian, well known in his field also. He comments on fatherlessness in the west this way:
Not even in times of war has fatherlessness been so prevalent in our society. Again, that's a general comment for throughout the industrialized west. This has only been a phenomenon since the 1960s.
• 2005
Developmental psychologist Michael Lamb, in his
research on the role of the father in child development
made this comment:
He says a father contributes to a child's development in two major ways: self-control or discipline and empathy.
Current research that's under way at Simon Fraser University seems to back that up in a study on youth who come in contact with the law. Lack of self-control and empathy seem to be prevalent in youth who come in contact with the law and seem to correlate with father absence.
Another renowned name in the field of criminology makes this statement:
He says as we see non-marital birth rates, fatherlessness, and divorce escalating, we see the rise in youth crime as well. He joins those two things together.
I want to get right to my recommendations. From a counselling perspective, in an ideal world I would love there to be every support system and social program in place so we could take the family out of a court situation and place it into a supportive environment. Failing that, I think the next best thing is to come up with what I would call—and is used frequently in custody and access decisions, so I'm told—a developmental model for dual residency. I use the term dual residency rather than custody or care and control or any of those other terms.
I believe in mediation. I believe in the mediation process and what some of the mediation people have been saying. I don't think it should be mandatory, but I do think it should be available to all citizens of our country regardless of socio-economic status.
There seem to be two social programs that really help in the area of father absence. One is parent education. The model that's preferred, from some of the people I've spoken to who have investigated this, is a model that includes the children. Currently in this province a model is being used for parent education, post divorce or post separation, that does not include the children. I'm against that model. I think we need to work with the kids as it happens.
The other program that seems to be significantly helpful is known as the Head Start program, or Healthy Start, or Healthy Beginnings, as it's called in this province. However, the more successful of those programs includes a men's division.
In this province we've asked for federal funding and provincial funding to work with fathers who may be at risk of not parenting their children. We have never received funding, but I think it's crucial to address the largest social epidemic facing our country today.
Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
We'll move now to questions.
Senator Cools.
Senator Anne Cools: Thank you, Chair. I am just getting my questions ready, but I noticed that Mr. Thisdelle cut his comments short. Maybe we could just take them as read, because he cited some pretty impressive studies. It's always good to get data. Were you just about finished?
Mr. Guy Thisdelle: I was just about finished, but perhaps you could clarify which data you wanted.
The Joint Chair (Mr. Roger Gallaway): If I might interject, will you be submitting to the committee a written brief?
Mr. Guy Thisdelle: I did.
The Joint Chair (Mr. Roger Gallaway): Okay. You already have.
Mr. Guy Thisdelle: That's correct.
Senator Duncan Jessiman: Does it include everything you said?
Mr. Guy Thisdelle: It doesn't include the quotes from the authors.
Senator Anne Cools: I would like to move that his entire document and the statement he read into the record be taken as read.
The Joint Chair (Mr. Roger Gallaway): Yes.
Senator Anne Cools: He cited some pretty impressive sources. It would be nice if he'd send it to us, but here it's on the record for us.
Mr. Guy Thisdelle: It doesn't read in a coherent fashion and it's full of all kinds of little scribbles.
Senator Anne Cools: Don't worry, because you can do a very slight editing once you speak to the staff of the committee, just to correct—
• 2010
Mr. Guy Thisdelle: Please clarify for me where you want me to start reading and I'll be happy to do that.
Senator Anne Cools: No, you were not reading; you were saying the opposite. I just moved a motion.
Mr. Guy Thisdelle: I'm sorry.
Senator Anne Cools: I moved that the statements be taken as read in their entirety, that it be taken as read. That's done. This doesn't concern you; this concerns the committee.
Mr. Guy Thisdelle: My apologies.
Senator Anne Cools: Very well.
[Editor's Note: Statement provided by Mr. Guy Thisdelle reads as follows]:
Thank you for your letter dated February 19, 1998, outlining the committee's mandate, membership, and documentation on how to prepare a brief.
I hope the following information will be useful for the joint committee on custody and access. I would look forward to presenting the information in person should the committee find this helpful.
I have completed an independent research article on custody and access issues with regards to separation/divorce and explore some of its barriers on father inclusion post-separation/divorce. Also suggested in the research is the category of non-marital births and its relevant implications for custody and access and neglected children: As you may be aware, neglected children are the largest group of abused children. This research was first presented at the 5th International Child and Youth Care Conference in Toronto, Ontario in June of 1997.
The research is a multi-disciplinary approach. For example, developmental psychologists believe that the two major traits fathers pass down to their children are (1) self control/discipline and (2) empathy while criminologists state that these are the same two traits that are missing in youth who come in contact with the law. The article begins by outlining the problems to the family and society then offers suggestions for change including the critique of piloted social programs currently in various forms in the U.S. and Canada that offer some relief in the area of custody and access problems.
The term “fatherless(ness)” is used in place of “mother-headed” families. The bulk of the research comes from U.S. researchers, but every attempt is made to (1) find Canadian data and (2) concepts that apply equally to both countries.
Introduction
High rates of divorce/separation and non-marital births have led to correspondingly high rates of fatherlessness which have been escalating since 1960. This handbook will examine the father's role in the family and society. William Glasser's theory of the four psychological needs: to gain power, to have fun, to belong, and particularly to love and be loved, is used to argue for change in attitude and response to fathering as a family and social role. This handbook is divided into two parts, one on the underlying barriers to shared parenting and the other on the helping process. Both sections contain research-based arguments and suggestions for father to be included as an equal parent-partner.
The Systemic Problem: An Overview
Fatherlessness is defined as children living apart from their biological fathers, which is estimated to be 40% and climbing in the U.S. (Blankenhorn, 1995 et al). Sociologist David Popenoe suggests that
1. This is a problem with all industrialized countries and that:
2. It is expected to reach 50% by the turn of the century, if current trends continue. This means that 50% of all children born won't have a relationship with their fathers. The U.S. claims to have the highest rate of fatherless families in the industrialized world. The Canadian data suggest we are not far behind the U.S. However, the U.S. has a “Fatherhood Initiative Program”, complete with federal funding for social programs which has been in place for about the last two years. Canada has never officially recognized this social problem and as a result, our trends are likely to continue. Canadian data is used where possible. For discussion purposes, we will assume that some of the major claims made by U.S. researchers will apply universally throughout western societies unless the research gives cause of an ethnic or cultural reason to indicate otherwise.
Canadian statistics confirm the growing trend of fatherless children in Canada and suggest a potential for slightly higher figures than U.S. reports. The following chart illustrates some of the concerns of the above authors. The year 1922 was used as a base line and notes the most significant increases in non-marital births. Youth crime and divorce rates began around 1960, both in the U.S. and Canada, while the backdrop of population, total live births and marriages rates remained proportionate. Youth crime was added to the columns as opposed to other forms of socially deviate behaviour or maladjustment, as young males seem to be the largest group affected by this phenomenon noting that self-control and empathy seem to be two of the major character traits that fathers pass down to sons (Gottfredson, M. and Hirschi, T. 1990). Girls seem to have a “stronger locus of control” with greater father involvement (Radin and Russel, 1983); Marc Le Blanc, a criminologist at Université de Montréal, recently released his findings from a longitudinal study which says that youths are more violent now than thirty years ago and one reason for that is the breakdown of the family unit (M. LeBlanc, 1997) which is consistent with U.S. findings (Popenoe, 1995).
Some of the other U.S. statistics worth noting include:
These statistics translate to mean that children from fatherless homes are: 5 times more likely to commit suicide; 32 times more likely to run away; 20 times more likely to have behavioural disorders; 14 times more likely to commit rape (boys); 9 times more likely to drop out of high school; 10 times more likely to abuse chemical substances; 9 times more likely to end up in a state-operated institution; and 20 times more likely to end up in prison (FNF, Web Site, U.K., 1966). These statistics reflect far-reaching societal changes, one effect of which is to displace or damage father/child relationships. As a comparison, Canadian statistics indicate:
| Problem | Single Mother | Two Parents | Rel. Odds |
| hyperactivity | 15.6 | 9.6 | 1.74 |
| conduct disorder | 17.2 | 8.1 | 2.36 |
| emotional disorder | 15.0 | 7.5 | 2.18 |
| behavioural problems | 31.7 | 18.7 | 2.02 |
| repeated grade | 11.2 | 4.7 | 2.56 |
| current school problems | 5.8 | 2.7 | 2.22 |
| social impairment | 6.1 | 2.5 | 2.53 |
| total problems | 40.6 | 23.6 | 2.21 |
i.e. children of single mothers 2.21 (221%) times as likely to have one or more problems. (Statistics Canada, November 1996, issue 89-550)
Father Role and Divorce
Power differences seem to be somewhat exaggerated in divorce or separation cases where custody and access issues are a main concern to both parties. With approximately 80% of custody cases still awarded to mother (Statistics Canada 1910-12 present), mothers seem to have an upper hand in high conflict situations where familial breakdown is inevitable. With an entity such as the justice system being biased against one group and favouring another group, many fathers are forced into a corner in what they perceive to be a no-win situation. Clinically and personally, I've found that as a result, many fathers seem to adopt a stance of “fight or flight”. Some fathers vow to fight as long as it takes, while others just walk away and still others give up fighting, largely due to financial and emotional exhaustion. E. Kruk, an associate professor at the University of British Columbia, 1993 stated in a study that 40% of these fathers suffer from clinical depression and that 90% of them claim denial of access to their children. In a survey by the National Commission on Children, 1991, researchers reported that half of the children disrupted families hadn't seen their fathers in five years. Frank Furstenberg (Divided Families, 1991) adds that more than one-half of all children, who don't live with their father, have never been in their father's home.
Systemic Barriers to Father Child Rearing
Statistics Canada reports that approximately 50,000 children are fought over in our courts each year. This means that since around 1910, tens of thousands of children have had their relationships with their fathers severed prematurely through divorce or separation. For fathers entering this adversarial process their efforts to child rear are often hampered, resulting in their relationships being reduced to that of a frequent “visitor” in the traditional, common example of every second weekend.
Fathers who choose to fight in the courts, are often asked by lawyers for a retainer of several thousand dollars at a time when they are faced with moving expenses, interim child support payments and immediate familial loss, all with very little support services. Currently, in Greater Vancouver, there are three listed support services targeted for men, Fathers Without Children Counselling and Advocacy Services, Vancouver M.E.N. and B.C. Men's Resource Centre, none of which are funded by government. With divorce/separation, moving and loss at the top of the stress scales, it seems that there would be greater support in this area, but this is not the case. In fact, most agencies providing a government-funded social service refuse to provide service for separating or divorcing couples for fear of being dragged into court. Thus, at a time when it is most needed, services are frequently not available. Helpers working with families who are involved in court action should review their policy service provision as soon as possible as this may preclude any services.
With regard to power differences within parental roles, Polatnick, 1973-74, in a study of two-parent families, found that mothers do not want to give up their roles as primary caregiver despite complaining of being heavily overburdened by their responsibilities. In addition, mothers fear that increased paternal involvement may threaten fundamental power dynamics within the family. In other words, it seems this study found that although mothers complained of being overworked, they did not want fathers to play a more significant role in child-rearing, or possibly, they wanted more paternal co-operation, but without a power imbalance.
Parent Alienation Syndrome
In an extreme example of power struggles, the familial boundaries and alliances may shift from a parent-to-parent alliance in a healthy relationship to a parent-to-child one. An example of this would be what Larry Nicholas terms “Parent Alienation Syndrome”. In a recent forensic psychology symposium in Vancouver (April 1997), Dr. L. Nicholas described how one parent can intentionally attempt to alienate the other parent from the children, often by criticizing, or what Dr. R. Bower, a co-presenter, calls “cult-like” or “brainwashing” practices. Nicholas reported that in a sample survey of 65 psychologists, who represented a median of 10 custody and access evaluations annually, discovered that one-third of respondents reported moderate to severe symptoms of this syndrome. They implied that in the majority of cases, fathers were the targets of the alienation. Although both Nicholas and Bower emphasize that more research is needed on this topic, they suggested their assessment scale, used during custody and access evaluations, proved to be a valuable tool where this syndrome is suspect. I would add that if it was used on a regular basis as part of a standard criteria in evaluations, it may even be effective as a deterrent to parents who may be considering alienating the other parent. Some sample correlating symptoms in the assessment scale include:
Child
Target Parent
Alienating Parent
At this time, there seems to be no uniform format for evaluating. It largely depends on who and from what profession is doing the custody and access report. For example, family therapists may work from a bias of keeping the family unit together, as in the form similar to a distant familial relationship (like an extended family relationship), while Family Court counsellors and psychologists may work as investigators of each individual within the family to more of a traditional model of excluding the father from an active co-parenting role. Kruk 1993 states that mediation, in lieu of the public court process is what's best for children and families and that of the different models of mediation. Therapeutic Mediation - (A family therapist who is trained in all the issues surrounding divorce /separation) is the best model of mediation.
A Developmental Model for Shared Parenting
As a family counsellor in private practice, concerned mainly with issues of divorce/separation, I encounter many men who report they are not able to have access to their children for varied reasons. I recommended a book called, Children of Divorce - A Developmental Approach to Residence and Visitation (M. Baris, C. Garrity, 1988). This book provides guidelines for access (visitation) according to the child's level of development and includes children's developmental tasks, child's divorce issues, recommendation for parents living close and far, as well as the children's risk factors and was written by two psychologists. The book briefly outlines, in laymen's terms, the access and/or visitation guidelines for children from infancy to eighteen years and is based on a shared parenting model. The philosophy underlying the guidelines are based, in part, on popular theories around child attachment. These guidelines are only guidelines and adjustments should be made to consider individual cases, but should be applied in the same manner as child support guidelines. I have found that clinically these guidelines are practical and thoughtful and work well in discussions around shared parenting during therapeutic mediation.
The formula is simple and can be applied generally. Recommendations for children around two (at the time of divorce/separation) is daily contact of a few hours, or at the very least, every second day and by the age of five, the arrangement should be working toward sharing the parenting responsibilities equally. That is, two to three overnights a week are possible at the end of this stage. Increasing the time periods and overnights should be at six month intervals to allow for adjustment and transition periods to the new structure. Again, individual cases may vary slightly, but this is generally the rule.
For children six years and older (at the time of divorce/separation), the same six month increments should apply, but daily contact would change to twenty-four hour periods, two to three times a week and by age eight, children are able to handle weekly periods at either parent's house.
For children nine years and older, it is best to consider their desires around the amount of time spent at each parent's house. For example, some children may request one week time periods and others may suggest two week periods, and still others may want to stay with three days per week. Whatever is negotiated, children need to feel their concerns are heard and validated, while maintaining that parenting responsibilities should be distributed equally.
What is strongly recommended for youth is that their desires be heard and calculated into the shared parenting equation, as youth now have some individual rights in some provinces in Canada, B.C. for one. While shared parenting is best for all concerned, it is a possibility that without youth collaboration on the agreement, there may be rebellion to a divorce/separation at this stage of their development. Therefore, inviting the youth into negotiations, helping them to feel like part of the process, is also best for all parties. Children, at this stage, are able to stay with either parent for several weeks or even months at a time. However, for shared responsibilities with regard to parenting, both parents need to consider gender differences and continued involvement with school and related activities.
It is worth noting that parents often complain that children do not want to go on their scheduled access visits. These parents claim it is difficult to hear and see their children screaming and kicking and begging not to go. This experience is likened to children starting out a new school year. When parents return to the school to pick up their children, the teaching staff claim “they were just fine after you left” and “they had a great day”. Nevertheless, it is still a gut-wrenching experience and any parent would appreciate support when these situations occur. It is the usual recommendation that children should go anyway, based on two factors, flexibility and structure. With regard to flexibility, co-parents need to be somewhat flexible when considering daily routines of school, work and the related activities of two households. With regard to structure, it is always best for the parents to regulate the time spent at each parent's home, and not for the children to decide. After considering these points, the shared parenting agreement should be adhered to as closely as possible.
Feminist View
I note that recent media coverage regarding fathers' plights around custody and access issues and the new Bill C-41, Amendments to the Divorce Act, were written by feminists. Feminists speaking out for fathers and their children's needs to be parented by them (REAL Women of Canada, Vancouver Sun, 1997), Donna Laframboise (Globe and Mail, 1997). From the academic feminist perspectives on co-parenting/egalitarian parenting, (Chodorow 1978; Dinnerstein 1976; Okin 1989; Ruddick 1989;) the position of feminists has categorically argued for fathers to be an equal parent-partner. Men's groups (Fathers for Equality, et al) have been arguing the same cause for years in the U.S. and U.K. and more recently, in Canada, but without success in the media or the legislature. It appears that public perception of academic feminist views of parenting exclude the father as child rearer when in fact the opposition is true.
Innovative Programs
One model that seems to be gaining popularity is the idea of parent education during or post-divorce/separation. These programs have had some success in diverting families away from the court process, particularly in the child-inclusive models. This concept is now in practice in approximately 500 U.S. counties and recently piloted in Edmonton, Alberta and Burnaby, British Columbia. The Province of British Columbia has recently arranged financing to offer this service province-wide (Oct.'97). These parent education programs are, in some cases, mandatory for divorcing couples with children. They are usually offered in a workshop format over a several week period of about 1 to 2 hours a week. Some of these programs include the children in the workshops and others don't. Certainly the children/youth inclusive model is more comprehensive, but a parent-only program is less costly to provide. A child-inclusive model that gained international recognition in 1994 on ABC Television's 20/20 is called the “Kids' Turn Program”, based in San Francisco, CA. They divide their curriculum into three age groups for children: 4 to 6, 7 to 10, and 11- to 14-year-olds, in addition to a separate curriculum for parents. Communities may purchase a site licence to offer the program. Child/Youth Care Workers (CYCW) and family therapists may be contracted to work with children and families in their respective workshops. If this type of program does not exist in your community, it is worth advocating for as the children benefit immensely by having an avenue to express their feelings around family reorganization and problem ownership. The goal of the program is to “minimize the effects of divorce/separation on children/youth and their parents”. The following is an outline of the Kids' Turn curriculum that it addresses in their age respective workshops.
Four- to Six-Year-Olds:
Seven- to Nine- and Ten- to Fourteen-Year-Olds:
Parent Curriculum:
The program directors of Kids' Turn claim that cross-referencing the curriculum has profound effects on the parents and as a result, reflects the way parents view the developmental needs of their children when shared parenting is emphasized.
Popenoe (1995) describes another program based on a report from an inner city agency in the U.S., “The Mens' Services Division of the Healthy Start Program”. (This program aired on CBS Television's 48 Hours). The program creates an intensive father inclusion/education support program for youths or adults who had fathered children, but were at risk of not being involved with child-rearing. “At risk” mothers are identified to community health officials and in turn, fathers who were at risk of neglecting/abandoning their children are identified to the Men's Services Division. The philosophy of the program is that children will get a “truly Healthy Start” in life with both parents involved. A team of professionals worked on teaching fathering skills with the philosophy that if you teach them how to be good fathers, they in turn will want to provide for their children, financially and emotionally. Popenoe exclaims that of over 2,000 participants who went through these types of programs to date, a 97% success rate was achieved. The program directors state that it was never their intention to find jobs or work for these dates, from the perspective of getting them to provide financially for their children, but that monetary benefits would be bi-products of their fathering program (Men's Division, Healthy Start, Baltimore, 1997). The goal of Men's Services is: “To assist fathers and other male support persons with maintaining involvement with their children and families through the promotion of parenting skills and provision of peer and program support...regardless of the relationship with the mother.”
Objectives
Services Offered
Of course, there are many other ideas for social service programs other than the two mentioned above, but these two programs would address the two major causes of fatherless children, non-marital births, 22% (Statistics Canada) and the divorce/separation, 40% (Statistics Canada). However, society must change its view of the father's role in the family, first. Since 1960, there is a trend towards devaluing this role. If new programs and services are to be put into practice, then legislation and values need to change and in fact may be dependent on these changes. This dilemma will work itself eventually, but at what cost?
Since research indicates that 85% of children with behavioural and emotional disorders come from fatherless families (Ministry for Children and Families, single parent statistics, 1995), child and youth care workers are likely to be working with these children, youth and their families. We need to ask ourselves, “What exactly are we treating—the symptoms or the causes of their dysfunction or maladjustment?”
Guy Thisdelle, (signed)
Family Counsellor
Senator Anne Cools: I have a couple of questions for the second witness, Ms. Lothien.
Are you aware, Ms. Lothien, that currently the Divorce Act does have sections in it about physical and mental cruelty?
Ms. Jasmine Lothien: Yes, I am.
Senator Anne Cools: You're aware of that, but that does not satisfy your concern. You want something else in the Divorce Act.
Ms. Jasmine Lothien: My concern is that where there's custody and access, often women haven't brought forward...or it's dismissed and—
Senator Anne Cools: Right, but any judge in any divorce proceeding has to draw his powers from the Divorce Act, and that's already in the Divorce Act. I was just checking that you're aware of that. If you are, that's fine. You've answered my question.
Ms. Jasmine Lothien: The experience of a lot of women is that doesn't influence custody and access in any way. So I'm bringing forward those concerns, that where there is violence I would like that to be noted as well when it comes to custody or access.
Senator Anne Cools: Okay. You have obviously looked at this matter with some consideration. What percentage of divorces involve physical violence?
Ms. Jasmine Lothien: I know that the vast majority...so I would say probably—
Senator Anne Cools: You know it. What is your source for that?
Ms. Jasmine Lothien: The reading I've done from various sources said that. I haven't actually gone into court. I am aware that in about 29% percent of the relationships there is violence, but of that, there are common-law relationships as well.
Senator Anne Cools: Common-law relationships are not before us.
Ms. Jasmine Lothien: Right.
Senator Anne Cools: We are looking at the Divorce Act.
I'm trying to find out from your study, from your examination, from your knowledge, what percentage of divorces involve physical violence, spousal abuse.
Ms. Jasmine Lothien: It's approximately 52%. At least that's what I'm hearing from the Vancouver—
Senator Anne Cools: I was looking for a source that is reliable that we could look up.
You speak as though you counsel battered women. Do you do that?
Ms. Jasmine Lothien: I do.
Senator Anne Cools: Okay. Very good.
Ms. Jasmine Lothien: And I work in conjunction with the assaultive men's program.
Senator Anne Cools: So you work with all.
Can you give me some numbers? Of the people you actually serve, how many men and how many women did you serve with your organization, say in the past year?
Ms. Jasmine Lothien: Last month I saw 30 women—
Senator Anne Cools: Thirty women. Excellent.
Ms. Jasmine Lothien: —and about 15 men.
Senator Anne Cools: How is your organization funded?
Ms. Jasmine Lothien: It's funded from a variety of sources: the United Way; the Ministry of Human Resources; the Ministry of Women's Equality; and private donations.
Senator Anne Cools: But it's ongoing, so it's not sort of catch as catch can.
Ms. Jasmine Lothien: The program I am in has been in existence since 1979.
Senator Anne Cools: Good, so it's quite—
Ms. Jasmine Lothien: We've done a lot of the research ourselves during that time. We've actually seen thousands of families since 1979. So we have a pretty good research base.
Senator Anne Cools: And the people you deal with all go on to have a divorce.
Ms. Jasmine Lothien: No.
Senator Anne Cools: Okay, let's just back up for a moment. Of the people you counsel who are battered, what percentage actually goes on to get divorced?
• 2015
Ms. Jasmine Lothien: It's difficult to say. That would fluctuate, but I would say the vast majority do separate.
Senator Anne Cools: And get divorced?
Ms. Jasmine Lothien: And get divorced.
Senator Anne Cools: The tricky thing in this country is that constitutionally we must be dealing with divorce. We cannot deal with common law. It has to be a divorce, and it's a constitutional arrangement that perplexes many people. So, yes, I'm aware that people separate and go back together, but what I'm trying to discern from you is the number of people where there is violence who actually do go on to divorce. That is the number we have to try to measure.
Ms. Jasmine Lothien: I would say that of my client base, about 50% to 60% do go on to get divorced. The focus of our program is to provide services to both, and we are a family-centred agency. We provide counselling to both the victims and to the offenders, but if the offender successfully goes through the program, they can then choose the family therapy program for counselling.
Senator Anne Cools: Of those who went on to divorce, how many had a criminal conviction for abuse?
Ms. Jasmine Lothien: We don't take men in the program who are court-ordered. We take only those who voluntarily come into the program, from the standpoint that it isn't really effective when someone is forced into counselling.
Senator Anne Cools: I wasn't suggesting that. What I'm trying to figure out is how the determination of abuse is made, because there are some points of view that say an accusation should be treated as a finding. Then there is a point of view that says a finding is a finding and that a finding is determined by a criminal conviction. So I'm wondering, in the instance of the people with whom you're dealing and who have been abused, in how many instances convictions have been registered. I understand the difficulty and I'm very sympathetic. I'm just trying to get a—
Senator Duncan Jessiman: How many got charged?
Senator Anne Cools: That's the next question, but first, because spousal violence has the highest attrition rate in terms of charges not moving forward or being dropped or people changing their minds.... It's a very critical issue, because when one deals in intimate relationships, one deals with relationships, quite frankly, that change from minute to minute. So the angriest couple could be very loving two weeks down the road.
I'm just trying to get a handle on your client body.
Let me just back up again and put the question: How many have been charged? Of those who have been charged, how many convictions have there been?
Ms. Jasmine Lothien: I can't give you that number right now. I can tell you that right now in the program of my client base, of the 30 women, there are about seven whose partners have been charged and are currently awaiting trial. Again—
Senator Anne Cools: That's 25%.
Ms. Jasmine Lothien: Often they don't go through with it because of just the plain fear and intimidation that goes on. You can talk about couples being angry and then getting back together, but there's also something I find a lot in my work, which is the intimidation that makes a woman say, I'm not going through with this.
Senator Anne Cools: In addition to the intimidation, how many of those women themselves do not want to lay charges? I'm asking you the question because you seem committed to a particular group, so I'm assuming you have intimate knowledge.
Ms. Jasmine Lothien: Yes.
Senator Anne Cools: I've done a lot of work in this field and in my own data, a lot of the data I have worked with, the women were very reluctant to lay charges. As a matter of fact, a number springs to mind. It was around 10% to 15% where charges would be laid and then many of those would get withdrawn as time went along.
If one is not careful we portray women in a very negative light. The fact of the matter is that a relationship is a living thing, and people are moving and living and changing their minds and reinterpreting the past, minute to minute.
• 2020
What I find fascinating is that we've had a lot
of talk here about domestic violence today and last
week, but as yet today no one has presented us
with, say, a profile of a battered woman, or a profile
of a battering man, or a profile of the dynamics
of the relationship.
I was trying to encourage you to put some of that knowledge on the record.
Ms. Jasmine Lothien: First, a woman in this province can't lay charges. That responsibility is the crown's responsibility.
Senator Anne Cools: That's not right. A woman can lay charges any time.
Ms. Jasmine Lothien: Actually, it's the responsibility of the police to conduct an investigation and the crown to lay the charges.
Senator Anne Cools: But don't you have a zero-tolerance policy here as well?
Ms. Jasmine Lothien: Yes.
Senator Anne Cools: Precisely. So my understanding is that charges are laid quickly, with or without women's cooperation, quite often.
Ms. Jasmine Lothien: That's right. It's true. But first someone has to make that first phone call, and it's true that a lot of women do not make that call for a lot of reasons. The biggest reason is fear, and fear of retaliation.
Senator Anne Cools: How do you know that?
Ms. Jasmine Lothien: Simply from having done the work. I've watched women being stalked. I've seen women who've been battered and maimed. I've seen a woman who became a paraplegic after making that phone call. Even though there are bail conditions with no contact, that doesn't mean it will stop her partner from coming after her.
Those are pretty frightening consequences.
Senator Anne Cools: Very.
Ms. Jasmine Lothien: Intuitively, a lot of women are aware that they're going to be in more danger. I have to respect that.
Senator Anne Cools: Of the women you've worked with—and I'm not asking you about men, because you seem to be saying women, so I take it your client body is primarily women—how many have been seriously wounded and how many have been killed in, say, the past year?
Ms. Jasmine Lothien: Nobody I've worked with has been killed, but I have had two clients who were seriously wounded.
Senator Anne Cools: Perhaps you could put on the record the kinds of abuse.
Ms. Jasmine Lothien: Sure.
One client I was seeing started attending the group, and one night her husband got upset. She was getting her two-year-old baby and he came in. He was yelling at her, and she said, you know, I can't hear this any more. He proceeded to batter her. She had blood running all over her and her baby. He kept hitting her and hitting her, knocking her head, while her baby was in her arms.
He has been charged with assault causing bodily harm. The trial is still pending. She had stitches. Both her children were hospitalized, her one-year-old child for trauma and her two-year-old because they were in the way of the battering.
So we're talking about serious battering.
Senator Anne Cools: In that particular case, I assume she has filed for divorce and has been granted a divorce.
Ms. Jasmine Lothien: She has not filed for divorce yet. He is on bail conditions with a no-contact order that prevents him from even entering the community in which she lives. She is still recovering from the trauma from that battering.
Senator Anne Cools: Okay.
In British Columbia in 1997, how many women in British Columbia were killed by intimates?
Ms. Jasmine Lothien: It changes from year to year. I can't give you that number.
Senator Anne Cools: In the country, then, how many women were killed by intimates last year?
Ms. Jasmine Lothien: It's fallen to about 90.
Senator Anne Cools: Okay. Thank you, Chairman.
• 2025
I think it's important
though for us to get some of these profiles on the
record.
The Joint Chair (Mr. Roger Gallaway): Okay. Senator DeWare.
Senator Mabel DeWare: Do you want me to finish right now?
The Joint Chair (Mr. Roger Gallaway): Yes.
Senator Mabel DeWare: I just wanted to say to Dr. Gillespie how much I appreciate the fact that he brought this PEACE program forward to us. Have we got a copy of that with our documents here that we can look at?
Dr. Ian Gillespie: We'll provide it.
Senator Mabel DeWare: I think that's something we have to seriously take into consideration.
I also wanted to mention to Guy that I'm interested in what he was talking about. You believe mediation should be available, but not mandatory, and that parenting education should include the children.
The other thing is that we have a Head Start program where I come from, which is Moncton, New Brunswick. It has been there for about 20 years, and it's very effective. In fact, one of our members in the House of Commons, Claudette Bradshaw, was the founder of it. She's noted quite highly for her work in dealing not only with children in there but with all the parenting and the whole family program dealing with drug abuse and everything and even going to court to help her families. That's a very important program, and it works.
Mr. Guy Thisdelle: Yes, I support that program, but what needs to be added to that is federal funding that's made available for the men's services division components of that program. This is so that we then have permission to go and work with the fathers who fathered these children and encourage them to be involved with their children throughout the parenting years. That men's services component is missing in our country. We've asked for funding for it, but we haven't got it. I think it's crucial and critical.
With regard to mediation, what I'm suggesting is that mediation should be encouraged, but in divorce and custody situations, an automatic default should be that we should have a developmental model of dual residency. Then I think we would start to see a lot of these issues go away.
Senator Mabel DeWare: I'm glad to see you put that Head Start program—
Mr. Guy Thisdelle: Say we had guidelines like those we have for child support and maintenance. Say we had a developmental model for dual residency guidelines. We would just say that if you guys can't work it out, then this is the guideline that's going to be in effect. I think that would be extremely effective at helping people make decisions.
Senator Mabel DeWare: Thank you very much.
The Joint Chair (Mr. Roger Gallaway): Ms. Longfield has one quick question. I'm sorry, but we're going to have to cut it off here.
A voice: Did you want to make a point, Doctor?
Dr. Ian Gillespie: Mr. Chairman, I was just offering to give some statistics from a psychiatric perspective in response to Senator Cools' questions. I thought that would be helpful.
Senator Anne Cools: I would love a hard copy, thank you.
The Joint Chair (Mr. Roger Gallaway): Go ahead.
Dr. Ian Gillespie: First, I would like to commend to the committee's attention the May 15, 1997 issue of the Journal of the American Medical Association. There are three excellent articles in that on domestic violence. One shows the psychological consequences on women of abuse. The second deals with findings in Memphis, where they attended this on site. The third deals with something called the partner of violence screen, which can be done in less than 20 seconds, for identifying partner violence in the emergency department.
I gave some statistics about infidelity not being a major cause of divorce. Dr. Gottman said this was about 20% of the time. In North America, in middle-class marriages, it's estimated that 22% of the time domestic violence is the identified cause and 40% of the time couples describe it as drifting apart.
There's research from Australia about stalking victims that says that 83% of the cases involved women, which leaves 17% involving men. Some of the stalking went on for up to 20 years. That article in the British Journal of Psychiatry gives a review of the severity of the psychological symptoms in the victims.
Substance abuse is a serious problem that's often correlated with abuse. Correlation in the research suggests that this is from 57% to 87%. A study in Memphis said that 85% of the assaults were witnessed by children, and 35% of the victims, mostly women, were experiencing those assaults on a daily basis.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mrs. Longfield, you have the final word.
Mrs. Judi Longfield: Guy, you've given us statistics on fatherless families, but you don't have families that are fatherless as a result of death or institutionalization. I'm curious to know whether you find the same rate of rapes, suicides, and all that in sort of a corresponding percentage in those families. Many families are fatherless because of the death of the father. Do we find the same rate of juvenile delinquency or suicides in those families?
• 2030
Mr. Guy Thisdelle: I am not aware of that type of research, but I'd be happy to look it up for you, given the time to do that.
What is suggested is that there is a variety of reasons for father absence, but the two major contributors are known to be divorce/separation and non-marital births, based on, again, a complex formula. But in part, based on survey results as well, it suggests that with respect to father absence and non-marital births, there seems to be a general lack of commitment on the part of fathers for taking part in raising the children and doing the day-to-day parenting stuff.
Mrs. Judi Longfield: I'd like to know if it's more because there's an adversarial situation, as opposed to just one parent missing in the household, and you don't have the data.
Mr. Guy Thisdelle: No, but from my experience working with kids, I can tell you that the grievance and loss issues, if addressed appropriately, can deal with a large portion of those issues and complaints in regard to children. In large part, I would submit that they aren't appropriately addressed. I think parent education programs that involve the children in the workshops help to address those grievance and loss issues and family reorganization issues and that kind of thing.
In general, I think we tend to leave children to their own devices when family reorganization occurs, and I don't think that's very helpful when it concerns children.
Mrs. Judi Longfield: Do you have the same kinds of data on motherless families? We talk about fatherless families, but how about motherless families?
Mr. Guy Thisdelle: No, I don't have that data. Again, I would be happy to research that for you, if given the time to do that, and provide you with that information.
Mrs. Judi Longfield: Okay. Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you for coming here today and putting up with us at this hour of the day. It's been a long day and we're not finished. I thank you for being part of our work today.
Having said that, I would now ask the next group of witnesses to come forward.
Mr. Guy Thisdelle: Thank you for travelling out to beautiful B.C.
A voice: We wish we could stay longer.
The Joint Chair (Mr. Roger Gallaway): We have a group of four. From the YWCA Munroe House, we have Kelley Chesley, a transition house worker—if that's a correct description. From the B.C. Yukon Society of Transition Houses, Helen Dempster is here. From a group called Act II Safe Choice Program, we have Connie Chapman here, who is the program coordinator. And finally, from the West Coast LEAF Association, we have Shelley Chrest, who is the chair of the law and government committee.
I think I'm going to be adventurous. We'll start with Ms. Chrest.
Ms. Shelley Chrest (Chair, Law and Government Committee, West Coast LEAF Association): We were hoping we might start at the other end and then finish off at this end, if that would be acceptable. Sorry.
The Joint Chair (Mr. Roger Gallaway): That doesn't bother me. I'm trying to get out of my rut here. That's okay.
Ms. Kelley Chesley (Transition House Worker, YWCA Munroe House): Thank you, and good afternoon.
I am a transition house worker at the YWCA Munroe House, a second-stage transition house for abused women and their children.
The YWCA responded to the needs of abused women for long-term housing by opening Munroe House in 1979. It was the first second-stage shelter of its kind in Canada.
Second-stage housing differs from first-stage housing, where women and children stay for only a very short time. At the YWCA Munroe House, women and children can live in safety and with support for up to one year. It is predominantly in the second stage where we see the devastating impact of the family law system.
• 2035
The growing number of women coming to Munroe House who
were involved in lengthy, complicated, and dangerous
court proceedings alerted staff that abused women were
now facing new barriers in protecting themselves and
their children. In 1989 Munroe House staff started a
custody and access support group, again the first of
its kind in Canada. Very soon Munroe House began
receiving phone calls, letters, and faxes from women all
across Canada, the United States, and as far away as
Australia, looking for support and information.
In 1993, when I started the first custody and access support group for women in Ottawa, with the support of the United Way and the family law subcommittee of the regional coordinating committee to end violence against women, I contacted the YWCA Munroe House, as they were the recognized experts working on the front line with abused women and family law. Over 1,300 women have attended the support group, which now operates out of and with the support of battered women support services.
When I began working with battered women ten years ago, the focus of my job was to support women and children in achieving safe and independent lives. Now my focus seems to be on supporting women through years of traumatic court proceedings. Every day in my work women speak to me of the dangers of sending children to visit the very man they are seeking protection from. It doesn't make sense. Imagine telling a child he must go to visit daddy, a man social workers refuse to visit because they have found him too aggressive and intimidating. Imagine driving reluctant and sometimes hysterical children, who are tearing apart the back seat of your car, to see a man they are terrified of, and with good reason.
While the federal and provincial governments have made a commitment to end violence against women, it seems the court system has abandoned women along the way. I am paralysed by disbelief with the decisions being made by the courts. Women do not use violence as a trump card for control over the courts. It is extremely dangerous to assume they do. Women present themselves in court to tell the truth to protect themselves and their children.
As a worker I must provide women with information and support in parenting children who have witnessed abuse or, worse, are being abused. Reports to children protection services are unfortunately classified custody and access. The judiciary either does not recognize or is ignoring the reality of violence in the lives of women and children. Mothers must force their children to visit or risk jail or contempt of court.
Women often call the police themselves to assist them in enforcing the access order. Police struggle through the interpretation of numerous, conflicting court orders. The system takes over these women's lives. In fact, their abusers take over their lives with the help of the family law system.
Women and children lose in these court proceedings. Whatever financial settlement they may receive, their security is quickly spent on lawyers' fees, forcing them to legal aid, which responds by slashing their services, forcing women to represent themselves or forcing them into mediation. There are no choices here. In these situations the government child support guidelines and maintenance enforcement programs are not the top priority. The majority of women I have worked with never receive, and probably will never receive, child support.
The YWCA's 18 years of service at Munroe House, including nine years of extensive experience in custody and access, has shown us that abused women are being betrayed by the very system set up to protect them. The Divorce Act must not exclude the reality of violence in women and children's lives.
The YWCA shares and supports the recommendations of the ad hoc committee of the Vancouver Custody and Access Support Association, which includes a recommendation for a preamble to the Divorce Act that will provide guidance to the judiciary and paralegal professionals making custody and access decisions.
It is imperative that the protection of women and children be made a primary concern and not left up to individual interpretation and discretion. It is necessary to include protection from abuse as an objective of the Divorce Act.
Thank you.
The Joint Chair (Senator Landon Pearson): Ms. Dempster.
Ms. Helen Dempster (Coordinator of Children's Services, B.C. Yukon Society of Transition Houses): Thank you. I am representing the B.C. Yukon Society of Transition Houses, which is an umbrella organization representing 95 transition houses, safe home networks, second-stage housing, and women's support associations. Particular to me, as a coordinator of services to children, we have 56 programs around the province for children who witness abuse.
• 2040
As the coordinator of these programs, I am in the
unique position—and I believe it is unique—of hearing
from 56 counsellors working with children who have
witnessed violence or been exposed to violence. We're
not necessarily saying they have eyewitnessed violence,
although the majority of them have. These children
have been exposed to violence and the abuse of power
and control in their families.
The focus of domestic violence in the past has been mostly on the perpetrator and the victim. The silent victims of this violence have been the children of these relationships. It's really only recently, particularly in the work being done in the last five to 10 years out of Duluth, Minnesota and London, Ontario—and we have modelled our counselling programs on these two programs in particular—that some focus has been placed on the children of these relationships.
The research is indicating that children are extremely adversely affected by witnessing and being exposed to woman abuse in their family. These children are frightened. They're frightened for their mother's life, they're frightened for their own safety, and they're confused and terrified by their father's behaviour.
Recent research has also shifted their status now from forgotten to high-risk children who require effective judicial interventions and safety plans to keep them free from harm. They also have short- and long-term adjustment problems that require effective clinical interventions in order to promote their positive adjustment.
The general literature on the impact of divorce on children stresses the negative impact of conflict on children and the positive impact of co-parenting where the children maintain an ongoing supportive relationship with both parents. However, this research does not apply to children who have witnessed violence in the family. This research hardly even mentions violence and does not distinguish between conflicts due to differing opinions and conflicts due to violence and abuse of power and control.
Where children have been exposed to violence against their mothers, they need protection from the offending parent in the form of supervised access, limited access, and sometimes no access. The fact that there has been abuse in a relationship means we don't have two equal parents who can cooperatively plan for a child's future. Treating couples as if they are equal after there has been abuse gives abusive men further opportunity to abuse their ex-partners and to expose their children to the nightmare of violence and threats of violence.
We also support the ad hoc committee from the Vancouver Custody and Access Support Association's brief. We will be submitting our own brief shortly.
Some of our recommendations are as follows.
We recommend that the best interest of the child not be assumed to be maximum contact with both parents.
We recommend that Canada's Divorce Act reflect the reality of violence in many families experiencing divorce.
We recommend—and this recommendation is right from the ad hoc committee's recommendations—that an explicit statement be adopted within the Divorce Act that it is not in a child's best interests to be placed in the custody of or subjected to unsupervised access with a parent who has abused the other parent or any other member of the household. “No access” should be encoded as an option for judges to be able to use under some circumstances.
We also agree with the 1994 American Bar Association Center on Children and the Law, which states:
I'll just end with this. Having sat in for a little while this afternoon, I was thinking about the fact that Canada signed the UN Convention on the Rights of the Child, and article 12 says children have the right to be heard. I heard a discussion earlier about how we can do that safely so kids can be heard. We will have some ideas in our brief about how that can be done effectively and sensitively, because they do have a voice, and many of them are crying out to be heard.
Thank you for listening to me.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Ms. Chapman.
• 2045
Ms. Connie Chapman (Program Coordinator, Act II Safe Choice Program): Thank you.
I'm here representing Act II Safe Choice Program, which is a second-stage transition house, much as are the YWCA and Munroe House.
The Divorce Act allows couples who substantially agree, to formalize divorce, custody, access, and child support relatively quickly and inexpensively, compared to the times not so long ago when a private member's bill was the only option. The impetus for change is not coming from these people, but I believe it's coming from the men and women who are not able to agree to terms of divorce. Therefore, solutions have to take into account the situations of couples who have varying degrees of disagreement.
Some couples experience hurt, rejection, and power struggles. I think it's important to ask whether the solutions proposed to this committee such as mediation, joint parenting, and parenting plans will help these couples act in the best interests of their children.
In my understanding, mediation and parenting plans are solution-focused, not feeling-focused. They may help couples agree to terms of divorce and parenting, but they won't help them act in a mature, non-hurtful way toward each other in acting out those agreements.
Joint custody demands a high degree of maturity and agreement to work and will only be a battleground for parents who are struggling with each other. Children will be the ones who suffer when the power struggling continues.
For other couples, there has been violence and abuse throughout the marriage. I want to define abuse and distinguish between abuse and hurt.
The definition I use of abuse is that it's a pattern of violent and coercive behaviour whereby one person seeks to control the thoughts, beliefs or conduct of the partner or to punish the partner for resisting acts of physical violence. Hurt, on the other hand, is to cause pain or injury. Injury and pain can be either physical or emotional.
The distinction I'm making is that abuse is an ongoing pattern of behaviour with an intent to control or punish, whereas hurt is a painful or injurious act. Abuse is always hurtful, but hurt is not always abuse.
I want to share with you some of the common experiences of women I've worked with over the past 30 years.
A woman often goes into the marriage believing that the man she married is caring and loving, only to find herself living a nightmare of continued humiliation and abuse. After trying many things to make the marriage work, she leaves. The impetus for leaving is often concern for the children. Then a woman may find herself and her children with a decreased standard of living. When she goes to the courts to ask their children's father to help financially with the children, she may find herself in a protracted and nasty custody and access battle.
Sue May left her husband after extensive abuse to herself and her four-year-old son. She wasn't able to continue her minimum wage job due to visits and threats from her husband at her workplace. During the first three months of separation, the husband made no attempt to see their son. As soon as she applied for divorce, custody, and child support, the father counterfiled for custody. Sue May is still in the midst of that battle.
When and if the battle is settled, the access is used by the father to continue the abuse of the woman.
Bridget was ordered by the court to take her two children to supervised access three nights a week. On each visit, she and the children were told that he was going to kill them with the guns he kept in the house. He also threatened to kidnap the children and take them out of the country. She then finds that the systems that are supposed to help alleviate the situation collude with the husband and blame her.
Sarah was eight months pregnant when her husband left her again without food, money or transportation. He called social services and told them that his wife was neglecting his unborn child. Social workers, even after they heard Sarah talk of his physical abuse, only documented his concerns about neglect. This was later used in a custody case. She finds that courts operate on the belief that the father's action to the wife have no bearing on his ability to parent.
Taride was stabbed multiple times by her husband in front of their nine-year-old son and came within inches of losing her life and the life of their unborn child. The husband was arrested and finally sentenced to three years in prison. When he came due for parole, he petitioned the court for access and received supervised access. He believes it's his natural right to do with his family as he wishes. Social workers, who were originally concerned about the safety of the children, closed their file and see no reason to intervene.
Both Sue May and Taride are also trying to help their sons find ways of being healthy men in this world. Sue May's son, a four-year-old, draws pictures of big monsters and little monsters and refers to himself as a monster. Tarid's son has nightmares after each visit with his father. He says his Dad will kill them all one day. Yet each child is told by the courts that he has to see his father. How can these boys find their way as men in this world when they are told that the abuse each has seen and experienced is unrelated to their father's ability to parent? What are they learning about being fathers themselves?
• 2050
Senator Anne Cools: Perhaps you could put as a reference on the record the name of the case, because you said this child is being ordered by the court to see his brutal father. Could you give us the name of the case and put it on the record for us, please?
Ms. Connie Chapman: I'll find it. I don't have it with me. I'll put it in the brief so you'll have it.
The Joint Chair (Senator Landon Pearson): Could you move to your recommendations, please? You're over the five minutes.
Ms. Connie Chapman: I'm sorry. I just want to leave you with the hope that you will take into consideration that not all people who are asking for changes to the Divorce Act are asking for the same reason or need the same solutions. Some couples may only need a quick and relatively inexpensive way of finalizing terms that they have already agreed to. Other couples may need help working through hurt to get to a point where they act in the best interests of their children.
For couples...when they've been abused, solutions need to be in place that ensure the safety of the women and children and redefine the best interests of the children as the care and protection of those same children.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Finally we come to you, Ms. Chrest.
Ms. Shelley Chrest: Thank you.
West Coast LEAF is a non-profit organization that's affiliated with the national LEAF. The acronym LEAF stands for Legal Education and Action Fund. LEAF works on behalf of women's equality issues through charter litigation and law reform and legal education.
West Coast LEAF fully endorses the brief submitted by the AD HOC Committee on Custody and Access Reform and the National Association of Women and the Law, a submission that was submitted, I believe, in the hearings in the east.
West Coast LEAF wishes to underscore the importance of adequate funding for legal aid in custody and access cases and the federal responsibility in providing adequate funding to the provinces for legal aid.
Before April 1996 civil legal aid costs were shared by the federal government and provinces equally under the provision of the Canada Assistance Plan or CAP. That changed with the introduction of CHST, which of course we all know stands for the Canadian health and social transfer, and the resulting block funding, which ultimately resulted in less funding to the provinces.
We believe that the current funding and lack of national standards for legal aid are having an inequitable impact on women. In our opinion, the federal government has effectively abdicated its responsibility for ensuring that there is equal access to legal aid for women in this country.
Due to charter implications around criminal matters there's still federal funding for charter cases. Currently, there's no such triggering right for representation in civil legal aid cases. As a result, men, who overwhelmingly access the criminal funding tariff, are represented, and women, who overwhelming access civil legal aid, have less access to legal aid funding.
A specific example of the problem this represents occurs in the new federal child maintenance guidelines. We submit that these guidelines are currently inaccessible to many women in this country. Women continue to be the primary caregivers of children, and due to the major erosion that has occurred over the past several years in the funding of legal aid, many women cannot access the changes to the federal child maintenance guidelines.
For example, in British Columbia and many provinces across this country, women cannot get a legal aid referral to vary a child maintenance order. Consequently, many women are not able to access and benefit, as I mentioned, from the new child maintenance guidelines, but of course children are the ones who suffer.
There seems to be an underlying misperception currently, and I say this because our understanding is that in this province the federal moneys received are going towards the employ of child support clerks. We're told that these child support clerks are classified, under the union's BCGEU classification, as secretarial-level, which means ultimately that they don't have any legal training. My understanding, from meeting with people from legal services in this province, is that the idea is that these child support clerks will disseminate information around child support guidelines.
• 2055
Again, the underlying assumption that seems to permeate
so many of the changes we've seen to legal aid
and the statutory changes to other legislation
seems to imply or believe that parties can reach
a consent agreement on their own.
As a private practitioner who has done family law, I say, sorry, but the reality does not confirm that assumption. In fact, child maintenance becomes a lightning rod for the disputes within the family context.
All too often, unfortunately, men—and it certainly does tend to be men who are the payor spouses; there are statistics to back that up—tend to use child maintenance as a weapon in trying to attain custody. All too often, unfortunately, the receiver spouse is willing to capitulate, willing to give up any claim to child maintenance, to keep peace in the relationship. As a result, of course, children are not benefiting from these new, wonderful guidelines.
The Joint Chair (Senator Landon Pearson): Would you go through your recommendations?
Ms. Shelley Chrest: Yes, I will.
Senator Anne Cools: This is very interesting.
Ms. Shelley Chrest: Thank you, Senator Cools.
In conclusion, West Coast LEAF recommends, first, that there be acknowledgement of the importance of meaningful access to legal aid in any policies or recommendations put forward by this committee around custody and access. At the same time, we recommend that there be a recognition that mediation and alternative dispute resolution is often not a safe or viable option for women in custody and access disputes.
Second, we recommend that there be guidelines put in place around the federal transfer of funds for civil legal aid in order to ensure women's equal access to legal aid.
Thank you.
The Joint Chair (Senator Landon Pearson): Thank you very much.
Questions? Senator Cools.
Senator Anne Cools: Thank you very much.
I'd like to thank the witnesses for coming before us.
To the witness from LEAF, Jennifer Kosham—
Ms. Shelley Chrest: Actually, I'm here in place of Jennifer Kosham. My name is Shelley Chrest, Senator Cools.
Senator Anne Cools: Okay.
Perhaps, then, chairmen, we should have each one of the witnesses identify themselves. Otherwise, the record—
The Joint Chair (Senator Landon Pearson): They already have.
Senator Anne Cools: They did. Sorry. All the others are correct? Thank you.
You just said something that I thought was stunning. You said that the child support guidelines passed last year within Bill C-41 are not helping children at all. I'm wondering, do the other witnesses agree with you?
Ms. Shelley Chrest: To qualify that, Senator Cools, I have been speaking in the context of women who are having to access legal aid. What I'm saying is that if women cannot get access to varied child maintenance orders, then they are not helping.
Senator Anne Cools: Oh, then there are two different problems.
Ms. Shelley Chrest: So I'm saying—
Senator Anne Cools: Hold on just a moment. You now have to go back and correct what you said. Because if you're saying the problems are legal aid...but you went further than that. First you spoke about the problems of legal aid.
So perhaps we can clarify this. If I heard wrong, I'd be happy to be wrong; it's not a problem at all. But I heard you say that the child support guidelines are not benefiting children—not women; children.
If you didn't say that, just say you didn't say it, and that's quite fine. No problem.
Ms. Shelley Chrest: Again, I contextualized my whole discussion within a legal aid context, and focused on legal aid.
Second of all, again I emphasize that women are still primary caregivers within our society. There are plenty of statistics to back that up. I have some here. Therefore, the children of those women who are custodial parents who are not accessing the legal aid system are not benefiting.
• 2100
Senator Anne Cools: Good. So the problem is not the child support guidelines; the problem is—
Ms. Shelley Chrest: Legal aid.
Senator Anne Cools: Thank you.
The Joint Chair (Senator Landon Pearson): Dr. Bennett.
Ms. Carolyn Bennett: Thank you very much. The numbers we are being given show that maybe 80% to 90% of divorces just sign and that's it, and only 10% end up in court. Those are obviously construed as high-conflict ones. Do you have any idea what the percentage of abuse is in those high-conflict divorces?
Ms. Helen Dempster: I am aware of some studies. I think it's Barbara Hart and Joan Zorza in the States who indicates the more highly a divorce is contested, usually the more abuse there has been in the relationship. I shouldn't say “has been”, because it continues after divorce and separation. I'll refer to those for sure in my brief, but I can't quote exactly from them right now.
Ms. Carolyn Bennett: I also wonder about the 80% to 90%. Because of the power differential in lots of relationships, are you aware of people who, because they can't afford lawyers or whatever, sign things that may not be in the best interests of the children just because they can't face going to court or can't face the legal system?
Ms. Helen Dempster: Yes, that happens many times. There are multitudes of anecdotal stories. I am not sure about documentation.
Ms. Carolyn Bennett: Obviously, one of the things this committee has been struggling with is the issue of false allegations. The feeling around it is there's not enough to worry about, but I feel we have to deal with this in a real way, because if we don't deal with legitimate false allegations properly and follow them to the end, the cloud of false allegations will fall over all of the others.
Ms. Shelley Chrest: Could I just clarify, Dr. Bennett? Are you speaking of sexual assault allegations—false allegations?
Ms. Carolyn Bennett: No. I think some of the social workers have presented the weapon of choice argument that if things aren't going well in a custody access battle, women are counselled to say there has been physical abuse.
Ms. Helen Dempster: It's the contrary. Women and children minimize. What I hear from the 56 counsellors I'm working with is they wish they could empower the women and say “Speak up and take this seriously. What do you mean, you're letting them go for a visit on the weekend?” The counsellors find the women minimize and the children are certainly not naming the experiences of abuse either. There's much teaching that goes on about the effects. I don't think we should deny there are probably some true allegations, but for workers in the field we can hardly.... No, I mean us.
Ms. Carolyn Bennett: No, I'm saying violence is a huge issue and we have to deal with it, and obviously all of the places you represent deal with it on a daily basis. But if a lawyer is found to have counselled somebody to do this, what do we do about that so it's easier for you to look after the majority of these allegations that are true?
Ms. Kelley Chesley: You probably won't find a legal aid lawyer who will counsel a woman to do that because legal aid lawyers, in my experience, run from custody and access proceedings. They're complicated and long.
• 2105
So if a woman
is on legal aid—just taking a look, in the ad hoc brief
we talk about a preamble, and we talk about laying things
out in a very clear and concise way that will not
perhaps find the false ones but know when the women are telling
the truth.
Ms. Shelley Chrest: If I could add to that briefly, a lawyer counselling a client to create or to present false evidence should be reported immediately to the law society in whichever province they're practising, and a lawyer is just not going to do that. They're not going to risk their whole existence. There are some people who doubt that. We all know the lawyer jokes and we all have doubts about lawyers, but truly it's not conduct that's acceptable to the law society or to lawyers in general.
The Joint Chair (Mr. Roger Gallaway): Senator DeWare.
Senator Mabel DeWare: I have a question for Ms. Chesley.
I was just going to say, 40 years ago I was president of the YWCA in Moncton, and we ran a home for girls, but not a transition house. Forty years makes quite a difference.
You made a statement that I'd like you to elaborate on a little bit. You said the women she works with and the women you work with will never receive child support.
Ms. Kelley Chesley: I said government child support guidelines and maintenance enforcement programs are not the top priority for the women I work with. Many of them fear for their lives. So when we go to a lawyer for the first time, it's the standard looking at this and looking at that, and the lawyer will say, well, I guess you want to look at making an enforcement order. Once a lawyer hears the story and hears exactly the difficulty that's going on, the lawyer will say, I guess we have to put that proposal on the side for a while.
Most of the women I have worked with never received, and were not receiving, child support payments at that time, and probably never will.
Many women I work with change their names. They are in hiding. They are petrified. They are afraid for their lives and for their children's lives. So if it means when you go to court and you have to get your child support guidelines.... Then, for some women who do—the few who get the child support—it is an unbelievable task for them to have continuity, even to get involved in the maintenance of an enforcement program.
It takes a lot of work. You have to have a good command of the English language. You have to be able to make telephone calls and go to your appointments and file your papers. By the time a women has been seven or eight years in the legal system, she doesn't want to do that any more. For what? It's unfortunate, but....
Senator Mabel DeWare: Thank you.
Senator Anne Cools: It makes you wonder why some of these people marry such bastards.
Ms. Kelley Chesley: Yes, they're the most charming people on the earth, those bastards.
Senator Anne Cools: On the B.C. Yukon Society of Transition Houses, I take it, Ms. Dempster, that's an umbrella lobby group.
Ms. Helen Dempster: It's an umbrella organization for transition houses, safe home networks, and so on, around the province.
Senator Anne Cools: And I think it's 50 houses?
Ms. Helen Dempster: No, there are over 95.
Senator Anne Cools: That was it, 95 houses.
Ms. Helen Dempster: There are the 56 children's counselling programs, and that's actually in addition to all of the child care workers who are employed as well.
Senator Anne Cools: That's fine.
In those 95 shelters or refuges, how many women did you serve in 1997?
Ms. Helen Dempster: I didn't come prepared with those kinds of statistics, as they are in my brief. I can tell you, in regard to the children's counselling programs that I am familiar with—
Senator Anne Cools: I'm interested in how many were battered.
Ms. Helen Dempster: All of the children in the counselling programs have witnessed violence, or they can't get in.
Senator Anne Cools: No, I'm trying to get an idea of the enormity of your job. How many women—
Ms. Helen Dempster: Oh, how about the fact that B.C. has the highest rate of wife abuse in Canada, according to the Canadian Panel on Violence Against Women?
Senator Anne Cools: Therefore, you know a lot about this subject matter. You can tell me how many women your agency served last year.
Ms. Helen Dempster: I don't know how many women each of the transition houses served.
Senator Anne Cools: I mean the total number.
Ms. Helen Dempster: I don't know.
Senator Anne Cools: So you can't tell me how many of the total number served—
Ms. Helen Dempster: We do know, back in the office.
Senator Anne Cools: Of the total number served, can you tell me how many were battered?
Ms. Helen Dempster: All of them.
Senator Anne Cools: So you don't have....
Ms. Helen Dempster: It's the criterion to be in one of our shelters.
Senator Anne Cools: So you don't also take in people who have been evicted from their home with children, that sort of thing.
• 2110
Ms. Helen Dempster: Yes, there are some exceptions where a woman would qualify.
Senator Anne Cools: Okay. This is why I was asking about the total number served. Most transition houses have several categories of client bodies; some are battered and some are homeless. I'm just trying to find out the enormity of the problem.
Ms. Helen Dempster: It's huge.
Senator Anne Cools: Well, then give it to me in a manner that I can quantify it.
Can I continue then? How many were battered?
Ms. Helen Dempster: All of them.
Senator Anne Cools: All of them. Very good. Of those who were battered, how many filed for divorce and went through divorces?
Ms. Helen Dempster: I don't know.
Senator Anne Cools: You don't know.
Ms. Helen Dempster: No. I think I stated that I didn't come prepared to give those kinds of statistics at the hearing.
Senator Anne Cools: Does your office know?
Ms. Helen Dempster: No, because we would need research dollars to research how many are divorced. We're here to try to protect women and kids, so—
Senator Anne Cools: I would expect that if you have them to protect, you can count them.
Ms. Helen Dempster: I think that's a question that should go to the province, because they fund the transition houses, and they should be able to come up with those kinds of stats.
Senator Anne Cools: Okay.
A voice: Excuse me; can you repeat that last question, please?
Senator Anne Cools: I said if you can receive them—
The Joint Chair (Mr. Roger Gallaway): Senator Cools, one moment, please.
Where did that question come from? You are not allowed to pose questions from the audience.
A voice: All right.
The Joint Chair (Mr. Roger Gallaway): Please be quiet.
Senator Cools.
Senator Anne Cools: Okay. My understanding of the shelters is that one reported almost on a daily basis the number of people who stayed in those shelters, because many of the funding formulas were based on per diem rates. But that's okay; it's not a problem.
Ms. Helen Dempster: Not any more, no, not for a long time.
Senator Anne Cools: Okay.
Of the women you served in your shelters, how many were killed last year by an intimate?
Ms. Helen Dempster: I don't know about how many were killed who were in transition houses. I do know the last six to eight months in this province have just been an absolute nightmare for women and children.
Senator Anne Cools: No, I'm interested in your client body. I really want to know, of the women you serve who are living in fear of their lives, how many are being killed here in British Columbia?
Ms. Helen Dempster: Senator Cools, with due respect, I did state up front that I didn't come prepared with stats around the women who have used our transition houses in the province.
Senator Anne Cools: Okay. Well, let me say it this way. Did you even have one? Because 30 you would remember. Were any killed? Were any of the women who stayed in the shelters with you last year killed?
Ms. Helen Dempster: Women who get murdered don't make it to transition houses. I know some transition house workers know of some of the women who were killed in the last six months in our province.
Senator Anne Cools: Okay, because this is quite true: a lot of women who are hurt—brutally, terribly, terribly hurt—do not go to transition houses. I'm glad you made that admission. But what I'm trying to get at is the body of people you've been serving, because if you are asking us to make recommendations on their behalf, you have to give some faces and names and numbers.
Ms. Helen Dempster: Okay. That's fair enough.
Senator Anne Cools: All right. So you cannot think offhand of a single woman who stayed in your shelter last year who was killed by a spouse?
Ms. Helen Dempster: Well, I don't work in a shelter. I work in a downtown office in Vancouver.
Senator Anne Cools: I thought you were here representing the B.C. Yukon Society of Transition Houses.
Ms. Helen Dempster: Yes, I am indeed.
Senator Anne Cools: So don't you work...? I'm confused.
Ms. Helen Dempster: I work for the umbrella organization. I'm not doing any front-line work in a transition house.
Senator Anne Cools: No, I wasn't suggesting that. When I say “you work with”, I mean the people you're representing here today. That is the credential you have for appearing before us today: that you're representing someone. So when I say “you work with”, I mean you are here on their behalf.
Ms. Helen Dempster: Right. Okay.
Senator Anne Cools: Good. Okay. So what I'm trying to find out is, of the women who stayed in the shelters in British Columbia, was any single one of them, to your knowledge, killed last year by an intimate?
Ms. Helen Dempster: Actually, the best place to go for that is to the province, to the Ministry of Women's Equality, because that's where monthly stats from transition houses go, and I would hope that if a woman had stayed in a house and been killed, somebody would have reported that to them.
Senator Anne Cools: Well, I would have thought you would have known.
Ms. Helen Dempster: Yes, and I don't, so—
Senator Anne Cools: Right. Unfortunately you are here before us. That's quite okay. I quite understand.
Senator Mabel DeWare: I'd like to have her answer that question she started to answer about the violence in B.C. this year, how it's higher than it's ever been before.
Senator Anne Cools: Oh, I can give her a supplementary. She can go ahead on that one.
• 2115
Ms. Helen Dempster: This is based on statistics from the 1993 Canadian Panel on Violence Against Women, which showed that, as a national average, 52% of women had been in an abusive relationship; in B.C., it was 59%.
We're looking at why that is, but we certainly know that we need lots of resources to deal with it and that the cutbacks are having a tremendous negative impact on serving those women and children and helping to keep them safe.
Senator Anne Cools: I wonder whether the researcher can find out for us the number of women killed here in British Columbia.
The Joint Chair (Mr. Roger Gallaway): Okay. The final word is to Dr. Bennett.
Ms. Carolyn Bennett: Just to go back, Ms. Dempster, this is separate from Senator Cools' line of questioning. I can see that you are the coordinator of children's services, so I guess I just want to go back to the kids and ask: what do you think we could do to give those children a voice in the non-contested ones, particularly in the high-conflict ones? I think what we're starting to hear—this is what I think the children's advocate who was here today was saying—is that all children in high-conflict situations should have an advocate or counsel.
Ms. Helen Dempster: Most of them should have that, for sure. I do think that, in some cases, a judge can meet with those children in separate quarters—this would be out of the courtroom, in a judge's chambers—with an advocate to hear what the kid has to say and have it be a relevant factor. We all know that kids don't always know what's in their own best interests, but have it be a factor.
We have the words of many children. We want to publish a book of their art, poetry, and words—“Give me to my father, or this will never end.” The poetry has very provocative and moving words that the children are saying to someone, but that isn't being gathered up or being reflected in what's happening to them. I think many of them are feeling very powerless. They're confused about why this is happening to them.
Ms. Carolyn Bennett: Are there times that you feel powerless because—
Ms. Helen Dempster: Yes.
Ms. Carolyn Bennett: —an agreement is signed that you feel is not in the best interests of the children? Is there any system we can put in place whereby you could get that child an advocate?
Ms. Helen Dempster: It's a great struggle. In most cases, it's not possible.
I just had a phone call yesterday from a counsellor out in a rural community in B.C. Legal aid will not represent the woman, so the woman is going to court on May 7 to represent herself around the custody of the child. The father has actually had no access or interest in the child for five years, so we don't know why he has now indicated an interest and is going for custody. Nobody asked the kid what they want. I do know of 14-year-old children who don't get asked either what their opinion is, and I think that's outrageous.
The Joint Chair (Mr. Roger Gallaway): Senator Cools.
Senator Anne Cools: I have just one more question. I'm going to get to changes again on numbers. In the shelters of British Columbia, how many of the children you serve, since you're very active with children, have child welfare supervision orders on them?
Ms. Helen Dempster: I don't know what you mean by child welfare supervision orders.
Senator Anne Cools: A supervision order is where Children's Aid or the child welfare authorities are concerned that the child is being hurt, yet the child has not been apprehended. They're still in the custody of parents, but there is a supervision order. I would have thought you knew what a supervision order was. It basically says that the crown has asked Children's Aid to keep an eye on that child. In other words, a child has been declared in need of some protection even though they have not been apprehended. They are still in the custody of parents but need attention and supervision. That's what a supervision order is.
Ms. Helen Dempster: Yes. I guess we have a B.C. and Ontario language difficulty here.
• 2120
Senator Anne Cools: “Supervision orders” is pretty universal language.
Ms. Kelly Chesley: Child protection orders, actually.
Senator Anne Cools: Yes, but it's still a supervision order. It means the child needs support.
Ms. Helen Dempster: Right. There have been some interesting things that have happened in this province as a result of Matthew Vaudreuil's death, the Gove report, and the creation of the Ministry for Children and Families. We've actually seen an increase in child apprehensions in the province, and now there's this review process where we're all sitting back and asking if these were good apprehensions or were there other things that could happen instead of apprehension?
We do know that mothers get blamed now more and more for not keeping the children safe. That's problematic, because the mother's struggling to get out of the relationship, getting out of it, and then being blamed because she should have got out of it sooner; look at the impact on the kid.
Senator Anne Cools: Do you have any idea of the numbers of women who are being so mistreated?
Ms. Helen Dempster: Again, the province would have those. They know how many kids are in care and how many they've apprehended in the last...or since the Gove report.
Senator Anne Cools: Are the shelters here not each one individually independent corporations?
Ms Helen Dempster: They are independent, non-profit societies.
Senator Anne Cools: Don't they have to do annual reports where they reveal the number of people they've served?
Ms. Helen Dempster: Yes, most do.
Senator Anne Cools: That's what I would have thought, that this part of the information is not that difficult to get.
In any event, Madam Chair, this whole phenomenon of the child protection as it impacts on these issues is something we're going to have to take a very long and serious look at. I'm very interested that the witness mentioned the case of Matthew Vaudreuil, and had we had some time I would have been interested to know from the witnesses what their positions were vis-à-vis the Matthew Vaudreuil case and what kinds of recommendations did they make to the authorities in the interests of that child.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Senator Anne Cools: It was a terrible tragedy.
The Joint Chair (Mr. Roger Gallaway): Once again we would like to thank you for coming. I know it's getting late in the day. We have one more group to hear from. Thank you and have a good evening.
We will call at this point our last group for the day. We have here with us for our last half hour Mr. Erik Austin, Mr. Christopher Gratton-Mathisen, and Mr. Doug Reid.
Mr. Austin, if you want to start, you have five minutes.
Mr. Erik Austin (Individual Presentation): Very good, sir. Thank you very much, Mr. Gallaway and Senator Pearson, and members of the special joint committee.
Thank you for the privilege of making this statement today on my own behalf and on behalf of my friend, Mr. Robin Skeates, with his permission, as described in my application.
We are both fathers of two children and have had the experience of being denied regular access to our children as a result of legal family assessment or political processes. We believe the children must be protected from abuse or negligence in any form—physical, emotional or spiritual—and this extends to abuse of process.
There's only one thing lower than a parent who harms a child in this way, and that is a parent or family assessment worker who falsely accuses another of this behaviour or implies its risk to manipulate court proceedings. We have both had the experience of being accused of this, directly or by innuendo.
In my case, in 1990 I sought a court order prohibiting my former wife from removing the children from Ontario to join her boyfriend in British Columbia. Following the order's issuance, pending a family assessment, I was cautioned by a professor of psychiatry at the University of Toronto I consulted for forensic counsel that if proceedings began to move in my favour, I should be prepared that a false accusation of abuse might occur. He stated this was currently gaining momentum as a devastating legal tactic for which there is practically no defence, by virtue of the shock it creates, the accused parent's requirement to prove something did not happen and never will, and the conservative reaction it prompts from a judge.
• 2125
Ironically, that accusation was never made in the case
against me directly by my former wife, but it was
suggested with sufficient innuendo in the family
assessor's report, based upon selective editing by him
of his interviews. This prompted rebuttal letters from
interviewees at my request, pointing out how they had
been misquoted by the assessor, but they were too
late. The court had already ruled.
The professor of psychiatry I consulted knew my family unit well and foresaw a catastrophic loss for my three-year-old and five-year-old children in being removed from me. He described evidence of their emotional turmoil. The assessor failed to report to the court the professor's recommendations, which had been:
On reviewing the assessor's report and the recommendation that their mother be permitted to move, the professor stated this was, “character assassination... you have been gang raped.”
In Mr. Skeates case, the accusation of abuse was directly made. He was accused of bathing his five-year-old son in an inappropriate manner. Fortunately, a family friend had taken a home video of an entire access weekend as a momento, which was shown to the judge in Mr. Skeates' defence. The judge concluded that such an accusation was groundless. In the absence of that home video, Mr. Skeates believes his ability to gain access to his children would have been severely undermined.
There are two matters we wish to address especially today. The first is regarding judicial and legal training in family assessment. Lawyers and judges require training to identify bias and incompetence in family assessments by expert witnesses. This is needed to reduce the likelihood, to the lowest common denominator, that social work precedent or judicial whim is used to guide custody and access rulings.
The best practices, based upon principles and effective co-parenting arrangements that work, must be understood by judges and legal counsel. The practices must evolve based upon insight, creativity, courage, and objective research, for the entire system to evolve.
The second is with respect to jurisdictional conflicts. Three years ago my friend Robin Skeates turned to me in turmoil. He resides north of Toronto and is the father of two full-status native children who live on the Aroland Reserve in northern Ontario. Mr. Skeates is also disabled. He has just completed a degree in civil engineering from Ryerson University, despite advancing retinitis pigmentosa, a genetic condition leading to blindness.
The studies have required complete dedication and great effort with the goal of providing increasingly for his children in the future. On August 2, 1995, the Aroland band council passed band council resolution 169, resolving that the chief and council of the Aroland First Nation:
—their mother—
This resolution was in response to a subpoena to appear before a provincial court judge issued two weeks prior, which the chief and Ms. Mobishwash had ignored. It had taken Mr. Skeates three years to gain a provincial court order of access to see his children, another eighteen months to determine the court's approach to dealing with a jurisdictional conflict, and another six months to prepare the documentation leading to the order for access.
In this stalemate, I worked with my friend to compose and send letters to Grand Chief Ovide Mercredi, Attorney General Allan Rock, and Ontario Solicitor General Charles Harnick, stating the facts of the case and referring to the United Nations Convention on the Rights of the Child, to which Canada is a signatory and which we view the case is violating.
In my brief, I've submitted the articles we felt were in contradiction.
The Joint Chairman (Roger Gallaway): Mr. Austin, are you finished? Your five minutes are up.
Mr. Eric Austin: Very well, sir. Let me just close on my recommendations, if I may.
I respectfully suggest that the committee will make a great contribution by refining its broad mandate into the single most important question to answer that will guide the judiciary and the legislature in these matters.
Carl Jung, a great Swiss psychoanalyst said “All the greatest and most important problems of life are fundamentally insoluble.” They must be so, for they express the necessary polarity inherent in every self-regulating system. They can never be solved but only outgrown.
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By re-establishing the polarity between men
and women and a child-centred resolution
of these conflicts, I believe the system can,
in time, become self-regulating.
Thank you.
The Joint Chair (Mr. Roger Gallaway): Thank you.
Mr. Reid.
Mr. Doug Reid (Individual Presentation): Okay. My computer printer went this morning.
I come from a number of directions here. I myself was raised by my grandparents due to the alienation of my father.
In the past ten years I was trained as a psychologist in assessment. I worked right at UBC for five years. Among other things, I developed a behaviourally based assessment instrument used by their out-patient clinic for the last decade.
After my first unsuccessful trial for custody, I went through what I call a “cancer of the soul”. I view a lot of the problems in domestic violence.... I'll refer to that later.
I'm also very active on the Internet. You've all probably received my e-mails and faxes and so on. I organized 250-odd activists across Canada, and things like that. I also have a mail list for B.C.
I've been through three custody trials, and I'm on my third custody and access report. I've been dealing with the Ministry of Children and Families for many years. They finally closed their files on me this January.
I have a little survey here that I think you might find interesting. I surveyed about 150 people last year through the Internet, and about 42 leaders of Canadian non-custodial parents' groups. About 12 to 15 of them are appearing as witnesses before this committee across Canada.
First, on a scale of 7, there was a 6.72 rate of agreement that the Divorce Act does not recognize both parents' innate need to care for their children. That's the number one concern of non-custodial parent groups across Canada. So a rate of 6.62 out of 7 showed that the Divorce Act does not recognize children's needs for both parents.
Three, a rate of 6.59 showed agreement that the Divorce Act does not properly recognize the parent-child bond, and 6.21 that the Divorce Act does not define or provide any guidance as to what the children's best interests are. That's what's concerning the majority of fathers' rights and non-custodial parents' groups.
Let's look 30 years ahead, the way we're looking 30 years back. What are we going to see? We're going to see wages equated, basically. They now are in terms of same job, same pay. There's a difference if you do different jobs. Most of our jobs will be information- or service-based, and home-based, so parents will have the ability to parent their own children.
The result I see most often, through all my sources right around the world, is shared parenting. What is this miracle, this shared parenting panacea?
It's an assumption, entrenched in the UN charter of rights, that there's a fundamental relationship between a parent and child that is inviolable. It is a piece of the parent. Therefore, that child has a 16-or-so-year right to be nurtured by that parent, and the parent has a responsibility to nurture that child for 16 years. There's no way you can get out of it.
Now, you can do it two ways. You can do it directly, through parenting yourself, or you can do it by replacement, through support money. It's like breast milk compared with formula.
What's this going to do if we just split the kids up the middle?
Let's get to the cancer of the soul.
Ed Kruk is supposed to be talking to you tomorrow.
Of fathers separated from their children, 60% suffer from clinical depression, and 52% report new medical complaints, with three times the number of drug and alcohol problems. Between 50% and 75% of domestic violence occurs around custody and access, separation and divorce. As well, we get three times the suicide rate amongst fathers.
This is what I call cancer of the soul. It's a natural mechanism. It's the opposite to holding your little baby and knowing it's safe, warm, and taken care of. When you're separated, there's this drive to return.
To me, this causes domestic violence. The majority of domestic violence is over the children and access, and raising them.
With a 50-50 split, what's to fight about? There's no motivation. You can't threaten the other partner. You can't take the kids away. There's none of that. You just remove the cause for domestic violence.
How are we going to effect this? One, we have an automatic default assumption of 50% shared parenting. That's it. You don't go to court or anything like that.
How do we enforce it? The Ministry of Children and Families in B.C. already has all the regulations and the responsibility for doing that.
If I'm afraid—and I've been a custodial parent for the last two and a half years now—to give my child to the other parent, I register with the enforcement and access program. If I have a complaint, I go to the Ministry of Children and Families. They investigate. They have a national standard.
This is another problem. We have no national standard for abuse and neglect. We don't know what we're talking about. This is a worldwide problem. It's all subjective.
So they investigate. If the parent is at least adequate, there's no fear of transferring the child over. If there is a problem, it's identified. If it's drug and alcohol, they go to that program. If it's violence, it's to that one, and if it's something else, it's to that one.
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So you've taken the ministry that's in charge of
ensuring the safety of these children, put it on the
front line, immediately fed these problems in, and now
it's up to them to provide the services. The parent is
not adequate. They're supervised either loosely or
closely—or remotely, say, by urine analysis checks for
drug and alcohol problems and that sort of thing. So
we now have removed the motivation for domestic
violence. We now have the ministry responsible for
monitoring this.
But I'm not getting my child. I register for the access enforcement program just the same as if I'm not getting my support. I'm not going to fight that parent. I'm just going to register and they do it. There's no excuse for that child not being delivered.
We've now solved a great deal of the violence programs here.
The Joint Chair (Mr. Roger Gallaway): Mr. Reid, your time is up.
Mr. Doug Reid: Okay. The last one—
The Joint Chair (Mr. Roger Gallaway): All right.
Mr. Doug Reid: —is UIC, unemployment insurance. Tack on 0.5% for support insurance because it hits the fan in that first year you're unemployed and causes a lot of problems.
The Joint Chair (Mr. Roger Gallaway): Mr. Mathisen.
Mr. Christopher Gratton Mathisen (Individual Presentation): Thank you, Mr. Chairman, and thank you, committee, for giving me the opportunity to speak before you tonight.
Over a period of two and a half years I appeared before 27 different judges/masters on 48 applications brought on by a series of seven law firms, two of which were retained by me, the rest by my then wife. The billing is in excess of $500,000, which, along with the family debts, has brought this family to a state of near-bankruptcy.
I suspect that litigation is not yet over. There are five other ongoing investigations regarding various counsels' behaviour and the expert's section 15 report on this matter. These and other investigations may well take two or three more years before any resolution.
Without my knowledge, in 1995, my wife, after consultation with several lawyers, commenced legal proceedings against me by way of filing misleading and false affidavit material to secure an ex parte restraining order against me. That order was pronounced by a close family friend of my then wife's father who had been a provincial court judge in British Columbia. Thus was the status quo of our family changed.
I had no problem with wanting to get a divorce. The marriage was over. However, I did want and expect to continue as my children's father. I did not anticipate that the relationships between myself and my four daughters would become, for all intents and purposes, severed. What the court wanted and expected was to enforce the status quo at the expense of those relationships and of the law itself.
The children were isolated from me and their entire extended family by my then wife employing every trick of the matrimonial trade. I was denied access almost immediately. The custodial parent lied to the children and claimed I abandoned the family. She told the children I was having an affair with her own sister, their aunt, and that I did not pay $96,400 a year in support.
The relationships between myself and my four daughters changed, deteriorated, and disappeared. During a 10-month period I saw my children for a total of eight hours, and that was not consecutive. Certainly their father's image had changed in their eyes, as had their lifelong relationship with me. Fear and mistrust replaced warmth, closeness, and love. I had become the enemy.
There are no words to describe how I felt as this was happening. There was uncertainty, anxiety, and the fear of losing my children. There are simply no adequate words for this, except to say that it was a needless tragedy and a family law disaster.
I felt anger and shock at the ease with which parent alienation was facilitated through the court, buttressed by a psychologist whose words are now totally denied by the children. I felt frustration with the long, drawn-out, and costly process of getting a date set for an application and the subsequent adjournments and so on. The legal process drew it out inexorably and at great cost.
The custodial parent deliberately and openly disobeyed every court order. Among a number of other things—violence, perjury, assault, and extortion—the custodial parent included some of our children in a break and enter in 1997 at my residence, with the theft of certain property that was owned by other people. At best, the trial judge said her behaviour was “inappropriate”.
I have since learned that this is known as “parent alienation”, and in this case it is classic and severe. Every tactic and weapon of choice, including false allegations of sexual, physical, and emotional abuse, was used against me, the target parent, with impunity. And it was successful.
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Three of our four daughters had no choice in or
knowledge of what their mother and a psychologist used
in affidavits, and I had no recourse whatsoever during
any of the proceedings to bring about any change to the
status quo that by December 1995 was fixed in place.
The degree to which the court will go to sanction an error in law and fact is a disastrous waste of taxpayers' money and exceptionally detrimental to fostering any kind of a relationship between the target parent and their children. The weapons of choice used by all officers of the court in a matrimonial case such as mine are against the laws of this country and against the ethics of our society. These practices by the lawyers and the judges continue unchecked and unopposed by the very courts that are responsible for upholding the laws of our Parliament.
Presently, my children and I attend a family therapist's office to discuss our situation. Each and every time we attend, I am accused by at least one of the children of abandoning them in 1995. The trust and closeness we once shared has been changed. My daughters may question or doubt me, and perhaps even themselves, for the rest of their lives because of the circumstances surrounding their parents' divorce.
The Joint Chair (Mr. Roger Gallaway): Mr. Mathisen, I'm sorry, your five minutes is up.
Mr. Gratton Mathisen: My one recommendation is, as soon as I was accused of sexual molestation, which was in October 1995—I was restrained out of the house in July 1995—I think all officers of the court had a duty to get a family therapist or a child advocate involved. I contacted the B.C. Ministry of the Attorney General seven times, and they all said get a child advocate. I'd go to the judge and the judge would say, not necessary; it's not required.
In these contentious divorces, if you could get some kind of family therapist, not necessarily a child advocate, involved right away, it would be a great help, because as soon as I got that, after $500,000, the girls were the ones who said, “Daddy, I want to see you more. I don't know what's gone on; I want to see you more.” They were the ones saying that, but in the courts it was, no, dad doesn't want to see you.
The Joint Chair (Mr. Roger Gallaway): Do we have any questions?
Dr. Bennett.
Ms. Carolyn Bennett: To follow up on that point, and in regard to the kids I've talked to and the situation you describe, I want to know if you think there's a way within the act that in a situation where the child states, if they are asked—which I believe they should be, by the advocate or whatever—that they don't want to see the other parent, we as a society should immediately sort of put up some red flag and therefore counselling services for that child. Regardless of the reasons the child sees as the reasons they're articulating, the fact is we now have a child who is saying it doesn't want to see one parent. We have a child who is going to have trouble the rest of their lives. Do you think there is a way we could do that through the courts?
Mr. Gratton Mathisen: Yes, I do, and I think it's absolutely fundamental.
I wouldn't like myself either. I was accused of all kinds of heinous crimes, and I sort of understand why my eldest didn't want to see me. It took her a while to realize that, no, this isn't quite true. If there were some kind of intervention right away, at least we'd get to the bottom of it faster, instead of waiting for this interminable and costly legal system.
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Ms. Carolyn Bennett: There are two issues that keep coming back. One is, in any of these highly contested divorces, which obviously are long, drawn out, expensive, and whatever, should the children automatically be assigned counsel?
Mr. Christopher Gratton Mathisen: In my opinion, yes. If there are access problems, absolutely.
Ms. Carolyn Bennett: And, should there be anything that could be construed as the child having a perception that one is a bad parent, does that child need some counselling, whether it's true or not?
Mr. Christopher Gratton Mathisen: Yes, I agree. Frankly, as I say, I don't take it out on the children that they didn't want.... My eldest daughter, Emily, who.... What she was being told about Dad wasn't very nice. It took her three years to figure out, well....
Ms. Carolyn Bennett: Give him a chance.
Mr. Christopher Gratton Mathisen: Yes.
The Joint Chair (Mr. Roger Gallaway): Senator DeWare.
Senator Mabel DeWare: I just want to ask how old your daughters are.
Mr. Christopher Gratton Mathisen: At the time or right now?
Senator Mabel DeWare: Now.
Mr. Christopher Gratton Mathisen: Now, Emily will be 14, Joanna will be 12, Alexandra will be 11, and Gracie will be 6.
Senator Mabel DeWare: Mr. Reid, just at the very end of your statement, you mentioned UI. Could you elaborate on that a little bit? I didn't quite catch it.
Mr. Doug Reid: Yes.
The big problems occur with maintenance in that first year when you're unemployed. As we all know, it's a tumultuous economy, and it can happen to the best of us. We should tack on perhaps half a percent or perhaps a whole percent to cover those support payments for the first year of unemployment.
The tendency is to think you will get re-employed, and the truth is you don't. You get behind. Once you're behind the eight ball, you're a deadbeat guy. I've had custody of her for two and a half years, and it doesn't make sense. I'm in court right now over it.
So if you were covered that first year until you got back on your feet, these problems wouldn't develop, and again, it would reduce family violence, in my view.
Senator Mabel DeWare: You have a point.
Mr. Austin, early in our hearings—and I'd have to get out the statistics to look at it—we had mediators and psychologists come before our committee, and they were discussing how they were training lawyers at this point. Some of the young lawyers were coming to them because they thought if mediation was going to be involved, they'd like to be able to do that. They were getting trained in the field to do that.
You're talking about legal training and family assessment. That was recommended to the committee at the time, that some of our young lawyers need to go through a training session dealing with family violence, family assessments, and so on in court procedures dealing with divorce.
Mr. Erik Austin: Yes, I would support that principle, and I would extend it even further to the notion of an internship, as in the medical residency model, with a requirement of field exposure to the types of situations and their vagaries that they can be exposed to.
It is probably not realistic to expect anyone who hasn't had extensive therapy themselves to appreciate the complexity of dynamics that Dr. Bennett referred to, such as the child's identification with the aggressor, just to survive psychologically, and then in another forum, perhaps under the guidance of someone objectively representing the child, to speak without that pressure about the relationship itself.
The pathology in the family unit is not just the product of individuals; it's an amalgam that's created. It's like a third element that rises above, and that is what needs to be healed and counselled as much. The sooner the system can offer this type of intervention in a positive and educative way, before the divisive legal proceedings begin, the better it will be for everyone.
Senator Mabel DeWare: We just had two witnesses both elaborating in the same mode tonight.
Thank you very much.
The Joint Chair (Mr. Roger Gallaway): Senator Jessiman.
Senator Duncan Jessiman: Mr. Mathisen, how old did you say your children were at the time the order was made?
Mr. Christopher Gratton Mathisen: In 1995 Emily would have been 11, Joanna would have been just 9, Alexandra would have been 7, and Grace would have been 2.
Senator Duncan Jessiman: But there was a hearing?
Mr. Christopher Gratton Mathisen: No, it was ex parte. It was—
Senator Duncan Jessiman: There were no hearings?
Mr. Christopher Gratton Mathisen: No. It was an ex parte restraining order with Justice Stu Leggatt.
Senator Duncan Jessiman: And you weren't even represented by counsel?
Mr. Christopher Gratton Mathisen: No, I wasn't.
The Joint Chair (Mr. Roger Gallaway): On a point of—
Senator Anne Cools:
[Editor's Note—Inaudible].
The Joint Chair (Mr. Roger Gallaway): Yes, we will.
Senator Anne Cools: I keep asking the chairman to do it, put it on the record so we can quote it.
The Joint Chair (Mr. Roger Gallaway): I want to make a point here.
Senator Anne Cools: Did the court record it?
Mr. Christopher Gratton Mathisen: Oh, yes, absolutely yes.
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Senator Duncan Jessiman: How could it be recorded if there wasn't a hearing?
The Joint Chair (Mr. Roger Gallaway): It was an ex parte—
Senator Duncan Jessiman: I understand it was ex parte, but surely at some point the judge had you appear.
Mr. Christopher Gratton Mathisen: Yes. I appeared and he said because I'm getting access there's no need to change the order, and then as soon as I was denied access, it became—
Senator Duncan Jessiman: Wait a minute.
The Joint Chair (Roger Gallaway): Do I understand—
Senator Duncan Jessiman: Let's get the name of the case.
Senator Anne Cools: Put the name of your case and the file number.
Mr. Christopher Gratton Mathisen: Mathisen vs Mathisen.
Senator Duncan Jessiman: What's the citation?
Mr. Christopher Gratton Mathisen: It started in New Westminster as E003143, and it ended up in Vancouver, F970230.
That was in Vancouver, and I've left it with the clerk.
Senator Anne Cools: Put it on the record. Leaving it with the clerk doesn't get it on the record. The jurisdiction, everything, should be put on the record.
Senator Duncan Jessiman: What you've read, is that the number of the case in the courthouse?
Mr. Christopher Gratton Mathisen: Yes.
Senator Duncan Jessiman: Do you know whether it was published in any of the Supreme Court reports of British Columbia?
Mr. Christopher Gratton Mathisen: No. I'm not sure.
Senator Duncan Jessiman: But are you saying there was never a trial?
Mr. Christopher Gratton Mathisen: Yes, there was a trial. In October—
Senator Duncan Jessiman: You were there?
Mr. Christopher Gratton Mathisen: Yes, in October 1997, and I had to represent myself.
Senator Duncan Jessiman: But you said this started in 1995 and you say you were denied access almost immediately. Was that in 1995?
Mr. Christopher Gratton Mathisen: Yes
Senator Duncan Jessiman: Why? Obviously your wife had given something to the judge. He made an order, ex parte, because what evidence.... I know you were charged with certain things, were you not?
Mr. Christopher Gratton Mathisen: No.
Senator Duncan Jessiman: You said you were charged. I thought your evidence was you were charged with certain heinous crimes.
Mr. Christopher Gratton Mathisen: No. She got a restraining order from the Honourable Stu Leggatt based on my financial harassment.
Senator Duncan Jessiman: Your financial harassment? What does that mean?
Mr. Christopher Gratton Mathisen: She said I threatened to take the children out of Crofton House private school for girls, that I threatened to get rid of the nanny, and that I threatened to sell the house, and Justice Stu Leggatt granted the ex parte order.
Senator Duncan Jessiman: You did have a lawyer. You've had two lawyers?
Mr. Christopher Gratton Mathisen: Yes, I did.
Senator Duncan Jessiman: And did you have a lawyer at that time?
Mr. Christopher Gratton Mathisen: To overrule Justice Stu Leggatt?
Senator Duncan Jessiman: No. You didn't have a lawyer when she—
Mr. Christopher Gratton Mathisen: No.
Senator Duncan Jessiman: And when you went from the first lawyer to a second lawyer, what was the reason you changed from one law firm to another?
Mr. Christopher Gratton Mathisen: I was getting annihilated in the courts, first and foremost. I was getting nowhere. I had been promised a trial in June 1996, and neither counsel filed the trial certificate because the billing in the account I guess was substantial. So no trial certificate had been filed and it had been dumped. I went around and said, I'm in a pickle, who should I get? I hired Georgialee Lang at that time.
Senator Duncan Jessiman: Now you do have access?
Mr. Christopher Gratton Mathisen: I have limited access.
Senator Duncan Jessiman: How often do you see the children?
Mr. Christopher Gratton Mathisen: The girls bumped it up, Senator Jessiman. I see them every other weekend plus every Sunday, but I've remarried and we have a blended family of eight, six children of my wife and I.
We've had them actually for two and a half weeks of the last five weeks. We're seeing them a lot.
Senator Anne Cools: Chairman, just to piggyback on what Senator Jessiman said, when we come back to Vancouver we should invite Georgialee Lang to be a witness before this committee. I've heard her speak and she's very top grade.
Senator Duncan Jessiman: She acted for you the second time around?
Mr. Christopher Gratton Mathisen: She acted for me, and then, by that time, I was out of money, Senator Jessiman. She acted for me up until January 1997, and she was instrumental in helping me at my trial in October 1997.
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Senator Anne Cools: Yes, she's very good.
Mr. Christopher Gratton Mathisen: It was a 13-day trial before Justice Frank Cole.
Senator Duncan Jessiman: Did you make all the payments that were required of you?
Mr. Christopher Gratton Mathisen: I made all my payments up until January 1997, and then I had to cut back because the Royal Bank foreclosed on me, because we had built this dream house. So I cut back. Out of the $96,400, I cut it back to $60,000.
Senator Duncan Jessiman: At $5,000 a month?
Mr. Christopher Gratton Mathisen: Yes.
Senator Duncan Jessiman: And the court agreed with that?
Mr. Christopher Gratton Mathisen: No, it brought me back up. Justice Frank Cole has said the house has to be sold. Then we'll go back.
Senator Duncan Jessiman: So you're trying to sell the house now?
Mr. Christopher Gratton Mathisen: Yes.
The Joint Chair (Mr. Roger Gallaway): Okay, thank you.
Senator Anne Cools:
[Editor's Note—Inaudible].
Mr. Christopher Gratton Mathisen: It's been quite an experience.
The Joint Chair (Mr. Roger Gallaway): We thank you for coming. There's that old biblical admonition that the first shall be last, so being the last of the day, we thank you for waiting and we thank you for your patience during the delay we experienced earlier this afternoon.
This committee will now stand adjourned until Wednesday morning, when we shall meet at 8.30 in Calgary.
Thank you for coming.