SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

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

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, May 25, 1998

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[English]

The Joint Chair (Mr. Roger Gallaway (Sarnia—Lambton, Lib.)): We'll get this day's proceedings under way. I'm sorry we're a little late. We often are when we begin a week in a new location.

We're very pleased to be here in St. John's for this meeting, number 29, of the Special Joint Committee on Child Custody and Access.

Colleagues, with us this morning we have a group from the Unified Family Court of St. John's. I will just call out the names. We seem to have a lot of people at microphone number nine listed here, so I'm sure this is untrue.

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We have Cathy Foster, who is a court counsellor. The other person is Sandra Hefford, who is also a court counsellor. At microphone number 10 we have Emily Friel, who is an administrator of the court, and Berkley Reynolds, who is listed as Child Support Guidelines and a previous court administrator. Finally, at microphone number 12 is Nancy Paul, who is a court counsellor.

I don't know how you want to proceed. We haven't even discussed this, but is everyone going to speak?

Ms. Emily Friel (Court Administrator, Unified Family Court of St. John's): I'm going to give the five-minute presentation.

The Joint Chair (Mr. Roger Gallaway): Okay, fine. Thank you. Please proceed.

Ms. Emily Friel: Thank you. Honourable members of the Senate and the House of Commons, ladies and gentlemen, I thank you for the opportunity to make this presentation to you this morning regarding custody and access.

I'm Emily Friel, and my colleagues will also be available for questions as much as I am. I'll just give the first five-minute intro.

This paper was prepared through consultation with all levels of those of us who work at the Unified Family Court, and that includes the judiciary, who were very helpful in spending time with us and talking with us. We've attempted to reflect the collective views from our work experience, but even those who worked with us did not necessarily agree on the fine details of all the things that are placed down here. The issues are very complex, as you know, and we had some heated debates as well as struggling to find a balance in the views we've put forth here in this paper.

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The focus of the paper we chose was how to achieve a child-centred focus in the courts, because that's the concern that sort of visits the strongest. We therefore made a presentation of a presumption of joint parenting, feeling this would be the way we could best achieve balance from our point of view. I'll highlight what has been written in the paper and will be pleased to answer questions after, but again, I need to reflect that the court always struggles to find a balanced view, and this is what we've tried so hard to do.

In saying this, I want to preliminarily make the remark that we struggled with the present custody and access terms. We are having difficulty with the custody and access terms in the court and how they promote an imbalance between parents. We are happy with the “best interests of the children” clause, though it may need further definition.

I have presented this in the paper you have in front of you, but in a more anecdotal way I would just like to walk you through, in this few minutes I have left, the concerns that come to us.

A person considers separation or divorce. This person is also a parent. He or she seeks legal advice in preparation for this major change in life. With the present legislation, he or she is told matrimonial property will be divided 50-50. Maybe some changes are arguable, but basically, whether you're angry or not, whether it's fair or not, or you think it's fair or not, the division will be somewhere in the 50-50 range. This gives the person a certain mindset to view the ensuing division. This same person is also told, when they ask for advice regarding the parenting role, about the possibilities of custody of the children. They are therefore given advice to establish an advantage in getting custody. It may be a bit of an extreme, but nevertheless it's true that they're told to take the children for three days to establish de facto custody; go to the house and take everything, including the light bulbs—you'll need them if you have the kids.

This same party comes to us in the court system, and this is where their confusion begins. With the matrimonial property, it basically follows what they were given to understand from the beginning, that it will be a 50-50 division. But regarding the children, they're told by us when they come to the court “You are still parents together, with a continuing responsibility for your children. We encourage you to work together through mediation or a settlement to work out a co-parenting plan so your children's losses will be minimized, and although no longer part of a traditional family they will at least feel some security that they're stable in the relationships with both parents.” They are therefore told by us, the court, “We strongly encourage you to work together as parents and not focus on custody issues”.

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Now the parties have come through this and they don't know who to believe or trust in this confusion. Their emotional turmoil is such that they believe they should fight for the kids or fight for the right to single-parent their kids. They are instructed by counsel, and their counsel is taking instructions from them. Their desire is to have custody, so according to the custody and access law counsel is advising them accurately to establish advantage.

This is where the problems come in from our point of view in the court. They've correctly been given advice to establish advantage according to the law that exists—they were given this advice—and they come to us and we now say we're not interested in advantage, we're interested in their ability to focus on the needs of their children.

This is where the problem exists. We believe the law needs to guide them and us so that the very first advice or counsel they receive is that parents are forever, that their standing as a parent will remain unless restricted by the courts. The other parent's standing will also remain unless restricted.

We also want people to be told when they are seeking advice that the court will view it favourably if their attitude is one of cooperation or at least consultation with the other parent regarding a parenting plan for their children. This type of change would give a more balanced starting place. Hopefully some of the extreme inequalities that develop in the process of divorce would be avoided and all members of the family could adjust far better to their changed circumstances.

We believe at the court that this change would go a long way to supporting our efforts in assisting parents to focus on their children's lives. For these reasons we would encourage changes to the law that establish the continued role of parenting when the parents divorce and give families counsel and the court guidelines to this end.

Thank you. I would be happy to have you address questions on the paper that's been submitted to any or all of us.

The Joint Chair (Mr. Roger Gallaway): Thank you. Certainly there are going to be questions. We will start with Dr. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you very much. You have laid out the presentation in a very comprehensive way.

You should know we're very relieved to hear that you didn't think it was simple either, as the committee has heard. It's wonderful that the people who work in this area everyday also have differing views on this.

I thank you also for the anecdotal walk-through, because I think that actually is what we're trying to figure out. We'd like to know whether you can actually get the lawyers totally out of this or how, from the moment people decide to separate, you make sure they understand the options or the big buffet of things.

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I thank you for the language of establishing advantage. I think that's a different way of looking at it, and it's been helpful. We keep hearing that only the children have rights and that the parents have ongoing responsibilities. This idea of yours that the standing of parents will remain is particularly helpful.

I wonder if you would help me with two things.

Education seems to be an important thing, and I wonder if you could let us know what happens in terms of educating people. Some courts now have a video. How do you let people who come to your court know all the options that are available?

I also wondered if you could help us with the section in your written document on violence, abuse, and parental alienation. I think what I'm feeling is you almost have to deal with any allegation of abuse or violence at the top, and then those without any of those allegations end up in almost a different stream that's more amenable to mediation and other alternative dispute mechanisms.

Ms. Emily Friel: I think we'll let Cathy Foster, who's in charge of our parent education program, talk about that part. Then I can move on to the other.

Ms. Cathy Foster (Court Counsellor, Unified Family Court of St. John's): Just recently we've been very fortunate to be able to implement the parent education program. The theme of this program is keep the children out of the middle of your conflicts.

Our hope is that people will get this information early enough in their separation to prevent their becoming entrenched...and particularly before they get involved in the court system, which by its very nature is very adversarial. We've just begun this.

Prior to that, yes, we did do some individual parent education on a one-on-one basis with clients who would come to mediation, but certainly that's not going to reach many people and it's certainly not going to reach them early enough.

Our hope is that eventually this will become mandated parent education.

Ms. Carolyn Bennett: Is this a group that meets on a regular basis? How do people find out about it? Are they allowed to file without having to go to parent education?

Ms. Cathy Foster: Right now we're running it as a pilot. We're just doing our third seminar. It's a three-seminar program, two hours each week for three weeks—a total of six hours. We're really in our infancy right now. We haven't advertised yet, so people come to our attention through the court. People come in for mediation, through our in-take service, whatever. If people in the community knew about it, they could certainly refer. Our hope is that people would have to do this program as a requirement before there would be any court action.

Ms. Emily Friel: You wanted to address the issues that are the most difficult in the court and were the most difficult to get on paper. As I said before, there were some very strenuous discussions especially over the issue of domestic violence, which is enormously difficult in the field in general and enormously difficult for the court.

There some of our intense discussions were with the judiciary, who also do not necessarily reflect the balance. Everyone has tremendous concerns about domestic violence, and everyone is consistent about protecting the parties involved entirely. There is no confusion in that.

The confusion comes down to what to do about parenting arrangements for the children post-divorce. Here the views you've probably heard across the country would be reflected in our discussions, but as a court what we strive for is balance. What we've come to as a group is that the balance is best achieved by examining every one of these circumstances and giving individual merit in the post-divorce circumstance.

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So although one feels vulnerable almost in making the remark, “If there was domestic violence, does that assume the parent has lost their responsibility to parent except to pay money?”, from our view, as the court, we have to still strike for balance in this. In the post-divorce circumstance, there can be no way that we legitimate what occurred in the domestic violence aspect. At the same time, the adjustment of people in life is such that it's important that children not become re-victimized by losing again, which can sometimes occur.

Now, if in a post-divorce circumstance there's violence or threats or all that, we now have another situation, but again, that is much easier, because that's obvious. It's factual. The court can make decisions to restrict parenting regarding that.

The difficulty is that transition between a domestic violence situation where the party then leaves. In many of those circumstances, there are no reoccurrences. The difficulty is with emotional intensity and stress and pain of the parties involved, and for the court to make a fair decision out here.

It would be our view, though very well argued from all directions—I don't claim everybody agrees with this—that, from the point of view of the court, you cannot infer that a person should not be a parent in those circumstances.

The Joint Chair (Mr. Roger Gallaway): Thank you.

Senator Cohen.

Senator Erminie J. Cohen (Saint John, PC): Thank you.

I think my colleague expressed our appreciation for your presentation, so I won't repeat it. I'll just say a collective thank you again.

I notice that most of your recommendations—all of them except one, I think—are also included in the recommendations by the family law division of the Canadian Bar Association.

I have several questions. First, I wanted to ask you about the phrase, “best interests of the child”. That's the focus of this committee, and that's what we're hearing from everybody else, from our witnesses, whatever the background is. But in divorce law right now, there is no clear definition of what are the best interests of the child.

Do you think it's necessary that the act should provide judges with a list of factors that could clearly define the criteria of what the best interests are when they're applying that test, and do you have any recommendations about specific criteria that you feel should be included?

Ms. Emily Friel: I'd be happy if anyone else here wanted to take that.

It's tough, and I'm sure it's exactly as tough for you as it is for us. You say “best interests”, so you leave it open. That gives the latitude that's really important to make decisions in the personal lives of people, because people live very different lives, different styles. However, there seems to be a cry out in the court for what that means, perhaps to establish some consistency and continuity, or perhaps even to establish a set of principles.

Perhaps another way of addressing it—and I'm just suggesting this—is that rather than listing the best interests of the child from say one to six, it may be that preliminary to describing the best interests of the child, you have a statement of principles. I think it's the statement of principles that as a court we struggle with.

I mean, any legislation is based on a statement of principles. There is a philosophical understanding in a statement of principles and a belief that this is how it should be. I'm not sure which is best, quite honestly. I'm not a judge, and judges are the ones who struggle hardest with this part.

But that would be one of the suggestions I would make, that if listing, from one to six, under best interests is too specific and therefore excludes what is necessary, one of the things you could perhaps do is have a statement of principles advising or setting up what best interests means.

I'm happy to have someone else comment on this besides me.

The Joint Chair (Mr. Roger Gallaway): Does anyone else want to comment?

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Mrs. Sheila Finestone (Mount Royal, Lib.): May I hitch-hike a question onto that, perhaps to clarify?

The Joint Chair (Mr. Roger Gallaway): Go ahead, yes.

Mrs. Sheila Finestone: Thank you very much.

If you talk about principles and statements, how would you see the Convention on the Rights of the Child? Are you familiar with it, and do you find within its principles and declarations and obligations the materials we could draw on, or do you find it too broad, or that it does not necessarily apply to this country? It has a worldwide sense but it's not specific to Canada, as it doesn't even mention the word “divorce”.

Ms. Emily Friel: I would have to have it in front of me to do a better job with the question, but again, in the general statement I suppose what you're struggling with—or I'm guessing, having read about it in the Globe and Mail—is the direction.

You know, what is the flow of the water right now in this country? There's obviously a flow, because we're wanting some changes, and we certainly are wanting some changes in the court in terms of the guidelines we're given. If the flow is in a direction that opens things up that much, yes, I would think there's a tremendous amount of information that can be used there. But again, as you flow that way, you compromise this way. I would assume that's the struggle here.

So I would think there's a great deal of information that could be used.

Senator Erminie Cohen: Thank you.

The other part of my question is this. I want to get this straight in my mind. Some of the witnesses have talked about the matrimonial home and what a bad situation it can be for a child when two parents who are at loggerheads are living in the same home because of tactical advantages in the court.

I was wondering what your feelings are about that. Is it fair for the child? We're talking about the best interests and yet we're putting them right in the centre of the zone that's not friendly. I think we should take a look at that.

Personally, I've seen this with friends, and I've heard it from some witnesses.

To anyone, what are your feelings on this?

Ms. Cathy Foster: I think that's probably a good example of the advice about taking advantage. We also have seen that. Not only is it very stressful for the children but it's also very stressful for the adults to be living under the same roof. It certainly might even increase the potential for violence between people at this time.

Senator Erminie Cohen: Is that something we should be asking the judge when the judge appears, or what do you recommend? How do you change that situation?

Ms. Emily Friel: Again, the way you changed it with matrimonial property was that the understanding was established. I think that's really all that can be done. You can't change the literal circumstances of individuals in the country, because they struggle terribly at that time. It's an emotionally burdened time.

The way you change it, as we see it, is that if they know they leave in order to relieve the circumstances so that.... As I've said in my example here, the principle still is that everybody has standing as parents continued. There have been no restrictions on their standing as parents. However, if they leave the house to relieve the stress for the child, they can't afford to do that now. They can't risk it. Because the minute they've gone from that house, they've lost the advantage.

Senator Erminie Cohen: That is why the parenting education plan is so very important at the very beginning.

Ms. Emily Friel: It's why the presumption of joint custody is even more important, because by the time they get to the parenting education plan, that's lost. People are very “human natured”, so if A leaves to relieve the situation in the home, and thereby it's a gift of love to the children, they have now lost advantage. They have established a loss of advantage for themselves. You can take them to all the parenting programs you want, but B doesn't have to even go to the parenting programs, because they have the advantage.

That's the problem, as we see it—their need to leave from the exit gate with exactly the same responsibility and sense of continuance with their children. That is where we feel so strongly.

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If that were established in legislation, they would then go to legal counsel and get counsel according to the law and be told they had to remain and the other party was still a joint parent in standing. Even if they change their circumstances to relieve the extreme stress in the lives of their children, it is the expectation that they will remain focused on their children throughout the whole process of settling what occurs. The judge will always be focused there and nowhere else at court.

I think that's why we keep addressing the presumption of the joint parenting concept. The problem is not here at the court door; the problem begins way before they get to us. There is already a tremendous imbalance by the time they get to us.

Senator Erminie Cohen: That's right. Thank you.

The Joint Chair (Mr. Roger Gallaway): Mr. Lowther.

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

I think this is an excellent paper. I guess the excellence comes from people on the front line who have to deal with these issues. You've experienced it, and your experience is reflected in your paper. I really appreciate it.

I just want to follow up on this idea of joint parenting. I'm reading from your paper here this little excerpt that says this concept, transferable in the family court, in fact most often destroys the trust that might exist, or at least eventually could be developed between two parents, when something is begun and true joint parenting of children in separate homes is beginning. This is the concept of establishing advantage, as you call it. We've heard about this theme before and the winner-loser scenario that can start when people go to the courts and the lawyers right off the bat.

Your first recommendation on joint parenting talks about how in westernized society—at least in reality it used to be—the father's care through financial support was the key. You say that in our present society this balance has changed and both parents provide financially and both parents are hands-on caregivers, and divorce law should reflect these changes. We need a presumption of joint parenting after separation and divorce—you go on to say—both financially and emotionally.

We haven't heard too much, or at least I haven't heard too much, along this line. I think the idea of working the financial component into this shared parenting idea is a good one, in general. Boiling down to my question, we had one home before and the income came into one home. Now we potentially have two residences, yet there seems to be a sort of expectation that the same lifestyle and level of living will be maintained. You now have two residences, maybe two bedrooms, and two sets of toys and all that stuff, but you don't have more money. When you split it like that, I don't know if you can maintain what was there before.

I'm trying to work this around into a decent question, and I'm just exploring this with you. The way it is today, we could go the joint parenting route, as you recommend here, but if we don't address the financial aspect of it, is it really going to work? If you say we should have shared parenting but we don't do anything about the shared financial component, isn't there still this adversarial sort of winner-loser, establish an advantage piece involved? I don't know how you can do one part but not do the other part and hope it will be joint parenting.

Ms. Emily Friel: Berk, you're the support guidelines man in Newfoundland. You'd be good to address this one.

Mr. Berkley Reynolds (Previous Court Administrator, Child Support Guidelines, Unified Family Court of St. John's): I guess it brings up the issue of child support guidelines to an extent. It is accurate that in lots of situations there wasn't enough money to go around to begin with, so it opens up the whole question of once the split is made, how can the finances be split as well.

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One of the possible answers at this point is the child support guidelines and dealing with the 50-50 split and joint custody, but it will never solve the issue of lack of money to go around anyway. We've seen problems with the child support guidelines in terms of the 40-60 split. The 50-50 split creates the same problem, or to another degree. We don't have the answers on that one, but it does create a problem. If there's not enough money to go around to begin with, we will still be left with that one.

Ms. Emily Friel: I guess the only thing I would add in developing that is we did some training last week on all the child support guidelines. Workers from across the province brought them all in. Of course they had a certain mandate and expectation of what they are supposed to do in terms of establishing the amount of money. Technically they only need the statement from the payer.

In reviewing this, financial statements need to be established from both sides. So the equity is established and it is clear that you are all responsible for the well-being of your children. If you have chosen to raise these children from two separate homes, the first concern of the court, the unified family court anyway, is that your children are all right in both homes. How can you work together to best do that?

Although amounts are set that make it equitable, which are all very good and positive things and very useful for the court, the one outstanding problem is the fact that only one person has to present financial information. There should be a set of principles that the full responsibility for their children is incumbent on both parties, which includes both feeding them and taking care of them financially, as well as other things.

Mr. Eric Lowther: That's a key point, I think. When you say both parties share the responsibility, you don't mean just caregiving, you mean financially as well.

Ms. Emily Friel: Yes, of course, absolutely. Here in Newfoundland there are quite a number of people in our court where the payer happens to be the woman because she happens to be in a professional position and the other party may be in seasonal employment. I think you have to establish the principle at the starting gate that you are both responsible for your children.

Mr. Eric Lowther: I apologize, I don't know how the laws work here compared to other places, but one fellow came to me and pointed out that if there is an agreement to 50-50 shared custody, one party is not obligated to make the same support payments if they reach the 50-50—

Ms. Emily Friel: I've sort of taken that through to the extreme in this paper. This is one place where I would assume there will be some review of the child support guidelines program. If you take this 40-60 through to its crazy development, which I've done on page 7, you'll find the difference in payment for a difference of three nights, which is the difference between 40% and 50%, for a father of four can be $154 a day. They can't focus on their children's needs because they're too stuck on how they've been manoeuvred in the system.

Mr. Eric Lowther: So the financial battle kind of—

Ms. Emily Friel: Takes over everything.

Mr. Eric Lowther: —precludes the care of the children because of this skewed support system.

Ms. Emily Friel: There's skewed and not skewed—you know skewed before. I think the government has gone a long way in establishing some things that are very important because there's some equity across the board and across the country.

I'm not throwing them out. I'm saying they maybe need to be tidied up a bit, considering what experiences people have had with them. One issue I would really address is this 40-60 split, because 40% is only 10% away from 50%. Once you fall into that catchment, the way things are calculated is enormously different.

Mr. Eric Lowther: So your point is to back away from the thing and kind of establish this joint parenting financial caregiving sort of thing. Is that your position?

Ms. Emily Friel: Yes, and focus on what the children need.

Mr. Eric Lowther: Then look at the financial statements of both and come into it and don't have these sort of arbitrary 60-40 is this close and 50-50 is that close. That almost drives the parties apart, it sounds like.

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Ms. Emily Friel: It does.

I think you're obviously going to need some framework. I'm not saying to remove the guideline figures, I am saying that I would like to see financial information always be required from both parties. If nothing else, it establishes the principle that you are both responsible for your children financially and that it's incumbent on you to take care of them.

Mr. Eric Lowther: Mandatory mediation is the last point. Was that something you supported? You talk about mediation and that being a good thing.

Ms. Emily Friel: It is a good thing. It's a very useful thing for most parties who are somewhere in the middle range.

Once you're dealing with the people we talked about here—this is domestic violence and parental alienation—mandating it unfortunately covers everybody. What about “strongly suggesting”? I don't know exactly, but I would be concerned about mandating mediation. It kind of doesn't work together in concept.

Senator Erminie Cohen: I have a supplementary question.

The Joint Chair (Mr. Roger Gallaway): Yes, I know, and Mrs. Finestone does too.

Mrs. Sheila Finestone: I must say this is very helpful information.

First of all, I'll just go to the question of reviewing the package that was in Bill C-41 on the support mechanisms and the guidance to the judges. Each province, as I understood the bill, was to decide the support package as it related to the province in terms of whether there were rural or urban dwellings. And living within a province, you would certainly have different kinds of mandatory payments for the family and from the payer.

First, was the scale not established with respect to the province of Newfoundland? Second, do judges not have the right to re-evaluate the decision on payors and payees with a return to the court? The last part of this question is should you have to return to the court or should there be some kind of administrative structure underneath the mediation that would allow for a change of status in both financial and physical care, in the case of a family moving, and in the case of second families?

Ms. Emily Friel: I think Berkley should take the first two as the support applications worker here.

Mr. Berkley Reynolds: Newfoundland did have child support guidelines as of April 1 of this year. One thing different we did is that the table amount remains the same, but we did look at the issue of disclosure. The province has gone for mutual disclosure rather than one-sided disclosure. At this point, both parties, at the beginning, have to disclose the financial situation.

Mrs. Sheila Finestone: So that's under the jurisdiction of the province. Here's the thing that's important for this committee, if I may suggest. On federal-provincial-territorial relationships, there is a division of responsibility in the Divorce Act. There's the law itself and the application of the law. That falls in your jurisdiction. Do you have the right to change that mandatory payment schedule? Must you go to the judge?

Mr. Berkley Reynolds: No, it's still within the judicial arena. I'll touch on subsection 25(1). I guess that's what you mean about the administrative mechanism.

Mrs. Sheila Finestone: Yes.

Mr. Berkley Reynolds: I'll first talk a little bit more about the tables and the interaction between the two pieces of legislation, the Family Law Act, which is the provincial legislation that deals with support, and the Divorce Act, which is a federal piece of legislation of course. Under the provincial legislation, at this point, we have adopted the guidelines. I mentioned the mutual disclosure. The next step is to get a designation from Ottawa that our guidelines can apply to both.

Mrs. Sheila Finestone: They have to get a designation from Ottawa?

Mr. Berkley Reynolds: We have to get a designation from Ottawa.

We'll be meeting. I'm on the federal-provincial-territorial task force. That's one of the issues that we'll be dealing with actually next week, so we'll be looking further into that.

Right now, we have the authority to do it under the Family Law Act, which is the non-divorce cases. In ten days, hopefully, I'll have a clear answer on the designation process. We are working on the designation process because there is a difference.

Mrs. Sheila Finestone: Is that la famille du conjoint? LaF.) How do you say la famille du conjoint in English? It's when you're not married. What's it called?

A voice: Common law.

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Mrs. Sheila Finestone: Thank you. I couldn't remember it in English.

What would be the percentage of common-law versus married couples coming before the courts?

Mr. Berkley Reynolds: There's even a greater difference, because some people are separated but not divorcing. So not only is it just the common-law cohabitation relationship but it also could be a relationship of a married couple that decide not to divorce. Then you get into second families, common-law relationships.

When I use the terms, I talk about the people who are divorcing under the Divorce Act; people who, under the Family Law Act, could be married but not divorcing at this point; a common-law relationship; or a one-night-stand relationship that develops into a child.

Mrs. Sheila Finestone: Is that word hyphenated?

What about the other part of that?

Mr. Berkley Reynolds: On subsection 25(1), the authority to change child support amounts based on a change in circumstances, there are a couple of issues. My feeling is that it's in the judge's territory to make the decision that child support is the responsibility of the parents, so all you're left with is deciding the amount. Once the decision is made that a person has responsibility, then I think subsection 25(1) can apply. Then it becomes an administrative function, not a judicial function.

One of the biggest questions, I think, was whether section 96 or something, that said only a judge can make an order for support, was in conflict with subsection 25(1). My opinion is that if the judge says okay, this person is responsible to make support, the mathematics of doing the calculations is administrative, and therefore could apply.

Mrs. Sheila Finestone: Does that mean a change in that divorce, under Bill C-41?

Mr. Berkley Reynolds: It depends on one's interpretation of subsection 25(1) and if there's a charter—

Mrs. Sheila Finestone: Because you've had five years of experience, you're an absolute jewel in terms of the ability we have to judge the effectiveness or not. No law is immune to improvement, particularly after experience. So we're hearing a very important set of witnesses at this point.

One of the things I think this committee would be most pleased to be able to do in our report is to recommend—or not—changes to Bill C-41. If you're finding that the administrative tribunal or the administrative aspect of the Divorce Act is constrained in terms of the role you believe your province can play in its administrative structure, it would be very helpful for us to know that.

I gather you're not prepared right now to suggest that there be more clarity under subsection 25(1), which would look at the change of circumstance. Would that change of circumstance, by the way, not just be related to money, but in a sequential bill, would it be important to include the changes in parenting functions where there's a change of domicile? I think in Newfoundland, that must be important, because I do know there has been a lot mobility in this province.

Mr. Berkley Reynolds: I referred to the moneys section only—

Mrs. Sheila Finestone: Yes, I know you did. I didn't know who to address the question to.

Mr. Berkley Reynolds: First, subsection 25(1) is bit restrictive in that once the decision is made, we're okay with doing the calculations.

Emily can probably comment on the legality, I guess, of not having a judge decide on the living arrangements and parenting issues.

Mrs. Sheila Finestone: I had a—

The Joint Chair (Mr. Roger Gallaway): I'm sorry, but we're really running late.

Mrs. Sheila Finestone: Thank you.

The Joint Chair (Mr. Roger Gallaway): Senator Cohen has the final question.

Senator Erminie Cohen: I had a question that pertains to what you were saying. I'm sitting on the Senate committee studying guidelines right now on Bill C-41, and I'd like to recommend that this committee speak to that committee in getting some of the recommendations made from the people who appeared, because it will address a lot of the questions my colleague has just asked.

My colleague Mr. Lowther talked about mandatory mediation. You can't really insist that you have to have mediation, but I just wanted to bring to your attention the Alberta model. They have a mandatory consultation session, ordered by the court, to explain to them the benefits of mediation.

• 0825

I think that's much more realistic, because if two parents really care, then they have to go to this court-ordered consultation.

Thank you.

Ms. Emily Friel: I would support that. I know in some jurisdictions in Alberta they also have—and maybe it's the same thing—mandatory parent education programs. After a certain number of sessions they get their blue slip of paper and then they are allowed to go to court.

I would agree with that. I would agree with any early educating of people as to the long distance they have ahead of them.

The Joint Chair (Mr. Roger Gallaway): Thank you very much.

This has been a very interesting beginning to our day here. I want to echo what a number of my colleagues have said about the high quality of your presentation. I found it very good. In fact, I found it very good because I agreed with most of it.

Voices: Oh, oh.

Ms. Emily Friel: Thank you for the opportunity to appear. We appreciate it.

The Joint Chair (Mr. Roger Gallaway): We're very glad you came. Thank you.

It's time for our next group of witnesses. We have two groups represented here today. From the Provincial Association Against Family Violence, we have Helen Murphy, Elaine Wychreschuk, and Kirsten Schmidt, and from the Provincial Advisory Council on the Status of Women we have Joyce Hancock and Joyce Aylward.

Welcome. I understand you're going to split your five minutes. It's up to you who talks and how you split your time.

Please begin.

Ms. Joyce Hancock (President, Provincial Advisory Council on the Status of Women): Welcome to the urban part of the great province of Newfoundland and Labrador.

Before we start, I know you have copies of our brief, but we have picked out of it some of the things we want to say that will ground you in terms of knowing where we're coming from with this.

We're not a research group. We know what we know because we've worked at women's centres, transition houses, anti-violence coalitions, and certainly there are the personal experiences of people like my colleague here, Joyce Aylward.

We've had two focus groups in preparation for that. We invited women from different parts of Labrador and Newfoundland to speak out on their reality of custody and access and to comment on your mandate. So that's where we're coming from.

We're hoping to share our piece of time so you'll have some sense of where we're coming from, but then answer any questions. That's why we've all come together at the table.

Ms. Helen Murphy (Coordinator, Provincial Association Against Family Violence): In working together as a group on this brief, we felt it really important that even amongst ourselves we needed to be able to articulate clearly what are our own values and our own beliefs in this whole area. This is where we're beginning, explaining to you what our ground base is and where our thinking is.

• 0830

We would start off, then, by saying this brief is shaped by the values and the beliefs we hold as feminists. So we believe that the power imbalances in relationships are the result of institutionalized patriarchy, and of course that has all the implications of that. We recognize that the experience of growing up in a patriarchal society is going to affect women and men differently, and we do consciously and continuously challenge this world view in our work and in the different structures we work with, churches and governments and families, whatever that would be.

We also believe the work towards equality is work towards a balanced world. This is where we're hoping, this is our vision, and it's a balanced world where women and men are equal and where men and women share equally in the care of the environment, the care of the young and old, and the care of the disabled and disadvantaged.

We recognize that women have different kinds of knowledge from that of men, and it's important to value the knowledge that women have from nurturing children, caring for families, or working in the community. We believe—and I guess this is really our bottom line—children have the right to live and grow in safety and security, without violence or the fear of violence. We recognize the imbalances in power, not just between men and women but between adults and children, and these imbalances are played out very strongly in the family justice system, where the contributions of women as primary caregiver is not acknowledged and is often undervalued.

Having said all of that, we also add that we recognize that women experience even greater discrimination when it's based on aboriginal status, disability, sexual orientation, race, and immigrant status.

So moving from our values, before we talk about a pivotal point, one of the things I was hearing you say is the importance of where we're coming from. But we're coming from two places, and that's what we mean by child-focused and child-centred but really the context of our own province as well.

Certainly the province is made up of rural and geographically isolated communities, and in recent years, with the collapse of the cod fishery and the changes in policies of this federal government, and out-migration and a heavy dependency of our people and reliance on governments for mere survival, we're seeing an impoverishment in the systems that people look to.

I think mainly about the systems of justice, health, social services. These are the systems that women look to for support. They are no longer resourced the way we need to, so the decisions we look to making and any recommendations you would be making on behalf of the citizens of our country need to take those things into consideration. Abuse and violence, just like anywhere in this country, is very much a part of a Newfoundland and Labrador reality.

A few weeks ago, aboriginal women in coastal Labrador met with our justice minister and told him in no uncertain terms that the acceptance of violence, because there is no police presence there, has become very much a normal course of events. So when you talk about the disputed custody, when you think about your having no legal presence there, you can imagine how that manifests itself.

In an area of the province where I come from and worked for nearly a dozen years at a women's centre, nearly a year ago a woman was murdered, and a very big part of her murder was the custody and access and having to be available to ensure that access to her two young children was allowed. As that trial unfolds, we're hearing a whole lot about that.

We've begun to take a lot of ownership of abuse and violence, as you've heard around Mount Cashel, the many coalitions, the provincial strategy on violence. So we take great pride in some of the work we're doing in anti-violence. Yet in the face of this awareness is the everyday poverty and community survival. Women are telling us over and over again they've lost faith in many of the systems that they look to for support.

Having said that, we saw the importance, when we're talking about child-centred, of really having to know what we mean by that. Because it was used in the mandate and our talks within the focus groups that we had before we wrote this, a lot of the women had a lot to say about it.

So this is some of what we're talking about when we're talking child-centred: a holistic approach to the child, including the physical, emotional, social and spiritual needs; and of course, physical would be the material. It also involves the recognition of the need to maintain a healthy, trusting relationship between the primary caregiver and the children.

• 0835

A child-centred approach would also mean the living arrangements. The living arrangements for child-centred has to be safe and secure, without emotional, sexual or physical abuse, and we keep adding also, without the fear of that.

A child-centred approach recognizes the whole person, as we just said, and the whole person must be acknowledged and sustained and nourished. This kind of approach would realize, then, that children live in families and communities. So when children live within a social environment, that extends their lives within a community of schools and peers, and this takes on an importance that we have to be aware of when we're talking about child centred.

For example, we may not be aware that sometimes a child has to make decisions around, for example, on the same day that a child is supposed to spend time with a non-custodial parent, that same child may want to attend a cub scout meeting. So if we're tuned in to the holistic needs of the child, we have to keep those ordinary, everyday experiences in mind.

We also have to acknowledge in all of this that we're not talking about ideal families here, and it doesn't exist really at the time of the divorce, especially when we're talking about child custody issues. When a family unit changes in any kind of separation, there is a period of grief and loss. So the parents, the adults, are grieving; the child is grieving.

One of the things we're really strong about, what we don't want, is dividing up a child's time to meet the needs of the adult. In our estimation, that is not a child-centred approach. While acknowledging the grief that's going on, it is not the adult that needs to be taken into consideration here as much as that the child has to be kept in mind.

We also believe children are far better in living arrangements where the primary giver brings the sense of security, provides for their needs, and where an adult takes responsibility for the major decisions. So we want to make it clear that we're not talking about the child having to make the decisions and being responsible for meeting all of their needs.

Ms. Joyce Hancock: When we talk to women about their experiences, we try to narrow down the field from which we would ask their experiences and for them to give us their information. We divided it into custody and access, relocation and mobility, violence against women and children, and the legal system itself.

On custody and access, what we're going to do is give you a quote from a woman and our recommendation on that. When we asked women about their experiences of custody and access....

With joint custody, the woman still has all the responsibility of the child but the man ends up with all the decision making control. For example, if she wanted to leave her community for a while, because of the joint custody, he has to agree to everything and he still doesn't have to take responsibility for the child, he just gets to have something to say about everything.

[It's] a control issue, it's not the child that's being controlled, it's the other parent.

Having the discussions we had, we had two recommendations. We wanted legislation to articulate a presumption that there be a primary caregiver of the child and that primary caregiver be the parent with the most involvement, the most experience, the most knowledge with respect to what is the best interest of the child or children.

Women had a lot to say about the “friendly parent rule”. It's coercive. Women are scared of being perceived as unfriendly, even when they know they are acting in the best interests of their children. One woman said:

I have sole custody with access...the only reason I gave their father access is because I would have been seen as the `unfriendly parent' if I didn't.

We say the friendly parent rule should be taken out of the Divorce Act altogether.

On maintenance support, women said child maintenance shouldn't be dependent on access. Men need to pay child support. It is their responsibility, not because they see or don't see the kids. They are not buying time by paying support. In our recommendation, the current separation of child maintenance and access should be preserved; that is, access should not be tied to child support.

Ms. Helen Murphy: Around relocation and mobility, it has already been pointed out that these are major issues because of the collapse of our cod fishery and the resulting massive unemployment. A quote from one of the women on this is that:

My ex-husband has seen the kids for two hours in the last two years, yet I want to go away for a workterm, and I need his permission.... Even when men choose not to participate, they still have the right to keep me here.

To push that up a little further, another statement said about a woman in an abusive relationship:

[Lisa] was so scared to leave her house, even just to get the mail. Her ex's family would verbally harass her on the street and he was never far away, like stalking her. He was really abusive, so it's no wonder that she picked up her kids and left town. But now, she's the one who is considered wrong. He's [the father] actually trying to find her and get custody. All she was trying to do was protect herself and her kids.

• 0840

All the people we talked to in the focus groups said that living in an environment that is safe and free from abuse towards the woman or the child was more important than the father's right to access. And abusive men, they said, should not be facilitated by the legal system in further controlling the woman. Whatever we come up with, we have to be aware of that.

The one recommendation we have from that is that the decision to relocate should be made by the primary caregiver. This individual is best able to make decisions which are in the child's interests. In the whole area of violence against women and children, we know that this issue is where it becomes so very complex. Again, talking to women—I'm going to try to stay with the quotes—one woman said:

The guy was convicted of sexually assaulting her [the mother] and it wasn't even brought up in the custody hearing. Because she was assaulted and stalked by this guy, she ended up having a breakdown and went to the hospital and this was used against her in court. She went out and got help for her illness.

Another quote is about a case that is very fresh for all of us, I think:

When [Bev] was murdered a lot of the key points were around custody and access. Access was used so he could see her and he used to say that he had as much right to see the children as she did and he used this to wear her down.

Repeatedly, women spoke about the need for courts to reflect the reality that abuse and violence against women has direct effects on the child, whether the child is present or not. Again, here's a quote from a shelter worker, who said:

What I have been noticing is that when I have been called as a witness for the woman about what the children have talked to me about, I have experienced many times where the children have been profoundly affected by the way their father has treated their mother. But repeatedly the defence lawyer or the judge will tell me that they only want to hear about situations where the men were directly abusive to the children. I continue to try and make the point that witnessing the abuse of their mother is a direct effect on the children, but they discount that. It is so difficult to convince the court of abuse to the children.

We have several recommendations on violence and I don't know if I have time to mention them all. I will just point out—

The Joint Chair (Mr. Roger Gallaway): Actually, I wanted to ask if you were almost finished because you are over your time limit.

Ms. Helen Murphy: Yes, almost.

Mrs. Sheila Finestone: Mr. Chairman, I wonder if we could ask for a deposition of this material.

The Joint Chair (Mr. Roger Gallaway): Yes.

Mrs. Sheila Finestone: Firstly, it would have been very helpful if we would have had it before you got here, and secondly, it certainly will help in the final decision making.

The Joint Chair (Senator Landon Pearson): We're having copies made now—

The Joint Chair (Mr. Roger Gallaway): —at this very moment.

Mrs. Sheila Finestone: It's not very helpful when we're listening—

Ms. Joyce Hancock: We provided four or five copies as we came in and there are more in the room.

The Joint Chair (Mr. Roger Gallaway): There were not enough to go around so copies are being made.

Ms. Joyce Hancock: People in the room could give up their copies to you right now.

The Joint Chair (Mr. Roger Gallaway): Please proceed.

Mrs. Sheila Finestone: Mr. Chair, if we receive copies before the witnesses appear, I'd like the staff to please make sure that happens. Thank you.

The Joint Chair (Senator Landon Pearson): They just brought them with them.

The Joint Chair (Mr. Roger Gallaway): Please proceed. I'm going to ask you to wrap it up.

Ms. Joyce Hancock: Since you're getting copies, I'm sure, then, that you can refer to them with your questions.

To wrap up, again, I'll go back to where our knowledge is based. Even though at many times women are left to feel that they're not quite experts, I think the years and years that we have spent hearing women's realities as advocates.... The hope we have is that the recommendations the committee makes will be very much child-centred and focused on on the primary caregiver and some of these issues.

We very much welcome your questions.

The Joint Chair (Mr. Roger Gallaway): We'll begin the questions with Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much, Mr. Chair.

I'm very pleased to have had the opportunity to hear you and I'm very glad you came. I also feel that in rereading your brief I will probably come up with a dozen questions, but there are a couple of things.

First, you talked about your round table and your focus groups. How many focus groups did you have? Did you have them across the province? Did you have them with different groups?

• 0845

Ms. Joyce Hancock: We had focus groups across the province. Women's centres invited women who were affected by this issue into their centres. Then we facilitated that session, the four categories and your mandate, and asked them to tell about their experiences and give comments on it. We had a session here in the city of St. John's to which we invited people who worked for courts, like women who were lawyers and women who were social workers, and asked them to talk about their experiences. And on top of that, there are the years that Helen and I have spent working directly on this issue. That's where we've drawn our analysis from.

Mrs. Sheila Finestone: How many women's shelters do you have across the province?

Ms. Joyce Hancock: We have four shelters—

Ms. Helen Murphy: We'll say we have four and a half. We have four that are established and one that's casual call-in, and we have a couple of safe houses.

Mrs. Sheila Finestone: In your wish to change the language somewhat from that joint parenting concept to the primary care concept, am I right that it's the primary care concept that you want to have a focus on?

Ms. Joyce Hancock: Yes.

Mrs. Sheila Finestone: All right. With respect to the role of the Unified Family Court.... We were quite pleased to receive the report from the Unified Family Court; it's the first one that I've heard, anyway. Are you suggesting that where there is a potential for stalking.... First, there is federal stalking legislation. I want to know if that is not used. Second, are you saying that you can't go back to the Unified Family Court if there is the sense of abuse, stalking, the question of violence, that it is not taken into account, that they only hear the end of the story, not the development of the story? And if so, at Status of Women what are you doing in terms of training women or educating women to understand the importance of presenting the case in full?

My last question relates to the child. I believe you're very sincere in saying that you're child-focused, that you want this whole thing without fear, yet the workers are able and hear from the children about their fear. What is the role of the child before the courts? Should the court be hearing the child? At what age? In camera? In front of the court? Or in front of the parents?

Ms. Joyce Hancock: First of all, in terms of the Unified Family Court, if you don't know, it only exists here in St. John's.

Mrs. Sheila Finestone: But are cases heard across the province differently, then?

Ms. Joyce Hancock: Yes.

Mrs. Sheila Finestone: So therefore, my last question would be, what about training judges for evenness, fairness and equality across the province?

Ms. Joyce Hancock: That's a big issue when women say how they're treated in terms of family court, if there's a moralistic approach, for instance, but still, those experiences.... When you talk about violence per se or fear of violence in terms of its effect on children or from living in an environment and maybe not being directly abused, but that fear piece.... It means going back and forth to court, so there are other issues that tumble from that, like access to legal aid and trying to juggle getting back in court again to try and deal with all of that. It depends on where you live. It depends on finances—

Mrs. Sheila Finestone: Yes, but you realize that we've heard a lot about false allegations. That's number one. We've heard a lot about the lack of grandparents and other family, and when you talk to the extended family and the community family—

Ms. Joyce Hancock: Yes.

Mrs. Sheila Finestone: —which you didn't address, I think those are.... I want to know if you addressed that in your brief, and if not, where do you see that issue? You must have some understanding. You're hearing a lot about abuse and you're hearing a lot about fear. I agree that there is fear and that there is abuse in a small percentage of divorced families. But if the children can speak to this issue, then I think we have a difference between what a false allegation is and what is real and substantive. I want to know why or when these children should be heard from.

Ms. Helen Murphy: One of the things, I guess, that that we don't want is to say that children are responsible for making these decisions. The children can't. I don't know how children—

Mrs. Sheila Finestone: I'm talking about witnesses; I'm not talking about children making decisions. I'm talking about testimony that will allay the fear of.... And it's a growing fear across this country, in case you're not aware of it, this fear that there are a lot of false allegations. If this is the case, we want to know, and if it's not the case, I think it's time to destroy a myth.

• 0850

Ms. Joyce Aylward (Member, Provincial Advisory Council on the Status of Women): Can I jump in here?

I'm sure you've heard about many cases of false claims of abuse or something across the country, just by the way this mandate is structured.

Personally, I can only speak about my own story. I did come from an abusive relationship. The abuse, in my case, was never brought up in court.

Mrs. Sheila Finestone: Why not?

Ms. Joyce Aylward: Because I was advised that the abuse within my relationship, which was personally directed at me, not at my three children, was not an issue. I was advised of that by both the legal aid people and in mediation. I was advised several times not to bring this up because it was not a relevant issue: my children had not been directly abused, and as for being witnesses, my children were three months old, two years old and five years old.

I asked for sole custody. When I asked if this should be brought up, again and again it was suggested that since I could never say he had directly abused the children physically, it was not an issue to be brought up.

The Joint Chair (Mr. Roger Gallaway): Okay. Thank you.

Mrs. Sheila Finestone: Mr. Chairman, I do think the record ought to show that there has been very important—and by Canada—research done by Statistics Canada with respect to the impact on children of being within a home and hearing or seeing abuse; it has an impact and it has a repetitive measure in the lives of young adolescents and young men and women later. I think that's something the courts should be made aware of and something that we have to perhaps include in our report.

The Joint Chair (Mr. Roger Gallaway): Thank you. And it has been referred to in other hearings.

Dr. Bennett.

Ms. Carolyn Bennett: Thank you.

One of the things I think the committee is struggling with—certainly I am—is that the women's groups we hear from obviously have violence as a real important piece, but it actually covers the whole perspective, so that when we hear about “primary caregiver” it does come from, quite often, a place where there has been a significant power differential and an inability to actually “conscience” mediation or anything where that power differential would influence the outcome.

I would like you to just help us a little with the ones where that isn't the case. Maybe that's not your area of expertise, but in the ones where we are trying to get away from “winner” and “loser”, trying to get away from even the words “custody” and “access”, trying to get away into just being able to frame a parenting plan where, separately, residency things were dealt with, leisure time things were dealt with, like who does the hockey practice, who does the ballet lessons, and money was then dealt with separately and decision making was dealt with as a separate issue in terms of how these things get decided.... You would develop a parenting plan where all those things were laid out in a sort of matrix and everything was agreed to.

Do you think we are really going the wrong way if we start to look at that kind of presumption that both parents have responsibility, if we actually looked at the ones where there isn't domestic abuse?

You truly worried me, because I really think that the secrecy of violence and those things is obviously something we would have to deal with. But we've heard about and kept asking questions around the kinds of tools that we use in family medicine or in emergency departments in terms of trying to elicit the existence of abuse—in all its definitions—in a relationship.

And if we could set those ones apart and deal with them in a different stream, do you think that we could get away from the words “custody” and “access” and move into parenting plans, into decision-making, in these cases where abuse is not an issue? Because we keep having trouble: we're not hearing from women on anything other than situations where there's abuse. I don't think we've had any presentations from women's groups that aren't coloured by that sort of situation of abuse.

• 0855

Ms. Joyce Hancock: I think that just by their very nature women's groups have always said you're going to look at the whole gamut, and I would say that dealing with violence was only one piece of the work at the women's centre when they're working with equality issues.

We very much support looking at parental responsibility, but when you talk about responsibility and then making decisions for a child setting limits and boundaries, it still comes back to one parent in even the best of situations. I try to keep my bias as someone who successfully navigated that system. It's been a very good experience in terms of going through the process and raising my children in that away from these other pieces I've had to deal with in the other parts of my life. But that knowledge base is still there. You still have to go back to someone taking primary responsibility and trying to build that focus and the resources, the financial supports, the supports in terms of what a child needs at different times as they grow and develop.

So even when there is no violence or abuse, you're still talking dispute or we wouldn't be talking here today. We're talking disputed access and disputed custody, so there's an assumption that there's conflict and that things are not going well, or we wouldn't be looking to the good judgment of judges or you people to make recommendations about that, because most of us don't need you at all for any of it.

Ms. Carolyn Bennett: It is still hard for me to see that it in the pursuit of equality that we're still using the language of primary and secondary.

Ms. Joyce Hancock: But it falls to that regardless. And, you see, when we said primary caregiver and defined that, we didn't say “woman”. We said “primary caregiver”, and that making those decisions in response—

Ms. Carolyn Bennett: We wouldn't want the testimony that presumes the committee had better just get it that it's usually the woman.

Ms. Joyce Hancock: We didn't say that.

Ms. Carolyn Bennett: I know you didn't. I'm just saying that—

Mrs. Sheila Finestone: And we're glad you didn't.

Ms. Carolyn Bennett: We're glad you didn't, but I think you still you come to the winner or loser and you'd better just realize who actually really does all the work on her. We know that. Stats Canada told us: in terms of unpaid work we know actually who's doing this, and who gets the kid to the birthday party with the present wrapped. We actually do understand that.

I'm just wondering, if we're planning for the next millennium, is there a way in language that we can speak in equality terms without having to go back to this winner-loser, primary-secondary and custody-access kind of stuff? Because I think we were hoping when we started this that the language would help us get away from the winner-loser so the winner has to prove that they're a winner and the loser has to keep trying to be the winner and that we actually keep this conflict up forever, because you've actually designated somebody the winner and somebody the loser and they have to keep fighting.

Ms. Joyce Hancock: But it's the whole thing of designing a system that is so much more than language. But if you're going to acknowledge what a child needs in a child-focused or child-centred way with what we're living with right now, a child needs a primary person—in the case of two-parent or three-parent families you have more than that—whose focus is in responsibility. But the resources that come from the other parent, the access when there is no violence, all of those things get built around that.

I don't know the answer to that. I would love to entertain how we build this so that we can put aside why false allegation things are coming from fathers groups and why, for instance, child-focused, child-centred parental responsibilities are coming from women's groups. I maintain it's because we want to build a system where the primary caregiver, whether it's the man or the woman, puts that primary focus back on the child again.

Ms. Carolyn Bennett: But in our society, what if that is the grandmother or happens to be the nanny?

Ms. Joyce Hancock: Fine. If that person, as we define primary caregiver, from the get-go has done this, this and this.... There are many young women who have given the primary responsibility to the grandmother and then after three years life is in order and you go with that. Many women of my age and older would say yes, that's the reality of helping your young daughter. As for the other piece in terms of the primary caregiver deciding who has access, many women give access to the father's mother because they have a good responsibility. That's in situations where there's no violence. It's happening all the time.

Ms. Carolyn Bennett: I think.... Okay, fine.

The Joint Chair (Mr. Roger Gallaway): I'm going to have to try to seek some equality here. Senator Cohen.

• 0900

Senator Erminie Cohen: I have two comments and then a question or an observation.

In terms of the false allegation spectre, we heard a witness, Professor Nicholas Bala, say that it's only 2%. In all the cases that come through, and when you consider that 80% of divorces are usually settled amicably, that 2% of 20% is really not as menacing a spectre as we imagine.

As far as the stalking is concerned, honourable colleague, that bill in principle was good, but it has no teeth in the courts, and we're looking at bringing in a bill in the Senate to address this whole area of stalking to give it what it needs, the stuffing it really needs.

Mrs. Sheila Finestone: Then that should be in our report, don't you think?

Senator Erminie Cohen: Yes, I do. I really do. The initial reading is going to happen next week, I think.

What I'm really concerned about is because of the economic turmoil and because of the 75% cutbacks in legal aid, where do poor people get the resources, the support and the access they need? Then I want to comment on that, but I'm asking the question because it really concerns me.

Ms. Joyce Hancock: It is a very big problem. Women talk to us over and over again. I just know from my years of work at a women's centre that trying to arrange times for lawyers, even for maintenance, and ending up going to represent yourself and then just taking whatever happens to you as let it fall where it might.... That whole thing about giving up is a very big reality in this province.

A woman talked about needing a legal aid lawyer, but only one was available in that area of the province—I think the story came from Goose Bay. The husband got that lawyer and then she had to wait to get one flown in. She saw him a few minutes before court and then asked for representation of her reality. That's big stuff.

Senator Erminie Cohen: It may comfort you a little to know that the custody and access groups in the Canadian Bar Association have made a recommendation that all the tax dollars now that are being collected because of the taxation of child support should be put back into the system to enlarge the whole family court process and to make resources available in legal aid, mediation groups, and psychological.... I think it's something this committee should maybe recommend. All those dollars that have been collected should go back into the system to help women, to help families, to help fathers and to help kids.

Ms. Joyce Hancock: Yes, and it's a question of the kind of the mediation. When we hear stories of people being thrown into a room and someone saying this is what will happen if you don't have mediation, it's not a good experience about which you'd say yes, mediation is going to teach me about how to share some of the responsibilities of parenting and all that stuff.

Ms. Joyce Aylward: I wanted to comment on what you were saying.

That is a wonderful initiative. I am a fourth-year social work student at the moment. I decided to go back to university because I'm not getting much support, either physical or financial, from my ex. I'm involved with Students After a Better Tomorrow and with several organizations of single parents at university trying to cope with full-time studies, single-parenting, and very little support. I'm sure you've heard of all these things and that they are very familiar.

One of my biggest concerns with the wording of the Divorce Act, etc., is the joint custody. I like your wording “joint responsibility”. My fear is how much teeth does that responsibility have, because I know many women who even when they have joint custody, the reality is they still have 90% of the responsibility and the other custodial parent has the right to make decisions that normally result in a controlling situation with the spouse.

Again, I'll give you my own personal example. My children's father has seen them for two hours in the last two years. I'm in a position now where I could go to England to finish my work—I'm in social work. But even though I have sole custody, I have to get his permission.

One thing you can understand is that if I move, I have to let him know, or the courts know, if I am moving. There is no responsibility for the non-custodial parent to let me know his address. So now I'm in a situation that is very familiar to many single parents. If they want increased child support, with the new tax credit, the changes since April 1, a lot of women would love to go back to court and have this wonderful benefit. We don't have their address, and the court system will not do anything to help me find this man. I know what city he is in. I've been told that by the Divorce Act I need to serve him papers to take him back to court to change the access or maintenance. But I am responsible for finding that address. There is no system. I've called the sheriff and the courts.

• 0905

Mrs. Sheila Finestone: As I understand it, there is a presumption under the FCT rules that you can apply through either the health system or the unemployment system and they can trace him. I'd like to know if that works or not. Perhaps it's a question we could forward to the people who appeared before us, because that should be accessible and certainly traceable unless—

Ms. Joyce Hancock: It's true that you can undertake to do that, but again the maintenance enforcement office is understaffed. Women are told to find out where they are and give them the address. It's up to them to try to trace them.

Mrs. Sheila Finestone: I presumed and thought I heard that the first witness couldn't find the person. That's not accurate. You can find them under the principles of the law. The law has principles, but when they can't be effected properly it's justice denied, even though justice is available. I understand that principle, but I don't want the record to show there isn't the presumption that it should be available to you.

Ms. Joyce Aylward: But realistically, how available is it if the authorities I have contacted—and so have my colleagues—have told me repeatedly to give them the address and they will contact him?

The Joint Chair (Mr. Roger Gallaway): We'll look into that. That may be a matter of bureaucratic rules.

Ms. Elaine Wychreschuk (Member, Provincial Association Against Family Violence): The last time I looked at that law, all the federal tracing powers and rights that exist only kick in after you've made an application. In order to make an application, you need to have an address. This may have been changed in the last two years, but it is a fact, in terms of what Miss Aylward was saying, that it's not triggered until you're actually there. Therefore, it doesn't help anyone do any tracing when they don't know their location.

The Joint Chair (Mr. Roger Gallaway): Thank you.

I have a couple of points of clarification. I've been asked to put this question to one of you, and I don't remember which one.

In one of your quotations about a murder of an individual called Bev, is there anything in your brief that would tell us where that case was tried?

Ms. Joyce Hancock: The trial is going on now.

The Joint Chair (Mr. Roger Gallaway): It's an ongoing trial at the moment. Fine. Thank you.

Ms. Joyce Hancock: It's on the west coast of Newfoundland.

The Joint Chair (Mr. Roger Gallaway): You raised the whole issue of inclusive language, and I want to ask you something, because this has come out in other testimony. In our rush to have inclusive language, would it not be better to use the term “family violence”, as opposed to “violence against women”?

Ms. Joyce Hancock: I guess that's the one the women's movement has grappled with for some time. It's often more palatable for our brothers to hear it said that way, because it assumes the family is busy beating up on each other. We know the reality, from working in the anti-violence movement, is that it's very much violence against women and children. But many coalitions, to make it more palatable and bring men in on it, will say “family violence”.

The Joint Chair (Mr. Roger Gallaway): Okay. Thank you.

Thank you very much for coming.

Senator Cook.

Senator Joan Cook (Newfoundland, Lib.): Thank you for this wonderful document, Joyce. I've just had a chance to skim it. In your recommendations on page 29, recommendation 10, you talk about education training, and then you talk about about mediation. Do you have a sentence or two to bring the reality of that together, even from a perspective beyond this island, and access to both—

Ms. Joyce Hancock: Access is a very big issue. In the experience of mediation, there are mediators who perhaps don't understand the dynamics of power in relationships. They don't understand the kind of mediation that's about choice. Women see mediation, in terms of disputed custody and access, as a good way to go because of that, but right now there's no trust in that system because we know very little about the training and the kinds of things mediation implies. Any notion of mandatory makes the hair rise on the neck.

Senator Joan Cook: Do you see any value in the linkage of the two? If you could...?

• 0910

Ms. Joyce Hancock: When it comes to preparation, seeing mediation and having done a few mediations myself around around not what's disputed, but in looking at what's best for children in trying to bring about an understanding of that, women and men would say that it works but it comes from going to it with a sense of wanting to do this and wanting it to work. When there are disputes, you start off with a power imbalance.

Thank you.

Senator Joan Cook: Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you very much. Thank you for coming this morning. We're sorry we're running late on you, but we realize that this is your time. Thank you.

I just want to make a statement about the briefs that were received. As you know, we are bound by rules here. One rule is that any brief received in one language must be translated into the other official language. That's why the clerk didn't pass them out this morning. But with your agreement, if we have any other briefs received this week, we can in fact pass them out as received.

Ms. Carolyn Bennett: But we still don't have it—

The Joint Chair (Mr. Roger Gallaway): Okay, but they're making copies.

Could I have agreement on that?

Some hon. members: Agreed.

The Joint Chair (Mr. Roger Gallaway): Okay, thank you.

The Joint Chair (Senator Landon Pearson): I'd like to call the next witnesses to the table. As individuals, we have Ms. Donna Andrews on family law and mediation and Eve Roberts on family law. Since Ms. Andrews is first on our list, you may be first on our list to speak.

Ms. Donna Andrews (Individual Presentation): Good morning. Welcome to Newfoundland.

My name is Donna Andrews. I'm currently practising law in Deer Lake, Newfoundland. I was a nurse for approximately ten years prior to returning to school and obtaining my law degree. I started in law in 1993 in general practice. The majority of my practice at that time was family law, and I quickly became disillusioned with the court system. I heard the talk about mediation. I decided that I would like to learn more about it and get some training.

In 1995 I did a course that was offered by the University of Windsor. Actually, Eve and I both did the same course. It wasn't just for family law, it was on mediation generally. It was very interesting. At that time, I decided I would rather go that route as opposed to continuing within a system that I didn't really have faith in, which was the court system. I would try to encourage people to do mediation. So I started in my own practice in a different area. I had been working in Gander. Then I moved to Deer Lake.

Since that time, I've only done about eight mediations. Business is not booming. In large part, this is because our system doesn't encourage it. In the Unified Family Court of St. John's, mediation is offered through the court. But that's just within the jurisdiction of Unified Family Court, which is the St. John's area, basically. Outside of that, it's just not available.

People would have to pay for it themselves. I've spoken with judges on this. They can't order something that someone will have to pay for themselves. There are provisions in our own legislation that encourage mediation in family law. There's nothing in the Divorce Act that requires it.

Why do I think mediation would be good? In my experience, in the family law cases that I saw prior to getting into mediation and since that time, the greatest problem people have is communication. That's what often led to their marriage breakdown to begin with. Marriages, I think, can be saved if they have a chance to get counselling and/or mediation, but we just don't have the services in Newfoundland, especially outside St. John's.

I've always worked in and believed in rural Newfoundland, and I continue to believe in it, despite the fact that you know enough things too sometimes. I think we should have more services available, but the cost is the big factor. I don't know what you people can do about that because you're in the federal jurisdiction, and the provinces are the ones that decide where funding goes or certain things.

You're talking about divorce cases, but 50% of all relationships now are common law, so they don't even come under the Divorce Act. You still have a lot of single parents out there who weren't even in relationships to begin with, so they don't come under the Divorce Act. So the jurisdiction is very provincial, but I guess you could make recommendations as to funding.

• 0915

I think the only way parents can communicate effectively is if they're required to deal with one another. If we set it up so that they have to go to court, their first thing to do is to go to a lawyer. It's an adversarial system, the court system is. It sets up a dichotomy immediately. People do not talk to each other. The lawyers don't even recommend they talk to each other, so how are they supposed to communicate effectively?

It is crazy. It really is. The kids are the ones who suffer, because they're constantly trying to bring their parents together.

I think children should be involved, but it's very difficult for them to be involved in the court process because it's a very artificial environment. It's not conducive to them talking openly, whereas mediation sessions would be. They're more informal, and with psychological help the kids could be involved in the decision-making process. And I think they should be. I think their say is very valuable.

If they can go out and get a gun and kill children, I think children have the right to be able to say what happens in their life. I mean, we're seeing more and more young children out there making decisions with guns, so why shouldn't they make decisions with their voices?

I think mediation would be very beneficial. When I say “mediation”, I mean a whole spectrum of things. Mediation is just a term. It could be negotiation, mediation, conciliation, or any number of names you put on it, but I think the parents should be encouraged, if not mandated, to sit down and discuss these things.

If they make these decisions, they have to live with them, and they will live with them. The other way is for a judge to make the decision for them, and I don't think people live with those kinds of decisions nearly as well as they do with the ones they've made themselves.

That's my little bit. It's near and dear to my heart, mediations is. I think it is the way to go. It won't answer all the problems, and it certainly won't deal with the violent situations, because I don't think you can have mediation if there is a power imbalance, but in most cases, I think it could be very helpful.

Thank you.

The Joint Chair (Senator Landon Pearson): Ms. Roberts.

Ms. Eve Roberts (Individual Presentation): Thank you very much. I'm a fairly newly retired lawyer who has practised family law on and off over a period of 32 years.

I'd like to thank the joint committee for asking me to appear. I wasn't called and asked until late last week, so unfortunately I don't have a written brief for you. I was asked if, in my five minutes, I would make some very specific recommendations regarding changes to the Divorce Act with respect to custody and access. That's what I'm going to do.

My first suggestion is that in any changes you make to the Divorce Act, I think the government must make a huge effort to make them uniform with provincial legislation. We all know how many common-law relationships there are and how many people separate but do not divorce, and I can't see any point in having all these myriad standards across the country.

In the media here we're bombarded with articles and what not from the mainland. I was always having clients coming in and telling me they'd read a certain article and found out that their husband was going to get this, or they weren't going to get that. These articles were always from Ontario, where the law is different on how to divide properties. It's very confusing for people. So in this country we need a huge effort to make this legislation uniform. That's my first point.

Two, I would like to see the legislation direct judges to grant custody and access on the basis of the status before separation. During separation and after separation, people are not themselves. Parents go a little squirrelly. There's a lot of fear, a lot of emotional upset, and a lot of accusations arise out of people's hurt feelings as a result of the separation.

• 0920

I think the courts would get a much better basis of who is to care for children if they ignored, in great measure, what went on after the separation and looked at the regime of parenting the parties had before they separated.

This is what the child is used to. It's usually a division of parental labour the parents had worked out for themselves. Parenting skills and parents' views of each other are better judged, I think, by this pre-separation standard, because it is one that the parents themselves worked out and agreed to. I think it is one the courts should start with, and then let the new parenting arrangements that will flow from the separation and divorce evolve from the one they had already agreed to themselves.

My third point is that I would like to see the legislation changed so that a judge must direct their mind to family violence. I would like to see added to subsection 16(9) of the Divorce Act the phrase “Family violence shall be considered conduct relevant to the ability to act as a parent of the child”.

I don't think I need to belabour that point, because I'm sure you've heard from a hundred women's groups. I'm one of the national vice-presidents of the YWCA of Canada, and I know in our presentation we talked a great deal about family violence. I don't think family violence is necessarily gender specific, but I do think the judge must consider the effect of family violence in making a decision.

My fourth point is that I would encourage you to recommend that the words “custody” and “access” in section 16 of the Divorce Act be changed to “parenting responsibilities”. What a pleasant change to have parents fighting over who's going to take responsibility instead of fighting over who's going to get care, control and custody.

The loss of custody of a parent demands an explanation from the non-custodial parent, even one who, as an expression of love for their child, realizes that they're not the best person to have custody and is viewed as having “given up” custody. The non-custodial grandparent says “My God, you're giving up custody of my grandchild!” There are huge emotional issues around the words “winning”, “losing” and “giving up” of custody.

Very often in my practice we would negotiate a joint custody agreement on paper, but it would simply be a sham. Everybody knew that one person was really going to have custody. But it prevented the other parent from having a loss of face.

If we take out this word “custody” and substitute “parenting responsibilities”, I think we'd all feel a great deal more comfortable in negotiating some type of settlement to deal with it.

So section 16 could read “A court may...make an order respecting the parenting responsibilities of the parties”. The court could then deal with such things as where the child would have his or her residence, schooling, medical care and treatment, or the child's religion, holidays, extracurricular activities and relocation.

Now, in my experience, most separating couples are quite competent to figure all this out for themselves, or can simply agree to any kind of arrangement that will work for the parents, but where there's a contested application, I think it would take a lot of sting out of it if we looked at as parental responsibilities.

• 0925

My fifth point is I strongly feel that separation counselling should be mandatory for separating spouses and their children, so all of them learn how to minimize the effects on the children, and each learns how to deal with the other. Mandatory counselling doesn't work if the parents are always forced to be in the same room. We all know that people who do get along in their marriage will very often not get along in a counselling session. But I think it's very beneficial if each parent is counselled, even separately, on how to deal with the other person now that they're separated, and how to deal with their own feelings and emotions.

Very often after separation there is quite a time lag. Usually one parent decides he or she wants out of the marriage first. They go through weeks, months, sometimes even years of getting themselves to the decision to leave. The other parent needs almost an equal amount of time to get used to the idea and come to grips with it. Besides the power imbalance, there's a terrific emotional imbalance between the parties. The party being left, in particular, needs a great deal of counselling and support to get himself or herself up to speed to be able to deal with all these legal issues.

I think the result of this early education of the parents about separation may lead to successful mediation, because when the parties have the tools and the information and there isn't this emotional or power imbalance, they can enter into mediation and deal with these parenting issues much more effectively.

My final point is we must educate our family court judges much better and support them much better. In the rural areas, judges have to deal with a whole range of issues, and I think they often don't have the education and support to do it. In the urban areas, family court judges are sometimes in a unified family court or a family court that's very isolated from the rest of the judges, and I think it's a very lonely life for them. They get burned out terrifically quickly. Judges are only human, and they need a huge amount of support for the work they do. Family law lawyers are kind of looked down upon by their fellow lawyers—family law isn't real law, it's not corporate, it doesn't make any money. I think family court judges feel the same.

Thanks very much.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Mr. Lowther.

Mr. Eric Lowther: Thank you.

As a westerner, this is my first time to this part of the country, and I'm really encouraged. It's refreshing to hear few words and lots of common sense out here on the rock. I appreciate that from all the witnesses.

Ms. Andrews, you have an interesting perspective. You were a nurse, then a lawyer, and now you're in family law and mediation. You obviously have a heart for people and trying to help them out. You have been a lawyer and became frustrated with the system and are now doing mediation. We've heard from some lawyers who attempt to do some mediation within their practices. They try to cover that base a little, but haven't really crossed over into mediation fully.

You've had legal experience and now you have mediation experience. What's the difference? What are you doing in mediation that you couldn't do or didn't do as a lawyer? What do you do with these people when they come in now that's different from before?

Ms. Donna Andrews: We don't do the court route.

Mr. Eric Lowther: Right. So when they come in and they're—

Ms. Donna Andrews: I talk to them individually or in joint sessions, however we see it working best. Often we have individual sessions and then we come together for one last session. Sometimes people like to be in joint sessions together. I think it's better to air their dirty laundry, so to speak, with someone there and get their feelings, their hurt and everything out at one another with another party in the room. Often that's all they need. They want someone else to hear how they feel. You'll hear people say “I want a judge to know what you did to me and how you went off with this young thing” or “I want a judge to know just how you behave as a parent”, or whatever. Sometimes they need to express themselves. So counselling is part of what I do.

• 0930

Mr. Eric Lowther: What's your goal as a mediator as opposed to a lawyer? What's the difference in your objectives?

Ms. Donna Andrews: I felt the same way as a lawyer. I wanted the best result, which would be for people to communicate as best they can and for the children not to feel torn all the time when the family is split up. They're torn between both parents, trying to make one happy and not talking about the other one. Even though I haven't had kids in the mediation session, they'll think it's beneficial for the parents at least to be able to deal with one another for the sake of the children, even if they hate each other.

Mr. Eric Lowther: But something wasn't working for you as a lawyer that made you leave that to go to mediation.

Ms. Donna Andrews: It's the court system.

Mr. Eric Lowther: That's what I'm digging for. What made you cross over here? What frustration was there that you now are going this different route?

Ms. Donna Andrews: The court system.

Mr. Eric Lowther: The court system. Specifically what?

Ms. Donna Andrews: It's judges making decisions that for the most part they're not trained to make. They're biased by their own personal experiences.

It's lawyers who are one minute in criminal court and the next minute in family court, so they're adversarial, obviously. They don't want to be doing family law; most lawyers don't want to do family law. There are very few family law lawyers.

Mr. Eric Lowther: Adversarial...they're focused on winning or—

Ms. Donna Andrews: Oh, yes, absolutely.

Mr. Eric Lowther: —one side or the other, whereas you as a mediator are focused on—

Ms. Donna Andrews: I'm focused on the end result, being to make it the best possible situation in which to bring a child up, basically—

Mr. Eric Lowther: That difference was what I was digging for.

Ms. Donna Andrews: —and I don't think the courts are doing that.

Mr. Eric Lowther: Finally, I will ask a quick question of Ms. Roberts.

You have this idea of granting custody and access before separation or deciding how that should go. I want to make sure I understand this. Are you suggesting that if we look at the living environment before they separate, like father was there in the evenings and mother wasn't, or the percentage of time they had with the kids, or whatever, that should be the guide that determines what it should look like after, or at least the starting position?

Ms. Eve Roberts: Yes.

Mr. Eric Lowther: Do you have any idea how you would actually determine that?

If you have two groups coming in and they're sort of adversarial, they're going to say they weren't there, but.... They'll start to debate over how many times they took him to the ball game and when they were there by phone. It would be tough to establish that, wouldn't it?

Ms. Eve Roberts: Very often that's what goes on at the moment when you get into court in a contested custody application. You get a lot of this type of evidence, and very often you may say to your client, “Now, please tell the judge what a normal day was like, and how much of it you spent with your children”. So it's not difficult evidence to produce.

But if we all knew that if you go into court to fight over who's going to look after the children, the general rule of thumb is that the judge is going to keep the status quo before you separated, not after you separated, where you have this business of “Can I leave the home, or am I giving up some advantage?” A lot of the accusations miraculously arise after separation from people who thought their spouse was a perfectly adequate parent before they got the bad news that there was a third party they didn't know about. All these hurts and all this anger usually come up after separation.

So I'm saying, as a general guideline, find out who did the parenting before separation and use that as a starting point. If people knew that's what the judge was going to order, they'd probably come to that agreement without wasting their money.

Mr. Eric Lowther: In your mind, does this business about parenting responsibilities as opposed to custody and access include financial support as well, deciding that aspect of it for both parents when you speak to that, or is that a separate...? Do parenting responsibilities include financial aspects of support?

Ms. Eve Roberts: Yes, definitely.

Mr. Eric Lowther: Good. Thanks.

The Joint Chair (Senator Landon Pearson): Thank you.

Senator Cohen.

Senator Erminie Cohen: Thank you.

This is for Donna Andrews. You mentioned that 50% of families are not married couples, they're common-law.

Ms. Donna Andrews: I was just using that loosely.

Senator Erminie Cohen: Loosely...but that there is a great deal it.

Ms. Donna Andrews: Yes, I see a great deal of it.

• 0935

Senator Erminie Cohen: I just want to tell you that in Germany after July 1, common-law families will be treated exactly the same in legislation as intact families. So it's something we may be looking at after 2000.

You mentioned the rights of the child because the divorce law doesn't take the rights of the child into consideration. A child has no legal rights in Canada. Have you had any experience in your mediation with the impact a child has when they're allowed to enter into negotiations? It's not to have them say “I'd rather live with Mommy” and put them in that situation, because that would be cruel. But what is your experience with that?

Ms. Donna Andrews: I haven't had any.

Senator Erminie Cohen: You haven't had any.

Have you?

Ms. Eve Roberts: I haven't had a case where children have been involved in the mediation, but I've had many cases where children's voices have been heard. In our family court here, in our provincial legislation, a social worker can be assigned to do a report for the court. Before budget restrictions slashed a lot of this, it was very common. A report would be done and the child's voice would be heard through a social worker. I have had cases where the judge interviewed the child in their office. I've only had one or two cases where the child was actually called as a witness, and that's usually a much older child.

Senator Erminie Cohen: Do you have child advocates in the province of Newfoundland, people who speak just for the child and represent the child?

Ms. Eve Roberts: We don't have them per se, but the judge always has the right to appoint a separate lawyer for a child. Where the custody is very hotly contested and the situation gets very unpleasant, sometimes the court will appoint a lawyer to represent the interests of the child, where that sometimes differs from the interests of the parent.

Senator Erminie Cohen: There are two other comments. I really agree with your recommendation that section 69 of the Divorce Act be much clearer. We've heard from almost every group that the definition of abuse or violence should be in the Divorce Act for judges who maybe haven't had the background or the education, as you said, and are so busy. It's spoon-feeding, but sometimes we have to do that.

On the pre-education standard you spoke to, it's an idea that was floated by one of the witnesses, and I thought “Oh, no”, but the more I think about it.... When I first heard about marriage contracts—I'm another generation—I thought why get married if you have to sign a contract that he gets this and she gets that? I think there were 71,000 divorces in 1996, so maybe when two people marry they should sign a parenting responsibility contract before the marriage. In other words, if the marriage should break down, because that's what the marriage contract is about, there should be some kind of a parenting plan for responsibility that says in the event of this.... It's something to think about, because marriage contracts were far out at one time.

Ms. Eve Roberts: In our provincial legislation, which allows for prenuptial contracts, the one thing you may not agree to, if the marriage ends, is who gets custody and access of the children. I think that's partly because under our laws that's always under the control of the courts, so it wouldn't be enforceable at the moment. It's not something I could really advocate, because when you first marry I don't think you have any idea what kind of parent you'll be.

Senator Erminie Cohen: That's true.

The Joint Chair (Senator Landon Pearson): Thank you.

Ms. Finestone.

Mrs. Sheila Finestone: Thank you very much.

I'd like the record to show that I think we've been very lucky and very privileged to hear from excellent witnesses on all sides.

I'd like to just ask a question with respect to the number of cases. I think I'm addressing my question to Eve Roberts at the moment. Over a 32-year span, that's quite a wonderful history, which would be reflective of this province and the changing mores perhaps.

• 0940

What percentage of the cases—I wonder if you could just guesstimate this for us—would be settled out of court? What are we talking about? We're talking about establishing the whole question of leaving out family violence, parental responsibility, and pre-separation standards. It's all those things that have to be juggled. What percentage of cases you've handled would have been difficult, confrontational cases, and what percentage were settled within your offices?

Ms. Eve Roberts: Part of my early experience was in Alberta, and I don't think that's any different. I'd say that well over 90% of cases are settled without too much problem. A lot of parents are very young when they separate. A lot of parents don't wish for parenting responsibilities, and they simply disappear. A lot of people are very sensible. They take their separation to heart and work these things out.

Of the remaining 10% who really need some assistance, only a very small percentage actually go to trial, maybe 1% or 2%.

Mrs. Sheila Finestone: Within a ballpark figure, that's what we heard. We also heard a lot of concern by grandparents and their right to access. We heard a lot of concern about unfounded allegations of sexual assault, violence, etc. We also know that there's a substantial percentage of violence within the family, perhaps within that 10%.

I wondered how much sexual dysfunction you found in your work with families who were going into a divorce situation. It might be at the base of the difficulties found within divorcing couples. Could you even take a guess at that?

Ms. Donna Andrews: It would be impossible to say. For me, I have seen it, and it's far too much, but I couldn't put a percentage on it.

Mrs. Sheila Finestone: I just wondered if Viagra would be an answer.

Voices: Hear, hear.

Mrs. Sheila Finestone: To come back on the question of common standards across the country, I think that would be a pious wish, and I don't think that this joint committee is interested in pious wishes.

There is a distinct separation between the Divorce Act, which is pan-Canadian, and the responsibilities at the provincial level. I think that we could learn from each of the provinces, and see perhaps what we might recommend to the federal-provincial-territorial committee to look at and help and be an enabler with models for each of the provinces to look at. I just want that to be on the record, in a sense, because I can recall how frustrating that is when you're dealing with it as a federal member of Parliament.

On the question of section 69, I thank you for that. I'd like to ask you on—

The Joint Chair (Senator Landon Pearson): That's subsection 16(9).

Mrs. Sheila Finestone: That's subsection 16(9), excuse me. Thank you.

On section 16, you want that language change that was changing the language of “custody” and “access”.

I think I'm coming to a conclusion about the words. Although at the beginning I didn't think the words had that same sense of winner and loser, I'm really being more and more convinced that the nomenclature has to go.

A great deal of different kinds of language have been presented to us, but at the bottom, it's parental responsibility and also the sense that the parents belong to the child, not the child to the parents. I think that a fundamental philosophy that we see coming through, with the exceptions of where there is acute violence, mistrust, or things of that nature.

In the last part of the question that I wanted to ask about, mandatory counselling, mandatory mediation and mandatory consultation, whatever the language, whether or not it starts with a friend of the family and then moves to a professional person and then has to move finally to the courts, would those be the steps you would see? Do you think lawyers per se are the first people who should be trying this mediation approach, or do you think that lawyers—I'm not trying to impugn your responsibilities—as we've so often heard, are the cause of the problem.

Ms. Eve Roberts: I understand that's so in other jurisdictions, but I don't think it is in this province. In my experience, most of the lawyers who practise family law really put their efforts into trying to do the best for the separated family.

• 0945

You're in a bit of a conflict as a lawyer, because you're being paid to represent the interests of one party. You're hired to help, and what you really want to do is look at this separated family and try to get them out of this mess as—

Mrs. Sheila Finestone: So do you think it would be a good idea if you could refer them immediately to someone outside of yourself, like a family friend, first?

Ms. Eve Roberts: I think the first thing to do is to give them educational tools of what their rights and responsibilities as a separated party are under the law, so that they have this knowledge base of what they're entitled to and what their responsibilities are. And then, if they're the spouse who's just been left and they're in an emotional mess, I would say go and get yourself some counselling and get your kids some counselling and I will try to fend off the other lawyer for as long as I can to allow you to get yourself to an emotional level where you can deal with this.

Then, when they have these emotional and factual legal tools, they can sit down and mediate and negotiate. You can't do it if you don't have the information and the emotional strength to do it.

Mrs. Sheila Finestone: I want to say that I'm very glad that the Status of Women group is sitting and listening, because I frankly believe.... If you look at Quebec, you will find that there has been a handbook prepared on self-divorce, but the thing that's good about the handbook is that it has a list of what is allowable under the law and what is divisible under the law. As each province has different kinds of laws, it would be very helpful if the individual provinces prepared such a kit so that it is available upon request. And it doesn't have to be an expensive document, but it is an educational tool.

Ms. Donna Andrews: We do have one.

Mrs. Sheila Finestone: Oh, you do?

Ms. Donna Andrews: It's here in the package.

Mrs. Sheila Finestone: If you have one, a lot of the problems around what you call education.... It's knowledge, fundamental knowledge.

I do like the idea of a pre-separation standard for the judge. I think that's a great idea, because you can also, in that way, involve the grandparents or friends of the family—in terms of friends, an uncle or whatever—because they can help establish what the reality is. The reality is very different for each person who's living it.

I think it would answer a lot of the charges that the children are left with the mother, as if it were a given. The reality is that in most instances it's right for the child and therefore you don't have to do it on a percentage basis. You have to do it on what is best for the child.

I like that idea of the separation standard and to ensure that there's no abuse of the standard. I'd like the idea of making up lost time. If there's a reason why you cannot see that child, you can make it up another time. It doesn't have to always be so confrontational.

The Joint Chair (Senator Landon Pearson): Thank you, Mr. Gallaway.

The Joint Chair (Mr. Roger Gallaway): I have a very short question, Madam Chair.

We like to quantify things in our society, and I've heard the discussion about perhaps 10% of the cases are high-conflict or problematic. Last week, I think in Edmonton, we heard that it was 17%, and one would acknowledge or presume that there could be regional or provincial differences.

The one thing we haven't heard a lot about, though, is that in this 10% example, we're talking about cases in the time period from when a petition for divorce is issued to the time of the granting of the divorce, but we know the Divorce Act also covers that period of time after divorce until the children reach the age of majority. Could you give us any idea of whether that time period also involves another, perhaps new, group of clienteles for the courts? If so, can you hazard a guess as to what the size of that base is?

Ms. Eve Roberts: You're talking about people who had fairly non-confrontational separation and divorce but problems arose later on?

The Joint Chair (Mr. Roger Gallaway): Yes. I'm asking this because last week we heard some witnesses who got into problems two years after the divorce.

Ms. Eve Roberts: That would be difficult. My practice was in St. John's, and in St. John's, as you heard earlier this morning, we're very fortunate to have the Unified Family Court, with very skilled counsellors. If you have somebody come into your office who has a problem, the first thing I would do would be to send them up to one of the Unified Family Court counsellors to see if it can be resolved. The counsellor would sit down with the parent and usually then ask the other parent if they'd like to come in and discuss it.

• 0950

A lot of these issues can be resolved, but certainly some of them aren't, and you see reapplications over custody. Generally the people who didn't get along in the beginning continue not to get along. Sometimes it's hard to explain to separating people that they are going to have a relationship forever. It's not going to be the marriage relationship, but they're still going to be grandparents together in the end.

The Joint Chair (Mr. Roger Gallaway): Thank you.

Mrs. Sheila Finestone: You have to go to the wedding ceremonies.

Ms. Eve Roberts: Yes, all these things. And once the children get to be teenagers, they almost inevitably want to change their residence.

Mrs. Sheila Finestone: And manipulate mom and dad.

Ms. Eve Roberts: You have to look at this as an ongoing thing until the children are quite grown up.

Mrs. Sheila Finestone: Mr. Gallaway's comment is very good. He says you don't have to be divorced to have that happen to your teenagers.

Voices: Oh, oh!

The Joint Chair (Senator Landon Pearson): Senator Lewis.

Senator P. Derek Lewis (St. John's, Lib.): Thank you, Madam Chairman.

The committee is dealing with child custody and access, and both the witnesses have spoken about their long experience with these matrimonial problems, from a professional point of view, and the number of situations that go to litigation.

In giving the percentages and whatnot, would you be—I don't say you're mixing it up, but would you be involving non-custody cases with your experiences? You've dealt with divorce actions where there may be no question of custody and there may be questions under the provincial legislation about the division of property, but I'm just wondering if possibly, when you gave us the numbers, you might have included non-custody cases.

In other words, I know it's difficult to do, but say over 30 years, what percentage of cases involved custody of children? Might you give us some idea?

Ms. Eve Roberts: Senator Lewis, that's very difficult to answer. I would guess most conflict is not over custody but over money.

Senator Derek Lewis: Yes, exactly.

Ms. Eve Roberts: But custody comes into it.

Senator Derek Lewis: Yes, and it may colour it.

Ms. Eve Roberts: It colours it to a great extent. Very often we'll see people negotiate: “Well, if I ask for a little bit less money, he'll give up his action for custody.” That happens all the time. It's very hard to separate these issues when it's a matter of manipulating the other spouse and controlling the other spouse to find out, are they really, genuinely in the custody of this child, or do they just want to pay less?

Senator Derek Lewis: It's human relations.

Ms. Eve Roberts: It's really hard to separate these issues, because they say, “Well, if I'm going to pay so much for this child, surely I should get to see this child a lot more.”

Senator Derek Lewis: That's right.

Ms. Eve Roberts: It's really hard to separate them.

Senator Derek Lewis: And there might be an influence too if a parent thought, “Well, I can save myself some money if I don't have access or if I reduce the number of times I have access.” That might have quite a significant influence on the way they think about things. When it comes down to dollars and cents, you don't know how an individual is going to work.

Ms. Eve Roberts: My guess is, Senator, for every spouse who has problems getting access to the child, there are a hundred other spouses out there who would dearly love the other parent to be coming and having access and taking responsibility. To me the big problem is to get the non-custodial spouse to take some responsibility.

Senator Derek Lewis: Yes, and it's a very—

Ms. Eve Roberts: I don't think you can legislate that one.

Senator Derek Lewis: Yes, that's what I was going to say. It's something you can't legislate. It's human relations.

Ms. Eve Roberts: Yes.

Senator Derek Lewis: Thank you.

The Joint Chair (Senator Landon Pearson): Does anybody else have a question?

Mr. Eric Lowther: I have just one more short one, if I may.

The Joint Chair (Senator Landon Pearson): Yes.

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Mr. Eric Lowther: I'm confused. In answer to Senator Lewis' question about tradeoffs on the financial side for access, you said it happens all the time, and yet you said in 90% of the cases it's no problem, so we're only talking about 10% of the cases. I'm getting a mixed message there. Is it all the time or is it only 10% of the time?

Ms. Eve Roberts: Well, that would be within the 10%.

Mr. Eric Lowther: Oh, okay.

Ms. Eve Roberts: It's 10% of couples who aren't going to work out their own arrangement and have a fairly amicable separation.

Mr. Eric Lowther: Okay, but—

Ms. Eve Roberts: Some of those you can resolve by trading off money for access.

Mr. Eric Lowther: So is this tradeoff of money for access happening in the 90%?

Ms. Eve Roberts: No, in the 10% that are difficult.

Mr. Eric Lowther: Okay, thank you.

The Joint Chair (Senator Landon Pearson): I have a question.

It's unusual for us to have an opportunity to have two people coming from different parts of the province, where one has the Unified Family Court here in St. John's and the other doesn't have access to the Unified Family Court. Clearly there's a big difference. Is it possible to have unified family courts in other parts of Newfoundland?

Ms. Donna Andrews: Are we saying there's no money, that it's not entirely possible to have courts—?

The Joint Chair (Senator Landon Pearson): No, no. First of all, is it technically—?

Ms. Donna Andrews: I know they can be created, and I've heard that they've talked about doing it in central Newfoundland, but I don't know what's going to happen.

The Joint Chair (Senator Landon Pearson): It does require of course federally appointed judges, doesn't it?

Ms. Donna Andrews: Yes.

Senator Derek Lewis: The family court set-up was supposed to be an interim thing.

Ms. Eve Roberts: Senator, it was a pilot project originally, and it was unified in that it was supposed to hear minor criminal actions involving parents and some of these other issues. Really what our family court has pretty much come down to is judges exercising their superior court jurisdiction with a social arm.

Senator Derek Lewis: I would say probably the courts wanted to get rid of a lot of this family law matter.

The Joint Chair (Senator Landon Pearson): And I think one of the points that came out in your comments, Ms. Roberts, is the fact that you could send your people to counsellors.

Ms. Eve Roberts: Counselling, yes.

The Joint Chair (Senator Landon Pearson): You don't have that opportunity.

Ms. Donna Andrews: It's not only that we don't have the opportunity; it's just not available.

The Joint Chair (Senator Landon Pearson): It's just not available.

Ms. Donna Andrews: Especially free of charge. That's the thing about here with the Unified Family Court.

The Joint Chair (Senator Landon Pearson): No, I can see the difference.

Ms. Donna Andrews: We have two tiers, basically, in Newfoundland, and we don't have the resources.

Ms. Eve Roberts: And you have to remember then that in a lot of parts of rural Newfoundland there is no policing. So in all this business about stalking, if you live in a rural community on the coast of Labrador and the nearest RCMP officer is a plane ride away and you have to wait for the weather to clear....

The Joint Chair (Senator Landon Pearson): Yes, these are really—

Mrs. Sheila Finestone: They just found this large cache of drugs in Gros Morne, I believe. Is it because there are no police around there and the kids have to go to—

The Joint Chair (Senator Landon Pearson): Do you have a question?

Mrs. Sheila Finestone: Yes, I do, please.

Following up on Senator Lewis' question, are you handling your youth protection cases in the unified court system?

Ms. Eve Roberts: No.

Mrs. Sheila Finestone: Because it's under criminal law.

Ms. Eve Roberts: Yes. None of that is being done in the unified court.

Mrs. Sheila Finestone: Following up on Senator Pearson's question, in either of the court systems, whether it is the travelling judges, whose life I'm sure is not easy, or those who are here in St. John's, we've been told the judges like to think they don't need to have mandatory training—that it's an imposition or an infringement on their confidence. I am of the view that before they ever get a nomination, for them even to be considered, they should be going to a training session.

Do you believe that as society changes dramatically decade after decade—and some of these judges serve many decades—they should certainly have to have training every year or every two years, a retraining program, a refocusing, a renewal, some kind of direction for these judges?

Ms. Eve Roberts: I'd certainly agree with that, and I would like to see very good written guidelines about who should be appointed to the bench, what qualifications judges should have. I have to say I don't think the people who appoint judges ever read their own guidelines.

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Mrs. Sheila Finestone: That's a very interesting point, which I'd like to pursue in one more question.

As I understand it, before you can apply to even be considered as a judge, you have to have 10 years of practice, you have to be acceptable to your own law society of the province, and the list is vetted by the executive of the province and then forwarded to the federal government for consideration. Is that a fair enough or stringent enough process? And if not, why not, and what are the remedies? What other process—?

Ms. Eve Roberts: I don't think you've described the process quite accurately.

Mrs. Sheila Finestone: Would you mind describing what you think it is?

Ms. Eve Roberts: I'm not an applicant, so I'm not quite sure.

Mrs. Sheila Finestone: That's fine.

Ms. Eve Roberts: You do have to be at the bar for at least 10 years, and then someplace in Ottawa there's a Commissioner for Federal Judicial Affairs, and you do make application. Then each province has a committee made up of judges, lawyers, and laypeople who review your application. They don't interview the people, but they rank them, either highly recommended, recommended, or not recommended.

Mrs. Sheila Finestone: So that is the third step so far.

Ms. Eve Roberts: Before you are appointed, I think then it's at the government level that they are supposed to look at your references. The committee doesn't look at your references. I don't know why they don't do that at the committee stage, but your references are not looked at before it gets to the Minister of Justice.

Senator Erminie Cohen: Could I have a supplementary to that?

The Joint Chair (Senator Landon Pearson): Yes.

Senator Erminie Cohen: Just to give credence to your statement about not reading the résumés, in the last few years, two judges were appointed in the province of New Brunswick, one to the appeal court and one to family court. Today all the lawyers are saying that the person in the appeal court should have been in family court and the person in family court should have been in the appeal court.

So there are definitely weaknesses there. For the best interests of the family and for women and for men, that's a very good point you make. Thank you.

Mrs. Sheila Finestone: Well, thank you. It's something I've felt strongly about, but I have been told my concern is not well founded, because they already have a four-step process. Well, maybe we should look at the four steps and see what needs some revision in there and recommend it in the course of our work, Madam Chair.

The Joint Chair (Senator Landon Pearson): Thank you very much.

It's been a pleasure to have you. We're very pleased you could come in front of us.

The committee will resume at one o'clock.

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The Joint Chair (Mr. Roger Gallaway): We'll get under way, however late we may be this afternoon.

We want to welcome our witnesses. I won't make any comment on our promptness, or lack thereof, this afternoon. I was trying to explain to our witnesses earlier that it was the restaurant's fault.

We have with us Glenda Best, from the law firm Williams, Roebothan; Gillian Butler, a mediator and a lawyer from the firm of White, Ottenheimer; and Mr. David Day, from the law firm Lewis, Day.

I think you know the procedure here. We would ask that you speak for about five minutes, and we'll begin with Mr. Day.

Mr. David Day (Lewis, Day, Barristers, Solicitors, Notaries): Thank you, parliamentarians. I have a statement of five minutes, consisting of seven points.

In discharging your mandate to assess the need for a more child-centred approach in family law policies and practices, I ask you to consider for your report to Parliament the following:

First, rewrite the language of caring for children of fractured families under the Divorce Act and encourage the provinces and territories to follow suit.

The present language of custody and access under the Divorce Act, sections 2, 6, 9, 11, 16, 17, and 34, and in the regulations, is the language of civil property interests and criminal incarceration and reinforces the adversarial judicial system of winners and losers. In approximately 3,500 family law cases since 1968, in which I have advised, 81% of them divorces, this language has been among the most often-mentioned client concern.

The alternative is parenting orders that define parental responsibilities in terms of care, responsibility, and contact. I note that “care” is presently used in section 15(2) of the Divorce Act, although in the context of child financial support.

Second, Divorce Act paragraph 11(1)(b) authorizes a court to stay a granting of divorce until “reasonable arrangements have been made for the support of any children”. A provision should be added that authorizes the court to stay a divorce until reasonable arrangements have been made and implemented for the parenting of any children. What constitutes “reasonable arrangements” could be defined to include in the terms of your mandate arrangements that are child focused and where in a child's best interests and practicable involve joint parental responsibilities.

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Third, the concept of Divorce Act subsection 16(4), described in its marginal note as joint custody or access, should not be altered.

Reasonable implemented arrangements for children of sundered marriages should not proceed from a presumption of joint parenting. Such presumption would require a court in any proceeding in which either party opposed joint parenting to try the issue, unless the issue is resolved through case management, pre-trial conference, mediation, or other pre-trial processes.

Objection to presumed joint parenting would have been the rule rather than the exception in family cases in which I have advised. The principal reason: inability to communicate and cooperate are usually primary reasons for failed marriages. Over time, in my experience, many divorcing couples employing professional help or self-help achieve arrangements that amount to joint parenting. However, in the immediate wake of separation and divorce, many parents who are not then agreeable to joint parenting will not then be compelled by legislation or courts, or cajoled by other processes, such as mediation, to submit to joint parenting.

Four, although I acknowledge that superior courts in Canada have discretion to make parenting-related orders that are not specifically authorized by the Divorce Act, by virtue of the ancient concept of parens patriae, subsection 16(4) of the Divorce Act should be amended to authorize courts specifically to order that the non-residential parent of a child is entitled to receive and obtain information about health, education, and welfare of children.

Many physicians in hospitals, teachers in schools, and leaders in organizations are reluctant to disclose child information to a non-residential parent without consent of the residential parent. That is often not forthcoming or is given in exchange for concessions on issues unrelated to children. For many parents whose health, finances, or employment preclude regular, frequent, personal contact with their children, these are among the only other means of communicating and keeping informed.

Five, while no effort should be made to comprehensively articulate the standard of best interests in Divorce Act subsection 16(8), the act should be amended to ensure that mistreatment between spouses is one of the pertinent factors in determining best interests.

In Canada, only Newfoundland makes specific provision for this consideration in parenting proceedings under subsection 31(3) of the Children's Law Act. However, the term there employed is “violent manner”. A broader, less emotive, and therefore more appropriate term would be “mistreatment”. This could include not only physical mistreatment, but additionally, emotional and economic mistreatment.

Six, all of Canada's judicial wisdom, laws, procedures, and support service, not to mention parliamentarians, will be unable to resolve the small percentage—in my experience, less than half of 1%—of intractable parenting disputes. However, mediation holds the potential to resolve most parenting disputes more expeditiously than courts can be expected to do, or at least to reduce the number of parenting disputes that may otherwise become intractable. Nonetheless, the Divorce Act should not be amended to incorporate the decidedly helpful requirement of mediation in divorce proceedings unless and until qualified mediation services are available throughout Canada.

Finally, additional research may be required to determine the parenting needs of children of relationships other than those that end in divorce, which do not reach a court's public record. Increasingly, parents present in my practice who have not married or are legally ineligible to marry due to marital status or sexual orientation and who do not access federal or provincial family law legislation.

Thank you.

The Joint Chair (Mr. Roger Gallaway): Thank you very much, Mr. Day.

We'll now move to Ms. Butler.

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Ms. Gillian Butler (Lawyer, Mediator, White, Ottenheimer): Thank you for the opportunity to speak to you today. My presentation is perhaps a little more personal.

For the first 16 years of my career I practised in my family law practice as a litigator. In 1996 I shifted focus and I'm now restricting my family law practice to that of mediation. My reasons for doing so may, I suppose, be in part associated with advancing age and the wisdom that brings. It may be because of the burnout that grows and has to be recognized with a family law practice, or it may perhaps have to do with having seen, maybe as a result of middle age, some of my own very close friends go through the consequences of family breakdowns and seeing firsthand exactly what the process does to them.

In terms of pointing out how the Newfoundland system may in fact differ from other jurisdictions in which you've already heard presentations, let me tell you first that the unified family court system was, of course, unified at the Supreme Court level as opposed to the provincial court level, and the Unified Family Court in Newfoundland is restricted in its geography to one jurisdiction only, and that is, within so many miles of the city of St. John's. So we have a system that has been accused of being elitist in Newfoundland insofar as people with similar problems do not have equal access to programs.

Because I am now practising as a mediator in family law and not as a litigator, I don't participate in the regular family law subsection meetings of the Canadian Bar Association. I have, however, read their report. Some of their recommendations I very much support and others I do not.

My very brief submission will touch on as many areas as possible, principally, mediation, funding for programs, and, more importantly from my perspective—and this is maybe where my presentation will be a little different—access to the system.

On the issue of mediation, in order to work optimally, mediation services, I think, must be at arm's length from the court process, and this is, of course, not what we have in a unified family court system. When they are part of the system, for example, like social workers housed in the same building as the judge and the courthouse, the litigants do not perceive those services as being at arm's length. I am not recommending the loss of any positions. I am simply saying that this service must be independent. The same well-qualified and experienced people can provide the service, perhaps on a contractual basis but funded by the same source as they are currently.

Secondly, mediation should never be mandatory. I think we should look at—and perhaps this committee could recommend—strengthening subsection 9(2) of the act, which currently imposes the duty on lawyers only to discuss with their clients the advisability of negotiation. I would support an obligation on solicitors for explaining all possible and potential optional dispute resolution processes to clients and a certificate confirming the same when the petition for divorce is issued.

Finally, mediation in all cases should be closed, and I think the act should indicate the same. The mediator should not ever, except in cases of child abuse or child welfare, be compellable as a witness.

Second, the Canadian Bar Association family law subsection recommended that real resources—obviously funding—be put into this area, that is, parental education, supervised access, and other programs. All too often, the answer given as to why a poor parenting relationship exists is that the parents lack certain skills. If those skills can be taught in a parenting course or in one-on-one counselling, then they should be made available. All too often, of course, this problem exists in the lower socioeconomic groups. In such cases, I would support the availability of funded parental education and supervised access programs.

I do not, however, support recommendation 3 of the CBA, that being that separated spouses should be “required” to attend a government-funded parental education program before commencing the litigation process. I've come to that conclusion for the following reasons. First of all, I think it is ripe for abuse. Secondly, I think it would delay a process that would otherwise proceed, and because it is mandatory it would not be entered into with the good faith required for the success of such programs.

My third point is in relation to access to the system. The CBA recommendations 1 and 2 suggested we include specific factors when determining the best interests test, and these factors have, even though they are not legislatively embraced at the moment, been followed in Newfoundland court decisions for many years, certainly since my admission to the bar in 1980.

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The recommendation for setting out parental responsibilities in the act is also sound, but more importantly, however, I feel that the test of the best interests of the child requires timely intervention, access to the court system, and remedies that in fact have teeth.

I'm sure we can all refer to cases in which there have been unexplainable and inordinate delays in access to the system. Two questions arise from these kinds of cases. First of all, how can the system be more accessible? And how can the system make custodial parents accountable for frustrating or failing to cooperate with access orders, even if these cases are in the vast minority? In such cases, social workers and other qualified professionals have a very important role in advising the court, and, I think, particularly so in the very early stages of the case, with respect to what parenting arrangements may be appropriate while we await the court date.

These professionals, however, cannot take the place of a judge. It is inappropriate on a final order to simply leave the enforcement of access in the hands of a social worker without more. In Newfoundland, we've been waiting for the appointment of a second Unified Family Court judge now for some time. The act is there. It has simply not been proclaimed, and nobody in this room, I'm sure, really knows the reason for that. When we do have our second full-time Unified Family Court judge, the system will become more accessible.

Until then, I have some suggestions to make in terms of remedies, and that is that if at all possible this committee make suggestions for potential remedies where there is non-compliance with an access arrangement embodied either in a court order or a separation agreement. These remedies, from my experience, should include: as a first round, a warning of possible penalties; secondly, contempt proceedings, i.e. fines; thirdly, where appropriate, and obviously only in severe cases, the suspension of child support, or finally, a change in custodial arrangements.

In my experience, the judiciary is loath to impose penalties. Therefore, litigants who end up with these kinds of problems perceive the remedies that are available as empty remedies or veiled threats. I believe the answer is in policing, but I don't think that policing should be by the police, as is recommended by the CBA subsection.

For example, if a court order contains a requirement for counselling, the issue should be reviewed within 30 days so that the parties come in on a simple five-minute application, explaining whether counselling has proceeded, and if so, with what success, and if not, why not. If access is ordered, likewise the issue can be reviewed by ordering the parties to return in a month with notice of what access was given, with what results and what else may be needed. This requires additional support at the judicial level and not at the social level of court.

In making these recommendations to you, I am very aware that literature and experience suggests that it is inappropriate to deviate from the well-established rule that child support and access should not be linked. However, I think the system has gone very far and has done very well in enforcing support, and I do not share the same good message with respect to the enforcement of access when a legitimate parent has a legitimate expression of need to have access to his or her children.

The Joint Chair (Mr. Roger Gallaway): Ms. Butler, you're—

Ms. Gillian Butler: Am I over the time limit?

The Joint Chair (Mr. Roger Gallaway): Yes.

Ms. Gillian Butler: Thank you very much.

The Joint Chair (Mr. Roger Gallaway): Thank you very much.

Finally, Ms. Best.

Ms. Glenda Best (Co-chair, Family Law Subsection, Canadian Bar Association): Thank you much.

Like Ms. Butler, I participate in some family mediation. I am currently the co-chair of the family law subsection of the Canadian Bar Association in Newfoundland and have been in that position for two years.

I had the opportunity to participate in and to review the report and presentation given to this committee in Ottawa several weeks ago by the Canadian Bar Association and would advise the committee that the report in its entirety has been endorsed by the family law subsection in the province of Newfoundland.

Family law and the dissolution of marriage is a very emotional topic, not only for the parents and the children. As family law lawyers and judges, as we encounter the system in which we are required to operate you will have heard through this committee that we experience a growth in the cynicism we have about the system and how it works and that we have a real concern as to whether or not the system is effectively looking at the best interests of the children.

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I have been the target over time of various gender-oriented or other special interest groups as to whether or not it's appropriate to deal with an individual lawyer in a particular area of family law. I've had men's groups suggest that I'm women-oriented and women's groups suggest that I'm men-oriented—I have a problem. I have had groups of individuals who run into false allegations in divorce indicate that it's not appropriate to deal with me because of a particular position I took in a trial—only to have them refer their friends to me at a later date.

I'm loath to believe that these special interest groups are really looking at what is in the best interests of the children. They appear more focused, at least from my perspective, on the issue of what is right for them.

Oftentimes in practice, especially since the amendments to the child support guidelines and their implementation, I see individuals seeking 40% of the time with the children in order that.... The court has more discretion with the awarding of child support. It causes me tremendous concern, because I believe that those people, while they're educating themselves and are able to express the words “the best interests of the children”.... Oftentimes that's exactly what they're doing: they're just voicing those words, and it's more like, “How much support am I going to pay if this arrangement is put in place?” and “My wife or my husband had an affair and therefore I had to vindicate myself by becoming difficult on some of the other issues.”

In that regard, I have concerns with the suggestion that we should implement a presumption of joint custody. In family situations, I think each individual and each family unit is different, and what works in one family unit is not appropriate for another unit. We are now going through, I believe, the first generation of children that has really been impacted by divorce.

When I was in school, it was a rarity to see any family break up; in the 13 years that I attended school, there was perhaps one family, when I was at the secondary level.

My daughter is in grade 2. Seven families out of 30 in her class have broken up since she started kindergarten. There is a tremendous impact. I've watched those children—and I hope my experience has made me a better parent—and I have seen the impact that their parents' arguing has on them.

Joint custody doesn't always work. Sole custody doesn't always work. The last sole custody cases that I've been involved in, in fact, have been cases where the fathers have obtained full custody of the children. It's not necessarily always the wife who will obtain sole custody, if sole custody is in fact appropriate in the circumstances.

I think we need to remain centred on the best interests of the children. From a time when families split up and the father received custody, we flipped and said it was appropriate for the mother to receive custody. That was when we dealt with the “tender years” doctrine. Finally we moved to “the best interests of the children”. And I don't want anybody to move away from that. What we have to do is expand on that and make it more appropriate. We have to look at what we've learned and say, “Okay, let's centre on these children and what's appropriate for them.”

In that regard, I don't support the changing of the existing terms. I believe it will cause confusion. I don't see any problem with the courts determining how parenting should be shared, but I think that what we're doing in changing the terms “sole custody” and “joint custody” on a legislative level is opening up more litigation, which is what some of the 40% rules in the child support guidelines have done. There's going to be more litigation as a result of those terms being changed.

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I think we have to expand on “best interests of the children”. Instead of leaving that alone in the legislation, I think what you have to do is put in guidelines and criteria that all the judges can look at so that it's applied uniformly. What we experience as practitioners is that everybody, regardless of whether or not the judiciary is supposed to be unbiased, brings their own bias to the process. If you put in specific criteria that are to operate as guidelines, then I think you advance the rights of the child better than putting in a presumption of joint custody.

Similarly, I think the Divorce Act needs to define or to place guidelines as to the responsibilities a parent has after the dissolution of a marriage. Those responsibilities include the responsibilities of an access parent and a custodial parent.

In the last number of years of my practice I've had parenting orders—and I still call them “parenting orders”, despite the existence of joint and sole custody terminology—that have been 24 and 25 pages long, defining the responsibilities of each of the parents. We can't legislate those responsibilities; we can give the parents guidelines and hope they'll apply them appropriately.

Similarly, I have difficulty with the inclusion of grandparents' rights. I facilitate my children's contact with their grandparents, and I think it's a wonderful thing. I'm lucky. I may be the exception. Grandparents are not always the little grey-haired people who are wonderful to children. I think a parent has to have the right to make decisions affecting their children. What we have now is the right for a grandparent to make an application to the court to seek leave. I think that's appropriate, and it should continue in that circumstance.

I know from my practice that a bulk of the cases are settled prior to going to court, but I believe there is a requirement for parental education on how their responsibilities may change as a result of the dissolution of the marriage.

I support the concept of mediation. Like Ms. Butler, however, I agree that there has to be some disassociation from the court system. Housing both in the same building does take away the perception from the individual clients that this is a separate process and that it's not associated with the court.

The last thing I would like to indicate is with regard to the education of the parents. I think the judges and the individuals dealing with them have to be educated as well. That includes the social workers, the mediators, and the family law lawyers.

We don't understand it, and we never will, until we go through the process ourselves.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Mr. Lowther.

Mr. Eric Lowther: Thank you.

I appreciate the presentations, but I'm getting a number of mixed messages here. I'd like to try to get some clarification from all three. You're all in the legal profession in some flavour of mediation here, I guess.

I'm hearing education, yes, is good, and maybe even should be mandated or required. I'm also hearing mediation should be optional. I'm curious about that. We had some witnesses in the past who said if it's optional, the people who need it least will go and the people who need it most won't go. That was one of the justifications for having the people go who need it most.

We've also had it pointed out that maybe the word was not “mediation” but “mandatory counselling”. Then you decide if they should go on from there to some type of mediation and present the option.

None of you seem to be in favour of any kind of mandatory mediation for counselling. In the comments I got the flavour that there was a recognition that the court's win-lose scenario was not good and that it doesn't work for the benefit of the child. But you also want speedy access to the courts, and you don't want to change the language.

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So on the one side, it's the status quo—get them into the courts, and we don't want mediation—and on the other side, it's, yes, mediation is good, and education is good.

I'm confused. I want to know on which side of this thing you guys are.

Mr. David Day: I didn't specifically address the particular issue of the role of mediation other than the fact that I support the concept.

In relation to your concern, my view is that there must be a threshold process in which the parties to a parenting proceeding must submit to a mediation process. It may be called a counselling process or a mediation process. I would add the condition, however, that the mediation process should not be initiated with the requirement that the parties initially attend together.

It might be preferable that initially they attend separately. Not infrequently, where mediation has been employed by a client of mine, the client has specified that they attend the mediator separately for the initial session and from there attempt to work forward to joint attendances with the mediator if there is any point in pursuing that process further.

Mr. Eric Lowther: I'd appreciate comments from each one.

Ms. Gillian Butler: In terms of being language specific, all kinds of dispute resolution processes very often are confused. For example, arbitration is a situation where the person who is acting as a facilitator has the opportunity to impose a result. In mediation, the mediator does not have the ability to impose a result. By definition, though, it is voluntary. Counselling is something that I think could be compulsory.

So that is my position, that mediation cannot be mandatory.

In Ontario, I understand, from having spoken at a conference that dealt with this and having experienced some very negative feedback from people who were there from that province, every docket number that ended in zero, when they introduced a mediation program, was sent down the mediation route. I don't know if you've been to that province yet, but I understand there were some very loud protests against the mediation process because it was imposed on those docket numbers and not on others. Again, going back to the basics, I think that offends the very nature of what mediation is meant to be.

I should say, I agree with you that people who could benefit most from mediation will be the ones who refuse to go, but that doesn't mean having those people in mediation will work. As a mediator, I can tell you, mediation works when both people come to the table and want to resolve it. When people don't want to be there, you're only wasting everybody's time. You're delaying the inevitable.

Now, the problem is in recognizing what file and what individuals will be good for mediation. That's a difficult challenge. I don't have the answer for you there.

The Joint Chair (Senator Landon Pearson): Ms. Best.

Ms. Glenda Best: Mediation is in fact a voluntary process. I see mediation as being helpful in certain specific cases, but I think mediation cannot be mandatory. It's something that has to be a voluntary process by the individuals.

The judge has to be left with some discretion as to whether or not they believe, in the circumstances, these parties can or should attend mediation. Certainly the judge can make a recommendation, but I believe the counselling portion of it, or the parental education part, can and should be mandatory, and every parent should be required to look at their role in the parenting of their children after divorce. That doesn't necessarily mean they have to go together to that. It's just that they all participate in some type of education relating to the children. I have no problem with that being a mandatory process.

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With regard to the language, I'm concerned that if the language is changed from joint custody to sole custody, that in and of itself will result in unnecessary litigation. Let's clarify what that language is intended to mean within the legislation. Don't change the language so that we now have to litigate everything again. Look at the Hague convention and look at child care workers. Everybody understands joint and sole custody now. Let's define the terms. Provide guidelines and criteria that you look at, but don't change the terms so that we have three years of litigation at this particular point in time.

With regard to access to the courts, we all want quicker access to the courts. I don't want another step put in the process that's going to delay the access to the courts, but if it takes, as we oftentimes see in Newfoundland, a month or two to get in on an interim application, surely, with the appropriate funding during that interim period, these parents can have some education, and when the time comes for the application, we hope they don't have to go to court. We hope that it's resolved simply by that intervention.

So it's when the intervention is appropriate. I don't want it to come when we're two months down the road and we have a date waiting. I want the intervention earlier.

Mr. David Day: I have one further point regarding Mr. Lowther's question. The feedback I've received from a number of my clients who went reluctantly to mediation was quite simply and bluntly, “I didn't know what I was missing”.

Mr. Eric Lowther: If I could not ask another question but just restate what I heard these witnesses say here, it is that it is a terminology debate we're having here. They're not in favour of mandatory mediation, but they are in favour of...call it counselling, or some sort of education, or maybe mediation if it's one party and not both and it's forced. So you are in favour of some mandatory pre-court, pre-law, “let's get together and try to give these people some information on the impact of what they're doing on their kids and on each other and everything else”...of that being mandatory. Forcing somebody into a situation where they're supposed to make up doesn't work, but give them something ahead of time that is mandatory.

That's a good clarification, I think. Thank you.

The Joint Chair (Senator Landon Pearson): Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much.

First of all, Mr. Day, would you restate the figures you gave us in your first points?

Mr. David Day: It was 3,500 cases, of which 81% were divorce proceedings.

Mrs. Sheila Finestone: Were divorce proceedings?

Mr. David Day: Were divorce proceedings. I provided you, Madam Senator, with rather lower figures some years ago when I had the privilege of appearing before you on a committee in Ottawa.

Mrs. Sheila Finestone: When you say “divorce proceedings”, for how many of those divorce proceedings were the terms and conditions and parenting responsibilities established and just the final decisions went, and how many were...? We've been hearing that about 10% of really difficult cases go before the courts, but with your figures we have 19% going before the courts, at least.

Mr. David Day: Of the 3,500 cases, a number of those of course were separations without divorce. Of those that involved divorce, some involved parenting disputes, and the number that involved parenting disputes that went to trial and final judgment was less than one half of 1%.

Mrs. Sheila Finestone: That was the point I wanted to clear up. Thank you very much on that point.

You talked also, in your point 7, about those not in courts, because your point 6 was the 1.5% to 1% of the intractables who could go for a decision to the courts. In terms of those not in court, not married, ineligible, or because of religious belief or sexual orientation, what did you say about that? I missed it.

Mr. David Day: I said those who do not reach the court record through formal legal proceedings are often persons who have lived in de facto marriage relationships or in same sex relationships and for one of a variety of reasons have not brought their concerns to the attention of the court. They do represent a significant group with family-related problems. Part of my point was that a great deal of research has not been done with respect to the nature and extent of the parenting problems they encounter.

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For example, and very briefly, Senator, a significant number of them are not aware, presumably for lack of education, that they have any rights they can pursue through the court process. For example, there is a belief among some conjugal couples that the law does not comprehend the provision of remedies to those who are not legally married; consequently, the result is they do not resort to the courts with the same frequency as those who are legally married.

Mrs. Sheila Finestone: Therefore, that becomes part of the important information that is needed, the basic information data that need to be made available.

I asked Status of Women of Newfoundland when they were here if they had such a document. I must find out about the distribution they have. I wonder what the distribution is, and I think we'll go back and find that out at another time.

Ms. Butler, you talked with respect to the fact that family law, in essence, was a bad process from your experience, and I think you're not alone. With all due respect to the lawyers who are here, it is said that lawyers make things much more difficult. I wanted to know exactly what is the difference between the Supreme Court being given the mandate to set up the unified court, which kept it to this restricted geography, and had it been done by the provincial court...and could it not still be done by the provincial court if that was the will of the province?

Ms. Gillian Butler: Yes, I'm sorry if I confused you. My only reference to it being unified at the Supreme Court level is that I'm familiar with another province. When they unified, they unified at the provincial court level. My point there is simply that by unifying at the Supreme Court level a judge will also hear the property issues too. So when we go into court, if you are fighting over the rights not only to your children but to your house and the contents and everything else, the same judge will deal with all those issues. So we are unified at that level, that's all.

My point about the geographic problem is that when they gave us the Unified Family Court in 1977 as a pilot project, I think at that time with Saskatchewan, it was granted to St. John's, and of course until recently—now with the amendment to the act, we'll be extending the geographic region—we've only been able to service families within the 60-mile limit, but that has nothing to do with whether it was unified at the provincial or Supreme Court court.

Mrs. Sheila Finestone: All right, you could expand it. There are no restrictions on expansion because it's at the superior court?

Ms. Gillian Butler: No—

Mrs. Sheila Finestone: That was what I didn't understand.

Ms. Gillian Butler: —and the legislation that they, hopefully, will proclaim soon does allow for that, but it's only going to expand a little bit, Mrs. Finestone.

Mrs. Sheila Finestone: With the experiences you've all had with the Unified Family Court, would you, within that experience, see the need to also integrate the young offenders? Young offenders come out of dysfunctional families very often. Young offenders often come out of foster home placement. In terms of the question of whether or not it would be best to have kept children in their homes and put support systems into those homes, which would prevent a foster placement, which would prevent poor growth in terms of your own adult life in a family, would it be a good idea to have the Young Offenders Act or the Youth Protection Act in that unified court?

Ms. Gillian Butler: That's an interesting point that I've never really put my mind to. I know when the system first started we did not do bond applications at the Unified Family Court, and now they do, so it's become more of a full service family court to bonds and what you're speaking of now, youth offenders, criminals or quasi-criminals. I think I'd defer to—

Mrs. Sheila Finestone: I think youth protection was what I meant rather than—

Mrs. Gillian Butler: Youth protection, yes, sorry. But I'd have to defer to the other people who have testified before you who have more experience in that area, because mediation really doesn't touch on that at all.

Mrs. Sheila Finestone: Thank you very much.

In terms of the remedies for non-compliance, you talked about the fact that there were no teeth and therefore there was little respect for the penalties and fines. What do you think we would need in terms of an amendment? What type of remedy would you suggest? We've talked about removing the licence, removing the boats, and removing all kinds of other mechanisms that would allow people to earn a living.

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Ms. Gillian Butler: Yes, you've talked about those in terms of support.

Mrs. Sheila Finestone: That's right.

Ms. Gillian Butler: Right.

Mrs. Sheila Finestone: Now you're talking about those with respect to access?

Ms. Gillian Butler: Yes.

Mrs. Sheila Finestone: Would you not think of access being looked at in terms of time replacement rather than penalizing within a court system?

Ms. Gillian Butler: Time replacement?

Mrs. Sheila Finestone: They didn't get this, so they go back and get additional time and a different space to be allocated.

Ms. Gillian Butler: Yes, I think that would work, except that then you're back to my issue of access to the system.

If we get an order and then we're left to enforce the order on our own without a requirement or the ability to go back and say this did not work and why it didn't work—there was a lack of cooperation or facilitation—then the system really can't help us.

I was speaking of other remedies in terms of being empty remedies. You sometimes hear judges saying that they want to give you a message. They say that if you don't allow access, they can turn around and change the custody.

It really is an empty threat because it's not going to happen. If it has been determined that the children's best interests belong with one parent over the other and the other has access only, they're not going to do that. It's fine to say that, but they're not actually going to do it. I never saw it in the 16 years I was practising there.

In terms of contempt remedies, if you don't allow access, if you don't facilitate the access that's been ordered, the contempt penalties are there. But you don't imprison custodial mothers. You simply don't. That's why I say they're empty.

What we need is a system that allows us to go back in quickly and say it didn't work, so what are you going to do about it? Maybe then there'll be an obligation on the parent who is not facilitating access to take a course or have a social worker go in to facilitate the access. It's that kind of thing.

It all comes back to being able to get into the system quickly. If the litigants can't get back in quickly and they're waiting another six to nine months to get back in to let the judge know that this is a problem, well, that's not an answer.

Mrs. Sheila Finestone: My last question will go to you, Ms. Best.

You talked about the child support guidelines. We heard a lot about these guidelines. Particularly today, there's a focus on the fact that you don't have to receive both income tax forms so that you can divide it fairly. You talked about the 40% rule. What changes would you recommend for the child support guidelines?

Ms. Glenda Best: What changes would I recommend?

Mrs. Sheila Finestone: This is for any of the three of you, from your experience. What's the problem with the child support guidelines that are presently found in Bill C-41?

Ms. Glenda Best: I think the problem is that—I'm still practising in the area of family law and I have been before the judges—the child support guidelines haven't been in place long enough. We're finding that there's an inconsistency with the application.

Some of the judges are dealing with the child support guidelines as if they're mandatory. Other judges are dealing with the child support guidelines as if there's discretion. Having reviewed the child support guidelines and the intentions of the various committees when the guidelines were being drafted, it's very frustrating now to be operating in that process and having different applications by different individuals.

That may work itself out over the—

Mrs. Sheila Finestone: Do you think the judge is misreading or has a different interpretation?

Ms. Glenda Best: I think that's so, yes. There are significantly different interpretations of the guidelines.

But there's also a problem that I'm seeing, which is this 40%. Some of the judges are saying that if the time worked out to 33%, that's close to 40%. Maybe there's a thought to look at both parent's incomes. Well, if it was 40%, and it says it was 40%, then why is 33% applicable?

Then they're going through the same thing. If the parent who has the children 60% or 65% of the time has them in day care, do we include day care time? What about meal time? Do we include meal time? Do we include the time when the children are asleep? It has just gotten so complicated.

If it doesn't improve and there's not clarification on it, family units.... I've spent two or three days in court with people who don't have the money to be there arguing over whether they have 31.2% of the time or 38.9% of the time. It's just crazy.

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Mrs. Sheila Finestone: I wonder if you would mind commenting, Ms. Butler, and then Mr. Day.

Ms. Gillian Butler: Thank you. I would commend to the committee's reading an article I have from Justice David Aston, who may be familiar to those of you from the province of Ontario. He presented a paper at a family law seminar in February in Toronto that attempted to summarize all the cases that have been prepared on the Family Law guidelines since they were enacted. He deals with this problem of the 40% rule at page 25. I have a clean a copy of it and I can leave it with you if you wish.

Mrs. Sheila Finestone: Yes.

Ms. Gillian Butler: First of all, he makes the point that it's badly worded. But beyond that he asks what is really 40%. Nobody has given the judiciary or the litigants against any guidance as to what 40% is, which is an assessed point. He talks about counting the number of meals. It doesn't really give any answer, but for what assistance it may be to you, I'll leave it. I certainly don't have any answers either.

Mr. David Day: Senator, with respect to the three points you raised in questions to us over the last five minutes, I'll deal with the third one first.

With regard to the support guidelines, my own view is the courts might be better equipped to address the issue that has been commented upon by Ms. Best and Gillian Butler, Q.C., if they were simply to be provided with discretion, rather than feeling they were harnessed by the arbitrary figure of 40%. With matters of child support, and it's interfaced with contact arrangements, no two cases are identical, and factors relevant to some may not be relevant to others. I've seen cases where courts have felt they were spannered in making a fair adjudication by the 40% rule.

With respect to the issue of enforcement, in more than 30 years of practice, the only situation in which I observed a court making an order amounting to contempt and committal to imprisonment, where there was an allegation that a family law order was disrespected, was where the subject of the application said they were in violation.

Other than that, these types of hearings tend to be protracted. The issues that arise are very subtle, and the courts very often find it difficult to ascertain precisely who is responsible for the breach, whether it's the person claiming it or the person against whom the claim is made. That is my experience in the trenches.

Third, we are all aware youth court matters are ordinarily conducted, except in the event of a transfer order, at the provincial court level. I believe the expertise required, the machinery required, the procedure involved, and the support services that are essential all militate against trying to unify within a family court system, either federal or provincial, the whole area of youth offender law.

Mrs. Sheila Finestone: Thank you. But there is one question I want clarification on. We've heard twice this morning that the non-custodial parent must submit his income statement, but the custodial parent does not. In many cases there is very little difference in their incomes, and it should be taken into consideration. Sometimes the custodial parent has a much higher income than the non-custodial.

I wonder what the feeling is and if they'd have a problem settling the child support guidelines if they didn't have the income of both parents. If it's equal, with equal responsibility, there is an equal obligation to give the necessary information to the judge to make an enlightened decision. I wonder if that is a problem.

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The Joint Chair (Senator Landon Pearson): After that we will go to the other questioners.

Senator Erminie Cohen: May I have a supplementary on this for one minute?

The Joint Chair (Senator Landon Pearson): Okay. Ask your supplementary question.

Senator Erminie Cohen: It's regarding the guidelines. The government had good intentions with the guidelines, but the cart came before the horse and the guidelines were thrust upon us. Now everybody is learning. It should have been the reverse, where everybody had the training first and then the guidelines. So it's a learning process that we're all doing together.

I have another question, but I'll wait for my turn.

The Joint Chair (Senator Landon Pearson): Mr. Lowther, do you have a supplementary to this question on guidelines?

Mr. Eric Lowther: No.

Mr. David Day: My response to the senator's question is this: no.

Ms. Sheila Finestone: I think I had better say I'm not a senator; I'm a member of Parliament—PC. You said QC; I'm PC.

Mr. David Day: I apologize.

Ms. Sheila Finestone: And that doesn't mean “Progressive Conservative”.

Mr. David Day: I'm very well aware of your affiliation, and now that I perceive you in the correct chamber, I'll again answer that. The answer is no, for two reasons.

First of all, while you have, with respect, stated the requirement precisely correctly, in a large number of cases the residential parent, or custodial parent, if you will, requires a special allowance, and where a special expense, as some practitioners describe it, is required, then that parent is required to disclose.

In any event, my second point is that if the case is one in which only the non-residential parent is required by the regulation to disclose, most if not all unified family courts across Canada, as well as other courts that hear these types of proceedings, have rules that permit an application to require disclosure of income tax records by the other side. I have never seen a case in which such an application has been refused. There is sometimes difficulty in income tax return disclosure in getting litigants to disclose the supporting documents, which very often tell you more than the return itself. But in terms of procedural rules to permit and require disclosure, they are available and they can be accessed.

The Joint Chair (Senator Landon Pearson): Dr. Bennett.

Ms. Carolyn Bennett: I think the semantics of this keep coming back. One of the interesting things is the difference between parental information and parental education, in that there has been difficulty explaining the full buffet of choices to people before they engage a lawyer.

I'd like to ask Ms. Butler what she thinks the down side is of at least parental information or the kind of videotape that's available at the Unified Family Court, or will be in Ontario. Isn't information always a good thing? I want to know your idea of the down side to parental education, or just fill us in a little bit more on your concerns about that.

Ms. Gillian Butler: Information and education are always good things. I wouldn't speak against that at all. It came down to, though, I think, an issue of the use of appropriate language. If we're going to refer to mediation, then mediation is, by its very nature, an opportunity to try to settle. We can bring a horse to water but we can't make them drink.

I don't want to see the system become so cluttered with alternative methods or steps that have to be satisfied before you end up in a courtroom that legitimate cases don't get to the courtroom. I'm sure we can all think of examples—this is not the appropriate place to raise them—where cases are delayed so long that by the time they get to court the damage is done.

Recently, I had some experience with a case where there were three separate investigations done. When I say investigations, I mean home study types, interviews with the same child. You don't have to be a lawyer or a mediator to see the message in these progressive home studies. One warned what was going to happened, the second saw it happening, and the third said it was too late—and they still did not have a trial date.

I'm not talking about a system where you can get a trial date in two months. I'm talking about a system in which I worked where sometimes you could not get a trial date for a year. Don't delay what is already going to be delayed. That's my message.

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Ms. Carolyn Bennett: In something that would be a mandatory information session or a mandatory education process, do you have concerns that, if one party is ready and willing to accept that this marriage is finished, by the other person refusing or delaying going to the mandatory session, the whole thing could be stalled?

Ms. Gillian Butler: Yes, I do. I have great concern about that.

Ms. Carolyn Bennett: So there's a power given to the unwilling person by them not showing up for a mandatory information session and therefore not getting the piece of paper that is required to file for divorce—

Ms. Gillian Butler: To move it on. Yes.

You see, some litigants are so vindictive in this emotionally charged area of law that they will do anything that they know is contrary to what the other side wants. We have to accept that. That is some people's human nature. We don't want to give them the opportunity to make that easier to happen.

The other concern I have in relation to that kind of individual with mediation is, when we're being trained as mediators, one of the first things we're taught is that there must always be equality in that room. There's a lot of literature that suggests that women who are the subject of violence should never mediate, because they can never get over the power imbalance with their husband in the room.

The other example I can think of is where one party is a lawyer and one isn't. Lots of lawyers' marriages break down. How can I mediate in a situation where one is a lawyer and one is not? One knows his or her rights; the other does not. That person needs to have a lawyer with them. Now, if you bring a lawyer into the mix and you have two on one side and one on the other, that's not fair either.

Mediation is not a process that is going to work for everybody, for a variety of different reasons. We can't compel it in them.

The Joint Chair (Senator Landon Pearson): Senator Lewis.

Senator Derek Lewis: I have some other questions.

Mr. Day, you spoke about your experience in the field, as did the others. Have you perhaps also taken part in any particular studies or papers, produced papers on these matters?

Mr. David Day: My involvement in a helping role in the area of research on the subjects that form the mandate of this committee had been done as part of the work of the Canadian Research Institute for Law and the Family, whose director is Dr. Joseph Hornick.

I notice from the proceedings of this committee conducted in Ontario earlier this year that one of its pieces of work was filed with the committee by Professor Nicholas Bala of the Faculty of Law at Queen's University.

We've done a number of studies in this field that underscore the importance of mediation as a precursor to litigation, and in doing that work—and I was prompted, Senator, to have made this additional point earlier when Ms. Bennett was questioning the panel—at the Canadian Research Institute, we have had a long and satisfactory affiliation with Dr. Janet Walker of an organization in Britain known simply as Relate. Over the past year, that organization has been addressing many of the same concerns as are incorporated in your mandate.

Their process of research and consultation and implementation are ongoing as I speak, and I would commend to your support staff a contact with Janet Walker to determine what the British experience has been, particularly as relates to mediation, and specifically within that subject, the aspect of the subject relating to mandatory mediation sessions as a precursor to litigation. That particular issue is being addressed by the Relate organization at the present time.

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The Joint Chair (Senator Landon Pearson): I'm glad to be able to tell you that we should be speaking with Dr. Walker early next week, depending on when we get the confirmation, via satellite or by videoconferencing.

Mr. David Day: I can tell you, that will be a front-stall treat. I've had the benefit of working with her a number of times over the past five years, and she is superb in her professional work.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Senator Cohen.

Senator Erminie Cohen: I thank you.

I have just a brief question, in the interests of time.

Ms. Best, you mentioned that joint custody doesn't always work because of the nature of the family or the people involved. I wanted to hear your comments on the Quebec family legislation that grants joint parental authority without a presumption of joint custody wherein you divide the aspects of authority between the parents.

I would like to hear your comments on that.

Ms. Glenda Best: I'm familiar with the Quebec legislation with regard to the joint parental authority. In most cases I've been involved in, I agree; after we say, okay, this is a sole custody, or a joint custody, or perhaps without saying that, but just, “What parenting responsibilities will each of these individuals have?”, typically you'll see a parental authority consultation on the major issues we define as affecting the children—their health, their education, their general welfare.

The only reservation I guess I have in that is that there are cases where it's appropriate that one person has the ultimate decision-making power, if that's how you look at it in a win-lose situation, which is what we have now. So as long as there's allowance for exceptions to that rule....

I have situations where there are important decisions that are required to be made for that child, and the parents, because of vindictiveness or anything else, just won't agree. In those circumstances, one parent has to be given that responsibility. It may be the residential parent or it may be the other parent, depending on the nature of the individuals.

So I don't have any problem with that concept as long as there's room in that for some exceptions and some discretion from the judge.

Senator Erminie Cohen: Thank you.

The Joint Chair (Senator Landon Pearson): We have time for one quick question, Mr. Lowther.

Mr. Eric Lowther: Yes. This is for Mr. Day.

You made reference to all the cases you've heard, and it was 0.5% that go to court.

Mr. David Day: The 0.5% percentage are those who require a court, when the matter is tried, to make a decision with respect to parenting. In all of the other cases that have gone to court, the issue of parenting is agreed in advance and submitted to the court, which, if satisfied with the arrangement, simply approves it.

I draw a distinction between a court that simply approves that which the couple has settled, for better or worse, between them, and a case in which they have not settled and the court has to make the decision for them.

Mr. Eric Lowther: That's a very interesting statistic. It almost makes me wonder why we're bothering to go through this whole exercise, if it's that small a number.

Is this indicative of how well it's working, or is it indicative of how people don't have the money to do that extra step, or is it, gee, if I press for the court to do it, it might not be as good as what I can arm-wrestle myself?

What is this statistic telling us? On the surface, it sounds as though we're wasting a lot of money doing this committee. I mean, everything's working out pretty well except for a very small percentage.

Mr. David Day: I'm simply stating the figures based on my experience. What does it reflect? All of the above.

Mr. Eric Lowther: So there are things going on prior to these kinds of decisions. There are tensions there that are all happening. The fact that there's only this small percentage that the court rules on is not necessarily indicative of everything working well.

Mr. David Day: Well said. For example, there are cases in which a couple will agree on a joint parenting arrangement. They may do so, as subsequent events reveal, without fully understanding what's involved in implementation. Or they've agreed to joint custody because, as events later evolve, they simply wanted to avoid court for financial reasons, or because of a power imbalance in the relationship in which the parent more reluctant to agree to joint custody, being in the weaker emotional position, will agree with the stronger.

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In those cases the result is not necessarily in the best interests of the children, but what it does reflect is, I think, suggested by your question. The agreement is made not necessarily in the best interests of the child, and thereby court is avoided.

Mr. Eric Lowther: Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much. You've been very helpful. We're glad to hear from you.

Mr. David Day: Thank you.

The Joint Chair (Senator Landon Pearson): Our final witnesses of the day are Mr. Omah-Maharajh and Dr. Robert McKim.

Dr. McKim, would you like to start, please, for five minutes? Each of you will have five minutes and then we'll have questions.

Dr. Robert McKim (Individual Presentation): I feel a little bit out of place here. I'm not a lawyer.

Voices: Oh, oh!

The Joint Chair (Senator Landon Pearson): Most of us are not.

Dr. Robert McKim: But I do feel somewhat qualified, because I have gone through this entire process, so I've seen the end result and how it has affected me, my ex-wife, and my child. That's what I'm here to talk about.

To give you a little bit of background, in 1981 I was married. In 1989 we had a child, a lovely little girl. In 1991 the marriage, for very sad but very good reasons, broke up, and we moved to different provinces. For the nine months after the separation, we shared joint custody. We were very amicable. The residence was shared. She was only two years old at the time, and we could work with that. It was a very stable situation.

In 1992 I was ambushed, and court started without my knowledge. I was not allowed to prepare for court. I wasn't allowed time to get counsel from a lawyer. It was only by the grace of God that I actually found out there was court action involved, dealing with custody. So right there, that's shocking. How did that happen?

What's really more shocking is that the court system endorsed that, and when I brought this to the attention of the law society, they said it's legal, therefore it's moral, therefore it's ethical, therefore it's perfectly fine to do. I do not accept that, as a parent. It's not right to be able to start court action without one of the parents being informed.

About a year later, after $50,000 and a week in court, we re-established joint custody and we re-established what I consider relatively sensible living arrangements for my daughter. So I'm very comfortable with the final living arrangements.

Coming out of that court action in 1993, we definitely had firm residence requirements and we definitely had firm support. We also had very good arbitration clauses. In other words, we could get on with our lives, we knew the rules, and we knew what was going on. From 1993 until 1997, we got on with our lives. We both looked at what was in the best interests of the child and we worked towards it.

In 1997 Bill C-41 came along and basically ripped that apart.

I have two comments about Bill C-41. It's opened old wounds that should have been left shut, and it has forced us back to court, if not lawyers, for every single year until my daughter graduates college, which is going to be probably 15 years from now. So that definitely destabilized the situation.

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I'd like to make a few comments on the custody process I went through. I'm intimately involved with this thing. One is that the present legal system—I'm now talking about the courts, legislation—as well as the law societies that are there to protect people, including my daughter, encourage the first strike; they encourage and reward the first strike system. If you get in there and you have enough money and you get the first strike in, that's how you gain custody. I think that's very wrong. It does not encourage a reasoned approach to it.

It also treats children as chattel. My daughter was two and a half years old. She's now nine years old. The courts still consider her to be a piece of furniture. They consider her to be a cow, a car, a house that's being repossessed. That's not right. She's a human being.

In spite of all the things I've heard, the legislation we have right now does not act in the best interests of the child. How can it whenever you're in an adversarial relationship? One parent wins or the other parent wins. This is not about one parent winning. This is about the child winning. The whole system is set up for one person versus the other person. One parent wins; the other parent loses. No. That's not right. There should be something in there for the child. Right now, I have not seen it. It encourages—as a matter of fact, the present system demands the adversarial approach. You can't go through the court system without being involved in the adversarial approach. The court system does not allow you to do that.

The impact of Bill C-41 is a band-aid solution to a very serious social problem. I say social; it's not a legal problem. I see all the lawyers involved here and at this place, and this amazes me. This is a social problem. This is the country I live in. It's not a legal problem. How my daughter is treated, where her life goes—social, not legal. This is not to be treated the same as a foreclosure on a house or a corporate takeover. That's wrong.

It's a band-aid solution. You're trying to plug up some very serious holes. You put your finger in the dike over here and the hole comes over there. You put your finger in the dike over there, another hole opens up. That's what we're doing right now. We're trying to take little tiny pieces of a huge problem. I don't think it's going to work, the way we're looking at it.

It has created far more problems than it has solved. Specifically, the interpretation of the legislation has been left up to the courts. As legislators you put forward what you thought was reasonable, responsible legislation to solve some problems. Then all of a sudden we leave it to the courts to interpret that. As legislators, you're responsible to me. If I don't like what you're doing, I vote you out. I don't have that ability with the courts. If I really object, I can run and become a member of Parliament myself. I don't have that with the courts. So if you wanted to have something done, why are you letting the courts make the interpretation? You're representing Canada. The courts are representing the law. And they're two quite different things.

These are the same courts that encourage and require an adversarial process. It's very unclear as to what the legislation means—base amounts, add-ons. You don't have clear definitions of what's going on in there. Where did that 40% come from? I have no idea. My lawyer didn't know where it came from.

Just to wrap up here with my suggestions, after having been involved for seven years in this process....

Number one—this is quite radical and I'm probably going to get something thrown at the back of me—you have to remove from the process the people who have a vested interest in advancing the adversarial relationship between two parents. That's what we have in the legal system right now. The people we go to first are the lawyers. The lawyers are a part of a growth industry, a very large, very lucrative industry that has an inherent interest in advancing the adversarial process. That's how they make their money. That's an unstable situation.

Number two, you have to have the courts regard the child, no matter how old they are, as a person, not as chattel. This is a real person. This person is going to grow up. You have to recognize that. I listened to both lawyers talk about the “child of the marriage”. No. Her name is Jennifer.

Number three, involve social scientists. There's quite a body of knowledge out there about the impact of divorce, about what's right for children, about how we can optimize bad situations when a marriage breaks up. There's a tremendous body of knowledge, far superior to what I think the courts are accessing right now. We are basically ignoring them. It's being done by legal bureaucrats.

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So we have to involve the social scientists and give them teeth. We have to say we should listen to people who really know what's going on and not have them shut out, which, to a large extent, is happening right now.

My last point is that this is a social issue, not a legal issue. I'm extremely distressed to see the number of lawyers who are involved with this.

I think that's pretty well all I have to say. Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Mr. Omah-Maharajh.

Dr. Dave Omah-Maharajh (Individual Presentation): Thank you. I appreciate that you asked me here to allow me to present my case. Just briefly, I have submitted a brief. I'm sure it's in front of everybody for perusal.

My contention is basically surrounding the economics of Bill C-41, and presumably pertaining to my own case as an individual.

This is just as background leading up to May 1997. I received a divorce judgment in 1990. I left a presumably large settlement in terms of the best interests of the children of $70,000 in equity in the matrimonial home and $30,000 in GICs. I was ordered by the court to pay $500 a month for child support, and I was to have reasonable access. This access was continuously denied almost to the point of what I guess you could classify as parental alienation syndrome.

As you can read, I basically had access once since 1990, which was through a court order. Numerous access attempts were denied to me. You get to the point of having an emotional impact when you are delivering presents and gifts through your relatives, grandparents or sisters, and they're just thrown away. This is while trying to establish a relationship between me and my children.

In any case, Bill C-41 came along and, just as my colleague has presented, opened up a lot of wounds. I have remarried, and my ex has remarried as well. It's at the point that the stepfather has adopted these kids verbally, not legally. It's at the point that these children are being raised while bearing his name without consent. There's still the denial of access from both parties and no encouragement to have a relationship.

Bill C-41, I guess, came along with new guidelines. Sure enough, it seemed to be lucrative for my ex to point to Bill C-41 to attempt through the courts to get more money. I'm not denying the fact that children need support. I have never been delinquent in providing monthly child support. That's up to date.

The problem I find is that basically, after receiving the judgment.... In a recent case, February 1998, the custodial parent was not given any financial responsibility for the children. All the children's expenses have been assigned to the non-custodial parent, including an analysis of Bill C-41 in tabular form and basically the judgment of the judge.

There is no responsibility assigned to the step-parent in this case. If indeed he is a step-parent or local parent, should he not share the responsibility, or does he just benefit from the relationship with the children and support from their non-custodial father?

There is mention in Bill C-41 that judges may consider previous settlements. In my case, it was certainly, glaringly, ignored. This is not just a meagre sum of money that was left behind in view of the children. If one looks at the maturity of money and investments in the legal battle, the home and equity were significantly appreciable and available for the care of these children.

The non-custodial parent has often left a large settlement, if not all assets, in good faith. It seems to me very distressing that the judges “may” just consider this and not “will” or “shall” in terms of legality.

For the self-employed individual, Revenue Canada allows certain deductions. In my case, from total income, there are expenses deemed necessary to run a business, and in essence, earn a living. The judges, according to Bill C-41, will rule against deducting these expenses and thereby impute the money spent on operating the business back to the support payer's income.

It's my opinion that judges cannot fully understand the intricacies and various expenses required to run a business, particularly when they are not necessarily versed in the requirements of a particular business and the environment in which the business owner operates.

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Finally, and most importantly, although all of these issues have been made based on Bill C-41, in my case, and I suspect in many others, the order to define access to the children has not been obeyed by the custodial parent. There still remains no access, no relationship, and no recourse. For this I'm ordered to pay a sum of money to support two children, namely from $500 to $2,400 roughly per month, who live in a fully paid home with a biological parent and a step-parent who both work full time. This obviously has a financial impact on me and my own family, and perhaps on my own home as well. The emotional impact is probably the deepest hurt, having to open old wounds as well as just based on Bill C-41 for financial gain.

I recommend that access be enforced in the same way child support payments are presently enforced, with the same repercussions to the party defaulting. I'm not saying a mother should be thrown into jail, but certainly there should be an awareness so that other parents who are not custodial, the majority being male, are aware of these responsibilities.

Fair financial responsibility by both custodial and non-custodial parents should be afforded by Bill C-41 and should reflect both non-custodial and custodial parents' incomes. Step-parents should bear some financial responsibility when they are sharing custody and a relationship with their stepchildren, and previous divorce settlements must—not may—be considered. Judges should not be given carte blanche to decide what is and what is not a legitimate business expense for self-employed persons. This is partly Revenue Canada's role, yet we hear about income tax statements being demanded to decide the amount the non-custodial parent will have to pay.

Finally, I've heard discussions many times on TV as well as locally in regard to the bill. I'm looking at it later down the road, once people have actually gone through a struggle with the judge and a financial settlement and now, because of the bill, there is exploitation of the bill for some custodial parents to actually take the bill to gain financial access; yet there is continual denial of access for the non-custodial parent.

I don't have all the answers and I don't wish to acknowledge that there are some deficits as well as gains to be made by our recommendations. However, I think in every individual case it varies according to the judge. Also, some issues in the bill need to be totally revamped or changed and addressed in consideration of these parties.

The Joint Chair (Senator Landon Pearson): Ms. Finestone.

Mrs. Sheila Finestone: Thank you very much. Those were two very moving testimonies, and I thank you for bringing them to our attention.

I specifically wanted to ask you, Doctor Omah-Maharajh, have you not had the right to return to the court for a revision of the settlement, in light of the fact that both the non-residential and residential parents are working? I don't agree it's a case for Revenue Canada and not a case for the courts, because I believe the tax records of both custodial and non-custodial parents should be available. A revision should be rightfully accorded, certainly where there's been no access.

Do I gather you've been refused the right to reappear before the court and the judge since the remarriage and the use of a name other than their birth name by these children, without a court decision, and you've not been accorded the right to return to the court?

Dr. Dave Omah-Maharajh: I have been now, but it was a tremendous struggle to get that information displayed to the courts, to the point of denial, whereas the interpretation of one judge, before the decision of Bill C-41, is that I now have to pay retroactively, based on the bill when the judge met at that sitting.

Mrs. Sheila Finestone: You said you paid on time and paid $500 a month.

Dr. Dave Omah-Maharajh: That's correct.

Mrs. Sheila Finestone: What is the retroactivity?

Dr. Dave Omah-Maharajh: The retroactivity is based on the fact that although I had all my documents present with my lawyer, in the court the judge's decision was that—

Mrs. Sheila Finestone: Your business expenses were not accountable or what?

Dr. Dave Omah-Maharajh: No, the disclosure by the custodial parent was not available. At that time, in order to delay the court proceedings, it is my understanding that the judge said I would have to pay retroactively back to that date when a judgment had been arrived at on my case, based on Bill C-41.

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Mrs. Sheila Finestone: I'm not a judge, but I must say, that's a sad story.

Dr. Dave Omah-Maharajh: Yes, it is a very sad story.

Mrs. Sheila Finestone: I hope you get justice at the next hearing.

For you, sir, I think it's regrettable that you haven't had access to your children, if the story is you haven't seen your daughter during—

Dr. Robert McKim: No, I have joint custody. I am in constant contact with her. She spends a vast amount of the year with me.

Mrs. Sheila Finestone: You said something about this being a social issue and not a legal issue, and I would agree that it's both, if you could consider that option.

The social aspect is the one that concerns me the most. If you can settle the legal aspects, certainly the social aspects require to be taken into serious consideration, if we want the best interests of the child to be served.

You referred to some extensive studies that had been done. We probably have a number of them, but what struck me was the education of the judges and the lawyers going before the courts. Was that what you were really referring to?

Dr. Robert McKim: I have to talk a little bit about the whole process, because the legal system is based on the adversarial approach: one person wins and the other person loses. It's a zero-sum game, from an economics point of view.

Where you get together and actually make the child the winner, here is what I'm saying we have to look at from the social point of view. Just because I win doesn't necessarily mean my daughter wins or my ex-wife wins. We have to make her the winner. Right now, the process doesn't allow that. She was unrepresented in court.

Mrs. Sheila Finestone: To make her a winner, could you please address what you think would make the best interest of that child, take it into consideration, serious consideration and primary consideration?

Dr. Robert McKim: I think the situation she's in right now is probably the best situation she possibly could be in.

Mrs. Sheila Finestone: What is it we should be doing in terms of the process where two consenting adults have agreed to disagree and wish to separate, either cordially or through a fight? What do we need to do to focus or even define what the best interest of the child is and where it belongs in the court proceedings? The court proceeding is a given, I think.

Dr. Robert McKim: I certainly don't even pretend to have all the answers.

Mrs. Sheila Finestone: But you raised the issue.

Dr. Robert McKim: I raised the issue because I was invited here to give you my experience, and I gave you my experience, information data for you.

What would I like to have seen happen? I would like to have seen us both sit down in a situation with knowledgeable people who would help us talk this thing out. But it was too easy for her—or me, and I'm not placing blame—to ignore good advice, and it's very easy to go to the courts.

Mrs. Sheila Finestone: If mediation or conciliation, or any one of the nomenclatures you'd care to put on enabling a dialogue, a conversation, an exchange between the two parties, were made mandatory rather than optional, would that have had an effect?

Dr. Robert McKim: I'd have to agree with some of the lawyers who were here before. I have hesitations about making arbitration or ADR part of the process, because that can be horribly abused if it's not done properly.

I wasn't aware that you were going to ask me questions as to how to solve everything.

Mrs. Sheila Finestone: You're the one who raised this, and I thought we might take advantage of your experience.

Dr. Robert McKim: When I say it's a social problem, I believe the mindset should be how do we work this out, as opposed to how do we go to court. The next step in someone's mind shouldn't be how do we go to court.

I said the number one recommendation was to keep the lawyers out of the circle. I really believe they encourage this. The first person you do go see in the case of separation is your lawyer.

What has an inherent interest for the lawyer? The lawyer has an inherent interest in keeping the billable hours up. So you have a conflict of interest at the very onset between the person you're supposed to be trusting, the person you're taking advice from, and the inherent interest to keep the billable hours up. Therefore, in some circumstances, there is, I guess, the incentive for them to accelerate the antagonistic approach or the antagonism between the two parents.

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Mrs. Sheila Finestone: That was why I asked if you'd have had the mediation step or a reconciliation step first, and either separately or together.... Does that not facilitate the issue for you?

Dr. Robert McKim: For me, in my own personal situation, yes, it would have. I would really hesitate to paint this thing with one paintbrush and say that everyone's case is like mine. No. I do have trepidation when we say we're going to have a one-solution fix-all for everything. No, I would have to say I don't think that's the solution. I think it could be abused.

Mrs. Sheila Finestone: Thank you.

The Joint Chair (Senator Landon Pearson): Mr. Lowther.

Mr. Eric Lowther: I have a question for Dr. McKim. You said things were tracking along pretty well for you. You had it together, I guess, right up to 1997 or 1993 or somewhere in there, and then along came C-41 and blew your world apart.

Dr. Robert McKim: Yes.

Mr. Eric Lowther: What's the one most significant thing about that particular change in that bill, the thing that was the most damaging? Or is there a sequence, a top three? Why did things work before that and what did it do to cause your situation to fall apart? What was the key thing in that bill that messed up your world?

Dr. Robert McKim: The key thing is the ambiguity of C-41. I asked a lawyer what it meant. Basically, he said that they wouldn't know what it meant until it went through the courts. In other words, the lawyer was saying, “Here's the legislation from the law-producing organization of Canada, I don't know what it means, and we have to wait until it goes through the courts before we find out what it means.” Even to this day we still don't know what it means. Depending on which judge you talk to or which preference you look at, the interpretation is all over the board.

Mr. Eric Lowther: So in your case you're saying that in general it's the ambiguity.

Dr. Robert McKim: Pretty much.

Mr. Eric Lowther: But in your case, the way it got ruled on in the court—

Dr. Robert McKim: No, it didn't go to court. This was settled between my lawyer and my ex's lawyer, but it almost came to court. We were looking at what was happening in precedents elsewhere, at other interpretations. There was so much ambiguity in this legislation that we said, “But what does it mean? We don't really know what this legislation means.”

Mr. Eric Lowther: So what did that do to you personally? That's what I'm digging for here.

Dr. Robert McKim: What it did to me personally—

Mr. Eric Lowther: Before this, you were good with the legislation, and you weren't after C-41. You're saying ambiguity is what caused you all the grief, but it's deeper than that. Something else happened. Did you have to start paying more money?

Dr. Robert McKim: No, actually, it is a difference of $25 a month. That's the whole thing, all right? I'm not here because of financial problems. That's not it. This legislation was so ambiguous that I had to spend $4,000 in legal fees just to get a vague interpretation of it.

Also, from now on we don't have closure. Every single year we go back and we discuss what the add-ons are. It's very nice and easy to go to that table and say, “this is how much you pay”, but then we get into the add-ons and all these other particular things.

Mr. Eric Lowther: So if you're a lawyer, it's a good bill, I guess.

Voices: Oh, oh!

Dr. Robert McKim: I thought I made that fairly clear.

Mr. Eric Lowther: I take that back. I'm saying that from your perspective you might see it that way, that you're going to have to spend more time in court after C-41.

Dr. Robert McKim: And it never allows the healing process to get going. Every single time you're back.... It's out of the way now; for five years it was gone. It was a pile of papers that was collecting dust and we were able to get on with our lives. But now, every single year, this is going to come back, and we will have to open that up and dust off the pieces of paper.

Mrs. Sheila Finestone: Why do you have to go back every year?

Dr. Robert McKim: Because my income is going to be changing every year.

Mrs. Sheila Finestone: So is hers, maybe.

Dr. Robert McKim: Absolutely. So we have to go back now because of the child's situation; she's going to start doing various things. And we have to go back every single year. This is according to Bill C-41.

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Senator Erminie Cohen: The child changes, too.

Dr. Robert McKim: The child changes, my economic situation changes, my ex's situation changes. Every single year we're back.

Mr. Eric Lowther: Madam Chair, let me state, if I may, that certainly I take back my disparaging comment against lawyers. I've seen many lawyers who have come to this table and been passionately concerned about the families. So I don't want that comment to reflect on them.

The Joint Chair (Senator Landon Pearson): Thank you.

Senator Cohen.

Senator Erminie Cohen: I think we should bear in mind, too, what the doctor said about language. The “child of the marriage”: that's something we've heard from other witnesses, too. The child has a name. It depersonalizes them. It's a terrible situation. When we look at language, we should definitely look at that.

I wanted to say to you, Dr. McKim, that when we studied Bill C-41, one of our main objections was the ambiguity, that it was difficult to understand, that the courts were going to have far too much input in it. I think your point is well taken, for the record. We should really revisit that whole aspect of it.

The Joint Chair (Senator Landon Pearson): Are there any other questions?

Thank you very much for your testimony. Each individual's story enriches our understanding of the complexities and difficulties around the issue. Thank you.

The committee is now adjourned until tomorrow, 9.30 a.m., in Halifax.